/ 6 3 -■^— J> [ 3 — £2 .= — — _J 6 WBBBW8BBBBBHHWHB1 fci^aT'" t^- HUH % $1614 1 \259 u. IL OF JNIVERSITY CALIFORNIA ANGELES LOS SCHOOL LIBRARY LAW ■^' ,.''.. i^L .•"■",• ■•*¥/■ A PEACTICAL TEEATISE m)t %a\a CORPORATIONS IN GENERAL, AS WELL AGGREGATE AS SOLE INCLUDING MUNICIPAL CORPORATIONS, RAILWAY, BANKING, CANAL AND OTHER JOINT STOCK AND TRADING BODIES, DEAN AND CHAPTERS, UNIVERSITIES, COLLEGES, SCHOOLS, HOSPITALS, WITH QUASI CORPORATIONS AG- GREGATE, AS GUARDIANS OF THE POOR, CHURCHWARDENS, CHURCHWARDENS AND OVER- SEERS, ETC., AND ALSO, CORPORATIONS SOLE, AS BISHOPS, DEANS, CANONS, ARCHDEACONS, PARSONS, ETC. BY . «F T§S*M«DDLE TEMPLE, ESQ. LONDON: BUTTERWORTHS, 7, FLEET STREET, ftato Cooltsrllrrs antr $uMtsfjrrs. HODGES AND SMITH, GRAFTON STREET, DUBLIN. 1850. LONDON : PB1NTBD I'Y r. OOWORTB A M> BINS, HI. 1. 1. YAlin, I I M1I.I ISA It. T PREFACE. This work is the result of an attempt to compile the law as affecting corporate bodies in general. Upwards of half a century has elapsed since a treatise with the same object has been offered to the profession and the public. In that period vast alterations have been made by legislation, introducing some principles wholly new, some modifications of established ones, and engrafting many new branches on the old stock of corporation law. Besides, an immense body of decisions, both at common law and in equity, have materially qualified parts of what formerly passed for law on this subject, or have richly illustrated that which is fundamental in it. Add to this the great multipli- cation of corporate bodies to which obvious causes have given rise within the above period, and the multifarious forms in which, as a consequence, questions are perpetually brought before the courts in cases where one or other of the parties is a corporation or a corporator suing or sued as such, and we have sufficient grounds to anticipate the wide utility of a work which should succeed in comprehending and display- ing in a practical form the whole of the law of corporations. With the object — which however he is painfully sensible he has no right to ask credit for having attained — of render- ing his undertaking generally useful, the Author has endea- voured, by the devotion of much time and very great labour, to comprehend in his plan not only an exposition of the prin- ciples regulating corporate bodies in general, but to state the law respecting particular species of corporations, as municipal, railway, canal, and trading corporations, with ecclesiastical, a2 o,i 837 iv PREFACE. eleemosynary and other corporations aggregate, and quasi corporations aggregate, and also that of corporations sole and quasi corporations Bole, so fully thai every one who, either as a member of such body, or being called upon to advise respecting it, want- information, may find in this volume a directory to authorities bearing on the point in ques- tion. In furtherance of this view, the Author has collected a number of decisions od subjects nol of necessity ex- clusively connected with corporations, though in practice arising, for the mosl part, in connection with corporate inte- rests. Thus in treating of municipal corporations it was, for the purpose Btated, obviously not enough to state the effect or even the words of the various acts for the regulation of matters connected with municipal corporations which have been passed of late years, together with the decisions of the courts upon them, not even in addition to a full account of the law, so far as it remains unaltered, respecting majorities, and elections, amotion-, restorations, &c, to office generally, with the indi-solubly connected subjects of mandamus and quo warranto, and many other points; but there has been added, what it i- hoped will prove a useful collection of deci- sions respecting market-, and market and other tolls, port dues, prescriptions, custom-, court-, parliamentary franchises, and several other matter-, together with all such decisions on point- of pleading, evidence and practice, especially all ques- tions of costs and forms of proceeding, as might tend to faci- litate the labour- of persons who have hitherto been obliged to look through a Large number of reports and authorities before they could arrive at full information on these -ubjects. The Author's hope ha- been, that by bringing together a body of such matters,— to be found in a digested shape, as he be- lieves, in no other single volume, — ho mighl venture to pre- senl a hook calculated to be of service to a very numerous class of person Possibly it may he required of the Author to indicate the sources of the authorities on which hi- statements of the law , v> t. These are the following. Numerous decisions and PREFACE. even dicta in the Year Books appear to him, and lie submits will be found, to throw much valuable light upon this part of the law ; and he has accordingly thought it right to bring- forward many cases from the Year Books as authorities for the doctrines advanced, trusting that they will demonstrate their own value upon examination ; in the meantime a single instance may suffice to support what has been said. In Tri- nity Term, 5 Vict., the Court of Common Pleas (a) decided that an action of trespass may be maintained against a cor- poration aggregate ; but the same appears to have been the law as early as the reign of Edward III., and there are cer- tainly not fewer than a dozen cases reported between that period and the termination of the Year Book Reports, in which the principle was either expressly recognised or tacitly assumed as the basis of decision. In addition, the Common Law Reports, from the beffmnina" ot the series to the present time, have been searched the Author ventures to hope his work will show — with great care and labour. Within the last half century an enormous mass of decisions has been made in Equity settling various points in the law of corporations, not only with respect to charitable corpora- tions, as hospitals, schools, &c, and trusts for charitable pur- poses vested in corporations, and questions of mortmain, but with respect to railway, canal, and other joint stock or trading corporations, and also respecting the property of municipal corporations. An earnest, very long continued, and laborious endeavour has been made to collect these decisions and state the proper effect of them and of others touching the subject to be found in the Equity Reports of previous periods, in such a manner as seemed calculated to prove of most prac- tical utility. As for the whole, so especially for this portion, of the volume is it that the Author hopes for the indulgent candour of the profession, being fully aware that he cannot ask credit for more in respect of it than perhaps that of being (a) Vid. infra, p. 278. v i PBEFAC1 • the first to bring together, more fully than it is to be found elsewhere, a large him— of luminous expositions of prin- ciples in the law regulating these bodies, which are of the utmost value, and without an attempt to compile and arrange which any work on this subject would obviously, in these days, have been, in a principal part, defective and unsuited for genera] use. Again, very many statutory enactments have the most im- portanl bearings on this Bubject; these in large numbers, together with Buch decisions as have been made in elucidation of them, will be found in their proper places: the principal sections of all the acts relative to municipal corporations will be found either cited at length, with judicial comments ap- pended, or, where it seemed unnecessary to do the former, the substance is Btated, with Buch decisions as have occurred fixing the propci- interpretation. The Index at the end of the volume will Bhow the page on which each section of ev.ry statute, with its judicial illustration, is to be found. VI ith respect to those parts of the work which treat of I Diversities, Charitable Corporations, Hospitals, Colleges, School-. &c, the object aimed at has been to bring together, from ;i widely scattered sylva of authorities, such a !>ody of decisions as, it is hoped, may serve to lighten the labour of persons whose duty it may be to ascertain the law on subjects connected with the interests and rights of such bodies, or their members, by indicating, as fully as very anxious Labour en- abled the Author to do, the sources of the law r< specting them, including a variety of interesting questions regarding the visitatorial power in Universities, Colleges, Schools, &c, with questions of mortmain, the recenl legislation as to schools, and various other matters. So under the respective heads of Dean and Chapter; and Quasi Corporations, as Guardians of the Poor; Church- wardens; Churchwardens and Overseers; and of Corpora- tions Sole, the reader will find the principal decisions from the earliest times down to the present, together with the sta- tutory enactments, ascertaining the rights of such bodies, and PREFACE. Vll particularly in the last case ascertaining the rights of the successors, and the rules respecting grants of bishops' and parsons' leases, and other matters, collected from a great number of reports and a few books of authority. The Author cannot but earnestly desire to find the candour, with which the merits of a new work are usually scanned by the profession, extended to this undertaking. It has no pre- tensions to notice, except that his endeavour in completing it has been to exhaust this branch of the law ; to state no- thing positively, except what appeared to him to rest upon the best authority; to render authority for every statement put forward, whether directly, or only collaterally, connected with the main subject ; and, in doing so, to avoid burdensome and tedious details of the circumstances of particular cases (a), placing before the reader the points decided with as much brevity as appeared to be consistent with accuracy, clearness, and the adaptation of the book for practical reference as a guide and indicator to the sources of information and autho- rity on the various subjects of which it treats. With a view to secure more effectually this great object of the Author's labours, a very copious Index has been added, which no pains have been spared to render accurate and other- wise complete. It will, perhaps, be asked why the Author has departed from the usual practice in not printing a " Table of Cases cited." The reasons are these. The utility of such a compila- tion seems much less easily appreciable in connection with a work on Corporation Law than in almost any other branch of the law ; for, as is well known to any one who has looked below the surface of the subject, the names of cases by no means here serve the purpose of a memoria tcchnica with the precision, and success, and utility that follow from so apply- ing them elsewhere, inasmuch as in numerous instances the same conjunction of names of plaintiff and defendant indicates different decisions, sometimes to the extent of a dozen, or even (a) Vid. Sugd. Powers, Preface 1st edit., p. ix. viii PREFACE. >re. Thus Attorney-General v. Mayor, &c., of Lichfield, Rex '•. Mayor, 8cc., of London, represent respectively a great number of decisions, in the latter case, spread over several centuries. It would obviously, therefore, have been imprac- ticable to have afforded the Learned reader that additional facility of consulting the work for which alone a "Table of Ca^'- cited" is, it is submitted, valuable:- — to the layman, the student, or even to persons of practical acquaintance with the law, but not accustomed to refer their learning to cases, such a compilation is of* no manner of use: — without stating along with each case the volume and page of the report in which it was to be found,— a process which, not to speak of the labour of it, would have had the effect of swelling the volume to an unwieldy size, without adding in the slightest degree to its utility in the hands of those for whose use principally it is designed. Besides, the Author venture- to hope that the Index of matters will be found so fully adapted for the pur- pose of consulting the work with ease, a- to compensate for the absence of what, perhaps, is at best little else than an e\p ( dient to help out a defective index. No. 2, Plowden Bui i.di no-, Tempi*] . Jtdy 27, 1S.-30. CONTENTS. Addenda et Corrigenda, p. xv. IDEA of a Corporation Aggregate, 1—4; definition, 4; members, 5; origin, 6, 7. CHARTERS, 9; royal, 10, 11 ; others, 11, 12; power of crown to incor- porate, 1G, 17; acceptance of charters, 18—24; effect, 24,25; con- struction, 25—37 ; evidence, 37—39 ; voidance, 39—45 ; surrender, 45—47. NUMBER of corporators, 48, 49. NAME, 50— 54; by reputation, 50 ; byprescription, 51 ; in leases, devises, &c, to, 51 ; by, 53 ; new name, 52 ; geographical truth of, 53. COMMON SEAL, 55 ; use of, 55 ; acts requiring, 56, 51 ; what is, 59 ; not to be changed, 59, 60; exceptions to use of, 60, Gl ; as to contracts, 61, 62; effect of affixing, 63, 64; how limited, 65; proof of, 66 ; cannot be detached, Ad. et Corrig. MAJORITY, 68 ; binds the body, 68 ; the legal majority, 69 ; of the council in boroughs, &c, 70 ; thrown away votes, 71 ; relief in equity against majority, 71—73 ; stat. 33 Hen. 8, c. 27. .74 ; casting vote, 75. BYE-LAWS, 76 ; power to make, when incident, 76 ; definition, 76 ; obli- gatory on whom, 76, 77 ; by whom to be made, 77 ; custom setting up bad, 78, 79 ; power to make, to be strictly pursued, 79 ; general rule of, 80 ; limiting a discretion bad, 81 ; as to official eligibility, &c, 81 ; cannot annul customs, 83 ; in restraint of trade, 83 ; in regulation, 84 ; affixing forfeiture, 84, 85 ; imprisonment, 85 ; disfranchisement, 86 ; penalties, 86, 87 ; construction of, 88, 89 ; mode of questioning validity, 89 ; evidence of, 90 ; repeal, 91 ; restraints on making, 91 ; of London, 92 ; under Companies Clauses Consolidation Act, 93 ; Railways Clauses Consolidation Act, 93, 94 ; Municipal Corporations Act, 95—97. PROPERTY, 98 ; mortmain, 98, 99 ; alienation in, gives no right of action, 100 ; grant in, not void, but voidable, 100 ; entry for, 100, 101 ; license in, 101; ad quod damnum, 101; corporations holding lands beyond their licenses, 103 ; unless lords, &c, interfere, corporations may hold, without license, 106; what estates may take by purchase, 107—111; by devise, 112—126; by demise, 127-129; whether may grant in CON i if* to convey, 189; municipal corporations, how icted, &c, in dealing with their real property, 1 M>— 1 l I \ demises by corporations, 1 I void and voidable, 1 in ; how to demand rent, 150; their lease, how determined, 151 j surrendered, I ACTS AND PROCEEDINGS by Corporations, 154; how corporate acts performed, 154,155; notice of meeting, L55, 156; privilege from arrest, 151 : form of notice or summons, 157 : acts beyond competency of, 157, ; applying to parliament to change constitution, L59 ; acts relieved against, 159; suing for dun port du. i, 160—162; distress for, : toll-traverse, 16*; pannage, passage, &c, 164; toll-thorough, definition of market, 105; market tolls, 166—170; distress for, 170, 171 : action on the case for, 171 ; ownership of soil of market, i; , and Add. bt Corrigenda; stallage, 173 — 176 ; piccage,176, 17;: murage, 177; action lor interfering with ancient market, 178; quo warranto, 179, 180; scire Judas, 180; Pie Poudre Court, 181; bill in equity for tolls, 181, 182; exemptions from tolls, 182; as to boroughs, &c, now, 183, 184; rights of common vested incorpora- tions, 185; teny. 186; several fishery, 186, 187; land cheap, 187; manor tolls, 187, 188 j ejectment by a corporation, 189, L90; trespass, j claim of tithes, 191 : covenant, 191; account, 192; assignment of auditors in, 192; how to enforce exemption of serving on juries, 193; may indict for refusal to serve offices, &c, 193; action for interruption of right of way, 193; for entry of sherilf, 194; tribunals in which to bring actions, 19j ; judge and officer, 197; proving debts in bank- ruptcy, &C, 197, 198; suing as a common informer, L98; faculty to use] . Buing in equity, 199, 200; foreign corporations suing here, 200; domicile of a corporation, 201 ; whether corporation suing 18 to show how incorporate, 201 : judicial notice, 201 J suing in Eccle- siastical Court, 202; may be executor, 202 ; limitations of actions, ; lost votes, 205; disqualification, 206; if patent, 207 ; thrown away votes, 207; lists of candidates, 209; oaths, 210; validity of election of corporate officer, 211 ; requisites of good electoral as- sembly. .' 1 1 . 812; of due election, 213; mandamw and quo warranto, <].. swearing in, 517; corporator to take notice of election, .'17: who to be elector.-, 218; what a majority, 219 ; a definite num- ber of electors quorum A. and B. are be two, 220; refusal of office in boroughs, &c, 521 resignation, 528; 6m . mandamus and quo warranto resp ises of corporate elections, bribery I I borough mandamus to admit, 286 — 289; retun K); amotion, 240 ; causes, 241, 242 ; necessity, ; summons, 244, 245; mandatmu to restore, 245—247; returns, : when mania* r< voa cting officers, 251 : when quo warranto, judgment. 259, 260; costs, 260, | ; disfranchisement, 562— 564; caum i3. ACTIONS, PROCEEDINGS, &c, against Corporations, 274 ; appearance, 274; service of ••• »i indictment, 275; actions on bills of exchangi debt on bye-laws, 276; action on case, 277; detinue, &c, 280; suits in equity, CONTENTS. XI 280 ; corporators where liable, not the corporation, 281 ; persons claim- ing to be a corporation, 281—283; indictment, 288, 284; removing, 284 ; liable to poor and other rates, 285 ; suits in equity, 28G— 290 ; injunction, 291—294; Statute of Limitations, 294. DISSOLUTION, 295; scire facias, 295; quo warranto, 296—300} crown cannot dissolve at pleasure, 302 ; three modes of, 303 ; effect on lands, 303; personalty, 304; writ of restitution, 305 ; of corporation by pre- scription, 307 ; by statute, 307, 30S. EVIDENCE, 310 ; of being a corporation, 310 ; corporate seal, 310 ; means of, 311; inspection, 312— 314 ; admissions by corporators, 315; ad- missibility of, as witnesses, 315, 316 ; of corporate books, 317—319. CUSTOMS AND PRESCRIPTIONS in corporations, 320; pleading and proof of, 320, 321 ; operation of statutes on, 322; of inconsistent charter, 323, 324 ; pleading prescription, 325—327 ; prescription dif- ferent from custom, 327—329 ; various customs of boroughs, &c, 330—336 ; may be enforced against the corporation, 334 ; differing from genera] law, 335 ; in opposition to it, 336 ; pleading customs, 337 ; customs in borough courts, 337 — 339. MUNICIPAL CORPORATIONS, 341 ; abolition of usages, &c, incon- sistent with the Municipal Corporations Act, 341, 342 ; style of corpo- rations, 342 ; limits of jurisdiction, 343—347 ; counties of cities, 348 — 352; sheriffs, 353—355; the council, 355 ; functions of, 357—358; delegation, 359; trustees, 360; paving, lighting, &c, 361, 362; bye- laws, 362—365 ; disposing of real property, 365—367 ; police magis- trate, 367; watch committee, 367; constables, 36S— 374; superannuation fund, Add. et Corrig. ; special constables, 374 ; watch rate, 375—377 ; appointment of officers, 378 ; compensation, 379—382 ; responsibility, 382—385 ; baths and washhouses, 385 ; museums, 386 ; nuisances re- moval, 386 ; burgesses, 387—390 ; list, 390, 391 ; revised, 392 ; roll, 393—395; election of councillors, 396 ; exemptions, 397 ; disqualifica- tions, 397, 398 ; questions at election, 400 ; refusal to take office, 401 ; election in wards, 402—404 ; extraordinary vacancies, 404—406 ; de- clarations by councillors, 407, 408 ; mandamus to try right, 408 ; quo warranto, 409 ; parliamentary franchise in boroughs, &c, 411 ; bribery, 413; resignation of officers, 414; aldermen, 415; qualification, &c, 416, 417 ; declarations by, 417—419 ; refusal of office, 419 ; mandamus to try election of, 419 ; amotion, 420 ; quo warranto, 420; resignation, 420 ; the mayor, 421 ; election of, 421 ; refusal of office, 422 ; duties, 423 ; precedence, 424 ; liabilities, 425 ; declarations by, 425 ; amotion, 426 ; mandamus to restore, 427 ; quo warranto, 427 ; acts of de facto, 428 ; protection of, 429 ; assessors of boroughs, 431 ; direction of man- damus, 432 ; town clerk, 433 ; duties, 433 ; liabilities, 437 ; amotion, 437 ; his office new, 437 ; mandamus to restore, 437 ; resignation, 438 ; treasurer, 439 ; duties, 439, 440 ; indictment, 439 ; bill for an account, Add. et Corrig. ; quo warranto, 441 ; auditors, 442 ; clerk of the peace, 443 ; duties, 443 ; mandamus to, 443 ; coroner, 444 ; quo war- ranto, 445 ; recorder, 446 ; deputy, 447 ; declaration, 447 ; quarter xii INTENTS. sessions, xmd court, 449; fa. to repeal grant of, 450; matters cognizable, 150, 151; certiorari, 451; exemption from county rates, 452; ale lioi ; prosecution of prisoners, i 5 1 ; contracts for maintenan j what offences not cognisable, 457, t58; courts of record, 459 ; judge, 460 : attornies of, M31 ; rules, 461 ; new trhi! 10 marrai "}><<* cum causd, 4-63 : jurors, if action, 465 ; pleading, 466 : privilege from arrest, !>;; ; mandamus, 167 : Pie Poudre (.'units. IG7 and Aun. et Corrig. ; pre- scribing for court of equity, 468 ; borough justices, 169; not corporate offici rs,471j COnvictio certiorari, :;.;: justices' c \ cv '.. : : pi tty sessions, 174; quo warranto, 475 ; ac- tions against them, 17'- : jurisdiction, t75— 477 ; concurrent with county justices. 178; jure in counties of cities, &c, 480] freemen, 4S1 : gaols, 182—486; borough fund and borough rates, 487 ; juris- diction of equity r< timate for a rate, 490 ; rate bad for 1 : retrospective, 491 ; sale of church patronage, 192 ; manage- ment of corporate property, 193; district rates, 493 — 195] museum : baths and washhouses rates, 495 ; poor rates, 496 — 198; pauper lunatics, &c, 499 ; expenses of obtaining act of parliament, 499 ; rates generally, 500 : bridges, 500, 501 : highways, 501 ; protection of persons acting in pursuance of Municipal Corporations Act, .3(>3 ; free- men ,-,oi — 506 ; parliamentary franchise of, 506; list of freemen, 507 ; mandamus to admit, 509; right of common of, 509, 510; charitable trusts, 511; legal estate where now vested, 511, 512; account against corporations, 513, 514. THE UNIVERSITIES, 515; what are, 515; lay bodies, 515; incor- poration of, 516 ; how visitable, 517, 518 ; offences against statutes of, 519 ; Chancellor's courts, 5:.'". 5 I I : privilege of members, servants, &c, 521—523; pleading, 5 : i : claiming, j Vice-Chancellors jus- tices of peace, 527 : presentation to living substitution of decla- rations for oaths, 528 ; colleges, 529 ; founder's will, 580 ; foundership, j \isitor, 5 II —537 ; suspension from fellowships, 5:>7 ; expulsion, : mandamus to n - : quo warranto, 539 ; ejectment, declaration by head of colli ' i name in grants, &c, 540 ; poor rates, 541 ; common seal, "ill : admission to college, 5 1 1 ; increase to foundation of, 51 : ; grant to fellow, 5 13 ; cross-presentations, 543 ; leases, 544; conusance for rent, 544; devises to colleges, 545 — 547; account in equity, 547,548; disposition of college lands, 548- 550; funds, 550 ; decisions respecting particular colleges, 550. FREE GH \M\I \i; SCHOOLS, 552 \ powers of equity over, 553—556; of visitation, 557 ; conveyance of sites for schools, &C, 558; corpo- ration of a school may consist of tun persons, 558 : devises to schools, '■ disposition of surplus, I ; equity and a visitor, tting aside disposition of Ian-! lapse of time, 564, 565 ; appointment to schools in boroughs, &c, HOSPITALS cal bodii founder, 568; name, 568— 571 ; manner of founding, 571; under the statute. 573, 574; power of CONTENTS. X1U leasing, 574-, 575; master, 576, 577; elections, 577: quo warranto, 577, 578; majority, 578; common seal, 579; individual corporators liable, 579 ; equity marshalling assets, 579 ; relief in equity, 579, 580; women members of, 580 ; rateability, 580. DEAN AND CHAPTER, 581 ; visitor, 582 ; powers, 582, 583 ; founder's statutes, 583; bead, 585; no negative voice, 586 ; acceptance of rent, 587; actions by, 587; estates vested in Ecclesiastical Commissioners, 588; bond given to dean, 589, 590; patronage, 590; installation of dean, 591 ; scire facias on judgment by, 592 ; waste, 592 ; canons, 592; archdeacon, 594; proxy, 595; majority, 595 ; surrender of possessions, 596 ; chapter house, 597, 598 ; superstitious use, 598. Q UASI CORPORATIONS AGGREGATE, 600; churchwardens, 600; suing, 601, 602 ; mandamus, 602, 603 ; bill in equity, 603; bond to, 603 ; no common seal, 603 ; quo warranto, 604 ; pleading general issue, &c, 605 ; cannot hold lands, 605 ; cannot lease, 606 ; church- wardens and overseers, 607 ; may hold lands, &c, 608 ; have no common seal, 609; majority, 610 ; mortmain, 611 ; bonds to, 611; mortgage by, 614; information in equity against, 615; notice of action, 615 ; guard- ians of the poor, 616; contracts of, 617—619; name, 619, 620; poor rates, 620 ; dissolution, 620, 621 ; quo warranto, 622 ; mandamus to admit clerk, 622 ; estate in parish property, 623 ; district board of guardians, 623 ; no common seal, 624 ; visitor and guardians of the poor, 624; board of ordnance, 624; directors of a company, Add. et Corrig. ; banking copartnerships, 624, 625 ; joint stock corporations, 625 ; commissioners of sewers, 625. CORPORATIONS SOLE, 626; queen, 627; king, 627—629; bishop, 629—631 ; grant of office to, 631 ; of options, 632 ; of land, 632 ; mortmain, 633 ; corporate seal, 633 ; deans, &c, 633, 634 ; parsons, 634 ; resignation, 635 ; corporations sole suing, 635, 636 ; prescribing, 636; leasing, 636, 637; equity prevents waste, 637; excommunication, 637 ; scire facias on judgment by predecessor, 638 ; quo warranto, 638 ; disposal of property how binding on successor, 638 — 640 ; confirmation of bishop, 640; of patron, 640; usurper's leases, 641; concurrent lease, 641; bishops' leases, 641—643; leases good against grantor, 643 ; successors' rights, 643—647 ; usurpation, 647 ; grant of offices, 647, 648 ; subjects of demise, 648, 649 ; corporation sole lord of a manor, 650, 651 ; agreement for tithes, 651, 652; renewals of leases, 652 654-; building leases, 655; grants for sites of schools, 656 ; arch- deacon, 656 ; perpetual curates, 657— 659; mortmain, 657, 658 ; resig- nation of corporation sole, 659; chamberlain of London, 659, 660. QUASI CORPORATIONS SOLE, 661. Index of Matters, 663 — 749. ( xv ) ADDENDA ET CORRIGENDA. Page 8, line 15, before of Henry 8 insert 18 Geo. 2, c. 15, s. 12, repealing the statute. 52, note (m), add Corporation of Rochester v. Lee, 15 Sim. 376, ace. 56, line 5, add But the writ will not go to a railway company, directing them to take the seal off the register of shareholders, though it was alleged that the seal had been affixed fraudulently and illegally, &c; for the court said, that though the writ went to compel the affixing of a common seal, there was no authority°for its going to compel to detach a common seal ; Ex parte Nash, Q. B. 14 Jur. 574. 100, note (o), line 2, for 2 & 3 Will. 4, read 3 & 4 Will. 4. 108, note (s), line 4, after conveyance insert — if to charitable uses. 113, note (I), for V. C. read M. R. 114, line 17, after testator add but a devise tending to a perpetuity was not upheld in favour of a corporation, though a charitable one ; thus a devise to a man and the heirs of his body, and if he shall go about to alien, then that his estate shall cease, and the lands go over to Christ's Hospital, was held to be void, even after the death of the original donee without issue: Pewterers' Company v. Christ's Hospital, 1 Vera. 161. J 130, line 2, add reference to 1 Ann. stat. 1, c. 7, preventing grants in fee, &c. of crown lands. 172, note (ml, add Vid. per Lord Cottenham, C, in Attorney-General v. Jones, 19 Law J. (N. S.) Chanc. 270, in accordance with the opinion expressed in the text. 270, line 13, after interpretation add Thus railways are considered as constituted for public purposes, and their powers are granted to them only on certain conditione to be found in the acts of parliament enabling them to interfere with the privats property of any individual whose property happens to be in the line of the pro- jected railway. The evils which must arise from the exercise of the despotic powers conferred upon them are supposed to be compensated by the public good which is expected to be derived from the works to be accomplished by means of those powers. These works are to be accomplished strictly upon the conditions which are imposed by the several acts of parliament ; per Lord Langdale, M. R., in Carlisle v. South- Eastern Railway Company, 14 Jur. 515 ; et vid. 3 Q. B. 528, 543 ; 2 Q. B. 64. 290, line 30, add A corporator may not only sue singly in equity the directors, &c, or the company, on behalf of himself and other shareholders, &c. but he may also join other parties as defendants, who may be receiving benefits from the transac- tions which he impeaches ; Salomons v. Laing, 19 Law J. (N. S.) Chanc. 291 ; but the plaintiff cannot examine a shareholder not a defendant in support of the bill ; Fyler v. Newcombe, 19 Law J. (N. S.) Chanc. 278. 342, note (a), add reference to p. 52, note («). 368, note (s), add councils are empowered to provide a police superannuation fund by 11 Vict. c. 14. 378, note (c), add but though the writ goes to affix, there is no ground to think it will issue to detach a common seal when once formally affixed: Ex parte Nash, 14 Jur. 574. 428, line 26, for cratus read conatus. \\i ADDENDA II CORRIGENDA. 440, line 24, add Equity will enforce llie due performance of the trust which the treasurer undertakes with respect to the borough fund ; and it i^ DO answer to B bill brought bv the corporation against him for an account, that they have already proceeded agar re tiie JQStiOM under the . Bruin, 12 East, 400. In (b) Bligh v. Brent, 2 Y. & C. 268 ; Brad- equity it is different, Edwards v. Grand J. ley v. Holdsworth, 3 M. & W. 422 ; Marriott Railw. Co., 1 M. & Cra. 650. v. Mascal, And. 210. Where a bond was (c) Blackburne v. Jepson, 3 Swanst. 138. given to A., B., C, &c, governors of a So if a commonalty is disseised, and then voluntary society, which was afterwards erect- every one of the corporators release for him- ed into a corporation by charter: held, the self, it is not good, because it ought to be obligor was not liable in an action by the under the common seal ; 18 Vin. Abr. 303, corporation, for it was a different body from pi. 7. the society ; Dance v. Girdler, 1 N. R. 34 ; (d) 7 M. & Gra. 210 ; Ex parte Lancaster 2 ( OEPORATIONS. raters, and resides and is invested in, and "stands upon"(c) that body and their successors forever. So in respect of persona] property vested in the corporation, the individual members are nut owners of that pro- perry, nor is each of them owner of any part of it, nor are they joint owners of the whole, although they are each interested in the property, bey may derive individual benefit from it- increase, or loss from its notion, but the abstract entity, the corporation, is the owner and only owner of the propertyC/). If the whole body of members a any given time be collected together within our view, we do he corporation, although we see all the existing corporators; for the corporation is identified not with them, but with them, their pred, and their successors. A corporation may be rated to the poor(y), to the land-tax (A), to repair bridges(t), in respect of its pos- ms as a corporation, but that does Dot imply that the whole or any (1 f the corporators >hall be personally liable in respect of any rates upon the lands, &c, of the corporation. If a corporation is summoned to a court of justice to appear before it, though every living member of the corporation should appear, the exigency of the writ is not satisfied, for the persons appearing are not the corporation, which is vested not in them alone, but in them, their predecessors from its creation, and their successors for ever (A). By the civil law, from which much of our law of corporations has i derived, the goods and rights of a corporation belong in such manner to the corporate body, that particular persons who are members of it have no manner of right or property in them, or can dispose thereof (7). But this is not exactly true in our law, it fails with respect to muni- cipal corporations in tin- respect, that in them every corporator has a hold in the corporation, as it has been expressed, or, as it seems more accurate to say, in his corporate character, though he cannot alienate such corporate character, and every corporator can enjoy indi- vidually various rights which are vested in the corporation only, as a right of common, or an exemption from toll (m). Still, however, in i i l Peckw. i eg. i. (..miner, Cowp. 79; oid. 3 found in tlic principle, that ;i corpora- (h) Royal I (change Assurance Company British subject* though it !>'■ d. Vaughan, 1 Burr. 155. wholly of aliei "'I, • Birmingham and Gloucester 16] 12 Car. 'J, <-. ... :i Q. I',. 233. ibbot, print <>r pri '■•ill \ in. Abr. Corporations, U. pi. 4, 5. I, f.«r any il to a mayor and all the otlier cor- porators of a corporation is not good to vest .jiii tin thing granted in the corporationi wd. case Co. Lilt. 1 I . i . . 338. [0 Rep 32b li ■ k (J) Nayloro. Brown, Finch, Rep. 83, marg. (in) Such exemption conveyed l>y royal ; tor it i- <«jn,. grant to I corporation seeing to operate to to them while tin v continue ■ exempt not only the corporation, but each cor p o r ation, which the law looks upon to he individual member of it ; Vaugh. It. 349; Rol. Abr. B43. Bailiff of Tewkesbury v. Bricknell, 2 Taunt. \maud, 16 Law J. | N. B.) 141 ; Chj <.f London v. Vanacre, 5 Mod. . . 