pendent of, the mother church. Sixth, whether the township of Pensham can have the benefit of stat. 43 Eliz. c. 2.

At the trial of these issues, before Alderson, B., at the Gloucester Summer Assizes, 1839, a verdict was taken by consent for the plaintiffs upon all the issues, subject to the opinion of the Court upon facts stated in a case; with liberty for the Court to draw such conclusions as a jury might have done, and to inspect documents, &c.

The case detailed a great variety of evidence, documentary and traditional, of which the following were some of the leading points.

The parish of St. Andrew, in Pershore, in the county of Worcester, extends over, first, part of the market town of Pershore and lands adjoining; second, the hamlet of Pensham; third, the five places enumerated in the issues as chapelries. The parish church of St. Andrew, in Pershore, is the mother church of the parish.

With respect to the question of the distinctness or unity of the parish of St. Andrew, Pershore, and the hamlet of Pensham, it appeared that Pensham was not commonly reputed a parish, but as a hamlet, and part of the parish of St. Andrew, there being no church or chapel. That they joined together for the purpose of electing one of the churchwardens of the whole parish. That Pensham had distinct overseers of the poor (a single one until within the last six or seven years), a distinct surveyor of highways, collectors of rates, and constable. But the following was the result of the evidence as to the maintenance of the poor, on which the Court mainly relied in its judgment:-For forty years, prior to 1835, when the Pershore Union was formed under the Poor Law Amendment Act, there was one workhouse, situate in St. Andrew's, for the use of the poor of St. Andrew's and Pensham jointly. The poor had been jointly and indiscriminately relieved as far back as could be traced, previously to that period. The fund for their relief was raised by a contribution from St. Andrew's, of two-thirds of the gross sum requisite, and one-third from Pensham, which share was familiarly known by the name of "The Pensham Third."

As to the five other places, it appeared that they had had, as far back as could be traced, a separate church or chapel,

with bells; had sometimes had separate church or chapelwardens; separate overseers of the poor; and each separately repaired its chapel and maintained its poor, without contributing to the repairs of the church or maintenance of the poor in St. Andrew's. Other facts were proved, which are noticed in the judgment.

The case was argued in Trinity term byErle, for the plaintiffs.-He cited The King v. Watts Horton (1), The King v. the Justices of Salop (2), The Queen v. the Justices of Worcester (3), The Queen v. Marriott (4), Nichols v. Walker (5), Rudd v. Morton (6), 1 Burn Eccl. Law, 299, The King v. Newell (7), Bastock v. Ridgway (8), 2 Inst.

363.

Sir F. Pollock (Attorney General), for the defendants, cited also The King v. Palmer (9). Cur. adv. vult.

LORD DENMAN, C.J., now delivered the judgment of the Court.-Whether the interests connected with these proceedings, bear any fair proportion to the expense and trouble which has been incurred, it is useless now to inquire. Questions have been raised and submitted to us for decision, and must therefore be disposed of. That can only be done in one of two ways; either the case must be sent back for the decision of a jury, the proper tribunal for such decision; or the Court must undertake a duty somewhat unusually, and perhaps irregularly, cast upon it, of drawing conclusions from the facts. We have no doubt, that the former would have been the more regular course; we undertake the latter, however, without intending thereby to create a precedent, in order to save the great additional expense which a trial must unavoidably have imposed on the parties. We shall somewhat change the order of the questions, and first

notice the second, which seems to have the most important bearing on the matters in dispute, and virtually to include the first. The second question is, as to the unity of St. Andrew in Pershore, and Pensham, or their separation from each other, as respects the maintenance of the poor, within the meaning of the statute 13 & 14 Car. 2. c. 12. s. 21. We think that the evidence, both as to quantity and antiquity, which latter, it is unnecessary to remark, is very material in such cases, preponderates greatly in favour of their identity. And upon this point, although a very large mass of evidence has been collected, we do not consider it to be needful to enter into a detailed examination of it, inasmuch as there is a perfect agreement on both sides as to one point, which, we think, is decisive of the question. The case finds, that for forty years before 1835, there was one workhouse situate in St. Andrew, for the use of the poor of St. Andrew and Pensham jointly, and that the poor had been jointly and indiscriminately relieved as far back as can be traced before that time. So that in whatever manner the quota of two-thirds for one district, and of one-third for the other, may have been raised by each, (a matter which we do not consider to be material,) the whole, when raised, constituted one fund for the maintenance of the poor.

