Foreign Corporation—Common, claim of, by Prescription. MELLOR quod fuit concessum ((3), post, 620). And he further argued that a corporation may take a grant for the benefit of their particular SPATEMAN. v. done here, or else that he and all those whose estate he has in a house in the borough have used to have common; but it cannot be claimed by custom that every tenant, inhabitant, or occupier of any messuage within the borough has been used to have common (e). For it is settled, that where an interest or profit à prendre is to tion, the demising parties, who are named in the deed merely as members of the supposed corporation, cannot, without explanation, declare as individuals, upon the breach of a covenant contained in the indenture of demise. 2 Q. B. 580. Cooch v. Goodman. 2 G. & D. 159. S. C. A foreign corporation may sue in this country in their corporate name; for their right, as well as the right of foreign assignees of bankrupts or curators, may, by the comity of nations, be enforced here, though they are appointed or created in a different way from that which the law of this country requires. 1 Str. 612. Dutch West India Company v. Henriques. 2 Ld. Raym. 1532. S. C. R. & Moo. 190. National Bank of St. Charles v. Bernales. 1 C. & P. 569. S. C. 1 C. M. & R. 296. Alivon v. Furnival. A company may be declared against by the name by which it is known, without alleging it to be chartered or incorporated or registered. C. B. 103. Woolf v. City Steam 7 Boat Company. Such a description of the defendants amounts to an allegation that the defendants are a corporate body; if they are not, they may traverse it. Ibid.] (e) [A claim to a right of common by prescription in occupiers cannot be sustained. 16 Q. B. 546. Davies v. Williams. So a claim of prescription for the inhabitants of a township or other fluctuating body who are incapable of taking a grant, not being a corporation, is bad (though it seems to have been suggested in 7 Exch. 854. Padwick v. Knight, that it is by no means clear that there might not be a good prescription in the inhabitants of a parish to take stones from the waste for the repairs of the highways). 7 Exch. 861. A grant of a right of common to a corporation as a corporation will not sustain a right of common pleaded by a burgess. The grant should be to the corporation for the benefit of burgesses. 5 Exch. 37, 42. Parry v. Thomas. It should be further observed that no right can be MELLOR v. SPATEMAN. Easement: what right can be anncred to land. members, as appears by the book of 48 Edw. 3, fol. 17. Then if a corporation can take a grant for the benefit of their individual be claimed out of another man's soil, it must be alleged by way of prescription, and not by custom, unless in the case of a copyhold tenant against his lord (f). And one chief objection against claiming such a right by custom is, that it cannot be released: whereas, if it be annexed to the fee, it may. annexed to a house or land which is unconnected with the enjoyment or occupation thereof. 10 C. B. 164. Ackroyd v. Smith. 15 C. B. N. S. 52. Ellis v. Mayor of Bridgnorth. 2 H. & Colt. 121. Hill v. Tupper. 12 C. B. N. S. 91. Bailey v. Stephens. It may here be mentioned that a custom for the inhabitants of a parish to exercise and train horses at all seasonable times of the year in a place beyond the limits of the parish has been held to be bad. 2 Law Rep. Exch. 96. Sowerby v. Coleman. should be borne in mind that equally in the case of custom as in that of prescription, long enjoyment in order to establish a right must have been as of right, and therefore neither by violence nor by stealth, nor by leave asked from time to time. 2 Law Rep. C. P. 476. Mills v. Mayor of Colchester. See 1 Cr. M. & R. 211. Bright v. Walker, 2 Bing. It 6 Rep. 59 b. Gateward's case. 4 T. R. 717. Grimstead v. Marlowe, and Hardy v. Holliday there cited. But there may be a custom for an easement, as a right of way in another's soil. 6 Rep. 60 b. 2 H. Bl. 393. Fitch v. Fitch (g). (3) Whether the franchises be N. C. 709. Beasley v. Clarke, 4 A. & E. 382. Tickle v. Brown.] (f) [4 B. & C. 755. Rex v. Churchill, per Holroyd, J. Accord. 6 D. & R. 635. S. C. See also 14 C. B. N. S. 230. Constable v. Nicholson. But see also 10 Q. B. 26. Rogers v. Brenton.] (g) Cro. Eliz. 362. Fowler v. Dale. [In accordance with this distinction a custom was held bad, for all the inhabitants occupying lands in a particular parish to enter a certain close contiguous to the sea-shore, and take thereof reasonable quantities of the sand which had drifted and been carried from the sea-shore upon the said close, for the purpose of manuring the lands in their occupation; inasmuch as the sand when drifted upon a close becomes parcel of it, and the claim therefore is to take a profit in alieno solo. 3 A. & E. 554. Blewett v. Tregonning. 5 Nev. & M. 234. Change of name, effect of. members, they may prescribe to have the same thing to the same intent; which the court did not much deny. by grant or prescription. Luttrel's case. So Bro. Corporation, 38. Dyer, 279, b. Moor, 581, 582. Davenant v. Hurdis. Sir T. Raym. S. C. But the privilege of washing and watering cattle at a pond, and of taking and using the water for culinary and domestic pur. poses is not a profit à prendre, but a mere easement, and such a right may be claimed by reason of the occupation of an ancient messuage, without any limitation as to the quantity of water to be taken. 5 A. & E. 758. Manning v. Wasdale. 1 Nev. & P. 172. S. C. So a custom that at fairs holden at certain times of the year, on some part of the commons and wastes of a manor, to be named by the lord, every liege subject exercising the trade of a victualler may enter, at the time of the fairs, and erect a booth, and continue the same for a reasonable time after the fairs, for the more conveniently carrying on his calling, paying 2d. to the lord, is reasonable and good. 6 A. & E. 745. Tyson v. Smith. 1 Nev. & P. 784. S. C. 9 A. & E. 406. 