440 j vuL 12 Rap. 120 ; Hob. 15 ; or a right CORPORATIONS. 6 respect to real property corporeal, it is strictly true that, according to our law, it is the whole body — the abstraction of law — that is seised of the realty. The members are no more seised than the members of a man's body could be said to be seised of his estate (ji). This idea of a corporation, namely, that it is in fact an abstraction of law, having no existence or power of action but what the law gives it, serves to explain many of the attributes, especially of a negative character, which have been laid down as belonging to corporations. Thus, when it is said that a corporation cannot commit treason (o), we find at first view a difficulty in realizing the proposition, because instances suggest themselves, such as levying troops against the crown under the common seal, which it appears would involve the body politic in the guilt of treason ; but the truth is, that all such acts, being wholly beyond the scope and object of the institution of any corporation, are considered, even when authorized under the common seal, as wholly uninvested with the corporate character, that is to say, void as cor- porate acts, and precisely as if they had been done by the individuals constituting the corporation in an aggregate character merely. The individuals, therefore, and not the corporation, are the guilty parties in such cases (p). So a bond by and in the name of all the existing cor- porators is not the bond of the corporation, although it be sealed with the common seal ; the aggregate of the members not being the same thing as the corporation (q). So if a corporation be disseised, and afterwards every one of the members releases for himself, that is not a good release ; for the release, to be good, ought to be under the com- mon seal ; the aggregate of the members not being the same thing as the corporation aggregate (/■). Perhaps enough has been said to show that a corporation is something of an abstract nature, having a metaphysical existence only, and there- fore not tangible, visible, or the object of any of the senses. With re- spect to duration, it may perhaps be said, that the least accurate part of what is cited above from Sir Edward Coke consists in the term immortal as applied to a corporation. Yet in this inaccuracy there is nothing more substantial than is involved in the circumstance that corporations are not of course immortal a parte ante, although they may be so a parte post, speaking with reference to the periods of their creation. A corporation is an institution calculated for and capable of duration as may be vested in the corporation, and may North of England Railw. Company, 9 Q. B. be enjoyed only by a select portion of the 315. corporators. Thus a corporation may pre- (p) 21 Edw. 4, 14; Quo. Warr. Cas., scribe that time out of mind the corporation Pollexf. arg. p. 95; Treby's arg. id. p. 38, did repair the aisle of the church, by virtue 39 ; Bentley v. Bishop of Ely, Stra. 912, 2nd whereof the mayor and aldermen sat there ; Resol. For the rule that a corporation can- Jacob v. Dallow, 6 Mod. 231 ; 17 Vin. Abr. not do any act beyond the scope and purpose 5'3. of their creation, vid. Broughton »>. Manches- (n) Per Maule, J., Baxter t>. Brown, 7 M. ter Waterworks Co., 3 B. & Aid. 1; vid. & Gra. 210; rid. definition of seisin, Harg. etiam, 4 B. & Ad. 322; 1 Salk. 32, 4th Co. Litt., note 285, sect. 611. resolution. (o) Yearb. 21 Edw. 4, 14; Vin. Abr. (q) 14 Vin. Abr. 28, pi. 6. Corporations (Z), pi. 2 ; vid. Reg. v. Great (r) 18 Vin. Abr. 303, pi. 7. b2 •1 DEFINITION. the world I it may be brought to a termination by nts or by certain defaults oi' duty on the part of its members at any period; but however long its duration, the corporation always inues the Bame; and the same rights, privileges, duties and liabilities attach to it as it had at the first moment of its creation, precisely as though it were an individual. P vice fimgitur (*). This unbroken personality, this beautiful combination of the legal characters of the Unite being with the essentials of infinity appears to have been the primary object o\' the invention of Incorporations,— an invention which, perhaps more than other human device, has contributed t i the civilization of Europe, and the freedom of its states. By this means municipalities were famished with a form of government that never wore out; charitable trusts were secured to the objects of them bo long as such objects should continue to be found; the protection, improvement and encouragement of trades and arts were permanently ided f.r: and learning and religion kept alive and cherished in times through which, probably, no other means can be mentioned that would appear equally well qualified to preserve them. The ideal being, called a corporation, we may thus define to be a continuous identity ; en. lowed at its creation with capacity for endless duration; residing in the grantees of it and their successors, its acts being determined by the will of a majority of the existing body of its grantees or their successors at any given time, acting within the limits imposed by the constitution of their body politic, such will being signified to strangers by writing under the common Beal : having a name, and under such name a capacity 1 enjoying all kinds of property, a qualified right of disposing of i' ions, and also a capacity for taking, holding and enjoying, but inalienably, liberties, franchises, exemptions and pri- vil. her with the right and obligation of suing and being sued Only under such name. (i) A corporation is *o far considered to rendon in si.-nify ecclesiastical corporations :i that the • ; 1 Reeves's Hist. Law, 76, 79. Puffen- il has often been dorf, lib. vii. c ii- s. 13, applies it to a slate, lust. which he cMa ptrtona moralii compatita. The onalitv of a corporation aggregate is re- I ■ i I. C. cognized in a striking and novel manner in the Kent \\ ut' ■ ■ 1 it. An lor promoting the Public Health ; by i .'.14- Au.-'' of which corporations aggregate are em- 119; )>" t iv proxy under theircommon ) \\ . 27, m il it th( : local boards of health ; 7i, i . II ,-, I J \ ict. c, 63. C. 11, s. .'), C. 16, ■ 3, C I6 ( - 3 ; However, the centraiy construction has been irations, pi. 10 ; vmL 1 1 & 12 put upon, the word in 7 Geo. 2, c. 7 ; vid.2 I 1241. mar.'.; 2 M. & W. • imtrcietur, IfC. MsgU. Chart. C. 14, held tori Act, 6 (ieo. 4, C 94, S. 2. ■ or- Whether in a prescription the word persona . 170; vid. maj be construed collectively has been much debated; vid. Dyer, 149 a The corporation a thins is forbid Oxford, is composed of liw »;i.iii:it Um i!" 1 provost, fellows and scholars of Queen's ji„j,- I t it is a single person; and if within the ol in theii leases or grants as : V'in. Abr. person, that is correct; Lev. 134, I, II I; '. Vin. M.i. 2 7 2. pi. 10: Queen's to: .1 in the Constitutions of C'la- Coll. Oxf. case, 1 Leon. 134. DEFINITION — MEMBERS. 5 This is the definition of the ideal creation — the ens rationis called a corporation ; and it will be found to measure and describe accurately the attributes of a corporation proper, that is to say, a corporation created merely as a corporation, without any restrictive or limiting clauses in the instrument of creation. It is not by any means true, however, that all existing corporations come up fully to the whole extent of the above definition, because corporations are held to be in this country the crea- tures of the crown or of parliament, and consequently there is scarcely any limit to the variety of forms in which they may be produced. But continuous identity, a name (I), and a common seal, seem indispensable requisites to the creation of a corporation proper. The principal distinctions between a corporation, and any other body of persons associated together for specific purposes, are, besides the attributes above mentioned, these further important characteristics, namely, that corporators in general are not liable, either civilly or crimi- nally, for any share they may have taken in a regular corporate act within the competence of the corporation to perform; and that corpo- rators, where the corporation is possessed either of personalty or real property, have in general no individual share, right, title or estate to or in any specific part or portion thereof, which is wholly vested in the ideal entity or abstraction, the corporation, and not in the body of per- sons who happen to be at any given time the existing corporators, either jointly, severally, or as joint tenants, or tenants in common, or in any other mode or way whatsoever. The members of corporations may be natural persons, i. e. in muni- cipal corporations males of years of majority ; in others, sometimes femes sole are eligible, if of age ; or natural persons joined with a corporation or corporations aggregate or sole, so that corporation A. may be com- posed of other corporations, B., C, D., &c, and a number of indivi- duals not bound together among themselves by the corporate union, independently of corporation A. ; or the members may consist wholly of corporate persons, or of certain officers of a corporation ; or the mem- bers may be made up of part of the members of a corporation and other persons ; or they may be composed entirely of persons who succeed to a place in the corporation in right of offices held independently of the corporation (m). Instances will occur of all these kinds of corporations (t) That the identity is complete may be the first corporation that the crown was em- seen from this, that, on an obligation given to powered by statute (a. d. 1694) to grant a the predecessors, the successors might bring charter to incorporating it for a limited period, debt in the debet et detinet just as the pre- («) Vid. 10 Rep. 31b. By statute the decessors would have done ; 7 Vin. Abr. 358, Master and Wardens of the Company of 363. Haberdashers, London, were incorporated to The expression continuous identity seems be governors of the Free School of Newport, more correct than perpetual identity, which Shropshire; vid. 3 T. R. 602; vid. etiam, has been generally used with reference to cor- The Company of Carpenters, txc. v. Hayward, porations, because several corporations have Dougl. 359. been created originally for limited periods, as Sometimes the same body of natural per- the Bank of England, the South Sea Com- sons, who are incorporated under one name pany, the London Gas Light and Coke Com- for one purpose, are again incorporated under pany ; vid. 50 Geo. 3, c. clxiii. s. I ; 5 Beav another name for another purpose ; e. g. " The 382, 385. Principal and Scholars of Brazen Nose Col- 'Ihe Bank of England ^eems to have been lege, Oxon,'' are again incorporated as " The (j MEMBERS — ORIGIN. in the course of the work. They tend to show that corporations aggre- are something different from the aggregates of their members re- spectively. But the most usual mode of constituting a corporation is to erect it in natural persons, who, with their successors, are then called cor- porators or members, as opposed to all other persons, who are called strangers or foreigners. In general, women cannot be corporators, although in some hospitals they may be BO; and there is one instance in the books of a corporation consisting of brethren and sisters, and invested with municipal powers to a certain extent (j). So in general infants cannot be corporators; but in certain cases, i. e. by devolution or devise, they may become mem- ben o( railway and other trading joint stock companies constituted by act of parliament (y); nor aliens, (they are expressly excluded from becoming members of municipal corporations by 5 & G Will. 4, c. 76, . 9); but there are, nevertheless, cases in which they maybe corpo- rators of trailing corporations (c). ( rporations arc said to exist, either I. At Common Law. II. By Prescription. III. By Act of Parliament. 1 V. By Charter, V. or by Implication, (drporations are either sole or aggregate. Sole corporations, which reside always in single persons, are mostly corporations at common law. The full discussion of their nature and attributes will be taken more conveniently hereafter: at present we shall confine ourselves to corporations aggregate. These maybe either by prescription, which in feet, as prescription always implies a grant, resolves itself into the •lth mode of origin, viz. royal charter; or by act of parliament (a); or by implication (b). Gov! IdletonScho re;" Plowd. Com. 12 B. 13 ; 10 Rep. 27) in the i . . Oxon, 8 reign of Henry 7, has been so frequently 4. S. 377. G uen, acted upon, and so frequently recognized by : , n ,| | t Bristol," •••■ by a our court-:, and in the ease of the city of charter of Queen Elizabeth into the corpora- London, by the legislature, that it is quite n of the Hospital of useless, except a- a matter of antiquarian cu- ristol;" 11 M. 6c W. riosity, to insist upon facts or arguments cal- \lj\ur, ficcof Colchester, dilated to shake it; wd. Merew. & Ste. Hist. j ion. LolTt, It. 556. As lenhead, Palm. t<> whal is evidence of a corporation by pre- 1;. 77 soription, vid. Jenkins i>. Harvey, 2 C. AI. & m- K. :; I La W .1. ( \ (b) A body is said to be a corporation bj implication, when, being constituted by any ij. i J means, it is found that tlie purpose Hint upon -tiict cl without principles there i- no attributing the corporate character to such tot oi I liver Tone v. Ash, I" 1'.. &t ( . :; ',') ; .l< ',}< rys v. (iurr, 2D. & \ ■.-< .. n. i . I (ay, 2 Atk. 212; Ei Hen. 7, 13; <•) The charter of William the Conqueror possessions the Duke of Lancaster has not to the city of London was sealed with a seal, jura regalia, and therefore a corporation situate which it recited was " bitten with his tooth, in there must be erected under the great seal of 10 CHARTERS. An instrument of grant, with ■ recital that it was made de assensu prcela- torum, evinitum, bar, mum ffj tutius communitatts in instanti parlunnruto cotwoeato, has the effect and authority of an act of parliament, and soch a charter can only be repealed by another act of parliament (0- But it Bccma there is ground to think this must be understood to hold only where BUch instrument wafl not under the great seal ; for in that case, notwithstanding the words de an , Brc, it would only have the effect i ordinary charter, and there is nothing in such ease to prevent the crown from granting a new charter varying the provisions of it (a). Where, however, a charter has been confirmed by act of parliament, it cannot be varied by the grant or acceptance of a fresh charter inconsis- tent with it u-). This principle, however, has nol always been strictly acted upon y). Also a charter granted under the provisions of an act of parliament authorizing the crown to make the grant cannot be altered without another act of parliament (z). It i- at the pleasure of the crown to grant or withhold a charter of incorporation ; hut when once granted and accepted, the charter is irre- pt with the full, and perhaps the unanimous concurrence of the !_ r rantee< or their successors ; lor the crown cannot, by its prero- gative, destroy or dissolve a corporation : nor can the crown resume an interest once granted, unless the grantees or their successors concur (a). A iharter of the crown granted before the time of legal memory is of no avail now (A |, as it IS -aid. All tlu- incidents of a corporation necessarily follow from such an in- strument, although they are not specifically enumerated and stated in it. AmongBt tin- rest, tin- essential of perpetuity necessarily attaches, and ihe United Kingdom ; Vin. Abr. Prerogative, sequent charters was empowered to multiply ];. b. pi. 6, E. b. 2, pl. 6; oid.( ohn- those purposes and increase its funds; vid. II D. Clerke, 2 Lutw. Royal Exchange Assurance Coin. r. Yaughan, . abr. 71, pi. 7; id. 71, 1). b. 1 Burr. 155. pl. 1 ; id. 73. In the county palatini I ["be most important and celebrated char- ter it seems charters of incur; las ter of this kind is that granted to the Governor well under I 'I of the and Company of the Bank of England under itioe; vid. 11.1 of July 27, 1694 ; vid. 5 & 6 W. & M. ibatisnotindispeii iller, J., 1 T. R. e. 20. \\ Inn a subject has been empowered by act of parliament to erect a corporation, ■rkit Bill) 3 ( 1. In- charter granted in pursuance of that act B ; Hale's can only be alten d by another act of parlia- i. pp. 20, ment ; 1 Q. B. 3G8. , Larwood.Salk. 168; Bro. Abr. arter d$ aumu prtela torum Corporation, pl. 7H ; Palm. 501 ; Stat, of ■ . 6 I dw. 1 . '2 [nst.280 . Merew. . Plowd. < e Ste. Hist. Boroughs, 2201. The mode of 214; ii,/.: .ion, .1., in It. i. Att« obtaining a charter under the Municipal < . ill. P... p tion Act, and of opposing the grant, is („) i;, x t Haythorne, 5 B. & C. 118; fully discussed and explained in Kutter v. rid. lam. The Pri Chapman, 8 M.6t W. 1. As to the mode of ining H charter >>f private incorporation r.R.268. If a char- from the crown, oid. Hindm. Pat 609. As words " bs authority ol Parlia- to the hearing before K.H. Gen., id. 613 ite ; t'~1 ; Privy Su.il, id. 5'28 ; Lord Chan- ii cellor, fol. 4, B. CHARTERS. 11 does so, it is conceived, even though a limitation as to the time of the dura- tion of the body should be contained in the charter ; for the prerogative of the crown does not extend to erect a corporation with any limitation on the continuance of its existence, and a corporation so erected must have the attribute of perpetual identity, and stand on the footing of a jcojjaa ei$ otet to the grantees and their successors ; yet the crown, by act of parliament, may be authorized to incorporate for a period, limited and ascertained in the charter, as is the case to this day in respect to the corporation of the Governor and Company of the Bank of' England, among other in- stances which might be stated. It has been laid down, without qualification, that none but the king can make a corporation (c). This, however, is incorrectly stated, for a subject having a franchise with jura regalia is entitled to create corpo- rations (d). Also the Pope might, and was used to incorporate eccle- siastical bodies of friars, &c, and this was acknowledged for law as late as the 14th of Hen. 8 (e) ; and there are many instances in which charters of incorporation, and even charters of municipal incorporation, have been granted by subjects having jura regalia (f). Thus, a. d. 1565, Pilkington, Bishop of Durham (the bishops of Durham then having jura regalia within the county palatine of Durham and Sadberge), granted a charter of incorporation to the city of Durham (g). A. D. 1602, Bishop Tobie Mathews granted a fresh charter to the same city ; and the governing charter of the city up to the passing of the Municipal Corporations Act, was that granted by Bishop Egerton, a. d. 1780 (/*)• The bishops of Durham have also exercised the power of incorporating various trading bodies within the county palatine. Thus, a. d. 1559, Bishop Tunstall incorporated the company of Barkers and Tanners of Gateshead ; and many other in- stances might be mentioned (z). However, the palatine jurisdiction, (c) 49 Edw. 3, fol. 4, per Candish, J., and cessors le roy, royes d'Engleterre, on en auter Knivet, C. : and vid. 49 Assis. pi. 8; Sutton's maner, #c, 2 Inst. 278. And so the Muni- Hospital Case, 10 Rep. 33 b; Com. Dig. cipal Corporation Act, s. 1, repeals "so much Franchise, F. 2 ; Bacon Abr. Corporations, of all royal and other charters, grants and B. ; Anon. Lofft. 556 ; Jenkin's Cent. 88, p. letters-patent, now in force relatine to the 270. It is scarcely necessary to state that no several boroughs," &c, obviously recognizing foreign potentate at present, as such, can found the force and obligation of charters other than a corporation in this country ; Greyslock Col- royal. lege case, Dyer, 267, cited 4 Rep. 107 ; Vin. '(g) Vid. 1st Report of Corporation Com- Abr. Corporations, A. pi. 8. "Anciently a missioners, Append. 151 J. guild, either religious or secular, could not be (/<) Id. ibid. set up without the king's license;" Madox, (i) Id. 1525. Vid. Goodyear v. Shaw, F ; rma. Burg. 26, where a number of instances Styl. 298 ; Merew. & Steph. Hist, of Bo- are given of bodies who were amerced for the roughs, 1403. Gilbert de Clare, 7 Edw. 2, presumption of setting themselves up as cor- granted a charter to the burgesses of Tewkes- porations without authority. bury and their successors, reciting former (d) Vid. 1 T. R. 581 ; et vid. Goodyer v. grants of William and Robert, formerly Earls Shaw, Styl. 298. of Gloucester; 2 Taunt. 122. The Corpo- (e) Per Fineux, C. J., Yearb. 14 Hen. 8, ration Commissioners mention one borough fol. 3. Ecclesiastical incorporations are men- which claimed to be incorporated by charter tioned in Domesday Book, Merew. & St., Hist. from Walter de Lacy ; vid. 1st Report. Ed- Bor.Introd.xv.322, 575 ; vid. Finch. Law, 92. ward the Black Prince also appears to have (/) The statute of Gloucester, 6 Edw. 1, granted charters of incorporation, and so of appears to recognize the principle that muni- many other subjects; vid. Brady on Boroughs, cipal franchises might originate otherwise than 45; Att.-Gen. v. Corporation of Cashel, 3 by royal charter ; touts ce.ux que ascuns frun- Dru. & Warr. 298, 299. cliises claimcnt aver per les charters les prede- 1 I CHAR1 BUS. and all its rights ami royalties, were separated from the bishopric of Durham, ami vested in the crown by 6 & 7 Will. 1, c. 19, s. 1. Corj have also, ai various early periods of our history, exer- bt of constituting other corporations. Thus, a. i). 1575, we find the mayor, aldermen ami sheriff of Newcastle-on-Tyne incor- fellowship of Cooks, giving them a perpetual succession, and the power to BUe and be BUed h . So the mayor, aldermen and sheriff .. wcasde-on-Tyne, IT Eliz., incorporated the Company of Coopers of that borough / . Then' do nut appear any traces of an exercise of this power of incor- porating by other corporations in modern times; and two may K- safely Btated with respect to the above cases. ■. that if they are to be considered a- valid rxertions of an autho- rity legally vesting in the bodies who -ranted the charters, it can only lUnd that a -rant from the crown, or by >tatute, of such power vi' incorporation, may he presumed to have been made to them ; and, secondly, that no such power would be granted at present to a corporation either by the crown or by parliament (m). That the crown might have -ranted to a corporation the power of Lting by charter other corporations was apparently well settled («)• Thi' power of incorporating other bodies may be conferred upon a cor- poration by act of parliament, and by 39 Eliz. c. 5, is conferred gene- rally on all corporations (having power to aliene) so far as to enable them to found, incorporate and endow hospitals, &c. (o). It is remark- able also that the corporations BO empowered were unable to erect these hospitals for any limited period ; they must cither confer a perpetual succession or nothing; if their grant was not a grant of incorporation, it was invalid (]>). It has always been the law that one municipal cor- ttion could not create another municipal corporation; for com- monalty cannot make commonalty (y). So a custom in London that a guild or fraternity may make another guild is void(r). We may nmark here, in confirmation of a principle already laid down, that the endowment, when once made by a corporation acting in pursuance of the act of Elizabeth, is wholly beyond their power, and --', 720; S. C. 12 Cla. & F. 402, 419. Lend Kenyon'i (/>) 2 Inst. 72:5. (r. Corporations. B. pi. 3, marg. orporation may A corporation cannot be divided into two cor- porations but by royal charter; Bro.Abr. I or- derly v. Wiltshire, Stnu porations, 45 ; Grants, pi. 81, or act of pur- liament. The word commonalty i* used in ihc (m) It I I tliat the i shore maxim for corporation; but in many old records it is used more loosely to signify anyseparaU body. Thus communia is applied b>. pi. i 1 '. to ti.e body of Jew« residing in England; , I ■'• . Bac Mad. Hist. Exch. 163, 177, 178 ; 8 Hen. 6, Abr. ( '• ■ . _: distinction between common- onalty incorporated. V.t vid. I. b. pi. 16; <■'. aa to thi use of comntunia in ancient charters, 2 Kemble'i Sbj land, 310. (r) Paramore >. Verrall, 2 Aoder. 152 ; in. 3, fol. 4 , l" CHARTERS. 13 unalterable by them or the crown, or any one else, except by virtue of an act of parliament (5), just as the king's grant when once made is not revocable at the pleasure of the crown. A charter of incorporation is the written instrument by which the crown institutes the body politic, and conveys to it its peculiar consti- tution, its rights, privileges, powers or estates, &c. ; imposes a name upon the corporation, defines its objects and purposes, and assigns such conditions and limitations upon the exercise of the powers, privileges, &c, conferred, as to the crown seems fit. The crown may even impose in the charter restrictions upon the exercise of the incidental rights, privileges and powers of corporations ; but if it does not, then, imme- diately on the corporation being erected, all the incidents of corpora- tions immediately attach ; and all other powers which a corporation exercises must be contained in the charters, or claimed in virtue of the immemorial usage or prescription, which supposes a grant by a charter which has been lost. No corporation can pursue any other objects than those specified in its charters. There alone can the peculiar purposes of its establishment be discovered. This principle will be found of the utmost importance for the solution of various questions re- specting the law of corporations, and especially of trading corporations. Besides the charter of incorporation, a body politic frequently has granted to it other charters, by which the crown from time to time adds to or modifies its powers, &c. The crown, however, cannot obtrude a new charter on a corporation which is already in existence and capable of performing its functions ; the existing corporators may either accept or reject the new charter at their pleasure (t). Nor can a charter be forced on any body of persons who do not choose to accept it (w). But if a corporation accept a second charter, that does not necessarily abrogate the former, and most corporations of old standing have several charters, all in force at the present day (v). The general rule with respect to the name of the corporation is as stated above, viz. that every charter of incorporation ought to name the corporation, because the name is an essential part of the corporation ; nevertheless there are decisions which seem to show that a corporation may be named by implication from the words of a charter, and that where the intention that such should be the name is clearly discover- able from the language of the instrument, that supplies the place of and renders unnecessary a direct and specific naming (a;). (s) Att.-Gen. t;. Mayor, &c. of Newcastle, Brownl. 100. But such a corporation may 5 Beav. 307 ; S. C. 12 Cla. & F. 402, 419. be divided into two, without its concurrence. The act 39 Eliz. c. 5, appears to be repealed Vid. Quo Warr. case, Att.-Geu.'s arg. p. 9, so far as it empowers municipal corporations qu. tarn. to incorporate and endow hospitals by s. 1 of (v) Where a corporator of a corporation the Municipal Corporations Amendment Act, which has several charters, or a stranger as being inconsistent with its enactments, e.g. pleads in justification, he need not state any s. 92. of them, except such as relate to the matter (t) R. v. Pasmore, 3 T. R. 240. of justification pleaded; per Powell, J., (u) According to the maxim quod nostrum Kerby v. Whichelow, 2 Lutw. 1498. est sine facto sive consensu nostro amitti non (1) Pits v. James, Hob. 124; Ayray's potest, Francis's case, 8 Rep. 92; Anon. 2 case, 11 Rep. 19. ] 1 CHART] BLS. Or it is said it may be implied in the nature of the tiling, as if a royal charter purport to incorporate the inhabitants of 1)., with power to choose a mayor annually, without giving any name, that is a good incorporation of them by the name of " The Mayor and Commonalty ofD." Tin old law was that every corporation must be constituted of some place z). But it is presumed that this ride has long been obsolete, if it ever held good, except in tl < • t' corporations entrusted with Borne local jurisdiction, or with powers and privileges, the exercise of which was from their nature connected with some locality. In all Buch was considered (and it i- presumed rightly, the same being tin- law at the present day,; that the corporation must be created as of the place or district to which they were to be attached; and it seems that in such case the place ought to be designated in the charter, but need not in general be specified with minute accuracy. Thus it has decided that a charter fixing the place of meeting of a corporation to London and Westminster, and within three miles thereof, sufficiently ilished the local limits of the corporation, and that the charter was good, although it did not name the corporation as of any particular place (a). That the crown may delegate to an individual the power to name the first corporators in a corporation, and the officers who are to govern the coi-poration, if it be a corporation of a private nature, is quite clear (/> ; but it has been thought to be not altogether free from doubt, whether the crown can do this in case of a public corporation, e. g. a municipal corporation, although it has been decided by a majority of the judges that the crown may by the grant of a charter of incorporation made in the exercise of its common law prerogative (c), (although such grant also extends to the new corporation, the powers of the Municipal Corporation Act, 5 & <> Will. 4, c. 7G, which the crown has power to do only by virtue of the 1 \ ict. c. 7 s . s. 1!',) delegate to an individual the powir of appointing the first members of such corporation, or may, at all events, appoint a person to ascertain the individuals who compose the class designated in the charter as the persons intended to be the immediate grantees of the letters-patent (d). Crown may also grant a charter to certain named individuals, incorporating them by a name, and giving them power to admit others to be members of the corporation along with them; and in the parties (y) Anr.i,. ' • for t lie decisions relating to cliar- 1 . 'i <>( municipal incorporation. ! 29b, 32 1»; Bae. Abr. Cor- (b) Sutton's J lospital case, 10 Rep. 32 b, i.j. 33 1). i. (r) Uutlcr v. Chapman, 8 M. & Yf. 1, . : B. - I < (./) Etutter i. Chapman, 8 M. & W. 1 . ' ■ I ict c. 1 1 1, s. 1. doa Hospital t. F.irky, Taunt -i'.7; xid. CHARTERS. 