This has always been deemed the leading consideration in questions of this kind. In The King v. Newell, in which there was an appointment for a great length of time, if not immemorially, of a lawful number of overseers, (and not, as here so frequently, of one,) Lord Kenyon, in giving judgment, selected from the case the following passage:"The two parts of the parish have paid the hamlets three-eighths, and the borough part five-eighths of the whole expenses incurred by the poor of both parts of the parish; the whole expenses, when incurred, being computed into one integral sum;" and "the overseers of each part have accounted with each other." He then adds, "Then it appears to have been only one district, affording one integral fund for the poor of both parishes ;" and his judgment was accordingly in favour of the unity of the two districts. Ashurst, J. is reported to have stated his opinion thus-"What is decisive in this case is, that it does not appear that these districts have ever acted NEW SERIES, XI.-MAG. CAS.

separately, but, on the contrary, that they have had one joint sum for the poor of both parts of the parishes, and that they have settled their accounts at the end of each year." The only other Judge (Grose, J.) rested his judgment mainly on the same ground. The same question again came in consideration in a much later case of Bastock v. Ridgway. That was an issue to try whether the hamlet of Singleborough, in the parish of Great Horwood, in the county of Buckingham, was legally separated and divided from the township of Great Horwood, in the same parish, for the relief and maintenance of the poor. The following extract from the judgment of Bayley, J., which is in perfect conformity with the case above quoted, will suffice for our present purpose:

"To constitute a valid separation of the hamlet and township, there ought to have been not only a separate collection of funds, but a separate and distinct application of the funds themselves; for although a certain proportion of the funds may have been collected immemorially in particular districts within the parish, yet, if they all afterwards constitute one entire fund, and were applied to maintain the poor of the parish generally, it cannot then be said of that parish, that by reason of its largeness, it could not have the benefit of the statute of 43 Eliz." The concluding remarks of the learned Judge apply to a parish having the benefit of the statute of Elizabeth; but the precise question, it will be observed, was, whether one district was legally separated and divided from another. We entirely agree, and are fully satisfied with the soundness of these principles, and are of opinion, that they dispose of the second question, which must, therefore, be answered in the negative. It follows, that the earlier part of the first question must be answered in the affirmative; for we have already expressed our opinion, that St. Andrew's, Pershore, and Pensham, are not separated for the maintenance of their poor; and when we find it stated, without anything to the contrary, that each of the five townships or chapelries has maintained its own poor, without ever contributing to the repairs of the church, or maintenance of the poor of the "parish of St. Andrew's," it follows, that our answer must be in the affirmative on the whole question. We do not perceive that the third question,

T

which is, whether the five enumerated chapelries, or any and which of them, were at the time of the passing of the statute of Elizabeth, reputed parishes or not, has any very material bearing on the principal point in dispute. That they all existed as chapelries, at the period in question, seems to be placed beyond a doubt; but when, in the earlier and most important documents, the endowment of 1331, and the terrier of 1585, which seems to have been very attentively and minutely drawn up, and in the parliamentary survey, they are all so clearly denominated chapelries, and in several of their own private documents, their officers are called by themselves chapelwardens, we see no reason for concluding, and do not think they had at the time in question acquired the title of parishes by reputation. We have already observed, as to the fourth question, that all the evidence seems to lead to one conclusion, namely, that each of the five chapelries has maintained its own poor separately from the time of the passing of the statute of Elizabeth. As to the fifth question, when we find from the parliamentary survey, that the curates, as they are called, of the chapelries, "are respectively appointed by the vicar of St. Andrew's," and that in the instrument of endowment and terrier, before referred to, they are described as "annexed or dependent," and also as "belonging to" the said church, we do not think that any of the five chapelries were "ecclesiastically separated from, and wholly independent of the mother church." Our answer to the second and most important question, applies in a great degree to the last. Generally speaking, when questions have arisen whether any district could have the benefit of the statute of Elizabeth, a leading principle has been the state of things existing before. If the district has had the benefit of the statute, that has always (except there may have been some important change in the state of things) been considered an important reason for its continuing to have it. "These circumstances," in the language of Grose, J. (10), "convince me that this parish can have, and has had, the benefit of the statute of Elizabeth." Without, therefore, entering into the question, (which it is not at all necessary to do,)

(10) The King v. Newell, p. 273.

how far a district may be now subdivided for the purposes of the poor, our opinion, as before stated, is, that Pensham and Pershore have jointly maintained their poor; and, that nothing appears in the case to shew that they cannot continue to do so. Our answer, therefore, to this last question, must be in the affirmative.

