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NORRIS VS. STAPS.

Corporations have power to make reasonable bylaws without an express grant of such power.

The creation of a corporation aggregate need not be shown in pleading. (See ante. p. 64.)

A bylaw of a town, prohibiting all apprentices brought up within such town after the making of the bylaw, from the exercise of their trade in such town, is unreasonable and void.

The common law prohibits no man to exercise any trade, or more trades than one; but a man professing any trade is answerable for performing it falsely or insufficiently.

The statute (5 Eliz.) does not forbid any man to use any trade privately; or to use it publicly if he has been an apprentice to it, wheresoever.

[210b]

them. Mesme

1
48. Mo. 869.

[211]

NORRIS and Trussell, guardians, and the fellowship of Corporations have power to the weavers of Newbury, brought an action of debt of make laws, and five pounds against Staps, and declared that queen Eliza- the validity of beth incorporated them, an. 44, by that name, and gave case, Hutt. 5. them power to make laws, rationi consonas, and not con- Brownl. 1 R. trary to the laws and statutes of the realm, with a proviso to the same effect; and that the queen, by the same letters patents, did ordain for her, her heirs and successors, that none should exercise the trade of weaving within the said town, except he were first admitted thereunto, by the guardians and society of weavers. And then shews the act of 19 H. 7.; and then that two guardians and the greater part of the fellowship of weavers did make an ordinance, that no person should use the said art of weaving within the said town, except he had been an apprentice to the art within the said town, and had used it there by the space of five years before the ordinance, or were admitted by the guardians and fellowship, upon the pain of twenty shillings a month. And then 11 Co. 54. b. shows the allowance of the same ordinance, according to the law of 19 H. 7. and that one of the guardians gave notice of it to the defendant. And then shows that the defendant had used the art, &c. there, by the space of five months after, whereas he had not been an apprentice there, nor used the same art there five years before the ordinance, nor was admitted, &c.; against the said ordinance and the queen's letters patents, &c. The defend

[211 a]

Plo. 537. a.

Ante 64.

5 Co. 63. a. 2 Inst. 47.

Kitch. 4. 5.

ant pleads nihil debet; and it was found for the plaintiffs; and yet judgment was given against them, quod nihil capiant per bre. The reasons of the judgment were gross faults in the declaration.

The first, that it did not appear that the corporation did consist of two guardians, for there was no more declared, but that they were incorporated by the name of guardians, &c. which may be more than two, and they had omitted the clause whereby the number was appointed. I am of opinion that they needed not to show how they were incorporated; for the name argues a corporation, as the like of cities; and the plea nihil debet (or the like) requires proof of it.

(1) But the worst fault is in the law itself; for it excludes all apprentices brought up in the town itself, after the ordinance made, which is absurd. Now I am of opinion, that though power to make laws is given by special clause in all incorporations, yet it is needless; for I hold it to be included, by law, in the very act of incorporating, as is also the power to sue, to purchase, and the like. For, as reason is given to the natural body for the governing of it, so the body corporate must have laws, as a politic reason to govern it; but those laws must ever be subject to the general law of the realm, as subordinate to it. And therefore, though there be no proviso for that purpose, the law supplies it. And if the king, in his letters patents of incorporation, do make ordinances himself, as here it was, (as aforesaid,) yet they are also subject to the same rule of law.

But the question which was chiefly intended, is indeed great, whether a new corporation, having no prescription to appropriate and exclude others, can make a law to exclude all persons to use an art or trade in their town, whereunto they were not apprentices within the same town, though they served their apprenticehoods to it elsewhere?

(1) The privilege of excluding foreigners from exercising a trade within a city or other corporation, can only exist by custom in corporations by prescription; for the king cannot, by his charter, grant such a privilege to a corporation within memory. 1 Saund. 312. d. n. (3.). See also notes (1.) and (2.)

Wherein the question is between the particular privileges of towns, and the general liberties of the people, which is fit to receive a determination; for it runs through the realm. But this point was not spoken to at the bench, as not necessary, but reserved till any other action should require it.

Observe these degrees in the consideration of this case. First, the common law did not forbid any man to exer- 1 cise any trade, were he trained or not trained to it, or to exercise more trades than one. But if any man professing a public trade would perform it falsely or insufficiently, he were answerable. (1)

Secondly, that the law, as it now stands, forbids no man to use any trade privately, as, to be a tailor in any house, or the like; for that is not a trade, but a service, that is at mine own peril, be it ill or well done.

[211 b]

Saund. 312. a. 1 Cro. 499.

11 Co. 53. b. 54.

Palm. 544.

8

Co. 129. b. Case, Br. 25.

Action sur le

1 Cro. 499.

84. 86.

Thirdly, that the law, (as it now stands,) forbids no man 11 Co. 54. a. to exercise a trade 'publicly, that hath been an apprentice to it wheresoever. See the case of the tailor of Ipswich, Co. lib. 11. 53. The simple incorporating of a town doth not draw by consequence a peculiar trading to that town, with an exclusion of foreigners; so then it must be the special law or ordinance that must work this effect.