15 named, those they may admit, and the successors of the conjoint body, the corporation will be resident and vested (e). This power, it will be observed, falls very far short of the power of incorporating, but the right and power of incorporating by charter may be conferred on an individual by parliament (/). The crown also may grant by charter to an individual the power of erecting a particular corporation or fraternity, the charter only being available pro hue vice ; or the crown may grant by charter to an indi- vidual and his successors in a particular office, a general power of erecting, within a certain locality, corporations of a private nature, not invested with powers of local government, at his discretion, and that of his successors in his office. The Chancellor of the University of Oxford has by charter this power, and has actually exercised it in many instances of matriculated companies of tradesmen resident within the limits of the University (g). With respect to incorporated hospitals, colleges, and other foundations, the usual mode of establishing such of them as have their rise in private benevolence, is for the crown to grant a license by letters-patent to an individual to found and incorporate (k). These charters, or as they are usually called in this case, licenses, granting to individuals the power of incorporating, founding and en- dowing, will be most appropriately considered more in detail when we come to the subject of hospitals. It is necessary, however, to mention that the old law undoubtedly was, however modern decisions may point to a different conclusion, that no secular guild or fraternity, that is to say, in modern language, no trading corporation, nor any corporation which, though it might not actually trade by buying and selling out of a common stock, professed to be established for the security or good government of the members of a particular trade, art, craft or calling, could be erected without the king's license (i). As we have seen, the idea of perpetual duration is implied in the word corporation, and therefore at common law the crown has no (e) Rex v. Askew, 4 Burr. 2200 ; per (g) 1 Black. Com. 474. Vid. grant of Buller, J., 1 T. R. 587, 588, Hen. 5 to John Barslaple to found a guild or (f) 13 Eliz. c. 14, empowered Robert, fraternity in Bristol, Madox Firm. Burg. 25. Earl of Leicester, to found and incorporate a (h) This usage is very ancient. Rich. 2 hospital at Warwick, (vid. 1 Q. B. 367,) for licensed, by letters-patent, Sir Richard Abber- such head members and members of poor and bury to incorporate a hospital at Donnington, needy, &c, as should be named by the Earl, Hob.122. Vid. "Hospitals," " Colleges," and &c., vid. Rex v. Bishop of Worcester, 4 M. other titles, infra. & Selw. 415. The charter was passed under (i) Madox, Firm. Burg. 26 ; where see a the seal of the Earl ; ] Q. B. 367. Another large collection of instances of bodies of men act of parliament was passed to alter the fined for setting themselves upas corporations charter, 53 Geo. 3 ; vid. 1 Q. B. 368. By or fraternities. Et vid. id. p. 35 ; 49 Edw.3, the Joint Stock Companies Act, 7 & 8 Vict. fol. 4, per Candish, J., and Knivet, C. To c. 110, the power of incorporation is given to be guildated and to be incorporated were sy- the certificate of the registrar, vid. Banwen nonymous terms temp. Hen. 6, Madox, Firm. Iron Company v. Barnett, Q. B. Michaelmas Burg. 29, which is the era of our charters Term, 1849, 19 L. J. (N. S.) C. B. 17. of incorporation according to some authorities. (11 \K 1 I RS. er to Incorporate lor a limited period. Accordingly, when it was lish the Bank oi' England as a corporation for a .in time bj way of experiment, the aid oi' the legislature was called in to effectuate that purpose ; but now it is lawful for the crown in any charter of incorporation to limit the duration thereof for any term or number i or for any other period whatsoever (k) \ and also in anv charter of incorporation to make the corporation thereby formed, and the officers ami members thereof, subject to all the provisions, liabilities and directions in the stat. 1 Vict. c. 7o\ contained and authorized to be imposed on or required of any unincorporated com- pany or body, officers or members, ami also to confer on such corporation, or its members and ollieers, all the powers and privileges thereinbefore authorized t«> be conferred on any unincorporated com- panv or body, or its officers or members (/). These provisions are calculated to effect great changes in the attri- butes of corporations hereafter to be constituted, by making them partake in many respects of the character of partnerships. With respect to the question of what are the powers of the crown to Dt charters of municipal incorporations since the Municipal Corpo- rations Act, it has been decided, upon the construction of the 141st section of that act (m), and the 49th section of 7 Will. 4 & 1 Vict. J, amending the former section (n) — I. That the- grant of a charter of municipal corporation is still an cise of the common law prerogative of the crown, although such charter invests the corporation with the functions conferred by the act n the then existing municipal corporations, which the crown has only power to do by virtue of the latter of the acts (7 Will. 1 ;x. 1 Vict. II. That the crown may grant the charter to a part only (to be (k) i \ f» Sect. 49. And be it enacted, that if the •) Rutter v. Chapman, 8 M. St W. 1. cipal Corporation Act. It is said in Bagge's (s) Id. ibid. case, Rol. R. 226, that a charter procured by (() Id. ibid. some few persons shall not bind the rest. 1 1 (u) Id. Such determination throws upon & 12 Vict. c. 93, makes valid certain other the party who impeaches the charter the bur- charters of municipal incorporations granted den of proving its illegality ; per Pattesou, J., since the passing of the former act. in Reg.u. Boucher, 3 Q. B. 654. jg ( 11 \KT1 K-. charter of municipal incorporatioD as regards the size or the character of the town to be incorporated ; this rule must, however, be observed for the s.ike of order and peace, viz. that there cannot be two corporations for the same- purposes with co-extensive pow< i rament extending over the same district ; and therefore a charter is void purporting to create A.. 1'... ( .. &c., a body corporate lor the municipal government of a town where there is already in the place another corporation in possession of its full powers, acting under a Legal charter (y). I ma \ be well, before proceeding to the discussion of acceptance of a charter, to dose this part of the subject of municipal charters by pointing out that the act to proi ide for the regulation of municipal corporations in England and Walt - (5 & ,; Will. 1, c.76), commonly called the Muni- cipal Corporations Act, after declaring that it is expedient that the charters by which the municipal bodies corporate were constituted should be altered, proceeds to enact that BO much of all royal and other charters, its and letters-patent then in force, relating to the several boroughs named in the schedules A. and B. to the act annexed, or to the inhabitants thereof', or to the .several bodies or reputed bodies corporate named in the said schedules, or any of them, as are inconsistent with or contrary to the provisions of the act, should be repealed and annulled (r). Con- sequently the actual constitution of a corporation in those schedules must be collected from a careful comparison of its charters with the provisions of the statutes. The enactments of statutes creating corpo- rations are to be looked to in order to discover the extent and limits of the p.. wars of such bodies (a), and the Municipal Corporations Act may be l.-oked upon, in this respect, as re-constituting the municipal corpo- rations of England and Wales. A< ir.ri'AM i: or ( ' it uri ERS. Having thus explained the nature of a charter of incorporation, and shown to whom and how it may be granted, we now turn to consider the parties upon whom it is to operate. Here the fundamental rule is this, no charter of incorporation is of any effect until it be accepted by a majority of 'In- grantees, or persons who are to be the corporators under it (6). C ( v) |, ]■ , i . K.243 ; Hex v. logous to the general rule that a man cannot !■ , . . , derablein- be obliged to accept the grant or devise of an • ite ; Townson v. I ickell, 3 15. & Aid. 31. UD ; V( d Oxford, in con- But though a corporation is not bound 1 to ac- t wo corporations, cept an ace, -ion to its endowments, it may palitj , clashing. const at to accept a as a trust.with qualifica- loessol the rule 'i'..,- . ktt-Gen. v. Drapers' Company, 6 ,rk. -'. Oo an application for an rafor- ,, \\ ,n. .) ,-. 7g ( .. i mation in the nature of quo warranto, suggest- . La Marche, 8 ing thai defendants were elected contrary to , j_ tin provisions ol the charter, there must be an (/ , ,1. ,\ (i. tun ; affid ice ol ili< charter, ; or that tin- usage bas been in conformity with B un , 8M.&W. the chart meet; i id. Hex v. Bar- I Chancellor sey, 4 M. & 8elw. 263 ; Reg. v. Slatter, Reg. I Burr. 1661. This is ana- p. Quayle, 11 A. 6t E. 605, 508. ACCEPTANCE OF CHARTERS. 19 So no fresh charter to an already existing corporation is effectual until it be accepted by a majority of the old corporation (c), provided the old corporation be in full possession of its powers ; but such ac- ceptance by a majority of an old corporation is not necessary where the powers of government of the corporation are defunct from any cause, as in consequence of their having allowed the governing body to fall so low in numbers that a legal meeting of the corporation could not be held (d). And, whether the charter be one of creation or one granted to a pre- existing corporation, part of it cannot be accepted and not the whole ; at least unless it is manifestly the intention of the crown, to be gathered from the terms of the instrument itself, that the grantees shall have the option to accept in part and reject in part (e) ; otherwise, as has been well observed, the corporation would be a corporation created by themselves and not by the king (/). Another rule to which there is no exception is, that a charter cannot be accepted for a time and then repudiated ; if there be once a valid acceptance that is conclusive for ever, and it cannot afterwards be con- tended that there was no acceptance (g). But an existing charter may be varied by the acceptance of a new one inconsistent with it, and in this way there is nothing to prevent the crown from re-incorporating a cor- poration already in existence, by granting them a charter containing altered or additional powers, and, in fact, the crown has frequently exer- cised this right, subject to the acceptance of the old body (h). A corporation may, if they please, render binding, by their acceptance of it, a charter curtailing their powers, privileges, &c, conferred by former charters ; for quilibet potest renunciare juri pro se introducto. So an usage, however ancient, is totally overthrown and abrogated by the acceptance of a charter inconsistent with it (i). But though the grantees are not obliged to accept a charter, yet when once the charter (c) Bull. N. P. 212 (The corporation of cannot be accepted in part and rejected in Penryn refused to accept a fresh charter offered part; vid. Harg. Co. Litt. 94 a, note (104); by James 2) ; Rex v. Pasmore, 3 T. R. 240, Opinion of Att.-Gen. and Sol.-Gen. 1720. 242. Much of the reasoning of Buller, J., (/) Per Puller, J., 1 T. R. 589; per Lit- 1 T. R. 588, must now, it is apprehended, be tledale, J., in Rex v. Westwood ; and the considered as of no authority. Semble, that contrary doctrine as to a pre-existing corpo- in case of a corporation having a capital or ration, laid down in R. v. University of Cam- joint stock, in which each member is indivi- bridge, 3 Burr. 1647, is overruled. dually interested, a new charter altering the (g) Vid. diet, per Buller, J., R. ti.Amery, constitution of the body can only be accepted 1 T. R. 587. by the whole body ; Ward v. Society of At- (h) Hay ward v. Fulcher, Palm. 491 ; S.C. tornies, 1 Coll. 370. W. Jones, 166 ; R. v. Haythorne, 5 B. & C. (d) Ilex v. Hughes, 7 B. & C. 708. 410. A body corporate by charier may be (e) Rex v. Westwood, 2 Dow. & Cla. 21. re-incorporated by act of parliament, as the The general principle is, that he who accepts universities of Oxford and Cambridge were by letters-patent consents to all things therein ; 13 Eliz. c. 29 ; 4 Inst. 227 ; Com. Dig. Uni- Lord Eure v. Strickland, Cro. Jac. 240 ; Bret versity, B. C. v. Cumberland, Cro. Jac. 399 ; Mayor, &c, (i) Powell v. Reg., 2 Bro. P C.298. On of Lynn v. Henley, 1 Scott, 39; affirmed 2 the other hand, all the ancient usages and bye- Cla. & F.331. Between subject and subject laws will still be in force as to all matters not the maxim is quicquid recipitur, recipitur ad specially provided for by the charter ; Had- viodum recipientis. So there seems to be good dock's case, Sir T. Raym. 435 ; Yentr. 355. ground for holding that the founder's statutes c2 CH IRTERS. i, the body politic by Buch acceptance are bound to perform the terms and requirements upon which it was granted (*)• 1,\ the grantees in this respect, binds them and their . in contemplation of law the grantees and their posterity, are one; the fundamental idea ofcor- ntinuous, unfailing, identity. Even where the object of the crown in granting the charter and erecting the corporation is not expresslj stand in the charter, yet if it be apparent from a consideration f ,j f the charter, the acceptance of it creates an obligation on the grantees and their successors to perform the object (I). But the ptance must be clearly proved j for even where an act of parliament ed a corporation and named the corporators, it was held to be show the express consent of one of them, who was a mem- ber of parliament at the time of the passing of the act(m). It is obviously a question of the utmost importance, whether the eerse of the proposition, that, without acceptance, no charter of incor- poration is operative, be true ; that is to say, whether acceptance renders binding and valid, in all respects, a charter which the crown had no authority to grant, <»r which was defective in itself(n). m it has been said in a late case to be "clear that the acceptance, however complete, merely concludes the bargain with the crown, and tot remove any defects inherent in the charter which render it invalid as a legal instrument. Indeed, no question on the legal autho- ritv of a charter could ever arise, unless it were in fact accepted (o)." there appear to be some, and those not inconsiderable, inds for dissenting from the above view, at least in its generality; or perhaps it is more proper to say, that some remarks arc necessary in order to render char the meaning of the terms, and prevent miscon- tion arising from the unlimited phraseology in which the position is laid down. In the first place, it is well known law, that generally, if the kin;: be deceived by the grantee, there the grant is void; but if the ■ 1 1)\ the -ranter he true, though the crown be mistaken in its inference of 'he law, the grant shall not be avoided (p). In other Is, if the crown, being misled by the representations of the grantees ive that it had power to grant a charter of incorporation, under the circumstances, proceeds to grant such charter, that grant is void, and no acceptance of the grantees will suffice to set it up and render it. valid; but if, the facts stated l>\ the grantees being true, the crown is i I .! , tin charter and returned members to par)ia« i.. ill: tin virtue of it until the passing of the a Act ; vid. '2 I uders, EI. Cas. 231. The charter had been declared illegal and I, and destructive of t it« constitution of parliament, by a resolution <>f the House of 1 , l.'i I >ec. 1710. Vid, infra. . :unl i r.l Denoan, C. J., Kutter v. rter, Chapman, <'• M. & W. 1 16. (/<) 2 I H' m, 17 ; 2 Mi x W. .061. .1 tin: partk 1 in ACCEPTANCE OF CHARTERS. 21 mistaken in the legal inference to be derived from them, and conceives that it has the power to grant a charter of incorporation, then, although the crown has in truth no such power, the acceptance under those cir- cumstances renders the charter valid, at least as against the grantees and their successors ; though the crown may have a sci. fa. to repeal its own grant in such case (q). When, therefore, there has been no misrepresentation of facts on the part of the grantees, their acceptance suffices to render valid as against themselves and their successors a charter which the crown had no power to grant, and which therefore was in itself void (r). In accordance with this principle are the decisions which were come to shortly after the Revolution, when the attention of the profession and the courts had been devoted with great earnestness for a length of time to questions of corporation law, and principles were laid down which have never been departed from since. It is true that the charters of Charles 2 have never been looked on with favour in Westminster Hall; and Lord Hardwicke, C. J., declared that he would never give an opinion in support of them, unless the strongest evidence in the world were laid before the court of their being accepted and uniformly acted under ever since (s). But this observation shows that Lord Hard- wicke's opinion was clearly in favour of the principle, that acceptance set up an illegal charter. The charters which had been granted by Charles 2 and James 2 to various of the then existing municipal corporations, and which all of them more or less interfered with and curtailed the rights, liberties and privileges of those bodies politic, many containing illegal provisions, were after the Revolution divided into two classes by the decisions of the courts ; those which had been granted in consideration of a valid surrender by the corporations of their previous charters (that is, a sur- render enrolled,) and which had been accepted by the corporations, were held to be valid, although containing regulations which but for the (q) 17 Vin. Abr. 99, 100 ; Swaine v. Hoi- such charters are only repealable by parlia- man, Hob. 404 ; vid. Earl of Rutland's case, rnent, in case they are found to have issued 8 Rep. 55; Co. Litt. 27 a; Rex v. Kemp, improvidently. A royal grant is avoided — 12 Mod. 73 ; S. C. 1 Ld. Raym. 499 ; Leg- 1st, where the king has by his grant professed gatt's case, 10 Rep. 109 ; Rex v. Pasmore, to give a greater estate than he has himself in 3 T. R. 249 ; per Grose, J., and per Ld. Hard- the subject-matter of the grant ; 2nd, where wicke, C. J., cited 1 T. R. 637 ; R. v. Uni- he has already granted the same estate, or versity of Cambridge, 3 Burr. 1647; vid. 2 part of the same estate, to another; 3rd, M. & W. 561. But a mere mistake of a where he has been deceived in the considera- matter of fact in the recital of a royal charter tion expressed in his grant; Gledstanes v. is immaterial ; Vin. Abr. Prerogative, N. b, Earl of Sandwich, 5 Sc. N. R. 689; Mead pi. 8 ; Rex v. Blunt, Andr. 295 ; Ld. Chan- v. Lenthall, 2 Rol. Abr. 189 ; Rex v. Bishop dos' case, 6 Rep. 55 b. As to the import of of Chester, Carth. 350 ; vid. infra. the words Et certd scientiti, mero motu, et (r) Vid. Vin. Abr. Prerogative, O. b, pi. speciali gratia, in a royal charter, vid. 10 Rep. l.marg. ; Englefield's case, 7 Rep. 12. It 112 b, 113; Anon. Dyer, 269 a, pi. 19; is to be observed, that it has been stated to be Rex v. Capper, 5 Price, 261. Perhaps it a rule, that letters-patent, whether rightly may be questionable, whether a grant in a granted or not, are in force until repealed by charter made under the authority and by scire facias; vid. infra ; Bro. Abr. Sci. Fa. virtue of an act of parliament, can be avoided 58, 63, 173 ; 3 Lev. 220 ; Keilw. 134. on the ground that the crown was deceived in (s) Rex v. Johnson, 2 Lud. El, Cas. 173; its grant ; vid. 2 II. Bla. 500. Probably S. C. cited 1 T. R. 367. (II WITF.RS. acceptance would have been void as being illegal, and such as the crown had no power to impose ; and secondly, those which had been -ranted in consideration of a surrender never perfected by enrolment, were held to have been void, as granted on a misrepresentation of the grantees, which had deceived the crown: in other words, as having been granted without authority (k*). S reral of those charters which were so held to be made good and valid by acceptance (there having been a surrender enrolled previous to the grant), contained provisions for the removal of corporators by the crown at discretion, a thing which it is not within the competency of the prerogative to effect; lor every corporator has a freehold in his franchise u), and by Magna Charta, chap. 'i!>, it was amongst other things expresslj provided, that no one shall be disseised of his free- hold, or liberties, or franchises and privileges, except by judgment of his peers or by the law of the land. It certainly seems in those cases to have been broadly laid down by the courts, that the acceptance of a charter, even though the charter might be illegal in itself and therefore void, was sufficient to give it force (at least to bind the grantees and their successors). Perhaps, therefore, the explanation of the apparent discrepancv between the doctrine of Lord Denman and of the courts in the cases referred to, may be found in the circumstance that the courts in those cases were dealing with questions arising among the grantees or their successors, while in Ilutter v. Chapman the question in edict between them and a third party having an interest (#). For it may lie, that, though acceptance may confer upon the crown the right <>f enforcing the provisions of a charter against its grantees and their successors, whatever may be the nature of them, yet it may not follow that a similar principle holds with respect to claims by third parties, who have relinquished none of their rights by virtue of the acceptance or other act of theirs, and who cannot therefore be affected by any compact between the crown and its grantees. The maxim of the law is //"// /»,/'■ 90; \ . Abr. Prer itive, has this <■ lition either expressly or im • N.li, pi. 1, 3,4, Tbe grant <<\ a charter pliedly annexed to it — ita '/nod patria per tion of the surrender <>f a former donalionem Mam magii tolito ne, 11 Rep. 98b; Warn ACCEPTANCE OF CHARTERS. 23 charter (the crown not being thereto authorized by statute) cannot im- pose a forfeiture of goods (z). It may be observed that the distinction between a charter which is good as between the grantees and the crown, though not effective as against third parties, is of considerable antiquity ; for it has been held that a grant to aliens to be a corpora- tion was good as between the grantees and the crown, though not effectual to constitute them a corporation as regards the subject («). With respect to the question of what is acceptance of a charter, it is to be observed that the law has not provided any specific form of ac- ceptance ; and therefore any unequivocal act, showing a desire and intention to accept a charter, will be sufficient, provided it is done by a majority of the grantees (&). Acceptance of a charter is not one of those acts which a corporation is required to perform under seal (c). The mode in which acceptance is most usually proved is by showing that the grantees have acted under the charter, and this whether the charter is an original or a fresh charter (d). A person who has been admitted a member of an incorporated trading company, and has acted as such, cannot be heard to dispute the acceptance of the charter by a majority of the grantees (e) ; nor can any corporator plead ignorance of the contents of the charter, or of the law arising therefrom (/). Where a new charter is given which professes to confirm a former one, in the provisions of which it nevertheless introduces variations, the having acted according to the new provisions is evidence that the corporation have accepted the new charter, not as a confirmation of the old one, but as a fresh grant (g). And in such cases it does not appear that a formal surrender of the old charter has been thought necessary to give validity to acts done under the new one (A): If a later charter (z) 2 Inst. 46 ; Nightingale v. Bridges, (b) Hex v. Hughes, 7 B. & C. 718, 719 ; 1 Show. 135. The charter in this case is and this is equally true whether the grantees remarkable as containing a clause of non ob- be or be not a corporation before the grant of stiinte, yet the plaintiff had judgment upon it, the charter. Mich. T. 1 Will. & M.; vid. 1 W. &c M. (c) Yearb. 12 Hen. 7, 25, 26; 5 M. & sess. 2, c. 2 (the Bill of Bights) ; Waltham Gra. 183, note. v. Austin, cited 8 Bep. 125 ; Com. Dig. Pre- (d) Bex v. Hughes, 7 B. & C. 718, 719 ; rogative, D. 38 ; Horn v. Ivy, 1 Ventr. 47 ; vid. 3 T. B. 198 ; Bull. N. P. 212. S.C.I Mod. 18; Vin. Abr. Prerogative, Y. (e) Tobacco Pipe Makers' Company v. b, pi. 8, E. e. pi. 14, are also authorities in Woodroffe, 7 B. & C. 838. support of the rule. (/) Bex v. Trevenen, 2 B. & Aid. 339. (a) Bex v. Hanger, 1 Bol. Pv. 148. It was (g) Bex v. Larwood, Salk. 168 ; vid. Earl laid down in the same case that all charters of Cumberland's case, 8 Bep. 167. The qua- in hindrance of trade are void ; vid. Nightin- lities of a deed of confirmation by a subject gale v. Bridges, 1 Show. 135; Corn. Dig. are stated Co. Litt. 295 b. It does not ap- Trade, D. 1 ; The East India Company v. pear that there have occurred any judicial Sandys, 2 Show. 366 ; Taylors of Ipswich v. decisions on the form to be adopted in a royal Sherring, 1 Bol. B. 4 ; East India Company charter of confirmation ; and as no particular v.Evans, 1 Vern. 307. The crown cannot form is requisite in a charter of incorporation, grant by charter the exclusive right of print- the inference is a fortiori that none is requi- ing any book the property in which is not site in the less important instrument, royal property; Miller v. Taylor, 4 Brown, (h) Bex v. Larwood, Salk. 168, per three 2401 ; Stationers' Company?;. Carnan, 2 W. judges, S. Eyres, J.dissentiente ; Bull. N. P. Bla. 1004 ; vid. 3 Evans's Statutes, 15; Vin. 213. Perhaps it was with a view to avoid Abr. Corporations, F. pi. 15. So the crown difficulties on this ground that new charters cannot by charter alter the common law rules were mostly drawn in the form of confirma- as to the inheritance and descent of lands, tions of the old ones ; for a corporation may 49 Edw. 3, fol. 4, per Candish, J., and use a new charter touching ancient privileges Knivet, C. either by way of grant or of confirmation ; en \k i bus. be (shown to*be inconsistent with a former cue, both cannot stand, and the latter must prevail [i . if it has been dulj accepted, but if it be not inconsistent it will prevail it is said), either totally or partially, as the case may be ; and with respect to charters as well as statutes the rule holds that leges poeteriaree priores contrariat abrogant (k). El i lii or Ch vrters. When a new charter changing the name merely is given, the corpo- ration retains all it< privileges, franchises, hereditaments, claims, &c, as folly :l> | ovided no surrender of the old charter is made (0, and the new corporation retains the Bame, even where further changes made bv the new charter than the mere change of name, provided such further cli.in isarily involve an abridgment of the : the old corporation (m). Nor does such change of name determine rent-charges, annuities, or other liabilities to which the corporation may have been subject previously to the alteration (n). But if after the change of name a fresh charter be granted to the new corporation calling them by the old name, such new charter, it is said, i> void (O). With respect to the question of the operation of a new charter on the name of the corporation, it has been held that the old name may b. 316; Lord Raym. 32. To ; a charter as a grant and confirmation is doui. trinity House, 1 Siderf. 86; In pleading a charter . .1 it must be set out on which the i rely ; the court will „ot • i i> pleaded, nor will they intend anything further to be con- J M. fit Selw. » W. & M. - • 22, -. 1, uu corpor * grants by charier \\ ho n allowed in and bv the Court ol I b, '■hall lie COm- pelfc • any inquisition ■ r. N'nr -hall any mr- poration M any char- . .is from ili< • 1 hi i nml 1 charier-, d -it fori: I .'I Irniii and after neb • lied irt to any ni(j therein touching made ".. 'II,.: ind with a for w Inch ' . ori- I »ura f cn uier varying . Ilay- thorne, 5 B. & C. 410. That a charter " by assent of the prelates, earls, barons and com- monalty," &c. is equivalent to an act of par- liame it>. 7 Hen. 7, fol. 14, pi. 1 ; 9 Hen. 7, fol. 2, pi. 3 ; 12 31. 6c W. 21, 22 ; 511/1. p. 19. (/) I.utterell's case, 4 Rep. 87 b; Bull. N. P. 213; Co. Litt. 102 b; Jenk. 99, pi. 94 ; Vin. Abr. Corporations, I. 3, pi. 1, ami all shall be enjoyed in the last name that \\a- gained bv grant or prescription in the ]ii ri .It nt oame ; Moore, 581 ; Mellor v. Spateman, 1 Wme, Sannd. 344, and note ( 1 i ; Mayor, t \c. of Scarborough v. Butler, 3 Lev. 237, e. g. the right of holding an an- cient court ; W eld p. reem. 321. And the corporation may plead that they were immemorially a body corporate by the name of, &C, until, 6iC, when they were in- corporated bv charter, &c, by the name of, 6cc; Mellor o. Wulker, 2 wins. Saund. 2 ; iid. Adney o. Vernon, 3 Lev. 243, that the charier bv which the change was made ought to be fully described in pleading. I utten II- case, J Rep. 87 b ; Bull. N. P. 213 ; Haddo ks c ia . I Ventr. 355 ; l. Raym. 439; Vin. Abr. Corporations, I. pi. i ( ii ) Vin. Abr. Corporations, I. 3, pi. 4,6, Bishop of Rochester t>. Dean and Chapter Ind. m: ; Mayor, ,\c, of . B aber, 3 liurr. 1866. The in h I in be used in suing on a bond '_ivi n by the corporation before the change of name; \>u. Abr. Corporations, 1.4, pi. 1, (o) Jenk. Cent. 100, pi. 94. EFFECT OF CHARTERS. 25 be lost by accepting a charter giving a new name, when such new charter alters the constitution of the body politic in the integral parts ; as if "bailiffs and burgesses of A." are made by the new charter w mayor and aldermen of A." ; in such case the style of the corporation is altered ; but if a corporation whose style is " bailiffs and burgesses villa, de Gippo" accept a new charter which styles them " bailiffs and burgesses villa Gipwici" then this is only an additional name, the cor- poration remaining the same in respect to its integral parts, and the old name remains as well as the new one(/j). Also where a corporation has had its functions suspended, owing to the simultaneous ouster of several members, and a new charter is granted, although not to the old corporators exclusively, the new corporation succeeds to the rights and liabilities of the old one precisely as they stood at the moment of sus- pension, provided that there is nothing to the contrary in the new charter (q). The difference between suspension and total dissolution of a corpo- ration is material to be borne in mind, but it cannot be fully elucidated at present. Vid. " Dissolution." Construction of Charters. We come now to the construction of charters. It is an established rule in construing royal charters, that if two constructions can be made of the terms, and by one construction the grant be adjudged good by the rules of law, and by the other be ad- judged void, then " for the king's honour and for the benefit of the subject, such construction shall be made that the king's charter shall take effect, for it was not the king's intent to make a void grant" (r). Where the charter may be taken to two intents, each of which are good and effectual, in many cases it shall be taken to such intent as is most beneficial to the king (s). And generally the grant of the king is to be taken more strongly against a stranger, and more favourably for (p) Per Holt, C. J., Reg. v. Bailiffs, &c, only one integral part, vid. 6 Vin. Abr. 268, of Ipswich, Salk. 435; S. C. Ld. Raym. 1239; marg. : 14 id. 35. The above case of Mayor, vid. Mellor v. Walker, 2 Wms. Saund. 2; &c. of Colchester v. Brooke appears therefore In re Sheffield, Sec., Insurance Company, 16 to be incorrect in speaking of a corporation as Law J. (N. S.) Q. B. 409; Dean, &c, of being suspended by loss of an integral part. Christ Church v. Parrott, 4 Leon. 190. (r) Case of St. Saviour's, &c, 10 Rep. 66 b ; (q) Mayor, &c, of Colchester v. Brooke, vid. 1 Rep. 45; 2 Inst. 496, 497 ; The Earl 7 Q. B. 336. Semble, the doctrine of sus- of Rutland's case, 8 Rep. 56 b; the stat. of pension is only true when the old corporation Quo Warranto, 18 Edw. 1 ; the Earl of has lost its magistrates, not being an integral Cumberland's case, 8 Rep. 167 ; Priddle v. part of the corporation. The corporation of Napper, 11 Rep. lib. But this rule does Colchester was " the mayor and common- not extend to give effect to a non obstante alty;" and the corporation had.no integral clause in a royal charter, so as to frustrate parts, only a head ; but on the vacancy of acts of parliament ; Prince Henry's case, 8 the headship the corporation is not dissolved, Rep. 29 b ; vid. Lord Brook v. Goring, Cro. though it has often been decided that a cor- Car. 188, except in the case of the statutes of poration is dissolved by failure of one of its mortmain. integral parts; vid. R. v. Mayor, &c. of CoL (s) Vin. Abr. Prerogative, O. c. pi. 1,11; Chester, 2 Dougl. Elect. Cas. 66; Jenk. Cent. Priddle u. Napper, 11 Rep. 11; Knight's 100 ; R. v. Pasmore, 3 T. R. 241. That a case, 5 Rep. 56 , Com. Dig. Grant, G. 12. corporation of mayor and commonalty has CHARTERS. himself, contrary to the rule oi' the common law in the case of a grant by a subject (£)• It is said by Sir 1'.. Coke, that a charter may enure to three intents; ra. to erect a corporation; to create a succession; and to grant a rent; these intents being expressed en the face of the charter (u) ; and the intent, and not the precise words, is to be observed in the grants of the crown (x). Accordingly it has been held that a charter incorporating the bur- \., without mentioning their successors, was good(?/). It is probably on this ground that the doctrine can be supported (if at all), that a charter incorporating the inhabitants of D., and giving them power to choose a mayor, must be construed as naming the corporation by implication, Mayor and Commonalty of D. (z). However, a charter incorporating the inhabitants of a place, as many of the old municipal charters did (a), does not make every one who becomes an inhabitant of the place through all future time ipso facto on becoming so a member of the corporation (b), unless the charter expressly points out that to be the mode by which the succession is to be kept up; for in general the power of keeping up its succession by election is incident to every corporation (c); and, therefore, where it is thought expedient to open trading and other corporations to every one (r) YVillion v. Barkley, Plowd. C. 243. . ;i royal charter contained a grant of exemption from tolls to a corporate body, it was held to bind the crown, although the words " his heirs and successors" were omitted in the charter, which only, on the t it, wi nt to exempt from tolls payable to the grantor; Wood t. Ilawkhead, Velv. 15. As to effect of royal churlers on third parties !i.' U) grant another wing : thus a <_'rant tenere jilarita I, if there be no bailiff-, ami the: king shall )"• taken to bate i.iii, and il shall not be intend) •! that he meant to Create btilifis, M well . the above I om. Dig, Grant, <■■ M , Pineh. If, I 6; rid. torn. Vin. Abr. ■>lia. 1 .. . I , in Rep, (>:, ; ol Rutland p.68 1> ; Molyn's . ,ir<- to '"• construed illy to support them, not strictly lor their throw; Uli ■■'•'. Rea o. Wynn, 2 Barnard. 391. In Res v. An.. < irta Salway, 9 B.& I • 424, it waa lidd that a wl ll not ir,'' continued contravention of a charier could not charter which are at be pleaded in explanation ol it; iirf. Rex t>. .,11 doubtful . .1 , 1 M. & Selw. Greet C. 863. 101, (/') I tool D. Scarlett, 2 Y. & J. . II ,:,!:. . :)30. .... .. .1, :i l . Ii. . (. Ill ed, 5 J. B. Moore, 185. bn- Vid. Mayor, Sec. of Truro >■ Reynalds, 1 M. r, 7 Mod, 198; vid. CONSTRUCTION OF CHARTERS. 