5. If the chamberlain or treasurer sue for the penalty, it is sufficient for him to allege that he is chamberlain or treasurer; and it is not necessary for him to set forth or show in what manner he was elected or appointed.' He must, however, set forth and show that the penalty was made payable to and recoverable by him. Where the by-law is made by virtue of the incidental power in the body at large, it is not necessary to set forth the authority of the corporation to make it. But if it be made by virtue of a special power of making by-laws, the special authority must be set out in the pleadings, and proved, and also that it was made by the select body in whom such power was vested, and at what time it was made. In an action of debt for the penalty of a by-law, the by-law itself must be fully set out, and not by way of mere recital; and it is not sufficient to aver that the defendant incurred the penalty by the breach of a certain by-law. In an action of assumpsit founded upon a by-law, it would seem that this averment was sufficient, the same strictness of pleading not being required in this form of action; since, after all, it comes to a question on the evidence, what legal consideration there is to raise and sup

1 Harris v. Wakeman, Sayer, 256; Hollings v. Hungerford, there cited by Rider, C. J.

Exon v. Starre, 2 Show, 159.

Rex v. Lyme Regis. 1 Doug. 157, 158, 159; Feltmakers v. Davis, 1 B. & P. 100, 101; Rex v. Decan et Capital, Dublin, 1 Str. 539; Dunham v. Trustees of Rochester, 5 Cowen (N. Y.) R. 462.

• Com. Dig. Pl. 2, W. 11; 2 Vent. 243; 1 Bro. Ent. 170; Gerrish v. Rodman, 3 Wils. 155, 164; Feltmakers v. Davis, 1 B. & P. 102. For form of declaration in debt on by-law, see Stuyvesant v. Mayor, &c. of New York, 7 Cowen (N. Y.) R. 606. A statute which renders it unnecessary, in prosecutions on the by-laws of the city of Boston, to set forth the by-law at large, does not conflict with the constitution of Massachusetts. Commonwealth v. Worcester, 3 Pick. (Mass.) R. 462. A complaint for the breach of a by-law of the city of Boston, concluding, "against the form of the by-law, in such case made and provided," is not sufficient, unless it conclude also, "against the form of the statute, &c." Commonwealth v. Gay, 5 Pick. (Mass.) R. 44; see, also, Commonwealth v. Worcester, 3 Pick. (Mass.) R. 475; Stevens v. Dimond, 6 New Hampshire, 331.

port the promise.' It must appear by proper averments in the proceeding that the defendant was subject to the by-law; though, if this be once shown, it is not necessary to aver formally that he was so at the time the offence was committed; for it having been stated that he became a member of the corporation, it will be presumed that he continued one until the contrary appear. It is, however, never necessary to aver that the defendant had notice of the by-law; for every one subject to the action of a law is presumed to know its import, as is his duty. If the by-law except certain classes of persons from its operation, and the exception be material, it is necessary to aver that the defendant is not within the exception in a return to a writ of habeas corpus cum causa ;* and it is necessary to state in such a return everything necessary to be stated in an action of debt in a superior court, and no more. But when in a by-law, making certain regulations, for breach of which parties are liable to be sued for a penalty, there is a separate proviso, making certain exceptions, a party suing for breach of the by-law need not aver in the declaration that the case was not within the exception in the proviso; but such fact, if it exist, must be shown by the defendant by way of excuse. If a by-law, imposing a duty on a member, contain a condition precedent to his liability thereto, the declaration must aver a performance of the condition, or it will be bad.' Where the

'Barber Surgeons v. Pelson, 2 Lev. 252; 1 B. & P. 101, n. b.; Willcock on Mun. Corp. 173, § 426. But see Feltmakers v. Davis, 1 B. & P. 101, 102, Eyre, C. J. For Pleadings in Replevin on distress, see Gerrish v. Rodman, 3 Wils. 171.

2 Colchester v. Goodwin, Carter, 119; Gunmakers v. Fell, Willes, 390; Ex parte Eden, 2 M. & S. 229.

* London v. Bernardiston, 1 Lev. 16; James v. Tutney, Cro. Car. 498.

4 Rex v. Abington, Salk. 432; Rex v. Coopers of Newcastle, 7 T. R.

547.

5 Watson v. Clerke, Carth. 75; 2 Kyd. on Corp. 170; Willcock on Mun. Corpor. 174, rule laid down generally.

• Carmarthen Mayor, &c. v. Lewis, 6 C. & P. 608.

7 Carter v. Sanderson, 5 Bing. R. 79.

by-law, after imposing the penalty, declares that if the offender "deny, refuse, or neglect," to pay the penalty, it shall be recoverable in an action of debt, it is not necessary to aver a demand; though, had the word "neglect" been omitted, perhaps it might have been presumed that an indulgence was intended, and a demand necessary before an action could be maintained.'