Now of that, the things considerable in this and the like [212] cases, what societies, companies, or colleges of men may Custom Br. 40. make bylaws, wherein not only corporations made by patents, or prescription, but all the parishioners, or townsmen of one parish or town, may make some; for they are by common law (as it were) incorporate for some necessities, both common and peculiar to that distinct body, as

for repairing their church, or the like. Also the tenants 5 Co. 63. bone. of one manor may for their common, or the like, make bylaws. But whether if there be a lord and court whereunto it belongs, that may be done, but in a court, and by consent of all the tenants, and with consent of the lord, and

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(1) The law on this subject may be found in Jones on Bailments. Also 1 H. Bla. 158, Shiells v. Blackburn. 6 Mass. Rep. 258, Sanches v. Davenport. Cowp. 480, Moore v. Mourgue. 8 East 348, Seare v. Prentice. 4 B. & A. 202, Reece vs. Rigby. 2 Wils. 359, Slater v. Baker. 2 Camp. 442. note. 2 Stark on Ev. 970 et seq.

[212 a] by prescription, and what pains may be set, and by whom to be levied, and to what use, is considerable.

8 Co. 125. a.

Again, whether such a law may bind strangers to the law, doing against it, within the precinct.

Again, what notice is requisite, either to the free or to strangers and for these several points, see these books, 44 E. 3. 19. 8 E. 2. F. Assize 413. 21 E. 4. 54. 11 H. 7. 13. and 21 H. 7. 40. and 21 H. 7. 20.

Jefferie's case, Co. lib. 5. fo. 66. ; the tailor's of Ipswich case, Co. lib. 11. 53. Darcye's case, called the monopolies. Co. lib. 11. fo. 84. and in that case Davenant's case cited; and Chamberlain of London's case, Co. lib. 5. fo. 26. 62.

Admiralty.

R. 2. Cap. 5.

DON ALONSO vs. CORNERO.

Admiralty has no jurisdiction of the property of an alien's goods, though pretended, by the ambassador of a foreign prince, to be forfeited to his master.

DON Alonso de Valasco, ambassador for the king of 2 Brnl. 29. 13 Spain, libelled in the admiral court against one Cornero, (naming no other defendant) declaring, that Cornero, being a subject to the king of Spain, had committed divers crimes against the king, for which all his goods were confiscated, and that he was come into England and had brought with him three thousand poundweight of tobacco, to the value of eight hundred pounds; and prayed attachAnt. 11. 78. 79. ment of the goods in the hands of -, (leaving

Ant. 79. Accord.

a space for names,) and after attached them in the hands of Sir John Watts. Harris moved for a prohibition for Watts, who had bought the tobacco of Cornero for eight hundred pounds.

The judges said, that they would not let the ambassador from prosecuting his master's subject. But for the goods, if any subject of a foreign prince bring goods into the kingdom, though they were confiscate before, the property of them shall not here be questioned but at the common law. And though Watts were not named in the libel, yet he is a party grieved by that undue suit, and therefore pro

hibition was granted. The like prohibition was granted [212 b] Hill 9 Jac. upon the like libel by Don Petro de Sunega, ambassador for Spain.

PALMER VS. POPE.

Admiralty has no jurisdiction of a contract made at sea, and put in writing and sealed at land. Secus if put in writing only without seal.

In a suit in admiralty upon a contract, the contract must be laid super altum mare. MICH. 9 Jac. Palmer libelled against Pope, for that it Ant. 78 2. Cap. 5. was agreed between them, super altum mare, that Pope should carry certain sugars, and that the agreement was after put in writing in the port of Gado, in the coast of Barbary, and shows, that Pope suffered the sugars to be spoiled, super altum mare, by salt water.

cord.

13 R.

Houghton, serjeant, suggested, that the charter party Vide supra. was made in the port of Gado, upon the continent of Barbary: whereupon the court resolved that a prohibition lay, because the original contract, though it were made at sea, Ante 79. Acyet was changed when it was put in writing, sealed, which, being at land, changed the jurisdiction as to that point; but if it had been a writing only without seal, it had made no change; now then, if the contract were at land, though the breach be at sea, which are two several acts, yet because these two must concur to make the cause of the suit which is entire, the party shall be forced to sue in the king's court, because that and the common law must prevail against other courts and laws; and these cases were 6 Co. 48. a. cited for the king's court, in the cases that might seem for the admiral. 48 E. 3. 2. 10 H. 7. and Fitz. N. 118.

And it is a general rule for merchants, ambassadors, and the like, who make bills, accounts, and other things in foreign parts. And for the jurisdiction of the admiralty, see tempore E. 1. Fitz. Avowry, 192. 8 E. 2. Stamford 45 E. 3. 7 R. 2. title Trespass, Statham 5 H.. 6. 2 H. 4. 6 H. 6. and where the stat. saith ad primos pontes, that is to be understood of death or main, (as the statute saith,) not for actions.

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