29 granted by charter (s); for fortior et potentior est vulgaris consuetudo quam regalis concessio. The reason why a thing may be good by custom which would not be good by charter, and the principle upon which the above maxim rests, has been considered to be this, that every custom supposes an act of parliament, or a law made in former times, by an equivalent power, though it were not called a parliament; and therefore it is, that, though the crown cannot grant that land in any particular locality shall be of the nature of gavelkind or borough-English, those peculiar customs are good in certain places (t). What has been just said respecting customs must be understood to be subject to these limitations: — that the custom have existed from time immemorial, without interruption — in a certain place — and that it is in itself certain and reasonable; such a custom, then, obtains the force of a law, and is, in effect, the common law within that place to which it extends, though contrary to the general law of the realm (u). It is a general rule in the construction of charters, that of two re- pugnant clauses the latter is to be rejected (x). Another general rule in the construction of charters is, that such a presumption shall be made, ut res magls valeat quam pereat; that is, that the object of the grant shall be attained rather than defeated. It has even been said that nothing is to be inferred from usage to cripple the grant (y). And though, as has been observed, in general the grant of the king is to be taken most strongly against the grantee, and most favourably for the king ; yet when the grant is of a thing (as land) to which other things are incident, which are not severable, the incidents pass without being expressly named (z). Another rule is, that the king's charter can in no respect alter the existing law of the land (a); and therefore all the expressions must, if possible, be so interpreted as to consist with the law. Another rule is, that the king's charter hath always relation to the time of the date, and therefore it cannot be alleged that a charter was made or delivered on another day than that of the date (6); and besides, it must be construed with reference to existing circumstances at its date; thus, a charter of exemption of all lands, &c, of a corporation from forest law, must be taken only to exempt such lands, &c. as the (s) Anon. Dyer, 279 b; Rex v. Bailiffs of enacted is necessarily good by custom ; for to Boston, W. Jones, 162 ; Case of the City of intend that, would establish even unreason- London, 8 Rep. 125 a; 2 Inst. 47. As to able customs; Weekly v. Wildman, 1 Ld. pleading such custom, vid. W. Bendl. 34 ; Ray m. 407. Merew. & St., Hist. Boroughs, 1150. (u) Lockwood v.Wood, 6 Q. B. 64,(Exch (0 Vid. per Vaughan, C. J., in Harland Ch.) v. Cooke, Freem. 320 ; per Bridgman, C. J., (i) Rex v. Amery, 2 Bro. P. C. 368; Mayor, &c. of Colchester v. Goodwin, Carter, Cother v. Essex, Hardr. 94. 120. Vid. Stra. 462; 17 Vin. Abr. 89, pi. (y) Per Holroyd, J., Rex v. Colterill, 1 23. A somewhat different account of the B. & Aid. 81. origin and obligation of a custom is given in (z) Yearb. 1 Hen. 4, fol. 5, pi. 8. Tyson v. Smith, 9 A, & E. 406, where the (a) Lowe's case, 9 Rep. 123. above cases were not cited. But it is not (6) Ludford v. Gretton, Plowd. C. 149; rue, that whatever parliament might have vid. 1 Leon. 183. JO ClI MITERS. corporation v. I of at the time of making the charter (c), and not subsequently acquired lands, &c So a charter of exemption granted to an abbot, that he and his men should be free of toll in v market and all fairs, ami in all passage of harbours, ways ami >t extend to goods which they buy to merchandize with(rf). We now proceed to consider various points respecting particular and particular forms of expression usually found in charters of rporation. No particular form of words is required by the law to make the creative part of a charter of incorporation good; the Ltion may consist of any terms that sulliee clearly to cx- 1 the intention of the crown to constitute a corporation (i lands by rown to tli.' men "r inhabitant* of D., og rt iii for aI)V • ten land*, oper iti -, it i I), a corpora- :,r the pur, j tin-- rent, but not for BUJ Other purp. pi. ; . 21 ; \ \\ .<..-, A. 1. i '.■'>; A. !. rmen Hon by im j B into i . ; .11 dw. 1, .h j but tbe «-iib. it abridg- ment! limited tbc doctrine that ■ grant of ent to - • r the purp tin , Men w. i M>, 1021 j oid. 2 ii. D :. i .'. \. B.j Merew. & 8. 1068. AIko a rc\;il grant to tbe men of D. that they ration . but not to enable tm purchase; \ m. A b. Corporations, P. pi. ; i it Inhabitants of Denbigh, Co. Entr . 537 . Accordingly, theymay prescribe to discharge • Ives from BUcb payment ; per Holt, C.J., in Payne v. Partridge, 1 Show. 255; Baker i. Erereman, Cro. Car. 410; Uravesend lids, 177; Hoblyn v. R .', Bro. P. C. 612 ; t id. Lockwood v. Wood, 6 Q. B. 31 ; Mi ph. 1387, 1537. But without they be incorporate they cannot ribe to have a profit in atieiw solo; Smith i . ( late wood, ( !ro, Jac, 152. i /) Sutton's Hospital case, 10 Rep. 28, 3rd Resolution. But a grant of AtheUtan in .' -i ,\(\ da Sec, burgenribui nttis et eorum omnilms tucetuoribui Medul* ii burgi quod habeant et teneaut semper funetionet et liberal ttonsueludines tuai, did not operate to incorporate the town i I Malmesbiirv ; it was not incorporated until II ( barlei I. On the other hand, when it discovi rable from the terms of acts of parliament that an aggregate body were in- tended to hold lands to them and their suc- . in office, the body was consider! d to bo a corporation by implication ; Tone Con- itors i. Ash, i<» n. fie < . 849 ; vid. id. . So Edw. 2, 26 July, *.d, 1313, granted a charter to the b. irons (i. e. the freemen > of the cinque ports and their successors; but this grant was never considered to have in- rated tbem as a body politic; 2 l'eckw. II. Cas. I'M, 402 | oid. 2 I aunt. 122. (g) Bailiffs of Ipswich t>. Johnson, 2 liar- CONSTRUCTION OF CHARTERS. 01 01 The word " inhabitants" in a charter has not of itself any definite legal meaning, but must be explained in each case extrinsically, as by evidence of usage, or by reference to the context and objects of the charter (h) ; and this latter principle has been carried so far, that in a charter of Edw. 6 the word has been construed, by reference to the usage, to mean " inhabitants paying church and poor-rates (i)," although poor-rates were unknown at the date of the charter. Where a charter of Edw. 6 granted to the borough of Monmouth all fairs held within quinque mi/liaria et circuitu ejusdem villce, the latter words were con- strued to include all its liberties, which may be much larger than the area within the walls (/:)• Words of grant, whereby an interest purports to pass from the crown, must be precise, and must precisely ascertain and limit the thing granted (I). The same precision is not required with respect to the designation of the grantees, for a charter incorporating the bur- gesses of A., without more, is good as a grant of incorporation to them and their successors (m). But where there is a grant of a particular nard. 121 ; uid.2Peckw. El. Cas. 320, 1377 ; 2 Luder'sEl.Cas.6, 7,63, 241,244; Mayor, &c. of Winton v. Wilks, 1 Salk. 204. But in pleading, to state that the burgesses of a town have guildam mercatoriam is not equi- valent to stating it to be an incorporated town ; Mayor, &c. of Winton v. Wilks, 1 Salk. 204 ; vid. Merew. & St., Hist, of Boroughs, 320, 2049, 2050 ; 10 Rep. 30. " Burgesses," in ancient charters, usually means inhabitants ; Corb. & Dan. El. Cas. 41 ; R. v. Mayor, &c. of West Looe, 3 B. & C. 677. It ap- pears that being guildated and being incor- porated were used as words of the same im- port, anno 10 Hen. 4 ; vid. the case of Cok- enage v. Large, where the defendants pleaded the weavers of London were a corporation by prescription, having their guild ; Madox, Firma Burgi, 197, where the pleadings are given at length. See a curious charter, 51 Hen. 3, to Wallingford, containing an inspeximus of the charter of Hen. 2, who grants ut burgenses mei de Wallingford in perpetuum libertates et leges suas omnes et consuetudines, fyc, sicut cas habuerunt temp. Edw. Regis, et temp, atavi mei Reg. Willielmi, et temp. Henrici Reg. aiimei, scilicet Gildam Mercutoriam ,<5fc: and proceeds — et concedo in perpeluvm con- suetudines illas, &;c., et alias omnes quas po- terunt ostendere antecessores suos habuisse lib ere et quiete et honorijire sicut cives mei Winton, &;c, and then confirms to the burgesses and their successors all the foregoing ; Brady's Boroughs, App. 12. The first reported case in which there is any allusion to the doctrine of incorporation as applied to towns in modern times, is in the Year Book, East. T.3 Hen. 6, fol. 43, a.d. 1424, although it was not until six years after that there is fouod on record any charter of incorporation, viz. that to King- ston-upon-Hull. In Ireland there appear to be charters of incorporation yet extant of the date of 14 Hen. 3 ; Att.-Gen. v. Corpo- ration of Cashel, 3 Dru. & War. 294, 299. (h) Rex v. Mashiter, 6 A. & E. 153 ; vid. 8M. & W. 68, 75, 93. (i) Rex v. Davie, 6 A. & E. 374 ; vid. Fearon v. Well, 14 Ves. 13 ; and per Ab- bott, C.J., 1B.&C, 136. (k) R. v. Ricards, 1 Keb. 626, (I) Hungerford's case, 1 Leon. 30, 17 Edw. 2, stat. 1 j 10 Rep. 64 ; Anon. Moore, 45; Yin. Ab. Prerogative, O. b, pi. 13; Parmeter v. Att.-Gen., 1 Dow. 316, 323 ; Alcock o. Cook, 2 M. & P. 625. Every charter of municipal incorporation ought to define the limits of the district, or point out the means by which the crown intends those limits to be ascertained over which the corpo- ration is to have jurisdiction ; vid. Rutter v. Chapman, 8 M. & W. 1. A grant in a charter of King John to the borough of Wa- terford in Ireland, to have murage, adeo plene et integre sicut burgenses villa? de Bristol ha- bebunt, was held bad and void for uncer- tainty ; The Case of Customs, Dav. R. 13; vid. Vin. Abr. Prerogative, O. b, pi. 15 ; id. Q. b, pi. 6. Definition of Murage, 2 Inst. 222 ; Darcy v. Allen, Noy, 176. But a grant of a manor, with such privileges and franchises as the Dean and Chapter of St. Paul's formerly enjoyed therein, is certain enough, Lord Darcie's case, Cro. Eliz. 512. Quod volumus held to be good words of grant ; Case of Dungannon, 12 Rep. 121. (m) The Yarmouth case, 2 Brownl. & G. 209; vid. 2 Rol. Abr. 197, Prerog. le Roy. H. 1, 2; Tobacco Pipe Makers' Com- pany v. Woodroffe, 7 B- & C. 838. So ho- mines and cives are used indiscriminately in various old charters; vid. 1 H. Bl. 212. It seems that a grant in a chatter, quod nulla prisagia soluta sint de vinis civium et liberorum hominum, shall enure to the benefit of the in- (II m; l l K-. thing once sufficiently ascertained by some circumstance belonging to it, the addition of an allegation, mistaken or false, respecting it, will not frustrate the giant ; but where a grant is in general terms, there the addition of a particular circumstance will operate by way of restric- tion and modification rant(n). The words " liberties and customs" will not operate to grant tolls (o). A Rant of a fair or market, with the usual liberties or customs, pri- vileges or profits, would not enable the grantee to levy tolls (p). A charter of Queen Anne, containing a grant of a market, with the m omnibus tolnetis, €ra consuetudines in an original grant do not confer _ht to take tolls, though they may do so in a charter of confirma- tion it supported In- uniform and immemorial usage (r). But when the the time of legal memory, was entitled to the soil of the tow:. . i .. and to toll traverse within it, and afterwards granted to the burgesses " the town with all its appurtenances," these words were held adequate to pass toll traverse (s). The words omnes piscarias et piscationes in a charter do not convey royal fishings (0- mt of all mines does not pass mines of gold and silver («); nor does a grant of all the king's amerciaments in such a place convey .1 amerciaments (x), properly so called. •.voids concessimus et confirmavimus in a royal charter may be taken as conveying a fresh grant, or 'operating to confirm something divi.lual ctdxem and freemen and not to the case of Maidenhead, Falm. 86 ; Quo. Warr. the latter Cas, Uu-Gen. argum. p. 45. Toll is not vl.ull etnpt ; Walter v. Hanger, incident to a market; and therefore a grant . Rol. Et, 142. As to mean- of a market does not confer a right of loll ; i • .i a corporation, Yin. Abr. Tolls, E. ; 2 [net. 220. So of a ui tint quieti ah omni grant of a fair; Earl of Egremonl D. Saul, 6 berlain of A. & E. 924. Right of removal incident to i rd Middleton v. a market ; Rei p. Cotterill, 1 B. & A. 61; ,4B. & Aid. 561. ■ terpret. in voc. (o) Heddj p. Wheelhouse, Cro. Eliz. 558, . . B. 591 ; 8.C. Moor. 471. . 12. (p) Admitted, Mayor, &c. of Stamford v. 51. Pawlett, 1 C. & J. 60, 73. Vid. i mt ((/) Id. 71, 73 ; rid. grant of toll void for rkel Bill, 3 ('la. uncertainty, Lightfood v. Lenet, Cro. Jac. 421. ' to, 12 M. \ V. || l I (r) Vid. Vaugh. 162; Earl of Kgremont :. 75. Iii ' Saul, 6 A. & E, 924 . Duke ol Bedford v, ditioo mi- En tt, 3 B. ,\ Aid. iJiiti. When eotuue- nd damnum ii- tudiues, cuttumagia and theolonia are found ether in a charter, it i>. not to be presumed, in ordei to construe tbi m, thai then ii do re 'nil-, in av u | • i the in old chartera ; ) Hex v. Mayor, Sec. of Stratford, 14 so as to make analagous circumstances dis- East, 348. qualify; vid. 5 A. & E. 613. A corporate (c ) Answer of the judges in Dom. Proc. officer cannot be amoved without cause In re The Islington Market Bill, 3 CI. &c F. though the charter says generally that he may 531. The very same point had been decided be amoved ; Com. Dig. Franchises, F. 32. Yearb. 7 Hen. 7, fol. 14, pi. 1, and 9 Hen. (g) Mayor, &c. of Truro v. Reynalds, 1 7, fol. 2, pi. 3, where see as to the effect of the M. 6c Sc. 286, 287 ; Lord Middleton v. Lam- words dumuset concedimus. bert, 1 A. & E. 401. CHARTERS. thrown by law upon the subject, must be founded on clear and indis- putable words in the charter h). The charters of the crown are con- strued to have relation to the time of the date, and not to the time of tl)e tk .p lv , of record by presumption of law import the truth (/). ^ here a charter speaks of years with reference to an office, years of office, and not calendar years, will be understood (/i). Where a t .|. wa to appoint an officer, an appointment for life will be intended unless it appears otherwise either from other parts of the charter or the nature of the ofiicei/ . Words conveying a monopoly arevoid(m); and it is clear law that the crown cannot at this day grant by charter to a corporation a right of exclusive trading to and from any placet//), or indeed a monopoly of any kind; and although as late as the reign of Charles :-' the practice was otherwise, and the rn frequently established trading corporations with exclusive t the law is now held to be as above. An act of par- liament has been considered necessary to convey exclusive rights (p). rally all words in a charter in restraint of trade are looked upon with disfavour, and if doubtful, that meaning will be taken which is least inimical to commerce (q). So all charters prohibiting trade are void n. Words of permission in a charter, having the effect of giving power to hold courts of justice, and being therefore for the public benefit, are obligatory and imperative; and the right of determining suits cannot be lost by non user, for it is a duty to the public and to the crown as well as a privilege vested in the corporation (5). But a (/,) ; i 1. ft. 685. of Ipswich v. Sherring. 1 Rol. R. 4 ; 9 I Plowd ('. 491. Hen. 3, c. 1; Earl of Yarmouth v. Darrell, f a charter ii irof 3 .Mod. ir, • Merchant Adventurers' Co. v. •n and not of the year* of our I. 'id. IU bow, 3 .Mod I2(S; Michelbourne'scase, 2 486. Brownl.296; 13 Hen. 4, pi. 14; 11 Rep. 2 \ entr. B2; 14 \ in. 87 ; 5 Com. Dig. 567 ; Com. 1 »ig. I rade, D. Abr. 66. ' ! Eaat India Co. i Evans, I Vem. 307. 11 Rep. 86 b; De6ni- e. Mayor, &c., of Hastings, 5 B.& nopoly, 3 Ii '■ Jac. Aid. 592, note; Merew.&Ste. Hist. Boroughs, . | rative, F. 4. 1885; rid. Cro. Jac. 155 So in a statute \. ; a Inst 182, may means ihall, when the statute directs the . Coin. Dig. doing of a thing for the sake of justice; 2 I )w:in i- Slat. 7 12 ; or for the public benefit ; , 1 Show. id. ibid. The " words ' shall and may' in general acts of parliament, or in private con- ( p) I'nt. 6 (ieo. 1, c. 18, for constituting stitutions, are to be construed imperatively;" intake with exclu ; Atk. lt>4; "shall or f or . may ;" id. 212. But the grant must ascer- k i. Johnston, tain the persons before whom the court is to nullui facial merekanditam con- be beld, or it will lie void; Yearb., 2 Hen. • any 7, fol. 13; 6 Yin. Abr. 265, pi. 15. If stranger mnking manufactures within the nor- in prescribing for an ancient court, it be al- - J . pti Lord \ ' ■ ■'■■ leged that the court was held first before the 276, bailiffs and ihen before the mayor, the plea tea the charter by which the change »as made ; Adney i. \ < r- M ,,, Vid.acc, M id. I'lnn. non,:; Lev, 243 j Com. Dig. Franchises, I. Bui ti to the meaning in a royal charter of I ;!'■$ ; I Inst. 71. Instances of directory . f mtrchatlditam r lau- , PfOWM V. Foot, 2 Hro. P. C. 289 ; Pendet i. EU g., 2 i 783. (/.) R. i. Agar, ■", Burr. '2H-20. ah. 2 Ld. Raym B36. A (i) It. d. Cambridge, 2 Ld. Raym. 1339; • Itnrre pli i eh Hi. r before time ol legal memory win. -li charter has since been lost, and then h ■ imation of it l>\ charter since ; Foster t tderf. Mitton, Salk. 184; vid 9 Rep. 29; Vin. Abi 121. Prero ative, P. c pi. 7 : Bull. N. P. 212. I*. J. CONSTRUCTION OF CHARTERS. 37 and we have seen that concessimus is sometimes used in ancient char- ters as well to signify a recognition as an original grant (/); and the words daman et concedimus may be taken as a grant, or as a confirmation, at' the election of the grantee (rn). Erigimus in a royal charter, as well as in the deed of a private founder, is construed to mean founding as well as building, and may mean either exclusively, according to the con- text (n). A power or liberty granted to a corporation, and having relation to strangers, as the power of keeping and holding courts of justice, cannot be lost by non user, as we have seen ; but if a vill be incorporated by letters-patent before time of memory, and the franchises have never been used since time of memory, it is said that the franchises are lost(o). It does not follow, however, that the corporation is dissolved, for franchises are not essential to a corporation, but are only privileges belonging to it(p). We have dwelt the longer on this part of the subject, because the privileges of corporators depending upon the words of their respective charters, very nice questions frequently arise out of them. Thus, in a charter to a corporation, words charging all officers of the crown not to press or take for the service of his majesty, &c, any person or persons, being members of the said corporation, was held not to be an exemption granted to the corporation, but merely a direction to the king's officers^). A grant of exemptions, expressed in clear words, cannot be objected to on the ground that, by the constitution of the corporation, the number of the members is unlimited who might enjoy such privileges (r) ; but grants of exemption from serving common law offices ought to be taken strictly (s) ; and must not extend to prevent the particular office from being served at all (t). Thus, if there be not sufficient jurymen to try causes, besides the persons who are exempted, such charter of exemption is void (w). Evidence of Charters. With respect to the means of evidence of charters, we must remark, that members of a private corporation cannot have a mandamus to inspect the charter, unless they show it to be necessary with reference to some (0 1 H. Bla. 213; 13 M. & W. 336; (r) R. v. Clarke, 1 T. R. 679. Yeaib. 21 Edw. 4, fol. 55, pi. 28; sup. 33. (s) R. v. Clarke, 1 T. R. 685; Yearb. 2 (m) Hall v. Green, cited Savil. 133. Hen. 4, fol. 19, pi. 16. (n) Per Hardwicke, C, Vaughan v. Far- (t) R. v. Clarke, 1 T. R. 679; Cro. Car. rar, 2 Ves. 182; vid. Foy v. Foy, 1 Cox, 164. 259, 260. (o) Vin. Abr. Prerogative, Y. c. pi. 14. («) 2 Inst. 129 ; 52 Hen. 3, c. 14 ; Cro. (p) Rex v. Mayor, ike. of London, Skin. Car. 259, 260; 5 & 6 Will. 4, c. 76, s. 123. 311; Vin. Abr. Prerog. Y. c. pi. 19. For Exemptions from serving as constable, 1 T. R. explanations or illustrations of many unusual 679; headborough, id.; from toll, 4 T. R. terras and words sometimes met with in old 130. charters, the best aids are Cowell's Interpreter, Information in the nature of quo warranto lies Spelman's Glossary and Hickes's Thesaurus, to try the right against a person claiming ex- Du Fresne's Glossary; vid. Harg. Co. Litt. emption from civic jurisdiction within the cor- 6 a, note 24. porate limits ; Co. Entr. 528 a. ( ? ) R. v. Clarke, 1 T. R. 687. . g ell LRTERS. Bpecific dispute or question then depending in which they arc inter- !, and then the inspection will be granted only to such an extent asmaj be necessarj for the particular occasion \\ ith respect to municipal corporations, it does nol appear that the Municipal Corporations Act has introduced any alteration in the la- it stood with respect to the right of inspection of charters. A person will have a mandamus to allow him to inspect (but only, as it seems, where the charter cannot be found to be enrolled at the Office of the Rolls)— I. In an action by the corporation against him where he is a corpo- II. In such action, where he is a stranger to the corporation, if he be aflected by the provisions of the charter (z). III. In a dispute between himself and another corporator as such (a). But where defendant justified under a corporation for distraining for toll, it was held that the plaintiff had no right to inspect as he wj Btranger to the corporation (b). An inspection will never be granted in of a corporation, where it would have been refused against a private K>n(c). Where the partj desires to see the charter only, and not other books or documents, and the corporation refuse him liberty to do ne course is to apply at the patent roll office, where the enrolment i~ kept, and may be inspected and copied. Notwithstanding that a royal charter ought to be enrolled, and so me matter of record, yet where circumstances justify such a step, the courts will presume a charter, although it must have been granted if at all within the time of legal memory (d). If, however, the original charter has been enrolled but since lost, an exemplification or lat of the roll may be used in evidence, being pleaded with a protect (e). i „\c. of Tailors' Com- (<) 3 Edw. 6, c. 4 ; 13 Eliz. o. 6 ; Vin. . i i.-,. Abr. Franchises, G. pi. 1 | - case, ...r, .\r., 5 Rep. 52. That such exemplification or cm- ■ u pleadable, vid. ■> Rep. .03.54, since .;. mne l3Elis.c. 6. As to distinction between ex- the application i- with a view amplification and eonttat, vid. 5 Rep. S3, 51. oat inn, obtain* '1 It is the practice to plead a charter or I l,y i . Mayor, &c. of patent with a profert,qu. torn. Jeffrey v. White, Dow I. 142. 2D ■ illy a charter, if enrolled I B. & C, in any court of record, may be pleaded in that court without profert, notwithstanding il PbilL I-. '. infra, Eyi- not pleaded before ; Wymark's case, 6 Rep. 'i, who is a corporator, will 74b. In other courts it seems that proftri behall <'i ■ il to be made a- well when the party Rex v. Antrobus, 2 \..\l.. pleading i tterest directly from the charter, as when he justifies as servant, &C. ; ; . i A Leafii Id v. Hellicar, Cro Jac. 817 ; 1 Chit. Plead. 380, 7th edit But oyer of a charter lied in chancery cannotbeclaimed, though a profsrt be made j 1 Wins. Saund. 9, note 1. And in |.Ii .nl a royal chart under Mull the great seal, Sec, is sufficient, without saying , . i j for the latter is implied in the word Drolled, but "noder;" Res <. Mayor, See, "' ' do* produce it, tb I .1 5tra. 674. But it ought to be stated charter from t < ■ '■■ r is under j Coin. Dig. l ',' !'. '. i I, Patent, II. EVIDENCE OF CHARTERS. 39 With respect to the evidence necessary to prove a royal charter, it is said that a charter may be proved either by the production of the original under the great seal(/), or by exemplification under the great seal (g), or by examined copies of the record (/a) ; this distinction having been taken, that a copy of the charter under the great seal cannot be given in evi- dence, but a copy of the record thereof may (i). And every presumption, even of an act of parliament, will be made in favour of old grants long enjoyed (A). The subject of evidence of charters may perhaps be fitly closed with this remark : — A new charter granted in consideration of a surrender of a former charter is void if the surrender has not been enrolled, and we may observe, that the reason usually given, namely, that the crown in such case has been deceived in its second grant, is not the only reason, but that the decision is capable of being supported by reference to an important rule of evidence; for if a charter be given in evidence, in which it is recited that a certain office was before granted to J. S., and that J. S. surrendered it to the crown, who accepted the same and granted it to J. D., this is not enough to avoid the title of J. S., but the record of the surrender must be shown or a true copy of it ; for the recital of such surrender is not the best evidence the nature of the thing will admit. Now if the surrender has never been enrolled, of course the record cannot be produced (I). The case just stated is obviously in principle immediately applicable to the case of corporate rights, and is an illustration of the coherence and consistency of the great system of English law ; for if a surrender were not enrolled, it would be impossible to produce the record of it, and therefore such a charter could not be supported in any case where proof of it was necessary, the effect of which would be practically the same as to declare the charter to be a void or illegal instrument. Thus we arrive at the same conclusion, from considerations arising out of the law of evidence, which has for its object especially the protection of the subject, that we before arrived at from principles derived from the law of prerogative, which was framed for the support of the due authority of the crown. Voidance of Charters. With respect to voidance of charters, the effect of a charter being declared void by act of parliament is, that all acts done under it are themselves void (m). (f) Tayl. Evid. 1018. When profert is (h) Id. ibid. qu. tarn. ; vid. Leyfield's case, made of the charter under the great seal, the 10 Rep. 92 b ; Bull. N. P. 227. opposite party cannot demand oyer of it ; Rex (i) Anon. 12 Mod. 579 ; Leyfield's case, v. Amery, 1 T. R. 149 ; Jeffery v. White, 2 10 Rep. 92 b. Dougl.476. Nor can he plead nul tiet record; (k) Vid. cases cited 1 B. & Ad. 773. Eden's case, 6 Rep. 15 b; Hynde's case, 4 (/) Bull. N. P. 226, 227 ; 2 Roll. Abr. Rep. 71. But non concessit is a good plea, 678 ; Vin. Abr. Prerogative, Q. b. pi. 2 j 5 S.C. ; and an issuable one, Bedells v. Mas- B. & C.410. sey, 2 D. & L. 322. (w) Pippard v. Mayor, &c.,of Drogheda, (g) Tayl. Evid. 1018. 2 Bro. P. C. 321. CHART] RS. It baa boon laid down in the old authorities that letters-patent. wh< rightly granted or not, are in force until repealed by scire facias - that if the crown grants the Bame office to two persona by letters- patent dated on two consecutive days, the latter are merely void, yetthe patentee of the first letters-patent must bring set. fa. in order to avoid them by judgment of the court (o); and accordingly it is laid down that the writ of sci. fa, to repeal patents lies in three cases. I. Where the king grants by several letters-patent the same thing to oa, the original patentee shall have set. fa. to repeal the second or other grants (Note 2 Dyer, 198, A.) II. When the king, having the power to -rant that which the letters- patent purport to grant, is moved to do so upon a false suggestion, then it is a prerogative of the crown to have a set. fa. to repeal his own -rant. III. When the king grants anything which by law he cannot grant, lie may have a SC\.fa. to repeal his own letters-patent (p). Nevertheless, it appears that some doubt has been expressed whether letters-patent, which are defective in any of these three respects, are not 1 at once without the necessity of proceeding by sci.fa.(q). It seems, at any rate, clear that sci. fa. is not necessary where the letters-patent themselves disclose a defect in the authority to make them; it has been said that they are then void in law without any sci. fa. to repeal them(r); although it may nevertheless be advisable to proceed by sci. fa., for the more modern opinion seems to be, that the most proper mode of pro- line to abrogate a charter, of whatever description, is by sci. fa. (s). With respect t<> the (piestion whether a charter may be repealed in part by sci. fa., it must be confessed that considerable obscurity exists; though it has been held, that where one part of a charter is good, and I- •. , . 58, G3, 173; 3 which the charter purports to grant did not 220; ii>l. 17 \ in. Abr. 100.pl. l.marg.; pue by it, which ia a peculiarity belonging to ,t; KeUw. 134; 4 1 n-t. 88. grants from the crown by reason of their being \' \ . ■>. i,. pi. 14; made by matter of record ; Cooke v. Blake, 1 pi. 2". IV ihopol Winion, Exch. R. 238; Hynde's case, -l Rep. 71 b; rurporation of Bedell r>. Massey, 2 l>- <-\ 1- 322. ... Moore, 327. (.>) It was Baid argu. by Pollock, A. G. I:ul ol (a.d. 1842), in Rex v. Aleilson, 1 Webst. Pat 5 .. \. i;. ., .. ..... Reg. ,. Cm. 672, that he never knew a ict./a. except , . 3 q | in the ca; 2 Dougl. Elect. charter, or that the thi I 22. VOIDANCE OF CHARTERS. 41 the other part voidable, the last may be avoided by sci. fa., and the rest may stand good(7)- As has been already observed, the effect of an act of parliament de- claring a charter void, is to make void all acts done under it (u). There are various modes of raising the question of the validity of a charter, and a stranger to the corporation may do so, provided, as it seems, he has a pecuniary interest in proving the nullity of the char- ter (x); but what the effect of a judgment declaring void a charter would be on acts done under it does not seem to have been decided, although it has been argued that the effect of judgment of forfeiture in an information in the nature of quo warranto would be to make void every act done under the charter (?/). But though a stranger may dis- pute the validity of the charter under the above circumstances, yet the court will not allow the legality of the incorporating charter of a borough, granted under 7 Will. 4 & 1 Vict. c. 78, s. 49, to be impugned in an information in the nature of quo warranto against an officer of the borough ; and on such appearing to be the object of the relator, the information will be refused (2). The question of the validity of a charter has also been discussed on a special case (a) ; so that it would appear judgment against the validity of a charter may be given in four different modes of raising the ques- tion, viz. in sci. fa. ; information in the nature of quo warranto; an action for money had and received, brought by a stranger against an officer appointed under the charter ; and a special case from sessions. Now some of these proceedings would seem to be equally applicable in most cases to the repeal of part of a charter ; it is therefore extremely remarkable, that no trace of any judgment repealing part of a charter should have been discovered in any of the books of entries. Never- theless it has been stated by the courts, both in former times and lately, that a charter may be repealed in part ; for that where part of a charter is bad, as depending gii false suggestions of the grantees, there the charter is voidable altogether ; but where the vice of the obnoxious (t) Per cur. Sackville Coll. case, T. Raym. and not merely to corporate officers, properly 177, 178 ; Reg. v. Bailiffs of Bewdley, 1 P. so called; for the decision in the case named Wras. 207. A writ of sci. fa. was brought, was made in respect of a borough coroner ap- Dyer, 276 b, pi. 53, to repeal a charter ere- pointed under the provisions of the Municipal ating a corporation and granting a market, Corporations Act, and he, it seems, is not a quoad the grant of market. A charier of corporate officer; per Coleridge, J., in Reg. Edw. 3 to Great Yarmouth was repealed as v. Grimshaw, 16 Law J. (N. S.) Q. B. 389. to part by act of parliament of 50 Edw. 3, The practice in this respect appears to have enme chose fait countre common profit de altered in some degree since the passing of realm e ; Hale de Portub. Mar. ap. Harg. the Municipal Corporations Act, at least if the Law Tracts, 66. decision in the case of Reg v. Taylor may be (it) Vid. sup. p. 39. understood to have the effect of denying a (x) Rutter t>. Chapman, 8 M. & W. 1 ; quo warranto information wherever the court vid. 3 Q. B. 652, per Ld. Denman, C. J.; can see that in the result the validity of the Rex v. Hanger, 1 Rol. R. 148. charter will come in question ; for such in- (v) Quo Warr. Cas. Pollexf. arg. 111. formations were entertained before that act (s) Reg. v. Taylor, 1 1 A. & E. 949 ; vid. passed ; vid. Holdsworth i>. Mayor, &c. of per Patteson, J., 3 Q. B. 652. It must be ob- Dartmouth, 1 1 A. & E. 490, 502. served, that what is said in the text extends (a) Vid. Reg. v. Boucher, 3 Q. B. 641. to all officers appointed under the charter, 1.' ( II. MITERS. part arises from any other cause, and no false suggestion is mingled with the consideration for granting the charter, then the charter may be repealed ai to that part only (J). But this position has been quali- uith the limitation, thai the clauses to be repealed he independent and substantive clauses; if the objectionable clauses influence and affect the whole of the charter, the whole must he repealed, it is said(c). It has been Bolemnly derided in the House of Lords, after hearing the judges, that it is the undoubted right of the crown to repeal a charter in which the king is deceived, to the subjects' prejudice (d); and where the charter operates prejudicially to the suhject, a sci. fa. is a writ of right (e). And it has been lately intimated by the Court of Queen's lunch, thai act. fa. i- the proper mode of proceeding where a charter operates " to defeat the law and public policy" (/). And perhaps on thifl principle the decision in City of Well.