In an action by a society of innholders for the penalty of a by-law imposed upon those who, being elected, refused to accept the livery and clothing of the company, it was held that it was necessary to state in the declaration that the company of innholders has a livery, since the court will not notice what companies have, and what have not, a livery. And in an action to recover a penalty for refusing an office, it is not necessary to aver that the defendant had notice of his election, nor when or where the meeting at which he was elected was held; for these he is presumed to know. To such an action the defendant may either plead specially a reasonable excuse, or give it in evidence under the general issue.*

$9. Although, as we have seen, the adoption of a code of by-laws may sometimes be proved by implication, yet in general, in order to prove what they are, it is necessary that they should be produced; and parol proof of their contents, as in case of the by-laws of a bank, by the cashier, is insufficient. In England, it is held that where a by-law is pleaded to have been made and lost, the jury may, from ancient and unvaried usage, though within time of memory, in conformity to it, find the facts of its having been made in the terms set forth,

1 Butchers v. Bullock, 3 B. & P. 434, 437.

'Innholders v. Gledhill, Sayer, 275; Rex v. Clerke, 1 Salk. 349. • London v.

Vanacre, 5 Mod. 442; S. C. 1 Ld. Raym. 500; Vintners v. Passey, 1 Burr. R. 239.

Ibid.; Rex v. Leyland, 3 M. & S. 188.

Union Bank v. Ridgeley, 1 Har. & Gill, (Md.) R. 324; supra, § 1. Lumbard v. Aldrich, 8 New Hamp. R. 35.

and since lost; particularly if the usage be traced to a period when an alteration, like that contained in the by-law, was suddenly introduced; and this, too, whether the corporation be by prescription or charter.' Sixty years' usage has been considered evidence of a by-law. If the jury only find, however, that such an usage has prevailed from a time within memory, without finding a by-law, the alteration supposed to have been made by the by-law cannot be sustained, whether the corporation be ancient or modern; it cannot as a by-law, since no by-law is found; nor as a custom; for though, in an ancient corporation, usage within time of memory may be evidence of a custom, yet if a period be shown at which the contrary prevailed, that evidence is rebutted. Corporators are not competent witnesses to prove a custom of excluding strangers from exercising trades within a town, where a moiety of the penalty, imposed by a by-law, for the breach of that custom, goes to the corporation; nor even, it seems, though that moiety be granted away by them, by the by-law, to a company. It has been decided in Massachusetts, that the legislature of that State may constitutionally enact, that the interest which an inhabitant of a city may have in a penalty for the breach of a by-law thereof, shall not disqualify him to act as judge, juror, or witness, in a prosecution to recover the penalty; and that such prosecution may be in the name of the commonwealth."

1 Case of Corporations, 4 Co. R. 78; Rex v. Tomlyn, C. T. H. 316; Rex v. Miller 6 T. R. 280; Rex v. Westwood, 4 B. & C. 786. And see Taylor v. Griswold, 2 Green (N. J.) R. 223; Rex v. Atwood, 1 Nev. & M. 286; S. C. 4 B. & Adolph. 699.

Perkins v. Cutlers Company, 1 Selw. N. P. 1144, Mansfield. 'Rex v. Westwood, 4 B. & C. 786.

♦ Davis v. Morgan, 1 C. & J. 587; 1 Tyr. 457; 1 Price, P. C. 77.

• Commonwealth v. Worcester, 3 Pick. (Mass.) R. 462.

CHAPTER XI.

OF THE POWER TO SUE, AND THE LIABILITY TO BE SUED.

1. A CORPORATION, it is very obvious, would be entirely incapacitated to manage its concerns, and to carry into effect the objects for which it was constituted, if it had not the capacity of guarding against the infringement of the rights with which it is invested, and of enforcing the just claims in its favor by ordinary judicial process. The power therefore of a corporation to sue, is, as has already been stated, one of its incidental powers. It was moved in one case by the defendant's counsel, to quash a writ of foreign attachment, on the ground of the insufficiency of the affidavit, which was made by the attorney of a banking corporation; and it was held, that the construction of the act respecting attachments would be unsound and indefensible, and entirely inconsistent with the intention of the legislature, which should preclude a corporation from suing out a writ of attachment, inasmuch as, if the act were so construed as to require the affidavit from the corporation itself, or to deny the use of the writ without such affidavit, the result would be, that the law which gives existence to the corporation, and which necessarily confers upon it an authority to perform by its agents, by whom it alone can act, incidental services like the one in question, would be defeated.1 It is indeed now perfectly well settled that corporations may commence and prosecute actions upon all promises made to them which fall within the scope of their design and authority. Where, for example, the question was, whether an aggregate corporation could sue in an action for use and occupation, where the tenant had occupied land belonging to the corpora

1 Trenton Bank v. Haverstick, 6 Halst. (N. J.) R. 171.