BODWIC versus fennel in error b r a custom to exclude foreigner in a  corporation and a bylaw make to support it be good but the penalty give by the  bylaw can be to a stranger action of debt for bring upon a bylaw in the  boroughcourt of the Devizes the declaration set out that there have be a  custom time out f mind in that borough that no person whatever unless admit of  one of the guild or fraternity there have a right to keep a shop in the town  unless in the time of a open fair nor to follow any mystery handicraft or  trade in the town and that a bylaw have be make for the better preserve and  support the say custom which give a penalty of to any person who will sue for  the same and set forth that the defendant below not be admit of any of the  guild or fraternity and be a stranger to the corporation have keep a shop and  exercise the trade of a shoemaker per quod action to grow progressively to the  plaintiff to have and demand the Wilson king bench say the defendant below  demurrer and judgement there be give for the plaintiff and a writ of error be  bring and the general error assign this case be argue last Michaelmas term Mr  Evans for the plaintiff in error take several exception I saint the custom be  unreasonable because for any thing that appear a person who have duly serve a  apprenticeship in the Devizes may not be allow to follow his trade for it do  not appear upon what term a man be to be admit of any guild or fraternity and  the term may be very arbitrary therefore it ought to have be lie in the custom  to make it a good one that every person may be admit upon reasonable term as  serve a apprenticeship c dly the court where this action be bring be hold  before the mayor recorder and burgess of the Devizes the action be in nature  of a popular action bring by a stranger but yet it must be consider for the  benefit of the corporation so that both the judge and jury be to judge in  their own cause for the breach assign be upon the custom and not upon the  bylaw but the bylaw be only bring in to fix the damage which show the action  be principal find on the custom which be for the benefit of the corporation  who be the judge dly there be not a sufficient breach assign for it be not lie  that when this shop be keep open that it be not upon a fairday for any man may  keep a shop on a fairday thly what I principal rely upon be that suppose the  case to be lie proper and the court below have jurisdiction yet this plaintiff  be a stranger can recover for the breach of the custom nor can the corporation  legal make a bylaw to annex the remedy to a person who have not the right that  be to say give a action for the penalty to a mere stranger Mr Henley for the  defendant in error in answer to the exception be it it be never doubt but a  corporation may by custom put such term upon the inhabitant as be agreeable to  and consistent with the custom and no man can be free of the city of London  unless he be first admit of some guild and if it appear that the term of  admission or fine for it be unreasonable this court upon a mandamus will judge  thereof therefore the corporation can put arbitrary term of admission upon any  man dly the corporation be not at all interest in the recovery of the penalty  for the plaintiff here recover for himself Wilson king bench dly the breach  assign be that he keep a shop within the Devizes and exercise the trade of a  shoemaker therein contrary to the custom which show that it be not upon a  fairday only for that will not have be contrary to the custom thly a custom to  exclude foreigner be good and they may make bylaws to enforce and support that  custom though I admit a grant from the crown of such a privilege will be have  and therefore the bylaw be set out to show it do not exceed the custom Wilson  king bench er p lee c j do you ever know a penalty upon a bylaw give to a  stranger Dennison I if a corporation have a custom and any thing be do in  breach thereof the corporation itself must bring the action and there be no  instance of any such action by a stranger but only in that of the chamberlain  of the city of London Rep it have be determine in the case of Ellington Cheney  geo that a custom to exclude foreigner be good and that a bylaw with a  reasonable penalty in support of such custom be good when the penalty be give  to the corporation or guild this be error from the mayor court of bath in a  action bring by the master of the guild of shoemaker of bath wherein the  plaintiff declare that it be a corporation by prescription that there have be  a guild of shoemaker immemorially and that none shall exercise the trade who  be not make free thereof and a bylaw be make that if any person shall follow  that trade not be free he shall forfeit a certain penalty to be recover by the  master of the guild who bring the action and the judgement be affirm then the  case at bar stand over and Mr Evans reply three day afterward and cite the  case of hollings Hungerford Paschae geo which be debt upon a bylaw for  recovery of a penalty upon a bylaw by the chamberlain of Bristol the bylaw be  make under a power they have by their charter which power be to make bylaws  with penalty to be recover for the use of the corporation the bylaw in this  case be that every man who shall be choose a commoncouncilman if he do not  appear within such a time and take the office upon he shall forfeit the  defendant do not attend and take the office