-* case, cited Moore, Rep. . \ i/., that when a charter is in part prejudicial to the subject, it >hall be repealed altogether, which is said to have passed on confer- ence with all the judges, may be supported ( ••r on behalf "• th( II - 80, 261 . i Stepb. (on.. 4H : and the writ doei not iba* the crown, 1 Sira. 43. . '. 16 I .••■ '• CW.S.) x .. Bailifla, ficc, ol Bewdley, i P. ' : . . ■ .Cotton, \ e.irli. 7 Hi a. i, 41 , 4:1 h. and th m 10 be ia< with the reasoning of the court; 2 M. & YY.561. (h) Per Ashhurst, J., in Rex v. Pasmore, 3 T. R. 244 ; Vanacre's case, 1 Ld. Raym. 499; rid. Qu. Warr. Cas. Judgment, 119; Mayor, Sec of Colchester v. Brooke, 7 Q. B. 385, ace. This however is restricted, it is conceived, to corporations originating in the king's charter exclusively, and does not ex- tend to such as are created by charter from the crown in pursuance of acts of parliament, lor it would seem that such charters can only be repealed by act of parliament. This leaves- municipal corporations, both those which were in existence at the passing of the Municipal Corporations Act, and those created since, subject to the rule stated in the text. As to the case of a corporation by prescription abus- ing its power, the proper mode of proceeding againat it would he by quo warranto informa- tion, which also seems to be a concurrent means of punishment in all ra-rs of the class 11;. nnoneo in the teal ; 4 Mod. 55. d)4 Inst. H8 ; 2 Wins. Saund. 72; vid. form of writ of tci.fa. to repeal charters of a Corporation, Rei V. Governor, &c, of Copper Minen in England, Pill. Entr.411. Theob- there wai to repeal and cancel all the charter! of the corporation. (*) Yearb 3 II. n. 4, 6, 29 ; 4 Inst. 72; vid, 2 \\ me, San. 72. p. q.j << Bac. Abr. Sci. I ,,nn, I i.ld. Forms, 446, 8th ed., Ith ed. (/) 11 fit 12 Vict. c. 94, s. 22. VOIDANCE OF CIIARTERS. 43 also be returned either in term time or vacation, and may be directed to the sheriff of any county in England or Wales (w). What is to govern the discretion of parties in deciding out of which court they will sue the writ, or whether the less expensive and more expeditious course of suing out the Queen's Beench process may always be adopted, seems to have been left undecided. A few re- marks are here offered, in the hope of throwing some light upon this question. The writ of sci. fa. to repeal letters-patent was formerly granted upon petition to the crown, the prayer of which was gran table as of course, the petition being in the nature of a petition of right; now, however, the petition has become obsolete, and the writ issues upon the Attorney-General's fiat, which also appears never to be withheld, though it seems to be necessary even where the writ is grantable ex debito justitia (n). The usual proceedings being brought to issue, when the issues in fact have been tried at nisi prius, or at bar, in the Queen's Bench, or Common Bench, or Exchequer, a transcript of the record and of the verdict is sent back into Chancery, if the writ is to cancel as well as repeal the charter, for the Lord Chancellor to give judgment upon it; for the Queen's Bench has no authority to cancel any of the records of Chancery, much less letters-patent under the great seal, which no judge except the Lord Chancellor has any jurisdiction over (o). It seems, therefore, very doubtful which is the proper course to adopt; the conjecture therefore is here hazarded, that the writ may (m) 11 & 12 Vict c. 94, ss. 23, 25. Decla- right, to a trial at nisi prius, and the court rations and pleas are to be delivered, not filed, may, if they think fit, grant defendant a trial id. ss. 27, 28 ; and issues may be tried in any at bar; Astry's case, 6 Mod. 123. Vid. as to of the superior courts; id. s. 29. trial by proviso, and other points of practice, (n) Vid. 6 M. & Gra. 260, note; Reg. v. Hindm. 407. Neilson, 1 Webstr. Pat. Gas. 671, note (i); (o) St. Saviour's case, 2nd resol. 10 Rep. id. 669, note (/); Hindmarch, Patents, 385; 67 b; Hind. Pat. 402, 405, 417, 419, 420, 1 Uol. Abr. 534, G. pi. 1. As to the mode 214. Vid. the form of judgment in 8 Rep. of proceeding to obtain the writ, vid. Hindm. 31 ; Tidd's Pract. 1093, 9th ed. Qu. tarn, for 385,386; appearance, 393; declaration, in Rex v. Arkwright, 1 Webst. Pat. Cas. 74, 394 ; venue, Rex v. Haine, 2 Cox, 235 ; the Court of Queen's Bench gave judgment time for pleading, Hindm. 395; nol. pros., that the patent be cancelled; and in Reg. v. 396,397; demurrer, 397 ; Gude's Crown Aires, 10 Mod. 259, that it be repealed; and Pract. Q. B. App. 668; pleading, Hindm. on a judgment in Chancery on a writ of sci. 397, 400, 401 ; issues, 401 ; at law, 401, fa., it seems that error lies into the Queen's 402; in fact, 402; venire facias, 402—405; Bench; Hale's Jurisd. of the Lords, Harg. trial, 407; nisi prius record, 408 ; bill of ex- edit. 124. That issues in sci. fa. may be ceptions, 412; venire de novo, 414; new tried either at bar or at nisi prius, vid. Eyres trial, 414 ; costs on new trial, Reg. v. Bewd- v. Taunton, Cro. Car. 312 ; Reg. v. Bewdley, ley, 1 P. Wins. 224; signing judgment, 415 ; IP. Wms. 207. But they could not be tried forms, id. Append, cap. 2; form of Attorney- at nisi prius without the consent of the General's fiat for the writ, 2 Rich. Pract. C. crown, Fitz. N. B. 241 a ; 2 Inst. 424 ; Pad- B.393; form of writ, id.; amendment, Holland dock v. Forester. 8 Dowl. 834 ; R. v. Banks, v. Phillips, 10 A. & E. 149; Gude's Crown Salk. 652. Now, however, that consent is Pract. Q. B. App. 668. On the other hand, not necessary; vid. 11 & 12 Vict. c. 94, s. the Attorney-General is not entitled, as of 29. 11 CHART] issue out of the Queen's Bench when the object is to repeal a part of a charter; but must issue out of Chancery when the object is to repeal and cancel the charter; the former mode of suing out the writ when practicable i- the most desirable, as being most expeditious and less ..... rhia would reconcile some degree of conflict that there appears anion- the authorities, as to whether judgment can be given in the Queen's Bench. In the first case, it is apprehended that it may; in the second, that it cannot, at common law(p). Directions a- to proceeding generally on this writ may be found in the books of practice, and the proceedings respecting the repeal of charters from the crown are fully detailed in .Mr. Hindmarch's valu- able Treatise on the Law of Patents; and therefore it is not thought to Btate them hereby . especially as late acts of parliament have regulated the proceedings in this form of action (r). With respect to the judgment, there is a difference when the charter has comprehended a grant, either of lands or any species of freehold tenement, e. f Buch surrender would fail without the aid of parliament. The same must also be the conclusion, it seems, with respect to all corporate bodies created by charters passed in pursuance of acts of par- liament, they cannot surrender («). With respect, however, to all other corporati te, created by charter from the crown, there is now no doubt that they may surrender, and the surrender, on being accepted by the crown, ami enrolled in chancery, is complete, and the corporation, in most instances, would thereupon be dissolved to all intents ami purposes (a). The letters-patent must also be cancelled, and a vacatur of the enrolment of them entered upon the margin of the roll (J). A charter granted upon a void surrender of a former charter is void also (c). i poration having a capital or joint stock in which each member i- individually interested, and which may become productive of indi- vidual benefit to each, will be restrained from surrendering their charter fur the purpose of getting a new one altering the constitution of the body, on the ground that the charter did not contemplate at all, nor did the common law admit (except by consent of all the corporators) of an interest constituted by the charter being destroyed (d). The distinc- tion will be observed between a surrender of the charter and a sur- render df the possessions of a corporation ; for in the latter case the corporation may remain, provided the objects of its creation can be ful- filled without the possession of corporate property. Thus it is said that a dean and chapter may surrender all their corporate possessions and still continue a corporation ; for their function of advising the bishop may be performed without the possession of real property in right of the corporation (e). And when a charter has been surrendered, and the corporation reconstructed by the grant and acceptance of a new charter, the old corporation i- not destroyed, but all their franchises, liberties, prescriptions, rights, liabilities, debts, annuities, &c, remain unimpaired (/), e- far as is specified in the new charter, and this even though the name be changed or altered (g) by the new grant. Qu. to whom mu'-t corporations created (e) Case of the Dean and Chapter of Nor- by the Hkhopt of Durham and other nbjeett wich, 3 Rep. 73; S. ('. '2 Andeis. 120; dor. Hayward v. Fulcher, Palm. 491; .tones, Kit!; d without acceptance S. < '. }rr Holt, ('. .'.. 12 .Mod. lit; skin, Osborne, 4 1 I.S.C.; Dean of Wells' case. Dyer, 373 ; Plowd.Com. 105; Com. Die. Pali nt, 1 <.. Palm. 495; \ in. Al>r. Corporations. I. pi. 11, Ibr. 179; 17 id. 171, pi. 7; '■'■ I. I;. 17,26; Dyer, 382. So the possessions may . 191; -ii doe be disannexed from a prebend, yet the oorpo- ! I:. 17", s. c, ration sole remains; Walrond v. Pollard, • Staph. Hist B. 1363, (/) Hayward v. Fulcher, Palm. 91; 9. i . Jones, 166. I I '.327. dehor v. Spateman, 1 Saund. 344; W ird -. I be Society of Attornics, 1 Hull. N. P. 213; 4 T. K. 42o; 4 Rep. 87. 1 SURRENDER OF CHARTERS. 47 The surrender of a charter and acceptance of a new one is said to operate to determine offices held durante bene placito of the corpo- ration (h). With respect to the operation of acts of parliament on charters, we may observe, an act of parliament containing provisions inconsistent with any privilege or power conveyed by a previous charter always abrogates such privilege or power. Thus where a charter of Edw. 4 granted to the corporation of Norwich conusance of all pleas in attaint of false verdict given in the courts of the city, and the stat. 23 Hen. 8, c. 3, enacted that all attaints thereafter to be taken should be taken in the King's Bench or in the Common Pleas, and in none other court, it was held that these words ousted the conusance of the city of Norwich, although the charter had been afterwards confirmed in the entire by Edw. G, by general words (i). (h) Howard's case, Hutt. 87; Via. Abr. (i) Clovill's case, Dyer, 202 b; Co. Litt. Corporations, I. 3 pi. 11, 294 b. ; 11 Rep. 64 b. ( is ) NUMBER OF CORPORATORS. With respect to the number of persons in whom a corporation may be rested, it is to be observed that a corporation may reside in a single La the kin,-:, archbishops, bishops, deans, canons, archdeacon-, ■ as, who are all said to be corporations sole at common law(/,-). The chamberlain of London is also a corporation sole for some pur- 1 is said to be a corporation by custom (/); that is, the earliest known origin of the rights « v rcised by that officer is usage. The customs of London, however, having been confirmed by act of parlia- ment, T Ric. £, and repeatedly since, this case may be said to rest on statutory authority (m). Two may also form a corporation, and a quasi corporation or body having corporate rights and capacities in a limited and imperfect degree only, and for certain purposes only. This is the case of churchwardens, guardians of the poor, the board of officers of her majesty's ordnance department, and many others. Instances occur of hospitals, schools, and one or two other classes of bodies corporate, made to consist of two persons only. According to the civil law three at hast were required to form a corporation (n); and it would appear that fewer than three persons cannot in England exercise full corporate rights and powers, inasmuch as a majority cannot be always obtained; whereas all acts of corporations aggregate must be determined by some majority of the whole body. But this question does not often become of importance, and obviously never could be so with respect to municipal corporations ; for the charters of municipal bodies for the most part (as will be seen elsewhere) incorporated all the inhabitants of the boroughs or cities to which the}- related (o). On the other hand, a corporation may consist of any number of persons, though a corporation cannot be limited to a county. A charter cannot be legally made incorporating probos homines of such a county (p) ; and the reason is, that the desig- nation is too indefinite, not that the numbers are too large. The same body may form at one and the same time two or more different corpo- rations, having different names, objects, and constitutions^/). in, a corporation may be compounded of several other corpo- EU | - 29b. \ ■ 9. 38. (t, A Rep. 66 a. M. & Steph. Hist o' d. Wilford, Cro. Eliz. 464 1302, 1326, 1390, 1391, 1403 („, txUtimat 1404, 1405, 1407, 1417, 1418, 1491, 1495 ... 1998, 1999, lU4(i, 2040 ; Salk .. I. lib. 2, |>. Per Popham, ('. J., cited iu Trinitj 41; Mad. Finn. Burg. 49; en. Collegi case, 2 Brownl. 244. v.Day, 2 Atk. 212; Shepherd p. Cotton, 1 (y) Vid supra, p. 5. NUMBER OF CORPORATORS. 49 rations (r), and whether it is so or not is a question of fact for the jury(s). Various corporations instituted for other than municipal purposes have rights of choosing their members at their pleasure ; indeed the right is said to be incident to a corporation, if there be nothing in its charter or constitution to make it otherwise. When it is intended to give every one admission to the corporation on certain conditions, that object is generally effected by statute ; thus the power of becoming a member of the Russia Company on payment of £5 was given by 10 & 11 Will. 3, c. 6. (»•) Vid. supra, p. 5. (s) Company of Bricklayers, &c, of Shrewsbury v. Haywood, Dougl. 359. ( 50 ) NAME. It baa already been .stated that every corporation must have a name, under which it must do all corporate acts, and by which it must sue and bo sued (unless, as is sometimes the case, it be empowered by par- liament to sue and be sued in the name of its treasurer or other officer); and which name may either be given directly by the charter of creation, or by a subsequent charter giving a new name in lieu of the old one, or by implication from the terms of the charter (t); and the name, when once given, has been said to be an essential element of the corporation, and unchangeable except by act of parliament or by a fresh charter from the crown («). And it seems to follow that there cannot be two corporations with the same name at the same time. A corporation cannot have two names by grant ; but it is held that a corporation may have one name by prescription and another by grant (x). It has been said that a corporation may acquire a name by reputa- tion : but this seems only to be true where the difference between the real ami the reputed name is merely syllabic or otherwise immaterial (y). In the case of corporations originating in foundation, the correct name of the founder is, in general, an essential part of the name of the cor- poration, and must not be varied from (z). But it is settled that trading corporations belonging to foreign countries may sue here under their name of reputation a . oerally the fact of an aggregate body being called by a name is prim evidence that they are incorporated, "for the name argues a corporation (/> ." But an aggregate voluntary body, though they have a name, are not capable of suing by such name, as if they were a cor- tion (c). Though a corporation must have a name, the restriction does not extend to bind it to one name; for it is said a corporation may have (t) Pits v. Junes, Hob. 124; Ayray's 122; 3 s.,lk. 103. I . Com. c) Vin. Abr. Corporations, E. pi. 12; . '.'', Vin. Abr. Corpora- Glib, Hist. Com. Pleas, 184; lid. fj Taunt. \.2. pL I, 2; Cdll. of Physicians p. 467. Salmon, Holt'- Rep. 171. (,/) The Dutch E.Ind. Co. t> YanMeyers, r Shemeld, ace Co, Stra.612, afl Dom. Proc. Hut they must Q I'.. I. I. l'H7 . Marriott knd. show that tliey are incorporated in the foreign \ m. Abr. 261) country, snd whether they are so is a ques- ■ '. i; Cilo. Hist Com. tion for the jury ; Bank of 8t. Charles v. De i Car. ,\ P. i Wells, 1 l.'l. (61 Norrii ,. sm;is, Hob. 211. But the 1 i Lutw. id. ronris take judicial notice that " A. B. and yaughau '. Earl of Company" is not the name of a corporation ; ■ ; I I I'.. p. Harrison, (J T. K. 608. \ ",n. Abr. Corporations, K. pi. 14; (c; Vin. Abr. Corporations, A. 2, pi. 5. ,22; Hob. NAME. 51 several names (d), and even prescribe by several names (e) ; but though they may have two names by prescription, or one by prescription and one by grant, it is said they cannot have two names by different grants (/). Although it has been laid down that generally a corporation ought to purchase by its name of incorporation (g), yet it has since been held that, as well a corporation by charter as by act of parliament may take under a devise by another name than that in which they were consti- tuted (h), there being no doubt what corporation was meant. The rules of law in this respect are much enlarged, and it would not be allowed that a corporation should attempt to set aside its conveyance or demise because the name was inaccurately inserted in the deed. However, a corporation having had different names given it by different charters, cannot be sued by both names with an alias dictum (i). A writ of mandainus addressed to a corporation otherwise than by its true name is void (k). But in the case of a grant by a subject to a corporation the case is different ; for such grant will be good if it can be clearly discovered from the terms of it what corporation is intended, though an omission or mistake of the corporate name may have been made in it ; for nihil facit error nominis cum de corpore constat (I). So of leases and conveyances made to a corporation (m). So of devises (n). But a devise to the abbot of St. Peter, when the foundation is St. Paul, is void (o), for the specification of the party is mistaken. And a devise of lands in remainder to a corporation, not in esse at the time of the devisor's death, is bad, although such a corporation is erected before the remainder falls (p). But a grant of lands by the crown to a cor- poration by another name than that which the corporation had before, ( d ) Vaughan v. E. of Bedford, Cro. Eliz. Liskeard by the name of " Mayor, &c, of 351; 6 Yin. Abr. 272, pi. 16; Bac. Abr. the Borough of Liskerett alius Liskeard." Corporations, C. 3; Reg. v. Bailiffs of Ips- (k) Rex v. Mayor of Ripon, Salk. 433 ; wich, Salk. 435. In pleading, if an act of a Rex v. Morris, Ld. Raym. 1238 ; vid. 1 D. corporation done by it under one name, and & L. 874; 2 D. & L 451, as to naming cor- then another act done by it under another porations in an affidavit, name be stated, it must be explained how the (/) Ayray's case, 11 Rep. 18 b; Mayor of change of name took place ; 3 Lev. 243. Lynn's case, 10 Rep. 125. And if a deed be (e) Per Hale, C. B., Hardr. 504; 10 made to a corporation by a name differing Rep. 126 ; Gilb. Hist. C. P. 231 ; Bac. Abr. from their real name, they may sue in the real Corporations, C. 3. Vid. Knight v. Mayor, name, and aver that the deed was made to &c, of Wells, 1 Ld. Raym. 80. In pleading, them by the wrong name; Abbot of York's ancient corporations, having several names, case, cited 10 Rep. 125 b; Gilb. Hist, of may be slated to be as well known by one as Com. Pleas, 222. As to evidence in such the other; Vaughan v. Bedford, Cro. Eliz. case, see Mayor, &c, of Carlisle, v. Blamire, 351 ; Lutw. R. 1498. What evidence of a 8 East, 487." prescriptive corporation, Jenkins v. Harvey, (m) 10 Rep. 124; Hob. 124; 6 Taunt. 2 C. M. ic R. 393. 467. ( /') Knight v. Mayor, &c, of Wells, Ld. (n) Bac. Abr. Corporations, C. 2 ; Att.- Raym. 81; Mayor, &c, of Shrewsbury v. Gen. v. Rye, 7 Taunt. 546 ; el vid. Button v. Hart, 1 Car. & P. 113. Wrightman, Poph. 56; Cro. Eliz. 816 ; Anon. (g) Com. Dig. Capacity, B. 5. 3 Leon. 18 ; 3Com. Dig. 16. (/i) Chanc.of Oxford's case, 10 Rep. 87 b; (o) Vin. Abr. Corporations, G. 4, pi. 2; An. -Gen. v. Rye, 7 Taunt. 546 ; Croydon Counden v. Clarke, Hob. 33. Hospiial v. Farley, 6 Taunt. 467. ( p) Counden v. Clarke, Hob. 33; Bac. (i) Knight v. Mayor, &c. of Wells, Lutw. Abr. Corporations, E. R. qu. tarn. Queen Elizabeth incorporated E 2 N IMS. be lands, and the letters-patent are said to operate as a new incorporation (g) by the new name. Though a corporation be misnamed in an act of parliament, yet if there is enough from which t<> tell what corporation is meant by the lature, the statute is not therein rendered inoperative (r). When a corporation has a new name given it. whether by charter or act of parliament, it remains in all other respects unchanged, the mere change i>t' name having no effect upon the rights or liabilities of the corporation, which remain precisely as before [s) } although the territo- rial limits of the jurisdiction of the body politic may be enlarged or otherwise altered. The name or Btyle ft" the municipal corporations in boroughs under the Municipal Corporations Act, is " Mayor, Aldermen and Bur- ea t." In cities, however, it has been decided that the proper • Mayor, Aldermen and Citizens (u)." It seems that the crown has the prerogative <>t' declaring any town to be a city by letters- ; but making a town the see of a bishopric docs not make the town a city. Thus Manchester is not a city, nor is Ripon, though each has been made a see(y); and it is capable of the clearest proof that a city and a bishop's Bee were not originally connected of neces- sity in any way. The name of a corporation being in all cases an itial part of the metaphysical creation, and that which operates more than any other property of a corporation to give it the appear- ance of continuous identity, it might seem superfluous, had not the point been litigated, to state that corporations can in no case change their name at their pleasure; such change can only be effected by obtaining a fresh charter or letters-patent from the crown in the case of chartered or prescriptive corporations, or by obtaining an act of parliament in case of statutory corporations («). Where there i- a mistake in the name of the corporation in a writ, in an action by the corporation, the writ may be set aside (a). In a declaration, however, as misnomer is no longer matter for plea in abatement, no other effect, it would appear, ensues from a corpora- < t Charch and Par- Co. Litt. 109 b. n. (124) ; I Wooddes. Lect. 1 Leon. 190; i \.-., [nsurance Co., 16 ' ; 1...I. (N.S i Q. B. 107. d, 1 Seund. Walker v. Perkins, 2 I). & L. 985. I i ii.-nil, in pleading, tin- true name of any I Lev. Corporation winch ii . to refer lo 1 ■ ' t to be tit"! ; Turvill v. Aynsworth, mi. i. 787 ; Res o. Croke, Cowp. 29. Hut 8 Will. I, '■ 76, -.6. absolute precision is not required where the i men) ii matter ol inducement merely; , 2 Pbill. 3. Rutherford i Evans, 6 Bins 657;8.C.4 in. Moo.&P.163; Warre t>. Harbin, 2 H.Bla. 11 ■'■ '> p. 246 ; Gibs. Cod. 1449 j 112, As to laying the demise in an eject- •' o. Litt. 109 b, in. nt by a corporation, Doe d. Maldon v. Milli r, 1 B. & Aid. 699. (y) PorU .1 . 2 1 ; id. Harg. NAME. 53 tion misnaming itself, than in the case of any other plaintiff, when the proper course is to go before a judge and have the error amended on payment of costs. The name of a corporation must be truly stated in an affidavit, or the motion, in support of which it is used, may fail (b). Where a bill in equity was brought in the individual names of the corporators of a corporation, but stating their corporate character, and a bill of revivor was in their corporate name only, a demurrer for want of privity was set aside, the naming of the individuals in such case being held to be mere surplusage (c). But a corporation must prosecute criminally in their full and accurate corporate name (d), and the greatest accuracy is required in stating the name of a corporation in all criminal proceedings in which they are concerned. Thus a coroner's inquisition was quashed for describing the engine, moving to the death of the party, as the goods and chattels of the Proprietors of the Hull and Selby Railway, that not being the name of the corporation (e). A corporation by implication from the language of acts of parliament, though not established by express words of creation, may sue in their collective name for an injury to their real property (f). A name may be given by implication in a charter ; thus a charter incorporating the inhabitants of Dale with power to choose a mayor, imposes by impli- cation the name of the " Mayor and Commonalty of Dale" (g). Formerly corporations were often allowed to avoid their own leases and conveyances, on the ground of a misnomer of themselves in the instruments ; but of late this practice has been discountenanced by the courts, and a more just and rational practice has prevailed (//) ; and where a corporation has had the benefit of the transaction, they will not be allowed to turn round at their pleasure and set it aside on such grounds (i). A presentation to a living by a corporation by a wrong name will not be vacated on that account (j). If a corporation be named of a place, it was early laid down not to be necessary that geographical truth should be observed in the name (k). Thus a body was incorporated by the name of the Prior and (b) Reg. v. Gr. West. Railw. Co. 1 Dowl. Holt, C. J., 3 Salk. 102. & L. 874. (h) Lord Audley v. Sidenham, Tothill, (c) Walker v. Warden, &c, of Manches- 228 ; vid. Cary, 44; 10 Rep. 122 ; 4 B. & ter College, 1 Bli. N. S. 9. Ad. 655; Cowp. 29; 1 B. & Aid. 699; (d) Rex v. Patrick, 2 East, P.C. 1059; Sheph. Touchst. 234. Patrick and Pepper's case, Leach, 244 ; S. C. (i) Croydon hospital v. Farley, 6 Taunt. 2 East, P C. 1059; R. v. Sherrington, 1 467. Leach, 513. The addition of the corporate (j) Cro. Jac. 248. name to the christian and surname of all the (/c) Vid. instances cited 10 Rep. 30 a, parties composing it does not satisfy the rule; 32 a, b; Button's case, Poph. 56; Vin. R. v. Patrick, 1 Leach, 253; S. C. 2 East, Abr. Corporations, D. pi. 1,2. The place P. C. 1059. however ought to be a town or city, not a (e) Reg. v. West, 2 Railw. Cas. 613. So county alone; thus a corporation could not in proceedings under a private act of parlia- be erected as the corporation of Trinity Col- ment ; Rex v. Croke, Cowp. 29. lege, in the county of Cambridge ; it must be (./') Tone Conservators v. Ash, 10 B. & "Trinity College, in Cambridge, in the C. 349. county, &c. ;" 6 Vin. Abr. 261. (g) Vin. Abr. Corporations, E. pi. 7 ; per 5 1 ME. Brethren of the Hospital of St. John of Jerusalem in England; and rally we find that though formerly locality whs held to he of the »fa corporation (I), in times when corporations were almost entirely either municipal] or entrusted with local government in some way, yet of late a different doctrine has prevailed, at least in practice, and it is not now necessary that a corporation unconnected with the administration of justice, and not holding land, should he named of a place (;«). (/) Vid. Button i. Wrightman, Cro. Eliz. 1 B. & P. 40; Pilbrow v. Pilbrow's Atmos- 338. pheric llailw. Co. 4 D. & L. 450. (m) Vid. Mayor, &c, of Stafford v. Bolton, ( 55 ) COMMON SEAL. A Corporation aggregate expresses its will, wherever strangers are concerned, by its common seal; and in general nothing of importance can be done by a corporation except under its common seal (ra). In the courts of equity it is a fundamental principle that a corporation cannot bind itself, except under common seal, in matters concerning its revenues (o). Wherever individuals must do a thing under seal, a corporation must do it under their common seal ; and therefore they must grant the next avoidance of an advowson under the common seal (p). An entry in the books of a corporation of the terms of an agreement (it has been held in equity) entered into by them does not bind them, although it be signed by a majority of the corporators (q), not being under the common seal, and not having been acted on so as to alter the situation of any other party. At common law, however, it is held that a trading corporation may be bound by contracts, entered into by a competent board of directors, though not under seal, but semble they cannot enforce such contracts (r). In general the rule is, that whatever vests or devests an interest in or out of the corporation, requires the common seal (s). And there is not so much difficulty in dispensing with the corporate seal to acts which have not that effect ; thus, although in strictness the common seal ought to be affixed to a resolution or order of a corporation to authorize filing a bill on their behalf, yet, if the majority consent to the resolution, and no other course is open to prevent the act being done against which the bill is filed, because the keepers of the seal withhold the use of it, the common seal (n) Com. Dig. Franchise, F. 13 ; Church (r) Ridley v. Plymouth, &c, Comp. 2 v. Imper. Gas Comp. 6 A. & E. 846 ; Gib- Exch. 71 ] ; vid. inf. p. 56. son v. E. I. Comp. 7 Scott, 74. If a mayor (a) Vid. Carey v. Matthews, Salk. 191 ; and commonalty be disseised, and after, every Winne v. Bampton, 3 Atk. 473; Wilmot v. one of them release by their proper names, Coventry, 1 Y. & C.518; Erneley v. Wal- this is not good; but the mayor and com- rond, Dyer, 102 b. and marg. ; Plowd. Com. monalty ought to release under their common 91 b. Yet it was held by King, C.J., at seal ; 6 Vin. Abr. 267. nisi prius, that a corporation may contract by 0) Taylor v. Dulwich College, 1 P. Wms. parol for the letting of a market; 6 Vin. Abr. 656; Winne v. Bampton, 3 Atk. 473 ; Wil- 292; Corporations, K. pi. 41; vid. Yearb. mot v. Mayor, &c, of Coventry, 1 Y. & C. 12 Hen. 7, 25, 26 ; 5 M. & Gra. 183, n. ; 2 (Exch.) 524; Harg. Co. Litt.9 b, note (99). Taunt. 387. In the Yearb. 4 Hen. 7, fol. (p) Cripps v. Abp. of Canterbury, Owen, 17 b, it is said a corporation cannot make a 47 ; S. C. Cro. Eliz. 163 ; Yelv. 7. feoffment, lease, or any other thing of inherit- (y) Carter v. Dean, &c, of Ely, 7 Sim. ance, without deed, but as to those things 21 1 ; where see the remarks of the Vice- which belong to service they can, as the ap- Chancellor on the case of Maxwell v. Dul- pointment and employment of ploughmen, wich College, 1 Fonbl. Treat. Eq. 306. So servants of husbandry, butlers, cooks, &c. A resolution to increase the salary of a town petition to parliament must be under the clerk is not binding unless under the common common seal; Chamb. . Great N\. Co. 18 L. J. (N. S.) Clianc. • om. Dig. Franchise, F. 13; 29 Car. Com. Dig. Franchise, F. 13; R. v. io be both on principle and authority (citing I is tantamount to a an individual, p. 97 I . • 1 1 orporation lands n at i oration, but not i wnh the commoa seal. I he I I p iid rent to the bailiffs of the ration, who wire the proper partii '• e il : In M ' tor taking [ii Tat ion ; for the payment ol rent to the bailiffs ad- from \' :ir to yi ar undi r the ition ; Wi pi. 41; II < lation in. i boul • ' I . 171. Fran- 17. per Parke, B., 8 M.