1842.

May 28.

Verdict entered accordingly.

THE QUEEN v. THE BIRMING-
HAM AND GLOUCESTER RAIL-
WAY COMPANY.

Corporation-Non-feasance-Indictment against, in Corporate Ñame.

An indictment will lie against a corporation aggregate, by their name of incorporation, for a non-feasance.

An indictment had been found, at the Worcester Quarter Sessions, against the Birmingham and Gloucester Railway Company, for disobedience to an order of Justices, and an order of Quarter Sessions confirming it.

A rule had been obtained to quash the indictment, upon the ground that the company were not indictable in their corporate name, but the Court refused to dispose of the question upon motion, and suggested that it should be raised by demurrer (1).

The case was argued in Hilary term last (January 26th), before Patteson, J., Williams, J., and Coleridge, J.

Whately, in support of the demurrer.— This indictment is not sustainable in its present form, as although an indictment may be preferred against individual members of a corporation, it will not lie against a company in their corporate name. It was preferred and found at Quarter Sessions, where the defendants were unable to plead to it, as they can only appear and plead by attorney in court, whereas at sessions the parties must appear in person. The fact, that the corporation could not plead below, is strong to shew that the indictment cannot be sustained in its present form. "They cannot commit treason, nor be outlawed, nor ex

(1) See The Queen v. the Birmingham and Gloucester Railway Company, 10 Law J. Rep. (N.s.) M.C. 136.

communicate, for they have no souls, neither can they appear in person, but by attorney" -10 Rep. 32, b; Com. Dig. Franchises,' F, 19. If convicted, no punishment could follow, as in misdemeanours the judgment is, that the party be taken to answer for his fine, as appears by the judgment in The King v. Fanshaw (2): "Super quo visis, et per Curiam hic plene intellectis omnibus et singulis premisis, consideratum est per Curiam hic, quod prædictus T. F. solvat dicto Domino Regi, pro fine suo, per Curiam hic super ipsum impositum, pro et occasione transgressionis, offensionis, nocumenti prædicti, unde in formâ prædictâ, convictus est 201. Et quod idem T. F, capiatur ad satisfaciendum dicto Domino Regi, de fine prædictâ," &c. So trespass does not lie against a corporation, but against the particular persons only, for a capias and exigent do not go against a corporation-Com. Dig. 'Franchise,' (F, 19). In a note to Sutton the Marshal's case (3), it is stated by Holt, C.J., "A corporation is not indictable, but the particular members of it are." In 3 Chit. Crim. Law, 600, is the form of an indictment against the assignees of the corporation of Bath, for not repairing a public bridge, built in lieu of a ford, which the corporation were bound to maintain. The indictment ran: And the jurors, &c. present that the company of proprietors of the Kennett and Avon Canal Navigation, Charles Dundas, Anthony Bacon, &c., together with divers other persons, are the lessees and nominees of the mayor, aldermen, and common council. Then certain individuals were named, against whom the indictment was good, as they might be taken to satisfy the fine. So in The King v. the Mayor and Burgesses of Liverpool (4), and The King v. the Mayor, Aldermen, and Burgesses of Stratford-upon-Avon (5), if the defendants were found guilty, as soon as it was ascertained who was the mayor, he might be taken, or the aldermen, or burgesses. By a note furnished from the Crown Office, it appears, that in Hilary term, 1778, a motion was made to quash an indictment against "The owners and occupiers of a parcel of ground called Burne, in the parish of Easingwould,"

(2) Trem. Ent. 204. (3) 12 Mod. 557. (4) 3 East, 86. (5) 14 Ibid. 348.

for not repairing a highway, because no particular persons were named; which rule was made absolute, without opposition, in the following Easter term. It would seem, therefore, that where the charge is against a body of persons ratione tenure, the individuals must be named. It was said, upon shewing cause against the rule to quash this indictment, that though a corporation aggregate may not be indictable for a misfeasance, that they are so for a non-feasance; an indictment, however, of this kind, is for a matter in the nature of a contempt, namely, for disobedience to an order. But a corporation can have had no notice of the order but through its members; if, therefore, there is any default, it is that of each individual, who, in that character, may be made liable.