1 P. & D. 307. S. C. affirmed in Cam. Scacc. Even treating this as a case of a claim of a profit d prendre, on the supposition that the soil must be dis MELLOR V. SPATEMAN. 439. 355. Anon. And the corporation shall retain, under its new name, the possessions which it Haddock's case. 1 Vent. turbed by the erection of the booth, yet this custom is distinguished by the circumstance that it gives a certain profit to the owner of the soil for the use of the same. 9 A. & E. 425. 1 P. & D. 311. So a custom for the inhabitants of a township to take water from a well or spring, and carry home the same to their houses to be used for domestic purposes is good; for this is not a profit à prendre, but is a merc easement. 4 E. & B. 702. Race v. Ward. So a right may be acquired by custom to use a natural stream for the purpose of washing ore and carrying away sand, stones, rubble, and other stuff dislodged and severed from the soil in the working of a mine and winning the ore, and to cause the stream to overflow its banks. 1 H. & N. 784. Carlyon v. Lovering. It is observable that in all cases of a claim of right in alieno solo, such claim, in order to be valid, must be made with some limitation. Accordingly a claim by the owner of a brickkiln of a right to dig, take, and carry away from another man's Change of Name, effect of-Profit à prendre, claim of. pre But the point on which the court insisted was that there could not be any common in gross without number; but the scription in the present case ought to be for cattle levant and couchant in the town-upon which it was said for the defendant that the common, in this case, is common in gross, and not appendant or appurtenant, and therefore it is not proper to prescribe for common for cattle levant and couchant in the town -for the prescription here does not annex the common to any had before; 1 Rol. Abr. 512 (E.), pl. 3; and shall recover by their new name a debt, &c., due before: Bro. Corporation, 3. Moor, ubi supra. 3 Lev. 238. Mayor of Scarborough v. Butler: withstanding there have been judgments of ouster against the individual members of the corporation, for the corporation is not not thereby dissolved; 3 Burr. 1866, 1873. Mayor, &c., of Colchester v. Seaber; though it is otherwise in the case of a judgment against the corporation itself. 1 Show. 278. Sir James Smith's case. S. C. 4 Mod. 58. On the other hand, it shall be subject to bonds, annuities, &c., as before. Bro. Corporation, 3, 61. Moor. and 3 Burr. ubi supra (h). close so much clay as was at any time required by him for making bricks at the brick-kiln, in every year and at all times of the year, was held unreasonable and bad; for in substance this is a claim, without any title, to take all the clay out of the close in question, or, in other words, to take from the owner the whole close. 5 Q. B. 415. Clayton v. Corby. See 1 H. & N. 706. Rogers v. Taylor. But the principle of Clayton v. Corby has no application to a custom as between a lord of a manor and his copyhold tenants, where such custom may have resulted from an agreement between the lord and his tenants before the time of legal memory; as a custom for the copyholders of inheritance without leave from the lord to break the surface and dig clay without limit from and out of their copyhold tenements for the purpose of making it into bricks to be sold off the manor. 6 H. & N. 123. Lord Salisbury v. Gladstone. 7 H. of L. 692. S. C.] (h) [See 11 A. & E. 490. Hollsworth v. The Mayor of Dartmouth. 3 P. & D. 308. S. C., as to the liability of a municipal corporation, since the stat. 5 & 6 W. 4, c. 76, on a bond given before that act.] land. Action by Commoner-Form of Declaration. MELLOR 2'. And the prescription for common appurtenant, and common in gross without number, in a natural person, is very SPATEMAN. different; because, for common appurtenant, a man shews his seisin in fee of the land to which he claims his common, and then says, that he and all those whose estate he has in the land from time whereof, &c., have had common of pasture in the place where, &c., for his cattle levant and couchant on the land to which, &c. (4). But the prescription for common in gross (4) There is a difference between an action by a commoner for disturbance of his common, and a plea by him justifying under a right of common to an action of trespass clausum fregit, or an avowry damage feasant. In the former case, it is not now neces sary for the plaintiff to set out in his declaration any title to the common, either by prescription or otherwise, but only to allege that he is possessed of certain land, &c. (as the case may be) (i), and by reason thereof has a right of common in such a place for his com (i) If this allegation be proved in part, it is sufficient. And therefore, where the plaintiff in his declaration stated that he was possessed of a messuage and land, and by reason thereof was entitled to the right of common in question, but at the trial it appeared that he was possessed of land only, it was held that the allegation was divisible, and the plaintiff entitled to damages pro tanto. 2 B. & A. 360. Ricketts v. Salwey. [This case decides that a plaintiff may recover where he sets out a possessory title, though he prefers his claim in respect of something more than he possesses, provided he shew enough to make out a certain right, and the invasion of it by the defendant. But if the right itself be untruly stated, the variance, generally speaking, is fatal; as where the right of common claimed is for the inhabitants of A. and B., but the right proved is confined to the inhabitants of A. 1 Q. B. 782. Beadsworth v. Torkington. 1 G. & D. 482. & D. 482. S. C., post, 633, n. (x). 1 Q. B. 792. Brunton v. Hall. 1 G. & D. 207. S. C. See also 4 Scott, N. R. 342. Ivatt v. Mann. 3 B. & Ad. 735. Drewell v. Towler. In Ricketts v. Sulwey, the plaintiff did not claim too large a right, but asserted a right as applicable to two sets of premises, when it really applied only to one. As to cases in which the allegations as to the extent of the right shall be taken |