& W, 371. The sealing the counterpart is a sufficient acceptance, without a letter of attorney to deliver it ; Goodrich v. Cooper, Owen, 143. (/-) 10 Rep. 68. Bac. Abr. Corporations, E. 3 ; Gibs. Cod. 794. But the resolution of a majority ol the corporation presenting A. B. to a living, gives him an inchoate right, subject to be de- - d lor want of a formal presentation under seal ; Reg. v. Kendall, 1 Q. B. 385. {d\ Dumper d. Syms, Cro. KHz. 815; Com. Dig. Franchise, F. 12; Edgarv.Sor- rell, Cro. Car. 169; Ernelyv. Walrond.Dyer, 102 b. (e) Com. Dig. Franchise, F. 13. ( / i Bac. Ahr. Corpoiations, E. 3. lg) Mayor, Sec, ol Ludlow r. Charlton, 6 M. fif W. H 1 7 ; iid. Hi all • '. Lyme Regis, 21 . tt I. 331. (h > Wilmot p. Coventry, 1 V. \ I I;. {. v. Lichfield, 4 "g. B. 893; Holds- worth r. Mayor, Sec, of Dartmouth, 11 A. & 190. (i Rex v. Chester, 2 show. 366 j Yin. Ahr. Corporations, U. pi. 6, marg. pi. 6 ; Id >. Mayor, Sec, ol Poole, 2 Dowl. V I. Where an attorney had appeared for Iway corporation, with the knowledge of the d it, it is bound by his acts, iIm.iil'Ii be is not authorized under the com- . I laviell i. East. Cos. Railw.Com. 17 I.. .1. (.VS.) Exch. 297. of 4 Cumberland, 17 J...I ( \. S. iQ. B. 102. And when- a corpora- rporated by Btatute, the court will nol assume, on motion for a new trial, that tbeii private act may not empower them to appoint an agenl to demise their lands, itc, witboul eal ; Doe. '/. Birmingh. Canal Co. i. Bold, 11 Q. B. 129, 130. COMMON SEAL. 57 corporation, and have been accepted by them, they cannot, in an action of assumpsit to recover the price, object that no order to do the work was given under their common seal (I). They must, it seems, accept an assignee of their lessee by deed under their common seal (m). A return to a mandamus addressed to them must be under the common seal (n). Where a corporation had entered into possession and made a railway on land, under a contract of sale made by their agent, the objection that the contract was not made by authority under seal was overruled in equity (o), as they had adopted and acted upon the contract. And although in general an interest can only be devested under the common seal (p), yet if a resolution had been duly passed by the corporation that they would alien certain property, and upon the faith of that resolution expenditure incurred with reference to the property, equity would probably compel the corporation to make a legal grant of the property in pursuance of such resolution, although it were not under the common seal ((/). And if a person enter and occupy premises under a corporation, though without their having demised under the common seal, the absence of such demise does not relieve him from payment of a just equivalent for the use of the property, and he will be liable in debt or assumpsit for use and occupation (r). Where a corporation is called upon to put in an answer in chancery to a bill of discovery, the common seal is not sufficient to authenticate the answer, which the practice of the court requires in all cases to be CO Sanders v. Guardians of St. Neots, Partridge v. Ball, 1 Ld. Raym. 136; Yar- 8 Q. B. 810. The contract must be neces- borough v. Bank of England, 16 East, 6 ; sarily incident to the purposes of the corpo- vid. 6 A. & E. 827. The seal must be the ra'ion ; Paine v. Guardians of Strand Union, common seal ; the seals of all the members 8 Q. B. 326; vid. per Patteson, J., id. 929 ; of the corporation, or of the managing corn- Reg, v. Mayor, &c. of Stamford, 6 Q. B. mittee or directors of the corporation, will not 443. answer the requirements of the rule; Rex v. (to) 2 Wins. Saund. 305. In pleading North Duffield, 3 M. & Selw. 207. The such acceptance, it is not necessary to state demise to John Doe, in ejectment, though it it to have been by deed ; Dean of West- be stated to be by deed, in case of a corpo- minster's case, Carter, 16, 17. Nor general- ration lessor of plaintiff, is proved without ly, where it is necessary that a corporation proving a deed ; Farley v. Wood, 1 Esp. 199. must do an act by deed, need the act be And where there is evidence in the nature of averred to have been done by deed ; Mayor, admission by the defendant, that the secretary &c, of Ipswich v. Martin, Cro. Jac. 411 of a corporation who created a tenancy at («) R v. Infield, 3 Keb. 765. will, and the successor of such secretary who (n) London and Birm. Railw. Comp. v. determined it, had authority from the corpo- Winter, 1 Craig & Ph. 57. The general ration, though there is no direct evidence that principle, that a corporation cannot be bound there was any authority to either of them by any thing in the nature of an agreement under seal, the jury may infer the existence relating to their real property, except under of any possible valid authority ; Doe d. seal, is fully recognized in the courts of Birmingh. Canal Co. v. Bold, 11 Q. B. 129. equity; Carter v. Dean of Ely, 7 Sim. 211, And if the verdict is for the plaintiff, the court 227 ; S. 1'. at common law, 5 Vin. Abr. will not grant a new trial because the judge Condition, B. b. 3, pi. 4. at nisi prius did not tell them authority under (p) Vin. Abr. Bailiff, C. pi. 11. In Rex seal was necessary, S. C. v. Chipping Norton, 5 East, 239, a lease (q) Marshall v. Queenborough, 1 Sim. & for years of tolls by a corporation, but not S. 520; vid. 1 Y. & Col. 520. under seal, was held bad on the above (r) Southwark Bridge Company v. Sills, ground. An allegation by a stranger of a 2 Car. & P. 37 1 ; Dean, &c, of Rochester v. corporate act (which ought to be under seal), Pierce, 1 Campb. 466 ; Mayor, &c, of Staf- not saying it was under seal, is good after ford v Till, 4 Bingh. 75; vid. 6 A. & E. verdict, the court intending a deed, vid. 838,839; 11 Q. B. 128, ace. CO" M-- upon oath ; therefore it is usual to order that the clerk of the corporation, or secretary, or some principal members of it, at the discretion of the plaintiff, should answeron oath ; and even a servant, though not a mem- ber of the corporation, may for this purpose be made a party to the suit (s). Elections may in general be made to corporate offices without the seal : but appointments to offices must in some cases be under the seal, . to a freehold office not being a corporate office (0- An officer of the corporation, appointed under the common seal, ought to be discharged by an instrument authenticated in like manner ; but if he be appointed by election merely, then an order is sufficient to dis- charge him without the common seal («), unless in the case of a freehold office. But it is said that where a corporation have a power to remove an officer at their will and pleasure, such will must be signified under the common seal (x), but the truth seems to be, that this is only neces- Bary where the appointment has been under the seal. It has been held to be incident to every corporation aggregate to have a common seal {y), and the absence of a common seal is a material ele- ment in deciding on the validity of the claim to be a corporation, by a body who had always been reputed to be incorporated, though it does not appear to be of itself decisive against such claim (z) ; on the other hand, it has been left to the jury to say whether, from the fact of the body demising under a common seal on one occasion, they are or are not a corporation (a) ; but evidence that there was a time when there was no common seal in a borough, is evidence that it was not then a corpora- tion (b). There is no doubt that at common law many aggregate bodies, as counties, hundreds, wapentakes, forests, cities and boroughs, though not incorporated, were treated as though they were bodies politic, and could take in perpetual succession, and have a common seal (c). So a swain-mote roll was usually sealed with a common seal(t/). (*) Anon. Vcrn. 117, pi, 104; \ in. Abr. (a) Stallingen of Sunderland's case, cited i v. a,; Wych p. Meal, 3 P. Wins. 2 Q. B. 59 ext>. Green, (J A. & K. ppenham, 551. The commissioners in lunacy have a 14 V< ' Waterloo common seal, 8 k 9 Vict. c. 100, s. 7, but jirij ce, 491 ; Mitf. Plead. they are rat a corporation, Though the inns So on hill for an account, 8cc ; Mac- of >ourt have common * &lfl respectively they I ompany, are not corporations, hut only voluntary so- 94. cieties ; Styl. 457 ; Skin. 684 ; 2 Luder's Ml. mbridge, Cat. 238. imp I '.lilifTs of Ipswich v. Johnston, 2 Bar- on 8u rh deed "i appointment ot grant, Ro- nerd. 121; vid. the case of Cambridge, cited II M.,\\\ Quo. \\ .irr. c IBM, Att-Gen.,2nd arg. 35. St. was not a corporation, yet it re- .i Ike, 1 Ld. R»ym. 225; turned members to parliament, and the in- | Rippon, id denl tied with "the common seal of \!.r. the borough ," Bid. 2 Luder's LI. Cas. 199. i < . :. pi 7 . Boltv. .Miill: (c) Merew. & Steph. Hist. I'.oroughs, 443, 691. . Debt, it was held, would l.spital case, 10 Rep. 30 h ; mch bodies ; id. 893 ; vid. 4 Inst. lion . t> pi. 8. (D Rex i. Lord Dacres, Dyer, 81 a; (<0 Lovelace's case, W. Jones, 268. -. I i Rep, LI 1 COMMON SEAL. 59 Though a corporation seal a deed with any other than their common or corporate seal, it is said to be a good deed (e). Thus, if an abbot and convent sealed with the seal of a layman, and it is said in the deed in cajus rei, Sfc, appensum est nostrum sigillum commune, it is suffi- cient, and shall bind the corporation ; for this seal shall be said to be the convent or common seal for the time ; for with their common con- sent they may change their common seal at what time they will (/). But then in such case the deed ought to purport, on the face of it, to be sealed with the common seal of the corporation (g). The impression of the seal need not be on wax ; an ink stamp, or a wafer, or even an impression made with a stick, and with the intention of executing the instrument, is sufficient (h). However, notwithstanding these authorities, there seems room to doubt whether a corporation is entitled to use any other than their ordi- nary common seal. The authentication of corporate documents would be greatly embarrassed by a contrary practice, and the term common seal seems to imply a single seal, and not several seals, changed or altered at the will of the body. This supposition derives some strength from the fact, that the legislature has thought it necessary to authorize, by express enactment, joint stock companies incorporated to break, alter and change from time to time their common seals, provided the names of the companies be always inscribed (i). It is also important that each member of the corporation and the public should at all times know what is the corporate seal, for it is by the corporate seal that the body is bound, and by nothing else, provided such seal be properly affixed to the document in question (j) ; except where the rules of corporation law admit of a servant's binding the corporation by acts done in the ordinary course of his employment. Thus, a corporation is liable for the tortious act of their servant, though he be not appointed under seal, if such act be an ordinary service and the corporation have been proved to have adopted his act ( k) ; but with respect to contracts, the powers of servants to bind the corporation without seal are extremely limited, and will not be extended ; thus, it has been decided that a servant to a railway com- pany cannot bind them to a contract with a surgeon for attending a passenger injured on their line, such a power not being incidental to the duties of a servant (Z). That a corporation has no common late power to change their common seal may also be inferred from the fact, that in some charters the power (e) Shepb. Touchst. 57 ; vid. 6 Vin. Abr. (j) Mayor, &c, of Ludlow v. Charlton, 6 307; Vin. Abr. Corporations, C. a. pi. 20. M. & W. 823; vid. per Holt, C. J., 12 Mod. (/) Perk. 132, qu. tarn. 423. (g) Perk. 132 ; Cooch v. Goodman, 2 (k) Smith v. Birmingham, &c, Gas Com- Q. B. 580. pany, 1 A. & E. 526. But a defendant can- (h) Sugd. Vend. 300, 6th edit. ; Reg. v. not justify in trespass a seizure as servant of St. Paul's, 7 Q. B. 231 ; Sheph. Touchst. 57 ; a corporation without showing an authority by Lightfoot and Butler's case, 2 Leon. 21 ; deed ; Horn v. Ivy, 1 Ventr. 47, where the Davidsonv.Cooper.il M.& W. 778 ; affirmed service was not an ordinary one. in error, 13 M. & W. 343. (/) Cox u.Midland Counties Railway Com- (i) 7 & 8 Vict. c. 110, s. 25. pany, 3 Exch. 268. 60 "M<>\ SEAL. to break their common seal and make a new one, and change it as seems meet, a expressly granted (»). It has been held, however, that where a warrant of attorney to enter an appearance iras made under another than the corporate seal, it should DOt be annulled after having been recorded as the warrant of the corpo- ration A corporation may submit to arbitration under their common seal (o), and where a corporation is patron they must present under the common seal i /' '. We have above stated the description of contracts which when entered into b\ corporations aggregate must be made under the common seal in order to be valid; and we proceed to explain the principles of which the above illustrations have been given, premising, however, that the com- mon seal will not make valid a contract into which the corporation are incapable of entering, for instance, it will not make effectual a promissory note given by a municipal corporation and signed by the mayor (7); for such corporations, not being trading corporations, have no authority to bind themselves by this kind of contract. The general rule of law, that a corporation acts by and under its com- mon seal, has, from the earliest times, been subject to exceptions, arising out of the extreme convenience, amounting almost to necessity, of dis- pensing with the strictness of the rule when its application would occasion great trouble or loss of time, or tend to defeat the very object for which the corporation was created. An instance, given in the old authorities, is a command to a servant to cut trees in the vacancy of the headship (r). Instances where the rule has been, and usually is, departed from to save time, are the retainer of an inferior servant, the authorizing a person to drive away cattle damage feasant, to make a distress, &C. (s) So, for some purposes, the appointment of an officer in a corporate borough by the corporation may be good, though not under the common seal (O, such appointment having been repeatedly recognized by the corporation. So the appointment ot attorney to a railway company (m); but the retainer of an attorney to conduct or defend a particular cause must be, it seems, under the common Beal ( .r), in case of a borough. (m) E. g., in the charter ol Edw. (i u> tl.e on behalfof a corporation, for taking a distress, : DOt nvcr Ins appointment \>y deed ; in the charter of i!,< Cooks' Company, Manbj v. Long, 3 Lev. 107. (() Reg. v. Grimshaw, 16 Law J. (N. 8.) Bailiffs of Vermouth v. Cooper, Godb. Q. B. 385. Srmt. an appointment, where no 8 Vim. Atir. 307, 31 1. j into " may always be withoul deed ; ,15, Saunders v. Owen, Salk. 147. AstoappoiaU (p) |,, \ ems ment of servants of railway company, f eld that writing is sufficient ; 17 id. 342. Midland Railway Company, 18 Law J.(N.S.) Bot presentation b rshipofa hi 1 .65. piul by a corporation ought to be under their (u) Reg. v. Justices of Cumberland, 17 iv,., 1 ,. : . Law J. \. . Q. B. 102. That the attorney ( >. 13 Hen. 8, fbl. 12. inthei tppointed under the common ( q) |;.'_.. ,. m of Lichfield, i seal will be assumed bj the court; Thames, Sec, Railv iy Compaoj 0. Hall, 5 M. & Gra. ;. fbl l". pi. 24, 1 Littlei- ' ' > ' ''' v ma y constitute a corporator their ( s < ■ a bailiff ma ; i Vin. A t.r. 297, K , ma COMMON SEAL. Gl Further instances occur in the accepting bills of exchange, or making promissory notes by corporations constituted for purposes of trade {y) ; so an order to insert advertisements in a newspaper on behalf of a trading corporation (z) ; so an order to execute a writ (a). Actions of simple contract by corporations for tolls due to them as lords of markets, fairs, &c, and for port dues, &c, stand upon the ground that it is impossible that contracts under seal can be entered into in such cases. Where a bond is made to a corporation and an individual, who dies, an action on the bond may be brought by the corporation and the exe- cutor of the individual (b). A servant or officer of a parliamentary corporation, however high or confidential his situation, cannot bind the corporation by entering into a contract on their behalf, but without their authority (c). In the case of a common person, the presentation of a clerk to a living, or the nomination to a perpetual curacy, might be either by word of mouth, or in writing not under seal (d), though a grant of the right of presentation, &c, to a third party, being an incorporeal hereditament, must of course be under seal (e) ; but a corporation must always present or nominate under its common seal, for it speaks and acts by and under that alone, although in such case it cannot be said that an interest passes out of it (/). With respect to contracts, the rule appears to be somewhat more strictly observed ; for it has been held generally that no municipal cor- poration is bound by a contract to pay money, although the consideration had been executed, unless such contract be under seal (g), nor can any corporation either sue or be sued on a simple contract, unless such simple contract be of such a nature that the making of it was essential to carrying into execution the very purposes of the corporation (h). Indeed, for some time it was held that such actions could be maintained on executed contracts only, but it is now settled that the same principle extends to executory contracts (i). Where, however, the defendants had contracted to pay a corporation a sum of money on the happening (y) Vid. 6 M. & W. 823 ; 6 A. & E. 361 ; Vin. Abr. 22. Murray v. East India Company, 5 B. & Aid. (/) 17 Vin. Abr. 342, pi. 7 ; Rex v. , 204. Cro. Jac. 247 ; vid. sup. note (/>). {z) Hartwell v. Thames Haven Company, (g) Mayor, &c, of Lndlow v. Charlton, 6 cited 4 M. & Gra. 883 ; vid. id. 876, notes. M. & W. 815 ; vid. tarn. Doe d. Pennington (a) Vavisor's case, Moore, 552 ; Bac. Abr. v. Taniere, 18 Law J. (N. S.) Q. B. 53 ; Ar- Corporations, E. 3, qu. tarn. nold v. Mayor, &c, of Poole, 2 Dowl. N. S. (b) 2 Vin. Abr. 59, pi. 22. 597. Where a corporation has been receiving (c) Coxy. Midland Railway Company, 18 money wrongfully, they are liable in assumpsit Law J.(N. S.) Exch. 65. Appointment of for money had and received, although there ao-ent to a railway company not good without hasbeen no contract under their common seal ; seal, so as to enable him to sue them upon it; Hall v. Mayor, &c, of Swansea, 5Q. B. 548. Cope v. Thames Haven, &c, Railway Cora- (h) Arnold v. Mayor, &c, of Poole, 2 pany, 18 Law J. (N. S.) Exch. 345. Dowl. N. S. 597 ; vid. Bowen v. Morris, 2 (d) Co. Litt. 120; Att.-Gen. v. Brereton, Taunt. 387. 2 Ves. 425. (0 Church v. Imperial Gas Company, 6 (e) Fitz. N. B. 96 C. ; Crisp's case, Cro. A. & E. 846 ; Arnold v. Mayor, &c, of Poole, Eliz. 164; Grendit v. Baker, Yelv. 7; 13 2 Dowl. N. S. 597. COMMON SEAL. certain event, and the event happened, and the defendants received the full benefit of the contract ; held, they could not object, as an answer i action on the agreement, that it was not under seal (k)\ and the same principle has subsequently been applied against a corporation (I). it if such simple contract is not necessarily essential, or at least incident, to the p for which the corporation was instituted, they will not be liable upon it (m , unless it be under seal; of this, in ordi- nary cases, the contract to pay a servant's wages is an instance (n). Equity will not interfere to compel the performance by a corporation B contract not under seal, uidess valuable consideration for the con- tract be expressly proved, or evidence be given of acts done or omitted bv the contracting party on the faith of the contract (o). The rule appears to have been restricted in former times by the qua- lification, that a corporation, to be entitled to perform petty acts and enter upon trifling contracts, &C., without deed, must have a head, by whom Btich acts would be, in fact, performed, the powers of the whole body being considered as vested in him for such purposes, but that where there was no head, such acts, although of minor importance and continual occurrence, must be done, if at all, under deed (7;) ; audit seems to have been early considered to be an exception to the former part of the rule, that a convent might, without deed, order trees to be pruned or cut down, and other necessary acts to be done, in the vacancy of the headship 7). There is nothing, it is conceived, in any modern case to lead to the conclusion that this distinction no longer exists, and the terms in which it is noticed in the judgments of the courts, in several late cases on this subject, seem to Bhow that it still forms part of the law (;•). Perhaps, therefore, the most safe mode of entering upon such contracts and acts iOVe referred to, not being essential to the objects of the corpo- ration, is l>\ deed under seal, in cases where- the corporation is without a head, or person specially designated by the constitution of the body for smh purposes. After verdict the presumption is, that a contract was under Beal, in order to Bupporl a count in debt stating that the cor- poration was indebted, &c. (»■ So, in trover against a corporation, the .ongers' Company v. Kislier, t> ~ (p) Vin. Al>r. Corporations, K. pi. 39; N. !>.")''. But until the corporation had p< r- Kerwil'a case, i~earb. 12 Edw. 4, Ibl. 10.pl. i their part thi re was, want 24, per Littleton, J.; Handle v. Dean, Luiw. of mutuality, and the defendants might liavc 481. od cannot (9) Vin. Alir. Corporations, K. 1, pi. 7 ; I for iotent to defraud a corporation Yearb. '- Edw. 4, fol. 10, pi. 24; 3 Exch. • a contract which he could oot ■ the (r) Mayor, &C, of Ludlow v. Charlton, G I. . >. ,11 M, .\ W. B21 ; vid Hall 0. .Mayor, See, of ... lb Law Q, B. 546 . Cop v. I names 11 1- ven Dock Company, 18 I aw J .< x G v. Midland Counties Railway Com - v. Midland I p, 3 Exch. 270, 276; Lamprell v. Bille- mpn II v. ' m, 3 Exch. 306. i on d.Ws * ompany, 4 B. (ti > Vin. Abr. Corporations, K. 1, pi. I". ctment; Doe d. Pen- ton p. Taniere, 13 Law J. (N. S,; Q. B. ; i id. Brougbton 0. 63, Waterworks Company, 3 B.&c A.l . COMMON SEAL. 63 court will presume an authority under seal to do the act complained of, where such an authority was necessary (t). But no such specific autho- rity need be shown where the act was part of the ordinary duty of the servant or agent, and was adopted by the corporation (u) ; and, generally, where a corporation has adopted work done under a contract with them, they cannot object it was not under the common seal (a*). There is one class of corporate acts which may be performed so as to bind the corporation without seal, namely, such as are entered of record; as returns to a mandamus (y) ; making an attorney in a court of record ; certifying a mayor, or an usage, or custom, in one of the courts at Westminster ; and the reason is that the corporation is estopped by the record to say that it is not their deed (2) ; and the same, as it appears, is the case if they sue on a contract, though executory on their part, and not executed, their suing on it would be held to amount to an admission on record that such contract was duly entered into by them, and therefore they would be estopped in a cross action to take objection (a) ; and perhaps it was on this ground it was held that a corporation might assign auditors, in an action of account, without their common seal (b). With respect to deeds, the affixing of the common seal to the deed of a corporation has a singular effect, for though it is a general principle that delivery is essential to a deed, for it is not a deed without delivery, although it be sealed (c) ; yet the common seal being affixed to the deed is tantamount to a delivery (d), and suffices to pass an estate in all cases, unless where the order for affixing the common seal is accompanied by a direction to the clerk to retain the conveyance until a certain event has occurred. In such case the affixing the seal does not operate as a delivery by the corporation until the specified event has occurred (e). In all other cases the affixing is said to be a delivery in law, which there may be without an actual delivery to the party (f). Thus they may make a lease and seal it, and afterwards make a letter of attorney to enter and deliver the lease (g); or, as it seems, there may be a letter of attorney to enter on the lands and to seal the indenture in the name of the corporation, and to deliver it to the party as their deed(/«). (0 Yarborough v. The Bank of England, (d) Anon. 1 Ventr. 257; Good v. Ash. 3 16 East, 6. So in trespass; Vin. Abr. Cor- Keb. 307 ; Case of Dean, &c, of Ferns, Dav. porations, K. pi. 12, 22. 44 b ; 2 Rol. Abr. 23, 1. 50. (u) Smith v. Birmingham Gas Company, (e) Derby Canal Co. v. Wilmot, 9 East, 1 A. & E. 526. 360 ; Dean, &c, of Fern's case, Dav. 44 b ; (2) Sanders v. St. Neots Union, 8 Q. B. vid. Anon. 1 Ventr. 257 ; Good v. Ash, 3 Keb. 810. 307; Jermin v. Willis, Cro. Eliz. 167. (y) Rex v. Clarke, 2 Ld. Raym. 848 ; S. (/) Shelton's case, Cro. Eliz. 7; Com. C. 1 Salk. 192. Dig. Fait. A. 3 ; Rex 0. Longnor, 4 B. & Ad. (z) 1 Salk. 192 ; 3 Salk. 103 ; per Tindal, 647 ; Doe d. Garnons v. Knight, 5 B. & C. C. J., 4 M. & Gra. 878 ; Bac. Abr. Corpo- 671. rations, E. 3. (g) 2 Leon. 97 ; 1 Ventr. 257 ; Com. Dig. (u) 5 M. & Gra. 192. Franchises, F. 12 ; Willis ». Jermin, Cro. (6) Kerwill's case, Yearb. 12 Edw. 4, fol. Eliz. 167; 13 Vin. Abr. 21, pi. 6. 10, per Littleton, J. (h) Carter v. Claycoles, 1 Leon. 308. (c) Com. Dig. Fait. A. 3. G\ COMMON SEAL. But in all cases it must be understood that the common seal is duly Bffixed; the appearance of the common seal at the end of a deed does not make the instrument the deed of the corporation, unless the seal waa affixed by parties duly authorized to do so; therefore, if a person pretending to be mayor of a corporation, and as such to have the custody of the common seal, affix their common seal to a deed without authority from the corporation, that is not the deed of the corporation; and it seems that such person would be personally liable in a civil action on the deed (*). So corporators concerned in affixing the com- mon seal to an improper return, respecting a matter connected with public government, will not be screened from an information (/<). But where the seal is regularly and bunti fide affixed to a deed within the legal competence of the corporation to execute, then the seal protects all persons concerned in affixing it, or otherwise taking part in the corporate act of ordering it to be affixed, from individual or joint liability; thus where a deed was regularly sealed with the corporate seal, and besides certain members of the corporation signed their names to it, and the corporation was afterwards dissolved, the obligee on bringing debt against the individuals on the deed was nonsuited (I). Also though a member of the corporation regularly execute the deed after the corporation seal is fixed, that does not render him personally liable (;«). We shall meet many instances to prove that individuals procuring the corporate seal to be set to instruments which are illegal as being beyond the competence of the corporation, are personally liable for the consequences. The above powers, it must be observed, are peculiar to the common seal of a corporation. A number of persons cannot assume a common seal and attribute to it the force and efficacy of a corporate seal ; and therefore, if a number of persons, not being incorporated, enter into a written contract, which they seal with a seal professing to be their corporate seal, such contract cannot be enforced by action, upon its appearing that they have no common seal(n). And though the court of Queen's Bench in a late case (o), in which it appeared upon the record that a demise purporting to be sealed by the common seal of the governors of a hospital, was therefore the (i) Sir H. Mackworn 1 1 Yin. (/) Edmunds r. Brown, 1 Lev. 237. It Ahr. 346. Li-/. Anon. IS M«»l. 423 ; K. i. seems that ;i \< ue made under tlie corporate Haughk v, 4 B. >\ Ad. 660; Hill P.Man- teal becomes, upon the dissolution of the cor- r Waterworks Co., 5 B. fie Ad. B66. poration, altogether void; Pitts v. James, Bat an indictment o m* Hob. 121. moil law for potting the corporation seal with* (>») 16 Yin. Al>r. 5, j>1. 11. (n) Cooch i. Goodman, 2 (,>. 15. 580. ■ l ii.c ir charter, 6tc., t" the Y\ here a corporation is bound l»y stati , nud publi ite deeds, &c, according to certain of the co rporation Ate ; I irk. Tram, forms, the proper plea to put in issue the j'. ( ,5 proper execution of a deed is >id» ut factum ; < -■irgcons' Company, 1 Hill o. Manchester, 6.c, Waterworks Co., 2 ?;. [n inch case the seal may he Nev. & M.573. : iult, C. J., Uarston's case, (o) Cooch v. Goodman, 2 Q. 13. 580. COMMON SEAL. G5 demise of a corporation, refused, on special demurrer, to take notice judicially that no such corporation existed, yet it seems that the courts do take notice, judicially that "A. B. & Company" is not a corpo- ration^)); and in one case, Lord Eldon, C, took notice on demurrer, of his own motion, that a lodge of Freemasons, who affected to sue as a corporation, were in reality not incorporated; and he added: " It is an absolute duty of courts of justice not to permit persons not incorporated to affect to treat themselves as a corporation upon the record I desire my ground to be understood distinctly. I do not think the court ought to permit persons, who can only sue as partners, to sue in a corporate character" {q). A corporation aggregate, like an individual, may surrender a term for years by an act in law, (e. g. by accepting a second lease reciting the first, &c.,) without a deed ; but an express surrender must always have been under the corporate seal (r), just as in the case of an indi- vidual, such surrenders as require to be in writing at all must now be also under seal is). Also an absolute surrender of a lease may be made to a corporation upon their promise to renew ; and though an action at law does not lie against the corporation upon such promise, not being under seal, yet the Court of Chancery, it has been said, will compel them to make a new lease (t). The single bills and bonds of a corporation, even though it be a trading corporation, and the common seal be regularly affixed, are not assignable at common law, but the Bank of England is empowered by 5 W. & M. c. 29, s. 39, to issue such documents with the quality of assignability. In closing the subject we may remark, that the necessity for the use of the common seal is almost wholly confined to acts done by the cor- poration affecting strangers ; acts relating to the internal affairs of the corporation, as affecting members solely, do not in general require the common seal to render them valid (w); thus, though bye-laws intended to operate upon strangers must be passed under the common seal, yet bye-laws only going to regulate matters affecting the corporators themselves need not have the common seal. And many corporate acts may be done without the common seal, although they may, in their results, affect strangers ; thus a mayor may be elected, and in many corporations, according to the practice before the Municipal Corpora- tions Act, a town clerk nominated, and in general all elections may be made without the common seal, and such corporate acts are valid (a-). It is said that a gift of personal chattels cannot be made by a corpo- (p) R. v. Harrison, 8 T. R. 508. Wats. Compl. Incumb. 813. (q) Lloyd v. Loaring, 8 Ves. 775. (it) R. v. Chalice, 1 Ld. Raym. 225; R. (r) St. Saviour's case, 10 Rep. 66 b; Vin. v. Mayor, &c, of Ripon, id. 568. Abr. Corporations, K. pi. 33. (x) Att.-Gen. arg. Quo. Warr. 35; vid. 2 (.n) Vid. 8 & 9 Vict. c. 106, s. 3. Barnard. 121. (0 Frevill v. Ewbank, 1 Rol. R. 82; 2 GG COMMON SEAL. radon except under seal(y). With respect to proof of a corporation Beal attached to any certificate, official or public document, or document or proceeding of any corporation, or any certified copy of any docu- ment, bye-law, entry in any register or other book, or of any other hich by any Btatute in force in the year 1815, or since come into force, are made receivable as evidence of any particular in any inquiry of ■ judicial nature. Buch documents, &c., shall be received in evidence, it' they purport to be sealed, &c., as directed by the ctive acts, without any proof of the seal, in every case in which the original record could have been received in evidence (z). The ordinary proof of execution of a deed by a corporation was by Bhowing that the seal on the deed is the seal of the corporation; it was not usual to give evidence of its having been affixed by the corporation, or by their authority ; and a mere memorandum on a deed that the seal was aflixed, on such a date, by order of the corporation, would not lie treated as a distinct attestation, so as to make it necessary to call the person signing such memorandum (a). Whether the general rule that an instrument thirty years old proves itself so as to render proof of is- execution unnecessary, applied to the seal of a corporation, was idered doubtful; for the witnesses to a private deed, or persons acquainted with a private seal, may be supposed to be dead, or not capable of being accounted for, after such a lapse of time, yet the seals of corporations, being of a permanent character, may be proved at any distance of time from the date of the instrument (o). A- has been remarked above, an instrument to which the common I has been attached by an unauthorized person, is not the deed of the corporation, but prima jane the person who has the legal custody ithorized in any given case; hence if one party proves that the common seal of a corporation was affixed to an instrument by the officer who had the legal custody of the seal, that throws upon the other side the burden of clearly proving that the seal was not affixed by the authority of the corporation (c) ; and a bond to which such II Vin. Abr. 123, pi. 4; oid.2B.6c with it. < I. ut that is not necessary since 8 & 9 M. Vict 0.113 . 1,) vid. 2 B, 6c Ad. 648. 113, s. 1; vid. Stra. What sufficient prool ol the seal of a Scotch 74? i neb university, Collins v. Carnegie, 1 A. & E. 695. • Ir.iij for- The common seal of the city of London had i: been held to prove itself; ptr I.