Talfourd, Serj., contrà.-No sufficient authority has been produced to shew that this indictment will not well lie. The dictum of Lord Holt, in 12 Mod., which is most in point, is noticed in Kyd on Corporations, 226, where, speaking of this dictum, the author observes, " But I apprehend this can only apply to the case of a crime or misdemeanour, and that an indictment may lie against a corporation in the cases mentioned, as well as against a county or a parish.' In Yarborough v. the Bank of England (6), it was held, that a corporation might commit a tort, and were liable to an action of trover; and so, if this company were to enter upon lands without authority, it can hardly be doubted that trespass would lie against them. Much stress has been laid on the difficulty in the corporation to plead. That, however, does not exist, as they may make an attorney, and appear and plead by him. The first process to bring the party in, is a venire facias, which is in the nature of a summons, and if, on the return, it appears that he has lands in the county whereby he may be distrained, the distress infinite shall be awarded from time to time till he do appear-Hawk. Pleas of the Crown, bk. 2. c. 27. ss. 9, 10. In Chancery, the mode of process against corporations is shewn in the case of Salmon v. the Hamborough Company (7). In The King v. the Inhabitants of Clifton (8), Lord Kenyon

observes, "Every difficulty respecting the process may be obviated by removing the record into this court."

[COLERIDGE, J. referred to The King v. the Severn and Wye Railway Company (9).]

It was admitted in that case, and in The King v. the Commissioners of the Dean Inclosure (10), that an indictment would lie against a corporation. Precedents of such indictments for the non-repair of roads and bridges are numerous-The King v. the Mayor, Aldermen, Bailiffs, and Burgesses of Carlisle (11), The King v. the Dean of Christ Church and the Corporation of Oxford (12), The King v. the Mayor and Burgesses of Newcastle-upon-Tyne (13), The King v. the Mayor, Aldermen, and Burgesses of Stratford-upon-Avon, Thursfield v. Jones (14). It is not always the case that individuals are liable for the acts of the bodyHarman v. Tappenden (15).

Whately, in reply.—The question is on the form of the indictment; and it seems the invariable course to include individuals, as well as to state the corporate name.

[PATTESON, J.—In the case of Stratfordupon-Avon, the corporate body only appears to have been indebted.]

[COLERIDGE, J.-If in those cases they may ascertain who is the mayor and who are the burgesses, and take them, may not the same thing be done here?]

[PATTESON, J.-The authority that was cited to shew that trespass would not lie, is much shaken by Yarborough v. the Bank of England; as if trover will lie, you can hardly contend trespass would not.]

Salmon v. the Hamborough Company supports the view, that the process should lie against the individuals. He also referred to The Queen v. the Mayor, Aldermen, and Burgesses of Poole (16).

neglecting to make an arch and certain other works, pursuant to an order of Justices, made under the authority of the Railway Act. The indictment was found at the Quarter Sessions, and removed into this Court by certiorari, when the company appeared, and demurred generally, upon the ground that an indictment would not lie against a corporation in their corporate name. Upon the argument it was hardly contended, on the part of the company, that an action of trespass might not be maintained against the corporation; for notwithstanding some dicta to the contrary in the older cases, it must be taken as settled law, since the case of Yarborough v. the Bank of England, and Maund v. the Glamorganshire Canal Company (17), that both trover and trespass are maintainable. But it is said, an indictment will not lie against a corporation. Only one direct authority was cited for this position, and it is a dictum of Lord Holt, in an anonymous case, reported in 12 Mod. p. 559. The report itself is as follows:-"Per Holt, C.J.-A corporation is not indictable, but the particular members of it are." What the nature of the offence was to which this observation was intended to apply, does not appear; but as a general proposition, it is opposed to a number of cases, which shew, that a corporation may be indicted for the breach of a duty imposed upon it by law, although not for a felony, or crimes involving personal violence, as for riot or assault-Hawkins's Pleas of the Crown, c. 65. s. 13. A corporation aggregate, liable by prescription, may be compelled to repair a highway or a bridgeHawkins's Pleas of the Crown, c. 76. s. 8, and c. 77. s. 2. And in the case of The King v. the Mayor of Liverpool, the corporation were indicted by their corporate name for the non-repair of a highway. Upon argument in this court, the indictment was held to be defective, but no question was made as to the liability of a corporation to be indicted. In The King v. the Mayor of Stratford-upon-Avon, the corporation was indicted by its corporate name for the nonrepair of a bridge, and found guilty; and upon argument in this court, the verdict was sustained, and no question made as to the liability generally of a corporation to an

(17) Not reported.