archbishop of York, by the name of Chancellor and Scholars the defendant pleaded in abatement, that the univerfity was incorporated by the name of Chancellor, Mafters, and Scholars, and that therefore they had fued by a wrong name: the Court of Common Pleas gave judgment of "refpondeas oufter," on which the defendant brought a writ of error in the King's Bench. IN favour of the univerfity it was argued, that a corporation may have one name by which they may take, and another by which they may fue (a); it did not therefore follow, that because the university was incorporated by one name, they could not fue by another; the act of parliament vesting this right in them by the name of Chancellor and Scholars, was an incorporation of them, as to this particular purpose: this could be done by letters patent; (b) much more might it be done by act of parliament; and if this were so, the very act of parliament was a falfification of the plea. To this it was anfwered, that if the univerfity had in fact one name by which they might take, and another by which they might fue, they ought to have fhewn it; that the act of parliament operated only as a description of perfon, as a devise would do, and not as an incorporation to a fpecific purpose. PARKER, C. J. obferved that the declaration fet forth the act of parliament as an authority to fue by that name, which put it on the defendant to fhew some special matter to avoid it, as the acceptance of another charter, by another name, at a time fubfequent to the act.-Powys, fenior, faid, that "chancellor and fcholars" was such a name as comprehended the whole univerfity, for that it included both head and members.-The other two juftices, Eyre and Powys, junior, faid that it did not follow that what (b) 2 H. 7, 13. 4 Leon. 190. (a) 1 Rol. 513. was fufficient as a description to enable a person to take, was a name by which he might fue (a). In all legal proceedings, where a corporation is introduced, its true name must be used, whether it be a party to the proceedings or not. IN an action on a contract for the transfer of a certain quantity of South Sea stock, the plaintiff declared, that in confideration that he had undertaken to transfer to the defendant 800l. "in capitali fundo gubernatoris et focietatis mercatorum Magnæ Britanniæ negociantium ad maria auftrialia et alia loca Americæ et pro incitatione piscationis, anglice vocato South Sea Stock," the defendant promised to accept it, and pay 5600l.-On "non affumpfit" being pleaded, the cause was tried at Guildhall, and one of three objections taken to the declaration was this, that the name of the South Sea company was mistaken, for that there was no fuch word as auftrialia for fouth, the proper Latin word being auftralia, without the i. On this, as well as on the other objections, a verdict was allowed to be taken for the plaintiff, with leave for the defendant to apply to the court for a new trial; and on an application for that purpose, after great debate, a new trial was granted, on the ground that the plaintiff had failed in proving his declaration; for the evidence being of a promise to accept South Sea ftock, and the name of the corporation being fet out with an infenfible word, "auftrialia" inftead of auftralia," the declaration did not describe that corpora tion, and confequently the agreement fet forth, was to transfer a stock different from that which was proved by the evidence and it was held, that if the word auftrialia were rejected, as the counsel for the plaintiff would have had it, that would not help the plaintiff, for then the cor poration described would be, "the governor and company of merchants trading to the seas and other places in America," but would not be that corporation, part of whofe ftock, it was proved, was agreed to be transfered (a). An act of parliament gave power to the juftices of the county of Surry, at their quarter feffions, on the application of "the mayor, aldermen, and commons of the city of London, in common council affembled," to iffue a precept to the sheriff to fummon a jury to inquire into the value of certain eftates; an order was made by the justices at their quarter feffions, ftating, that on the application of the "mayor, and commonalty, and citizens," they iffued a precept and ftating all the fubfequent proceedings; this order being removed by certiorari into the King's Bench, this objection, among others, was taken to it, that it ftated the application to have been made by the mayor, commonalty and citizens, instead of being made by the mayor, aldermen, and commons, according to the directions of the act. The court held the objection to be well founded, for that the bodies defcribed in these different terms were distinct, the one being a felect body, the other the corporation at large, and that they could not go into the examination of any fact tending to reconcile fuch diftinction, or to fhew that in truth the former were the proper perfons; and on this objection, among others, the order was quashed (b). 2. What acts a Corporation aggregate must do by deed, and what it may do without deed. THIS question feems by the old books, to have been the fubject of confiderable controverfy among the juftices. (a) 2 Ld. Raym. 1515. 2 Str. 787. (b) Rex v. Croke. Cowp. 26-29. Sz Some Some go fo far as to fay, that without deed a corporation cannot do any act whatever. One (a) makes a diftinction, which feems to be founded in good fenfe, between the cafe of a corporation aggregate, consisting of many persons, one capable and the others incapable, as abbot and convent, and corporations aggregate of many persons capable, as mayor and commonalty, or dean and chapter; the former he feems to intimate may do many acts without deed, because the abbot is the only perfon capable, and the oracle of the whole, the rest being incapable of any act, because they are dead in law: but corporations of the other kind being compofed of perfons all of whom are capable of action, there is no individual who can be confidered as the oracle of the whole, and therefore they can fpeak only by their deed executed in due form.-Some of the justices go fo far as to say, not only that no servant of a corporation can be appointed without deed, but that without it not command is valid to do any particular act; others with more reason fay, that admitting that no fervant can be appointed without deed, yet when he is once appointed, he may do every thing incident to the nature of his service, not only without commandment by deed, but without any commandment at all (b). AND it has long been confidered as an eftablished point, that to offices of ordinary service, such as that of cook and butler, a corporation may appoint without deed (c). It seems likewise to have been generally admitted, that a bailiff might be appointed to take a distress, without deed; it is even said, “that it is not neceffary that he should be made bailiff before he diftrain; that it is fufficient if the corporation agree to it afterwards, for that his being bailiff (a) Oxenbridge. (b) Vid. 4 H. 7, 6, 13, 17. 7 H. 7, 9. (c) Vid. the authorities just cited, and Plowd. 91. is not traversable, and that a member of the corporation may diftrain in right of the corporation, and juftify as bailiff: thus, where a chauntry was incorporated of three chaplains, and one of them took a diftrefs damage fefant, and on replevin avowed as bailiff; this was held good, and all these points refolved (a). Again it is faid, "a man may juftify as bailiff to dean and chapter, and the like, without fhewing the deed conftituting him bailiff ” (b). And in more modern times it has been laid down as a rule, that "a corporation aggregate may appoint a bailiff to distrain without deed or warrant, because the diftrefs neither vefts an intereft in them, nor devefts one out of them" (c). IN the time of Edward the fourth (d), it was faid by Littleton to have been the opinion of all the judges in the Common Pleas and King's Bench, that an affignment of auditors by a commonalty was good without deed. In the time of Elizabeth, it was agreed by all the judges of the King's Bench, that if a fheriff make a warrant of arreft to a corporation which has return of writs, they may make a bailiff to execute it without writing (e). THE Bank of England, or any fimilar corporation, may, without deed, empower their fervant to make promiffory notes or bills of exchange in their name (ƒ), and this is the ufual practice with the Bank. BUT it is a general rule, that where a corporation aggregate appoint a perfon to do any act in which their real property is concerned, or by which their rights are to be afferted, the appointment must be by deed. Thus an appointment of an attorney to make or to take livery of (a) 26 H. 8, 8 b. Bro. 182 b. (b) 12 H. 7, 25, 26. Bro. Corpor. 51. S (d) 12 Ed. 4, 10 a. 3. P. Williams, 419, 3 feifin, |