<1. Kenyon, Crim. by Greaves, 424 ; of other public com- C. J., Woodmai t>. Mason, I Ksp. 53. As 133. " P» rson*' in a statute rela- t" cases of statutory corporations, where con- r; u.i- hi Id Bd i" be applicable tntcis arc to be signed by three of the di- ll. ir- rectors, or sealed with t lie common seal, ,11 ' ■ Cope v. rhamea Haven Dock Co., 18 L. J. in. 385; bol rince 1 Will, (N.8.) Ezeh. 345. 18, the law is otberv Hill o. Manchester Waterworks Co., d v. Cbsmbi G S.icA 74; Clarke v. Imperial Gas Co., 112; l'h. II. Evid. 651, 652,8th 4 B.A Ad. 324. But where a deed appears with the common seal attached, omnia rite Lthwick, 2 1 acta is the pn sumption both as to the legality B I. K. 303. That of the consideration (11 A. it E. 502), and portoon must be the genuineness of the document, proved tu b«; genuine by a witness acquainted COMMON SEAL. 67 officer affixes the seal under a general authority from the corporation, is valid (d); if, however, a mandamus required the common seal to be affixed, and the majority refused to obey, and the minority affixed it pursuant to the mandamus, the seal would be legally affixed (. Davies, Stra. 53; Hac. Abr. 1.7; Withnell ». (iartham, G T. It. 388; 2 Mum's Eccles. Law, 117,8th k.iinu 1 .\\ ainwright, Uk. (m) Rex v. Windham, Cowp. 377. 212. ( ur. in Res 1 ■ Kendall, 1 l> 3; el vid. preamble of 33 Hen. 8, ■ ■ 27, - ■. p. 7 ). lilift, 6tc, ol «lk. iex \ .Miller, 6 T. R. 268; Rex v. Bower, I B. & C. 497. Hex 1. Bellringer, 4 I; T. R 810. 1 . Windham, Cowp, MAJORITY. 69 for the time being, or the major part of them, the majority of the whole must meet for the purpose (p). Another rule is, that where there is a special body of a definite number appointed to perform corporate acts, there such acts cannot be performed except by a majority of that body() Hex v. Bellringer, 4 T. R. 810; Rex ( y ) Rex v. Varlo, Cowp. 248. v. Headley, 7 B. & C. 496; Rex v. Great, 8 (r) Rex v. Hoyte, 6 T. R. 430. B. & C. 363; Rex v. May, 4 B. & Ad. 843. (s) 7 Q. B. 436. Vid. 5 &c 6 Will- 4, c. 76, 9.31. The charter (t) 7 Q. B. 438. created two bailiffs and twelve assistants, and (u) Vin. Abr. Corporations, G. 3, pi. 6; enacted, in effect, that the two and the twelve Rex v. Theodorick, 8 East, 543. A binding for the time being, or the greater part of majority on a given question is, generally them, of whom the bailiffs should be two, speaking, a majority at a meeting convened to should do corporate acts : held, that a meet- consider the question ; Rex v. Theodorick, 8 ing, at which two bailiffs and six assistants East, 543. were present, was not a good corporate meet- (x) Att,-Gen. v. Day, 2 Atk. 212. Vid. ing to do a corporate act; Bailiffs of God- inf. p. 70; Vin. Abr. Corporations, G manchester v. Phillips, 4 A. & E. 550. pi. 6. MAJORITY. Other instances arc, the inhabitants of a township (y), or parish, or the commoner- of a common, the justices at quarter sessions, &c. Al80 the majority of the grantees of a charter of incorporation binds the minority on the question of its acceptance (z); and without the con- sent of the majority the incorporation is void (a). the statute of Hue and Cry made the inhabitants of the hundred irporatioD for the purposes of the statute(i). So it is laid down that the majority of the part-owners of a ship binds the minority by the law and custom of England (c). So, where trustees are invested with a trust of a public nature, an act done in pursuance of the trust by a majority of the trustees assembled for that purpose is valid(d). And there is no doubt that wherever a power of a public nature is committed to several, who all meet for the purpose of executing it, the act of the majority will bind the minority (e). And when the law creates a charge upon any precinct or district, there the power of meeting the charge is impliedly conveyed to the inhabitants, and the majority bind the rest; but where it is desired to defray a charge which is not legally binding, there the assent of all is requisite (/). Under the Municipal Corporations Act a new principle has been in- troduced with respect to the majority of the council (which is not a corporation), namely, that all acts should be decided by a majority of the members present at any meeting, provided the whole number pre- sent be not less than one-third part of the whole council, sect. 69 (r/). But in all cases of election, the majority of the elective assembly must act in some specific way in order to bind the minority; thus, if a candidate is proposed for a vacant office, and the majority merely dis- from the proposal without proposing and voting for some one else, they lose their votes, and the person nominated by the minority is legally entitled to the office (A). And both in elections and on other (y) 5 Rep. 63; Bac. Abr. Bye-Laws; concurred in doing the act; Cook v. Love- . 7 n. p.. 458, land, '2 B. >v I'ul. 35. (:) Rex v. Pasmore. 3 T. R. 343 ; Gerrish (/) Case of Hundred of Blackheath, 1 j. Rodman, 3 \\ ils. 164; Did. Butter v. Salk. 362 ; Chamberlain of London's case, 5 Chapman, B M. \ W. 1. Hep. 63, remarked on, 7 Q. B. 452. (a) Anon. 2 Brownl. 100; 6 Yin. Abr. (#) Vid. s 31. 258t (7,) ol.lknow d. Wainwright, 1 W. Bla. . I Men of Devon, 2 T. 229; Gosling v. Veley, 7Q. B. 425,432; \ m . Al-i.i ;-.!•'. pi. 4. 8.C. in err. 19 Law J. (N.S.) Q. B. 111. ( artli. "27. So an election by the minority of the whole (\'r, 247 a. In the caae of though the majority of the whole corporation trustee* nnder private settlements it is differ. be wilfullj Case ol St Saviour's, ent, they most all concur; 3 T. R. 696; Lane, Rep. 21 ; the absent majority being I , Finch. Hep. 78. considered to delegate to the rest to vote for (e) Grindley «. Barker, 1 Bos. & P. 229; them. Vid. Meretr. & Steph., Hist. Boroughs, . Kent Waterworks Company, 7 B. 2249; R. «. Knight, 4 T.B* 429, 431; Com- . Wbiteker, 9 B.& C. 648. herb. 397. Jn pleading, it must be shown that a majority MAJORITY. 71 occasions of voting, if the majority vote for an incapacitated person, or an illegal or impracticable object, their votes are thrown away(i). The votes of a majority are equally thrown away if they vote for an object beside or beyond the purposes of the meeting (k); thus, if a meeting is called in obedience to the tenor of a mandamus calling upon the corporation to affix the common seal to a deed (the power to do so being, by the constitution of the corporation, to be exercised by the majority), and the greater number of those present refused to concur, and the minority did in fact affix the seal, the seal would be well affixed, and the corporation would be held to have obeyed the writ; for the purpose of the meeting, and the duty with which it is charged by the law being to affix the seal, all who vote against that purpose, and in contravention of that duty, throw away their votes, or must be taken to acquiesce in the will of the minority (A). And this, upon consideration, will be found not at all inconsistent with another fundamental principle of the common law, that the majority must be made up by the votes of the persons present at the corporate meeting; for it is against the common law rule for a member of a corporate body to vote by proxy or substitute (Z); and in the case supposed, those who vote for an object, which it is not within their competence to vote for effectually, are in law considered not to be present or taking part in the meeting. Where an election is to be decided by a set number, of whom A. and B. are to be two, their presence only, not their assent, is necessary to the validity of the acts of the elective assembly (m). So, where the corporation consisted of master and brethren, and an ad- vowson was conveyed to them, to hold to the use of the master and brethren, and their successors, for ever; it was held that the right to nominate a clerk belonged to the majority of the entire body of master and brethren, and that the master's concurrence in the act of the ma- jority was not necessary (w); and the master may be compelled by man- damus to put the common seal to the nomination (o), although there may be visitors appointed by the founder, to whom, by the constitution of the corporation, all disputes between the master and brethren are to be referred. But although at common law the acts of the majority bind the minority in all cases within the constitution of the body politic ; yet equity will give relief to a corporation where its interests have been fraudulently dealt with by those who, at the time, repre- sented the corporation, although the whole of them assented to the act complained of. Thus, where a number of persons obtained a charter of incorporation, constituting themselves, and all persons who might become subscribers to the undertaking, a corporation to have a capital (i) 7 Q. B. 433, 439, 446, 447 ; S. C. in Dean of Femes, Davys's R. 47 b. error, 19 Law J. (N. S.) Q. B. 111. (m) Cotton v. Davies, Stra. 53. (fc) 7 Q. B. 448, 457 ; S. C. in error, 19 (») Reg. v. Kendall, 1 Q. B. 366. Law J. (N.S.) Q. B. 111. (o) Ibid.; R. v. Windham, Cowp, 377. (/) Yearb. 11 Hen. 4, fol. 64; Case of MAJORITY. i.OOO/.. divided into 1' <> shan j, and then, bring the only members of the corporation, bought tor themselves all the shares, but only ac- counted on the books of the corporation lor 12,0007., ami then sold those shares in the market; a bill was held to lie, at the suit of the corporation against th< i-. to compel them to pay the full con- sideration It seems also not in violation of any principle to suppose that an action of debt would have lain at the suit of the corporation for the price of the shares unpaid for: for the corporation is a metaphysical being, not identical with the majority, or even the a. of its members at any given time, but consisting of them, their predecessors and successors, and has rights altogether distinct and separate from those of all or each of -neb majority or aggregate body (y); and here the tiling done was contrary to, and in violation of, the constitution of the corporation ; and it has been laid down, that if a transaction be void, and not merely voidable, the corporation cannot confirm it so as to bind the dissenting minority of its members (r). Hence it would seem to follow, that if, after an illegal act were done in the name of the corporation by a party having for the time the management of the affairs of the corporation, the custody of the corporate seal, &c., so that an action could not be brought in the name of the corporation without their acquiescence, yet, that if afterwards the then minority were to become the managing body, they might commence an action in the name of the corporation, and recover damages against the guilty parties. Also there may be circumstances in which the Court of Queen's Bench will relieve by mandamus against the improper conduct of the majority contrary to the constitution and objects of the incorporation (s) ; and the principle on which the court proceeds in such cases and generally, is this: — Where an inferior court or a body refuses to proceed in some course prescribed by law, the mandamus goes : hut the court does not interfere in conse- quence of any misapprehension or error in the course of the party, pro- vided it has been entered upon (/). This relief in equity is not confined to cases of trading corporations; b it where a corporation, not being a trading corporation, had a capital or joint-Stock, in which the several members of the society had individual rights of property productive to them of pecuniary benefit, and a majority of the whole body (1291 to 22) had determined on surrendering the charter, in order to remodel the constitution of the society, so that the members should not possess any individual right of property in its capital : held, that the charter having limited the powers of those who ()>) - Ige v. p in v. I ;, confirmed, Fom V. Ihir- -,7. 1m.h1.-, 'j Hare, 504. :..) m Counties Railway Com- 10 A. & E. i> v. I ; <.i- ( ' ) Ibid, ; Etei i . Sevi rn, See, I . i , any, 2 B. & Aid. I ... ,„_ MAJORITY. 73 had the affixing of the common seal, by conditions which were incon- sistent with the notion of applying the common seal for the purpose of procuring the annihilation of the society, and the common law containing no principle allowing the interest constituted in the funds of the cor- poration to be taken away, without the consent of the whole body, an injunction must issue to restrain from affixing the common seal until the hearing (u). The relief given by equity does not extend to protect the minority from the operation of measures legally resolved on by the majority, however the former may conceive themselves to be injured by such measures, as though, for instance, it were a resolution adopting a project for vesting all the property of the corporation in trustees with the view of liquidating the affairs of the corporation (x) ; and it is a general rule, that the courts of chancery will not interfere by injunction in the private internal affairs of trading corporations, any more than the court of Queen's Bench will interfere by mandamus: it is also a rule in equity, that a suit by an individual shareholder of an incorporated com- pany, complaining of an injury to the corporation, cannot be maintained if it appears that the plaintiff has the means of procuring a suit to be insti- tuted in the name of the corporation itself; and this rule applies equally, whether the subject-matter of complaint be an act or transaction which is merely voidable at the discretion of the majority of shareholders, or an act or transaction absolutely illegal and incapable of being confirmed by a majority (y). ( . If, however, the act complained of (though the act of the directors only,) be such an act as a general meeting of the shareholders might legally sanction, then a bill by some of the shareholdei's, on behalf of themselves and others, to impeach that act, cannot be sustained, because a general meeting of the company might immediately confirm and give complete validity to the act of which the bill complains {z). The result of the above authorities therefore is, that, acting within the scope and in obedience to the provisions of the constitution of the corporation, the will of the majority, duly expressed at a legally consti- tuted assembly, must govern ; but beyond the limits of their constitution neither the will of the majority nor unanimity can make any act valid; as, for instance, if the constitution enables the corporation to raise money, whether by subscription for shares, or by imposing tolls or rates, and specifies the objects to which such funds are to be applied, no vote of the corporation can divert those funds from such objects (a). The rule of the majority binding the whole has been already stated to relate equally to corporations having a head as to corporations with- out one ; but it may be expedient here to investigate the state of the (it) Ward v. Society of Attornies, 1 Colly. (z) Foss u. Harbottle, 2 Hare, 461, as ex- 370. plained in Bagshaw v. Eastern Counties Ilail- (x) Lord v. Copper Miners Company, 18 way Company, 7 Hare, 129. 130. L, .1. (N. S.) Chanc. 65 ; S. C.2 Phill. 740. (a) Bagshaw v. Eastern Counties Railway I y) Alozley v. Alston, 1 Phill. 790. Company, 7 Hare, 114. 7 1 V WORITY. law as to this, with respect to some corporate communities, a little more closely. \- deans and chapters, hospitals, colleges, or other corpora- tions /. 0. other corporations (as it seems) originating by foundation), the stat. 83 Hen. 5, " intituled "The Bill for Leases of Hospitals, Colleges, and other Corporations," after recognizing the common law rule, that least fsuch corporations are good with the assent and sent of the major part, provides that in such corporations none shall have a negative voice, notwithstanding such may have been the will of the founder The manifest intention of the statute has been considered to be to e-t:d>!i< r- iving r of assent to the same have been and be dailj thereunto sworn, and so the n ol such elecl grants and li diag to the COUTM i conr this realm, nnless they should the danger of perjury ; for the avo wlnreof, and for the due execution ol common law universally within this realm and iformity ol reason t" he nd > nacti d by the authority of tl | arliament, that all i order, rule and made, or hereafter to by any founder or founders of any hospital, college, deanery or other corporation, at or upon the foundation of any such hospital, college, deanery, or corporation, whereby the grant, lease, gift, or election of the governor or ruler of such hospital, college, deanery or other corporation, with the assent of the more part of each of the same hospital, college, deanery or corporation, as have or shall have voice of assent to the same at the time of such grant, lease, gift, or election hereafter to be made, should be in anywise hindered or let by any one or more, being the lesser number of such corporation, contrary to the form, order and course ot the common law of this realm of England, shall be from hence- forth clearly frustrate, void and of none effect ; and that all oaths heretofore taken by any person or persons of such college, hospital, deanery and other corporation, shall be for and concerning the observance of any such order, statute or rule, deemed void and of none effect ; and that from henceforth no manner of person and persons of any such hospital, college, deanery, or other corporation, shall be in any wise compelled to take any oath for the observing of any such order, sta- tute, or rule, upon the pain of every person so giving such oath to forfeit, for every timi offending, five pounds, the one moiety thereof to he to the use of our sovereign lord the king, and the other moiety thereof to any of tin kind's subjects, which will sue for the in any of the king's courts of record by action of debt, lull, plaint, or information or ot he rwiee, wherein the defendant shall not be to irage bis law, nor any protection nor essoign, or any other dilatory plea ad- or allowed. lea. L. 117. MAJORITY. 75 does not extend to any particular number of a corporation (d), and the act was not a corporate act. Also neither the mayor, or any other head officer of a corporation, has, at common law, a casting vote in case of equality of votes ; there must be an express power given by the constitution of the corporation to confer the right (e), otherwise no bye-law or ordinance of the cor- poration can give it(/). (rf) The case of New College, Oxford, Dyer, 247 a. Another ground on which this decision may be supported is, that the act, being a judicial act, could only be done by the concurrence of the whole of the persons designated, or that the authority granted was not strictly pursued by a dispensation made by a part of the parties entrusted with it. (e) Reg. v. Chapman, 6 Mod. 152 ; Anon. 7 Mod. 12 ; Anon. 12 Mod. 232. Where the statutes of Clare Hall, Cambridge, provided that the person should be elected for whom the master and the major part of the fellows should vote, it was decided that this only gave the master a single negative voice ; Rex v. Blythe, 5 Mod. 404. ( /' ) Rex v. Dean of Chichester, 1 Hey w. El. Cas. 391 ; Rex v. Ginever, 6 T. R. 732. ( 76 ) BYE-LAWS. Where it is necessary for the accomplishment of the objects of their incorporation, a body politic 1 m incident to it, the power of making bye-laws (g), and of enforcing them by penalties; and such bye-laws, in the case of municipal corporations and of other corpo- rations entrusted with local, popular, or territorial government, will bind both members and Btrangers, and not members of the corporation only. A bye-law is a rule obligatory on a body of persons or over a parti- cular district, not being at variance with the general laws of the realm, and being reasonable and adapted to the purposes of the corporation; and any rule or ordinance of a permanent character, which a corporation is empowered to make, either by the common or statute law, is a bye- law (//). It is a rule made prospectively, and to be applied whenever the circumstances arise for which it is intended to provide (i). A bye-law cannot impose an oath ; unless there be a custom to do so; for that is contrary to the common law. The principle has sometimes been laid clown in more general terms, asserting the power to make bye-laws to be incident to every corpo- ration aggregate ; but there does not appear to be good authority for a more extensive rule than the one above stated (k) ; nor indeed is the question likely to arise, except in cases where some powers of govern- ment, either over localities or bodies of persons, are lodged in the corporation. The affairs of other corporations are often carried on without its becoming necessary to frame any bye-laws. The bye-laws of a corporation are always obligatory on all the (g) Company of Feltinongers r. Davk 1 (i) 1'ercur. (lo-lingt- Veley, 7 Q. B. 451 ; . Vanacre, rid. 1 Keb. 733; per Parke. B., 19 L J. Carth. 482. In the report of the same case, (N.S.)Q.B. 135. A live- law is never pleaded ... 142, the court i- made to say only as such; " rule, order and ordinance is the ilial where a franchise is grant. ,1 for the be- phrase under which bye-laws are spoken of in Defil of a body politic, the body politic has pleading. In pleading a bye law. it must be power incidentally lo regulate tliat franchise stated when and by what body or court il for the public benefit, rid. 6 Via. Abr. 258, made; Res P. Don of Dublin, Stra. 539 ; p | 4 ' vid. 1 B. ,\ Pol 100; A M. 8c W. 633. (I,) Per Parke, B., 19 L J. (N. S.)Q. B. (k) To make ordinances is declared not to 135; 8 Rep.63a; Ho] in,4M.& be of the essence of the corporation ; 8ntton*a w , in only be imposed by Hospital case, 10 Rep. 31 ; vid- jmr Abbott, 'liament,and no onto can be C. .'.. in Res v. Westwood, 57; rout, per Holt, C. J., 1 Show. 281. It belongs also by custom to other than corporate bodies; e.g. Men w . Sti . I list Boroughs, 2039 ; ■ nt.ilirt. the puri^hionersof a parish ; aleet,2 Rol. Hep. Dublin. 1 391; the inhabitants of a township; the com- efore a bye>law imposing an I a common, Merew. fit Ste. Ili-t. oath it bad, unli ' by statute or Boroughs, 1078; 5 Rep. 63; Bac. Abr. Bye- i mm ,. , though allowed by charter Laws; the tenants or perhaps the homage of l Rol. 5; 2 M.M. 27; R. r. Jay, a manor, Dyer, 322 a ; Vin. Abr. Bye-Laws, rid. inf. , B. i id. Hob. 212. authoritv of parli ;, unless it I I bystatute or common law ; Com. Dig 3 .A.; BYE-LAWS. 77 members, and each member is bound to take notice of them (Z) ; for every one within the scope of the bye-laws is considered as having given his consent to them(m). But besides the members, all the inhabitants of a district, over which a corporation is invested with jurisdiction, are bound by the bye-laws of the corporation enforcing that jurisdiction, and must take notice of them at their peril (w). So all the members of a trade, over which the corporation has jurisdiction, are bound by its bye-laws for the regulation of such trade, whether or not they are members of the corporation (o); and every stranger, though merely coming within the limits of a corporation invested with local jurisdiction and powers of government, is bound at his peril to take notice of all its bye-laws (p), provided, it is said, the object of the bye- laws be to suppress a general inconvenience or defeat fraud (q). In all corporations, to which the power of making bye-laws is inci- dent, it is to be exercised by the entire body of corporators as distin- guished from select bodies, unless the constitution of the corporation have vested the whole power of making bye laws in some particular part or body of the corporation (r) ; but a power, given by the charter to a select body, to make bye-laws touching certain objects therein specified does not deprive the body at large of their incidental power to make bye-laws as to matters not so specified in the charter (s) ; and where a particular authority to make bye-laws is given by the charter, every bye-law purporting to be made under it must fall within the scope of that authority (t). The general rule is, that no bye-law will be held good in a court of law or equity, which is repugnant to, or inconsistent with, the laws of the land in any one instance (u), or which imposes a farther restraint than a statute imposes (x), though this last point is not quite free from dispute (a:). That all corporations have not incident to the incorporation the CO Vintners' Company v. Passey, 1 Burr. lin v. Green, 1 Bulstr. 11 ; per Heath J., 1 239, 250. H. Bla. 375. (m) T. Jones, 145 ; vid. R. v. Trevethan, (?) R. v. Westwood, 2 Dow. & C. 21. 2 B. & A. 339. (s) Id. ibid. ; per Parke, B., 16 M. & W. (n) Vanacre's case, Salk. 142 ; Butchers' 228. Company v. Morey, 1 H. Bla. 370; vid. (t) Calder, &c, Navigation Company v. Company of Homers v. Barlow, 3 Mod. 258 ; Pilling, 14 M. & W. 81, 87 ; vid. per AVil- and in such case it is therefore not necessary, mot, J., 3 Burr. 1838 ; R. v. Phillips, cited 3 in declaring forthe penalty under the bye-law, Burr. 1325. to allege notice of it; James v. Tutney, Cro. (u) Norris v. Staps, Hob. 211; vid. 3 Car. 498 ; Butchers' Company v. Bullock, 3 Salk. 77, pi. 8. Therefore the power to make B. & Pul. 434. such bye-laws must always be shown in plead- (o) Butchers' Company v. Morey, 1 H. ing, that the court may see the power has been Bla. 370; Kirk v. Nowill, 1 T. R. 1 18, 266. strictly pursued ; R. v. Lyme Regis, Dougl. ( />) Prigge v. Adams, Skin. 350; Pierce 158, 159; vid. 1 B. & Pul. 100. v. Bartram, Cowp. 269; Kirk v. Nowill, 1 (x) Tailors of Ipswich case, 11 Rep. 53; T. R. 1 18. Beyond such limits they do not vid. Green v. Mayor, &c, of Durham, 1 bind ; 3 Mod. 158 ; T. Jones, 144 ; vid. tarn. Burr. 131 ; per Lord Kenyon, C. J., 7 T. R. 2Brownl. 177; Hob. 211 : Hult.6; 11 Rep. 548; Calder, &c, Navigation Company v. 53 ; Godb. 252. Pilling, 14 M. & W. 90 ; vid. tarn. Butchers' (q) Bosworth v. Heane, Stra. 1085; S. C. Company v. Morey, 1 H. Bla. 374; Butchers' Andr. 91 ; Cas. Temp. Hardw. 405; Frank- Company v. Bullock, 3 B. &. P. 434 ; Pierce v. Bartram, Cowp. 270. Ts BYK-LAWS. power of making bye-laws, mil appear from sonic eases of eleemosynary corporations to be treated of hereafter. If by a public general statute applicable to every subject of the realm of England, a penalty of 5s. ia imposed for a certain description of offences, and a corporation, having rights and powers of territorial government, pass a bye-law affixing the penalty of 5/. to the commission of every such offence within their boundaries, such bye-law is said to be bad (I/). Where a statute provided that only 2s. (>f the charter in pursuance of which it has been made; thus where a defendant to a quo warranto information insisted in his plea on the charter, but in his rejoinder rested his defence upon a bye-law. it wa- held by the House of Lords, on the unanimous opinion of six of the judges who where desired to assist the House, that there was no departure (*). Again, it is a general rule that every bye-law must be reasonable and properly adapted to execute the objects marked out in the institution of the corporation (0; therefore any bye-law infringing upon, altering, or limiting, the powers and privileges or duties conferred or imposed by the constitution of the corporation, is bad(w). A bye-law erecting a new office unknown to the constitution of the corporation is bad (x). A bye-law imposing a penalty on any person refusing to take upon him an office in the corporation was held bad, because in the circum- stances of the corporation in question, it might include persons over whom they had no jurisdiction (y). A bye-law avoiding all bonds, covenants, &c-, made in contravention of it, is bad(:); for that is as- suming the powers of a court of law. So a bye-law of the University of Oxford, prohibiting all persons, townsmen as well as gownsmen, from being abroad in the streets after nine o'clock at night, is bad (a); for such regulation is in excess of the powers of the University; but a bye-law that the offender against it shall be disfranchised is good (ft). A bye-law involving an expenditure of the funds of the corpo- ration, without an adequate advantage accruing to the corporation, is bad, as being unreasonable (c); and therefore a bye-law to compel the giving of a dinner must show that it is for a beneficial purpose, or that (q\ II! I98j titl. 3 Lev. 293. So where the words in the l>ye- per Holies 1 J., 11 law wert "any inhabitant;" Mayor, flic, of Guildford d. Gierke, 2 Ventr. 247. (,) 1 ... ker il P. C. 311. I loggerell 1 . Pokes, Moore, 41 1 ; S.C. (i) Res p.Cutbush.4 Burr. 2204 ; Hoblyn I j. (in 1 rr. >, 'J Bro. I'. I ker (a) Dodwellv.Univi rsity of Oxon, 2 \ < ntr. j Bro. P. C. 304 33. .rr. (b) Com. Dig Byi -Law, D. 2; Bab v. . Mayor, < lerke, Moore, -11 1. < c 1 Master, &c., of Scriveners' Company v. 1. Phillips, cited -i Burr. brooking, 3 Q. B. 95; Company of Frame- n, 4 Burr. 5 work Knitters v. Green, I Lord Rayrn. 113; 1 I;. ler 1. Sanderson, 5 1 Jiuy . 79; Gee v. ■ : '■ rd d. Wildgoose, Wilden, Lutw. 420. BYE-LAWS. 81 an interest of the corporation is in some way promoted by it(d), or it will be invalid. But a bye-law of the Surgeons' Company, that no member shall take an apprentice who does not understand the Latin tongue, is good (e), for that regulation is within the competence of the corporation to impose, and strictly ancillary to its purposes as well as advantageous to the public. A bye-law, if unreasonable, will be held bad, although it have been duly passed, and published and notified to the proper authorities, and not disallowed by them (f). Where a certain discretion is vested by the charter or constitution of the corporation in the body, a bye-law limiting the discretion so given is bad (g). Still a bye-law may regulate the enjoyment of a right, if the restraint which it imposes upon the exercise of the right be upon the whole for the general benefit of the corporation (h); but to impose an additional qualification on those who have an inchoate right to the freedom of the corporation was considered an infraction of the rule, and therefore a bye-law with that object was held to be invalid (i); and, besides, such a restraint would be unreasonable and inconsistent with the objects of the corporate constitution (/). However, a bye-law pro- viding a method of previously examining the right of claimants to the freedom has been held good (k). A bye-law therefore may in the above manner regulate the admissibility to office, but a bye-law cannot enlarge the number of those who by the constitution are eligible to office (I), nor of the eligible to be corporators (m), nor of the electors (n). But when the mode of electing to an office is not specified and prescribed by statute, charter or custom, the corporation may from time to time pass bye-laws regulating such elections (o) ; and these bye-laws, subject to the above restrictions, will be binding. Again, a bye-lay may, it is said, narrow the number of electors, provided to do so does not violate the intention of the constitution, and the restriction be reasonable (p), and the limitation does not exclude any integral part of the body, or introduce any stranger into the corporation (q) ; but the corporation can (d) Master, &c, of Scriveners v. Brooking, (fc) Green v. Mayor, &c, of Durham, 1 3 Q- B. 95. Burr. 131 ; vid R. v. Marshall, 2 T. R. 2 ; (e) R. v. Surgeons' Company, 2 Burr. 892. R. v. Bailiffs of Eye, 1 B & C. 85. (/ ) Elwood v. Bullock, 6 Q. B. 383. So a (/) Mayor, & c, of Guildford v. Clarke, 2 bye law confirmed by the justices, &c, under Ventr. 247 ; R. v. Mayor, &c, Weymouth, 4 19 Henry 7, c. 7, s. 1 , remains liable to be Bro. P. C. 461 ; Powell v. Reg. 3 Bro. P. C. disaffirmed in a court of law, vid. infra, p. 92 ; 436. Graves v. Colby, 9 A. & E. 360 ; Elwood v. (m) Powell v. Reg. 3 Bro. P. C. 436. Bullock. 6 Q. B. 383. („) R. v . Bird, 13 East, 384. (g) Reg. d. Governors of Darlington School, (o) Newling v. Francis. 3 T. R. 189; and 6 Q. B. 682 ; R. v. Askew, 4 Burr. 2 i 99 ; a bye- law may regulate the lime for taking an R. v. College of Physicians, 7 T. R. 287. election in the circumstances stated in the Text, (h) Jamcsu.Tutney, Cro. Car.497; Pierse 2 Lord Raym. 1355. v Bartrum. Cowp. 269 ; Anon. Goldsb. 79; (p) R. v . Attwood, 4 B. & Ad. 502; R. v. vid. Com. Dig. Bye-Laws, C. 4; VVannell v. Spencer, 3 Burr. 1827. Chamberlain of London, Stra. 675; Green v. (q) R. v . Ashwell, 12 East, 22; R. v. Mayor, &c, of Durham, 1 Burr. 131. Westwood, 7 Bing. 1; vid. turn, per Lord (0 R. v. Spencer, 3 Burr. 1833; R t>. Kenyon, C. J., 6 T. R. 735; R. t;. Holland, Tappenden, 3 East, 131. 2 East, 74. 