upon he so the action f or the  penalty be bring by the chamberlain the case be argue by sergeant Branthwaite  and Mr York the present Lord chancellor and it be object by the sergeant that  the chamberlain be a stranger to the corporation that he be a stranger to the  right and therefore be a stranger to the remedy f or that the right be in the  corporation but Lord Parker c j and the court hold that the action be Wilson  king bench well bring and that camerarinus ex way termini signify thesaurarius  of the corporation and they declare that he recover for the benefit of the  corporation and this court will take notice of the relation there be between  the chamberlain and the corporation and that he be no stranger but as it be  part of the corporation from hence Mr Evans conclude that a stranger can bring  this kind of action Henley there be no negative determination in the case last  cite that they can not have give the penalty to a stranger lee c j I think  none of the three first objection will hold and be only doubtful upon the last  I do not find any instance of a action upon a bylaw make for the recovery of a  penalty in the manner give to a stranger as this be for this be much the same  as if it have be give to be recover by a common informer in the case of  hollings v Hungerford the force of the objection be that the action be bring  by a stranger the answer give to it and upon which the court give judgement be  that the chamberlain of Bristol be not a stranger but a know officer of the  corporation their servant and appointee to sue for such penalty as the  corporation be entitle to recover there be a right in the corporation in  respect to the custom itself to have the custom adhere to and they be entitle  to damage for breach thereof when they have make a bylaw with a penalty for  the byeach thereof they have thereby fix the damage which they may lawful do  but I do not know that by any rule of law they can transfer their right of  action to a stranger I do not mean to bind myself by what I have now say but  this be what I think as at present advice wright I the only difficulty with I  be that the penalty be give to a stranger in the case of player v archer side  it appear a bylaw be make whereby a moiety of the penalty be give to a  stranger if they can do that why may they not give away the whole to a  stranger the chamberlain of London be as much a stranger to the right as any  other person and where be the unreasonableness of give the penalty to a  stranger in public law it be very common and almost always do this be a point  of great consequence and therefore require further consideration Dennison I I  think this custom to exclude foreigner be good but that the bylaw be a have  one Wilson king bench the corporation where these custom be have original a  right of action in themselves for the breach thereof this be former a doubt  but have of late year Wilson king bench er p be solemnly determine in c b mich  geo between the corporation of Colchester and simpson which be a action upon  the case against the defendant for exercise a trade not be a freeman contrary  to the custom to the damage of the plaintiff there be now no doubt but such a  action will lie and a corporation need not make any bylaw to enforce the  custom because the law give they a action original they may indeed if they  please make a bylaw and fix a penalty for the breach hereof but it must be a  penalty to the corporation itself and pecuniary and may be levy by distress or  recover by a action of debt at the suit of the corporation I be not for carry  the right to sue further than the chamberlain of a corporation as in hollings  v Hungerford the case at bar go further than care it to a stranger for it give  the action to any person whatsoever let he live where he will which be extreme  inconvenient for if the plaintiff shall be nonsuit where must the defendant  find he and as there be no precedent for such a bylaw as this be I be of  opinion it be have as at present advice foster I these exclusive privilege be  much abuse I have no objection to the custom nor to the assignment of the  breach thereof but think the last objection require consideration in the case  of hollings v Hungerford the objection be find upon this principle that the  action can not be maintain by a stranger but the answer to it be that the  chamberlain be not a stranger but sue for the corporation benefit and the  court seem to admit the strength of the objection that the action can not be  maintain in the dame of a stranger and in the case of Ellington Cheney geo the  chief justice say that a action upon a bylaw in the name of a stranger will  not lie if such a bylaw as this be to be hold good it will be let lose all  mankind and a poor man may have action against he at once and not know where  to find one plaintiff this case have stand over for a whole year the chief  justice this term give judgement and say that although a body politic have  power to make a bylaw to enforce a penalty for breach of a custom yet they can  give a action to recover that penalty t a stranger but the corporation  themselves or somebody for they as the chamberlain in the case of the city of  London must sue for the same if the law be otherwise it will be very  inconvenient it will be like assign a choose en action which the policy of the  law will not endure   light a and for this reason the judgement below per  totan curian be reverse