82 BYE-LAWS. neither narrow the number of the eligible (r), for that would be to give themselves a new constitution (5), nor can they vary the description of the eligible (M. A bye-law imposing a penalty on refusal by a corporator duly elected to serve a corporate office is good(w); and it is no objection to such bye-law that the party may be indicted for refusing to serve the office (a:), as lie may be in all cases of municipal offices, at least if they be neces- sary for the administration of justice or the proper conducting of the government of the borough; and so a bye-law affixing a penalty on the voluntary resignation of a corporate office is good(y). Almost any bye-law, if founded on an immemorial custom, may be supported, although it be in itself idle or unreasonable (z). However, it may be doubtful if the spirit of the decision, of which the above is the effect, would be adhered to at present; for the tendency of the courts has been of late to declare void all customs which are not in themselves mable, without regard to the question whether they might once have been reasonable, although the older authorities held that customs could not be deemed to be void for unreasonableness, unless it could be shown that they could never have been reasonable (a). The question of reasonableness, we may observe, must be discussed with reference to the locality over which the custom is claimed to extend ; for what may be a good custom in a borough (b) may not be so in an upland town (c); the reason apparently being that an arrangement derogatory to common right and affecting a large body of persons, it can hardly be supposed they would have allowed to grow up, unless it had originated in a legal manner and on good grounds ; the agreement, which is the basis of custom, could hardly have been evidenced by such repeated acts of nt on both sides from the earliest times, beginning before time of memory and continuing down to our own times, as to have become the law of the particular place (d) under such circumstances, unless it had (r) R. t>. Attwood, 4 13. & Ad. 502 ; R. v. (y) Mayor, ficc, of Cambridge v. Herring, 'J unwell, 3 DongL 207. 1 Lutw. 402. (*) Par Lord Man field, C. J., in It. v. (i) Wallis's case, Cro. Jac. 555; per Tunwell, 3 Dougl. 207. Wightman, J., 3 Q. B. 105. (t) Lee o. Walks, Ld. .:•>■!. (a) 2 Inst 664; Hue v. Gardiner, 2 Buhit. ("> , Sir T. Raytn, 446; 195, 1!'<>. ?><'<■ Coke, ('. .1.; vid. Rogers v. Mayor, Sec, ol Wokingham o. Johnson, Cas. Rrenton, lo Q. B. 26; Cndden ti. Eatwick, 6 Temp. Hardw. 284; Mayor, fiic, ol London Mod. 124. " The rule of law is, that where- / Vanacker, Salk. 142. In declaring on ever there is an immemorial usage the court such bye-law, if the oihce is not judicially must presume every thing patriots which could recognized as a i must give it a legal origin;" per Lord Mansfield, . averment ol the right of i he corporation C. J., Cocksedee v Panshaw, Dougl. 127. io have it j Bayer, El. 2< (M l ib. Asms. 40 Edw.3, to!. 250, A. pi. M Sec, of I. mi. 1. in i. Vanacker, 41; 45 Ed w. 3, fol. 229, A. pi. 8. Salk 142; B. C. Carth. 480; It. v. Bower, I ... l.,tt. U0b; et vid. Vearb. 21 l B. & C.6B6. The penalty of the bye-law Edw. 4, fol. 28, B. pi. 23 ; Beresford v. is incurred by refuting to qualify for the office. Bacon, 2 Lutw. 1317, 1319; Litt. s. 165; , 3 Lev 116; Jones o. Robin, 10 Q. B. 635. the oath.fi (rfi Tyson v. Smith, 9 A. & E. 425, 426. unng tlie <• I , .'., Vid. the custom of Lynn to take ballast for . March, l'" 1 ; »"'. R. v. ships, Mayor, ficc, of Lynn o. Taylor, 3 Lev. Carth, 306; Keg. v. Humphcry, 160. Custom lor resident freemen of New- 10 A. Si I.. 3'j8. castle to claim exclusive right in the town BYE-LAWS. 83 had a substantial and legal origin ; whereas, in the case of a small com- munity, the alleged custom may be reasonably referred to usurpation on the one hand, and submission to force or fraud and covin on the other. On the other hand, a bye-law cannot operate to annul a custom (e). This has been decided by the highest authority, and the reader will have been prepared to acquiesce in the decision by what has been said above respecting the nature of a custom ; for if an immemorial usage be in existence, proved by repeated acts of assent on both sides, so as to have become, according to the principles of our jurisprudence, the established rule, obligatory on all who come within its sphere, it cannot be tolerated that any majority of the persons locally subject to this law, who at any time may conceive objections to the custom, should be empowered to set it aside for ever by an arrangement among themselves ; and the decision, so far as it goes, is strictly in accordance with the rigour of the old law with respect to customs ; according to which, a custom once established could only be abrogated by act of parliament, however injurious or inconvenient its operation, in the lapse of time, and change of circumstances, might have become (/). A bye-law in restraint of trade must not only be reasonable but beneficial to the public (g), and the old cases laid down, that a custom to make bye-laws in restraint of trade, will not be favoured (A). But a prescription or custom to restrain from using a particular trade in a particular place was allowed (i) ; and customs to exclude foreigners from territorial jurisdictions under corporate government have been held good(/e); corporations have even been held entitled to sue for the breach of such customs without having first passed bye-laws ascertaining the penalties to be taken from the offenders (k). But now all these customs in boroughs, and all bye-laws founded upon them, are wholly abrogated (except in the city of London) by the Municipal Corporations Amend- ment Act, which has abolished all exclusive rights of trading and work- ing at trades in corporate towns and cities (I), and all customs, usages, &c, inconsistent with the provisions of the act. moor against the members of the corporation (I) Sect. 14. — And whereas in divers cities, at large ; Anon., cited in Cocksedge v. Fan- towns and boroughs a certain custom hath shaw, Dougl. 121. prevailed, and certain bye-laws have been (e) Ilex v. Johnson, 6 Cla. &c F. 41. made, that no person not being free of a city, (f) 2 Inst. 664. town or borough, or of certain guilds, mysteries (g) Ciunmakers' Company v. Fell, Willes, or trading companies within the same, or some 389; Bosworth v. Heme, Cas. Temp. Hardw. or one of them, shall keep any shop or place 409; Dodwell v. Oxford, 2 Ventr. 33, 34; for putting to show or sale any or certain vid. Wood v. Searl, J. Bridgm. 141 ; Player v. wares or meichandize by way of retail or Jenkins, Siderf. 28 ; Fremantle v. Throwsters' otherwise, or use any or certain trades, occu- Company, Lev. 229 ; vid. 3 Smith's Wealth pations, mysteries or handicrafts for hire, gain of Nations, 111, 144, 145. or sale within the same: Be it enacted, that, (h) Mayor, &c, of Winton v. Wilks, Salk. notwithstanding any such custom or bye-law, 203 ; per Littledale, J., 7 D8wl. & R. 602. every person in any borough may keep any (i) Harris v. Wakeman, Sayer, 255 ; Shaw shop for the sale of all lawful wares and mer- v. Poynter, 2 A. & E. 324 ; Broad v. Jollyfe, chandizes by wholesale or retail, and use every Cro. Jac. 597. lawful trade, occupation, mystery and handi- (h) Ellington v. Cheney, cited 1 Wils. craft for hire, gain, sale or otherwise within 235; Mayor, &c, of Colchester v. Sympson, any borough; vid. Elwood v. Bullock, 6 cited 1 Wils. 237; Weavers' Company v. Q. B. 383 ; Pierce v. Bartrum, Cowp. 269. Brown, Cro. Eliz. 803. This is returning to the old law that every one g2 Si BYE-1 \w 3. Bye-laws nevertheless may be passed for the regulation of trade, and will still be valid, provided they conform to the general requisites of good bye-laws: in fact corporations have always exercised, without question, the power of making bye-laws for the regulation of trade within their limits; and this is no more than it has been held a court leet has authority to do (to). With respect to the mode of enforcing bye-laws of corporations, it has already been observed, that the power of enforcing by penalties is part of the power oi' making bye-laws, which is incidental to all cor- porations, to the development of the objects of whose constitution such power is necessary; and in general the rule is, that a bye-law without an i xpress act of parliament can only be enforced by a pecuniary penalty, which must be certain (it) ; the exception to the generality of the rule being the cases where bye-laws have been allowed as being authorized by a custom, ex. gra. in the city of London, although they purported to give power of imprisonment by way of enforcing them. But a bye-law fixing the maximum, as 51., and giving a power of mitigation not below another sum, as 21., is good(o); for there is nothing unreasonable in such a regulation, and it is sufficiently certain. It may be observed that this mode of fixing the limits of penalties has been varied by the legislature in the Railway Companies Clauses Consolida- tion Act (8 & 9 Vict. c. 20, s. 109), by which the companies are re- quired to fix the penalties for infringing their bye-laws, though a range is given by the statute between 0/. and 5/. : and a similar requirement is contained in the Municipal Corporations Act with respect to bye-laws enforcing the serving of certain of the municipal offices specified in the enactment. Also a bye-law fixing one penalty for a first ofTcnce, a larger for the second, and a still larger for the third and every time after, does not appear to be bad for uncertainty (p); but where a certain penalty is fixed by bye-law it can not be altered as long as the bye-law remains unrepealed (rj). Offences against the bye-laws of municipal corporations are not as such punishable by indictment (r), and a fortiori they are not so in case of other corporations. A bye-law affixing forfeiture of goods, as the penalty for disobeying it, i- bad, although the charter expressly authorize the corporation to blish such bye-laws; for that no forfeiture can grow by letters- ■ sell any commodity, 6lC, in any city or (<>) Piper v. Chappell, 14 M. & YV. 649 ; 9 Edw. 8, cc. l and 2; 25 "./. Butchers' Company v. Bullock, 3 l'>. \ . 11. Put. 434. («) 2Rol.Rep.391 J rJardr. 56; Merew. (p) Butchers* Company v. Bullock, 3 B. teph. Hi-i Boroughs, 1087; Exetei v. cv 1'ul. 434. 1,2 k' b. •':')'. 'q ) Seaming v Conyer, 3 Leon. 7 ; S. C. (n) Bosworth i. Burgen, 7 Mod, 459, Moore, 7.3; Bendl. 16!); Davis v. Lowden, B. C. i ■.-.-.. 1324; Leathlj i. Webster, Cartr.29. (i i Rex v. Sharpies, 4 T. R. 777. BYE-LAWS. 85 patent (s) is an old maxim of the law, and for tior et potent lor est vulgaris consuetudo quam legalis concessio, and by Magna Charta no man is to be dispossessed of his property but per legale judicium parium suorum ; thus where a charter of Hen. 6 granted to the corporation of dyers of London power to search, and that all cloth that they should find dyed with logwood, &c, should be forfeited, it was held that the grant was bad (J). And as a bye-law is bad which attempts to inflict a forfeiture directly, so a provision which is in the nature of an imposition of a for- feiture will be bad; thus a bye-law cannot enforce payment of the penalty by declaring the offender shall be excluded from participation in the profits of the corporation until he pays the penalty ; for such a confiscation is in the nature of a forfeiture, and therefore inadmissible in a bye-law (u). So if the forfeiture is to be levied by distress and sale of goods, the bye-law, without a custom or act of parliament to support it, is bad (x). Still it seems that a bye-law, in pursuance of an immemorial custom, enforced by a forfeiture, would have been held before the Municipal Corporations Act to be good ; for such a custom was good, as in the case of the custom of foreign bought and foreign sold, where the goods were forfeited (?/). This custom has been held good in the cases of the cities of York and Lincoln (z); but now it is possible that all such customs are abrogated in municipal corporations by the Municipal Cor- porations Act, sect. 2, for they are, it would seem, inconsistent with that act. This however does not rest on any decided case, and may be open to some doubt. And a bye-law imposing a forfeiture, where the corpora- tion is expressly authorized by act of parliament to take forfeitures, is undoubtedly good (a). A bye-law cannot, it has been distinctly laid down, impose imprison- ment as the penalty for infringing its provisions, although the corpora- tion were expressly authorized to do so by their charter (b) ; for it is (s) 8 Rep. 125a; Kirk v. Nowill, 1 T. R. for the courts cannot take judicial notice of 118; Vin.Abr. Bye-Laws, A. 2, pi. 17; Com. customs; Hartopu. Hoare.Stra. 1 187 ; Hodges Dig. Bye-Law, E. 2 ; 2 Inst. 47, 54 ; Bac. v. Steward, Salk. 125. So if a bye-law refer. Abr. Bye-Laws, E. ; Clarke v. Tuckett, 2 to former bye laws, they ought all to be set Ventr. 183; Home v. Joy, 1 Ventr. 47; out iu pleading ; Gerrish v. Rodman, 3 Wils. Nightingale v. Bridges, 1 Show. 135. 171. But if the bye-law is founded on a it) 8 Rep. 125a; Dyer, 279b, marg. ; 2 private statute the declaration need only state Inst. 47. the substance of the act ; Hopkins i>. Mayor, (u) Adley v. Reeves, 2 M. & Selw. 60; &c.i of Swansea, 4 M. & W. 638. Gunmakers' Company v. Fell, Willes, 390. (») Kirk v. Nowill, 1 T. R. 1 18. (.i) Clarke ?;. Tuckett, 2 Ventr. 183; 3 (a) Dyer, 279, pi. 10 ; 2 Rol. Abr. 202. Lev. 281 ; 3 Salk. 76; Com. Dig. Bye- Laws, (b) Clark's case, 5 Rep. 64; 2 Inst. 54; E. 2; Lee v. Wallis.Sayer,263 ; S. C. Keny. 8 Rep. 125; Ladyham's case, March, 186; Rep. 295. Levying by distress under a bye- Com. Dig. Bye-Law, E. 1 ; Vin. Abr. Bye- law never implied a sale of the goods, Arris Laws, A. 2, pi. 1 ; Hardcastle's case, 4 Yin. v. Bradshaw, 1 Keb. 733; for at common law Abr. 303 ; vid. Chilton v. London, 6cc, Rail- every distress is replevisable, Sayer, 263. way Company, 16 M. & VV. 212; vid. 2 (y) Clearywalk v. Constable, Cro. Eliz. Burr. 846. Many of the old charters, and 110; Sams v. Foster, Cro. Kliz. 352 ; Dyer, some charters granted by Charles 2. gave the 279b; 8 Rep. 126, 128. It seems that in power of enforcing bye-laws by imprisonment, declaring on a bye-law founded on a custom, but such powers had fallen into disuse before the custom ought to be fully set out; Cham- the Municipal Corporations Act; 1st Rep. berlain of London v. Godman, 1 Burr. 12 ; Munic. Corp. Comm. p. 22. V,\ B-LAWS. contrary to Magna Charta that any one be imprisoned except per legale judicium parium suorum. Nevertheless an immemorial custom, con- tinned by statutes establishing the customs of the corporation (c), or an act of parliament expressly empowering the corporation to do so, will be good grounds for a bye-law imposing imprisonment (d). may be observed as being worthy of notice, that although the law been broadly laid down by Sir Edward Coke and other judges, that a bye-law cannot imprison, yet the crown at all periods of our history up to the era of the Revolution was in the habit of granting the power in its charters not only to municipal (e) but to trades corporations (/). Although the general rule is as stated above, that the most proper mode of enforcing a bye-law, at common law, is by a penalty of a pecuniary nature, yet, as we have seen, disfranchisement of the offender may be limited in the bye law as the punishment for breach of it(<7); and where the bye-law relates to an office it is not unusual that amotion from the office should be limited as the consequence of violating it. With respect to the form of a bye-law, it has been settled that it is not necessary that the preamble should state the reasons for making it (h). It ought to be expressed in such a manner as that its meaning may be unambiguous, and in such language as may be readily under- stood by those on whom it is to operate. Except in the two Universities and the College of Physicians, a bye-law being in Latin would be bad for that reason. The penalty of the bye-law must not be reserved to a stranger to the corporation. In the cases of the chamberlains of Lon- don, Bristol (£), and some other cities and towns, however, where it is the practice for penalties to be reserved to these officers, the courts have s iid that they will take notice of the relation there is between the chamberlain and the corporation, and that he is no stranger, but, as it were, part of the corporation, and that camerarius, ex vi termini, nifies thesaurarius of the corporation (i). Accordingly, when, in a corporation incorporated by the name of the " Masters, Wardens (c ) Wood I . Mayor Sec, ol London, t>alk. ( /') Vid. instance in a charter of James 1 rk, ( 'oin. to the Plumbers' Company, Piper v. Chappell, . « ,Sa k. 349. I hi Mi rchant Tailors' 14 M. .\ W. 626; and anotherin his charter i i London have powei lo imprison to t lie Turners' Company, Graves v. Colby, 9 A. >\ E. :!")!'.. Another instance occurs in him tiiu place; oi liveryman upon being duly the charter of Charles 2 to the borough of . Rexv.Merchai I ompany, Doncaster. 2 Lev, Hex v. Rippon, 2 Keb. 25, ■.;,, m I Phy- d) Totterdell >. Glazby, 2 Wils. 266; .•.(ib. mk, Skin. 676 ; vid.2 Bodvrin o. Fennell, 1 Wils. 233; Anon. Bulstr. 269. A! Gouldsb. 79; Graves v. Colby, 9 A. & E. r.mtud in '< r, Pierce v. Bartrum, Cowp.269. their charters : tin; nine is the case hi many Bedford, Mayor, &c, of Bedford v. Fox, I charters of municipal cor] vid. Lutw. 562. In such case, the otiicer suing 1 Munic. Corp. Comm. Rep p. 22 "Many need not set out bis election or appointment to the office, Harris p. Wakeman, Sayer, 255. bye-iawsbv fine ami imprisonment, but the-e But ii seems that the bye-law may go on to ... .1." . il,a' the penally when recovered may be :;.'! ; given to the informer, the poor of certain 12, that the power of parishes, fitC. Vid. Cas. T. Ilardw. 406. ivenbv letters-patent BYE-LAWS. 87 and Commonalty of the Mystery or Art of the Turners of London," a bye-law was duly made, imposing a penalty of 15/. for refusal to accept the office of steward, but reserving it to the masters and wardens for " the time being," for the use, &c, of the company, it was held that an action of debt for the penalty would not lie at the suit of the persons who were master and wardens at the time of the refusal (not being so at the commencement of the suit, but for anything that appeared, being strangers to the corporation at the time of the com- mencement of the action); and it would seem, that, in order to enable the master and wardens or other officers of the corporation, to whom, in their official character, the penalty might be reserved on the bye-law, to sue on it as officers of the corporation, such officers must have a perpetual succession in the nature of a corporation. It seems also that the corporation in such case are precluded from suing in their own name on such a bye-law (k). This question, with respect to the officers of corporations suing in virtue of their offices, will be found more fully discussed hereafter. A bye-law limiting the mode of recovery of the penalty to an action in the courts of the corporation is bad (except by the custom of Lon- don) (Z) ; for the corporation are interested in the result of such action, and non potest esse judex et pars (m). This, however, seems only to be true in practice where the defendant is a stranger to the corporation ; for it has been laid down by Lord Mansfield, C. J., that the objection does not apply where both parties are interested. So in London (it seems to have been laid down that) they may try in the corporation courts actions on bye-laws affecting only members of the corporation, when it does not appear on the record that the same party is plaintiff and judge (?*), and each side is equally interested. The action in such case ought to be, and in practice mostly is, brought by the chamber- lain (o). It is otherwise, where the suit is their own suit against a stranger to the corporation (p) ; for there it may not be brought in the courts of the corporation. The penalty in a bye-law is never recoverable by distress, (unless there is an immemorial custom under which distress is the established mode of levying penalties in the corporation), where it is not so limited in the bye-law itself {q). In municipal corporations it is now otherwise ; (k) Graves ». Colby, 9 A. & E. 374. But in the cause, Say er, 255; but not to a juror, id. where the bye-law declared that the offender (m) Co. Litt. 141 a; Vin. Abr. Judges, should forfeit and pay so much to the roaster A. pi. 8, 14, 29; Com. Dig. Justices, I. 3 ; and wardens of a similar company, to the use Charte v. Kennington, 2 Stra. 1173; Vin. of the company, it was held that the same Abr. Himself, A. pi. 2. master and wardens might recover; Piper v. (n) Wood v. Mayor, &c, of London, Salk. Chappell, 14 M. & W. 624. 397 ; Reg. v. Rogers, 2 Lord Raym. 778 ; (0 Ballard v. Bennett, 2 Burr. 778, 779 ; Egerton v. Earl of Derby, 12 Rep. 114; Chamberlain of London v. Barnardiston, 2 Brookes v. Earl Rivers, Hardr. 503. Siderf. 178 ; Harris v. Wakeman, Sayer, 254 ; (o) 2 Lord Raym. 778 ; 2 A. & E. 312. Woodu. Mayor, &c, of London, 1 Salk. 397 ; (p) Hesketh v. Braddock, 3 Burr. 1847. 19 lien. 7, c. 7, s. 2. It has even been held (g) Vid. Clark's Case, 5 Rep 64, ad. fin. ; to be a good objection to a judge, that a cor- Lambert v. Thornton, Ld. Raym. 91 ; 3 Lev. poration, of which he is a member, is interested 281 ; Com. Dig. Bye-Law, D. 2. BYE-LAWS. for the Municipal Corporations Act, giving a power of distress and sale in specified circumstances, a bye-law made under it, taking no notice of distort . would be good. <>n the other hand, the bye-law may limit the penalty to be recovered by action of debt, but if it does not, debt lies r). Or the corporation may maintain assumpsit, but not in- debitatus assumpsit, to recover the sum forfeited under the bye-law (s). With respect to the construction of bye-laws, it is a rule that the words Bhall receive a reasonable construction, and that a condition shall be construed so as to be consistent with the subject-matter of the bye- law in. Another rule, which may be stated as now being fully settled, is, that a bye-law that i< void in part is void wholly; e. //., if the penalty be unreasonable, the resl of the bye-law is vitiated thereby, and becomes wholly inoperative and null (?/). A bye-law giving power to distrain for the penalty, upon due -proof before the master and wardens of the corporation that the penalty had been incurred, was construed to be satisfied only by proof by a verdict (x). All bye-laws authorizing any payment, matter, or thing forbidden by the act for preventing the application of corporation property to the pur- s of election of members to serve in parliament (2 & 3 Will. 4, c. or for the purpose of evading the provisions of that act, are made utterly void by its 4th section. The words " using a trade" contained in a bye-law will be taken to signify following it as a master, not as a journeyman or apprentice (y). The words " it shall and may be lawful" in a bye-law are not obli- iry on the corporation (z). In charters these words have some- time-, though not generally, been construed as giving an option. Where a bye-law appointed certain sums, arising out of rents belong- ed) Com, Dig. Bye-Law, D. 1. 3 Burr. 1847 ; 3 B. & P. 4:54. It seems that Marber Surgeons' Comp. v. Pelson, 2 the venue is local; Isaac v. Luffe, '2 Show. 1 tyof London v. Goree, 1 Ventr. 238, Butt's ed. (0 Poulters' Comp. r. Phillips, 6 Bing. .1 B. & l'ul. 98. Both in debt and in N. ('. 323 ; Tobacco Pipe Makers' Comp. v. auumpsit it is nee out (be bye-law .7 1'.. ,\ ('. 838. in the declaration; reltroakera' Comp. v. (u) Com. Dig. Bye-Law, C. 7 ; per Bridg- : i PoL98; I Wma.8aond.312, man, C. J., Mayor, &c, of Colchester e. God- prove win, Carter, 121 ; Elwood v. Bullock, 6 Q. B. •>y demand of thi - made on 383 ; Chiike v. Tuckett. 2 Ventr. 182 ; Roa . Butcher's Comp. p. Bullock, 3 i. Atwood, 4 B. ,\ Ad. 481. 1 lie authorities I l. In justifying, no wever, under on the other side, viz. that a bye-law may be wering to distrain, it seems pood in part and had in part, at least where ■i demand and the parts arc divisible, are per Lord Kenyon, 1, Davis v. Morgan, 1 I I , < . i.. I: rmen of i'aversham, 8 rfortfai dry for not I. ! p. Wallis, 1 Keny. Cas. 296 ; livery of a company, it baa bi r leer, C.J. 1 Stra. 469 ; Player o.Vere, I. .Id necessary t<. aver thai the company bad Sir i'. Raym. 288, 294, 328 ; Harris i W Gledbill.lS - er, 256 ; per Bayley. J., 1 B. & Ad. I . ur, ■ per Lawrence, J., 7 l.'l;. 549. ii making co < i > Wood p. Searl, J. Bridgm, 142 ; pia*. law referring to other bye-laws, they must be Crookhay p. Woodward, Hob. 217 ; Gold v. t; Gerrish p. Rodmao, 3 Wils. 171. Death, Hob. 93 ; 21 VTn. Abr. 75, 76. a bye-laws, It Clerk r. Denton, 1 B. & Ad. 97; 5 112 ; Elii. .-. 1, 8.31 ; nd. 2 A. & E. 320, 324. 4M.& W.621; 1 Wils. 281; I II.Bla.370; Rex p. Bailiffs of Eye, 1 B. k C. 87. BYE-LAWS. 89 ing to a municipal corporation, to be distributed annually among certain specified officers of the corporation, it was held that any one and each of these officers could sue the corporation, upon this bye-law, for his portion of the annual payment upon its being withheld, if not at common law, at least, since the Muncipal Corporations Act, which (sect. 2) gave rights to the parties enforcible by an action of debt(«). The principle on which the decision of the court of error in the case proceeded was this, that wherever a statute enacts anything, or prohibits anything, for the advantage of any person, that person shall have remedy to recover the advantage given him, or to have satisfaction for the injury done him contrary to law, by the same statute (b). A bye-law barely delegating to a select body the examining and ap- proval of candidates for admission as members of the corporation, will not be construed as necessarily conferring the right of admission upon such approval (c) ; for the object of the examination is merely to ascertain the qualification, and a qualification is not a title or right to an office (d), it is only a basis of eligibility, on which an actual appointment or election to the office may, or may not be founded, according to the general considerations which predominate in the minds of the electors, who, having the discretion reposed in them, may exercise it as they they think fit, provided they do not maliciously exclude The validity of a bye-law may be questioned in various modes ; it may either be tested in an action of debt, or assumpsit, brought for the recovery of the penalty (e) ; or if the penalty have been actually levied, the party may bring an action of trespass against the corporation (/), or against their officer (/) ; or the validity of a bye-law may be ques- tioned on a return to a mandamus, where the party to whom the writ is directed, justifies his refusal to comply with it under the bye-law (g), or where the penalty is limited in the bye-law itself to be recovered in the courts of the corporation. The validity of the bye-law may be questioned, in every case but that of the city of London, in a writ of error in the Queen's Bench (/*)• But the validity of a bye-law cannot be questioned in a summary manner on motion, on the return of a writ of habeas corpus cum causa from any other corporation but that of the city of London (i). The result and effect of exacting money, under a bye-law which the corporation had no right or authority to make, may be fatal to corpora- tions in certain cases ; for the doing so has been held to be extortion, (a) Mayor, &c, of Swansea v. Hopkins, 8 Carter, 119; Gunmakers' Co. v. Tilt, Willes, M. ,V VV. 901, in error. 390 ; Ex parte Eden, 2 M. & Selw. 229. (b) Anon. 6 Mod. 26 ; S. C. Salk. 415; (c) Rex v. Askew, 4 Burr. 2190, 2200; vid. per Parke, B., 5 M. & VV. 324 ; Webb v. Rex v. Bailiffs of Eye, 1 B. & C. 85. Jiggs, 4 M. & Selw. 1 13, 1 19 ; Com. Dig. (d) 3 B. & C. 685 ; 4 Burr. 2200. Debt, A. 9; 4 Burr. 2381 ; 4 M. & W. 640. (e) Moir v. Munday, Sayer, 181, 185. The plaintiff must show title to the penalty ; ( /') Ibid. Mayor, &c, of Exeter D.Starre, 2 Show. 159 ; (g) R. v. Harrison, 3 Burr. 1322. and also that the defendant stands within the (h ) Vid. Harris v. Wakeman, Sayer, 254. mischief of the bye-law, Colchester u.Goodwin, (i) Ballard v. Bennett, 2 Burr. 777. 90 bye-laws; punishable by forfeiture of the corporation (£). But whether this doctrine would still apply to the corporations under the Municipal Cor- porations Act, and whether those corporations can be deprived of their corporate existence without another act of parliament, that statute not erecting new corporations, but only remodelling the old ones, and there being nothing of an incorporating character in its provisions, and whe- ther those corporations, not owing their origin to parliament, but to the crown, the rules of the common law in this respect operate on them, notwithstanding that act, is a question ; so of corporations created by the crown since that statute. With respect to what is evidence of the existence of a bye-law, it has been held that the books of a corporation in which their bye-laws are registered, are evidence of such bye-laws, even against strangers to the corporation (/). As to producing in evidence certified copies of bye-laws, the law now is, that whenever, by any act now in force, or hereafter to be in force, any certified copy of any bye-law shall be receivable in evidence of any particular in any court of justice or before any legal tribunal, or either house of parliament, or any committee of either house, or in any judicial proceeding, the same shall be admitted in evidence, provided it purport to be sealed or impressed with a stamp, or sealed and signed as directed by the respective acts made or to be hereafter made, without any proof of the seal or stamp, when a seal or stamp is necessary, or of the sig- nature or official character of the person appearing to have signed the same, and without any further proof thereof, in every case in which the original record could have been received in evidence (m). Evidence of a practice in contravention of a bye-law is said not to be receivable to invalidate the bye-law (n); and the reason apparently is derivable from the nature of a bye-law, which is an ordinance passed by the corporation for the purpose of regulating the objects to which it extends to all future time ; it is as enduring as the corporation itself, if not repealed by competent authority in the meantime ; and it has even been held that a bye-law, which a corporation is duly authorized in all respects to make, when once made, can only be repealed by act of parliament, or by the corporation themselves (o). Long continuance of a bye-law is fair evidence to show that it has no intrinsic inconvenience (p). It has been surmised that the declarations of deceased corporators were evidence of reputation of a custom to exclude foreigners (7) ; but now such Customs are abolished in municipal corporations; and such (k) Adjudged in the ('as. of Quo. Warr. ; ture of a corporation, are made guilty of for- pb. 1 1. -1. Boroughs, 1788, gcrv, &c ( n ) Sells v. Browne, 9 C. & P. 601 . . Burg, Skin. 513; 6 Vin. wood, 4 b. 5c C. 786. Abr. 278. (s) Perkin v. Masters, Sue, of Cutlers' 92 BYE-LAWS. nution of the prerogative of the crown or against the public advantage, unless such bye-laws be examined and approved by the chancellor, treasurer of England, or chief justices of either benches, or three of them, or both the judges of ass i/.e on circuit in the county, upon pain of forfeiture of KM. (z). Such corporations are also prohibited making any bye-laws to restrain any one from suing in any of the king's courts, under a penalty of 40Z.(o). This enactment does not extend to cities or boroughs incorporated, nor to railway companies incorporated by acts of parliament, nor to joint stock companies registered and incorporated. The customs of London having been repeatedly recognized and expressly confirmed by parliament, all bye-laws duly framed upon and according to such customs will be held good. Thus a bye-law to oblige all joiners to be free of the Joiners' Company is good, there being a custom to that effect (b) ; so a bye-law that no one, not being free of the city, shall keep any shop or use any trade within it (c) ; so that brewers' drays should not be in the streets after eleven oclock A. M. in summer, and one in winter, there being a custom for the corporation to have the regulation of carts (d) ; so a bye-law limiting the number of carts (e) ; so that no broad cloth should be sold but what was brought to Blackwell Hall to be examined (/) ; so that none but free porters should intermeddle in importing and exporting any corn, roots, &c, within certain bounds (g) ; so that no one shall exercise the trade of a painter unless he be free of the Painters' Company (h) • so that no artificers, handicraftsmen, or other shopkeepers or traders by retail, being free of the city, should be permitted to employ, &c, in any such handicraft or manual occupation within the city, &c, any person, not being free of the city or apprentice to a freeman (t) ; so that none but a freeman of the city using the trade of a butcher shall be made free of the Butchers' Company (A) ; so a bye-law extending over a foreign franchise, and purporting to bind strangers there, was held good(Z). (:) \9 lien. 7. c. 7, s. 1. But this sta- Siderf. 284 ; Shaw v. Pope, 2 B. & Ad. 465. tute does not confirm any bye law which baa (/') Chambei lain of London's case, 5 Rep. 62. one rnu>t stand or tall upon question hi a ( g) Fazakerley i. Wiltshire, Btra. 462; court of law upon its own merits, irrespective /"■' Lord Abinger, C. B., 4 M. & W. 330; of the fact of its having been allowed, which vid. Collyer v. Stennett, 4 M. & (Ira. 676; only saves I lion from the 40/. pe- Rei v. Chamberlain of London, 8 Mod. 2t>7. naltyeach time tiny enforce such bye-law; But in declaring for the penalty for inter- 'I ailora ol l|^\si< h < u . I I R< p. 54 b , per fering, »\c, it wonld have been necessary to AtU-Gi d. Quo Warr. < las. p. 44; thai th< re were one or more tree porters >y,9A.&E.j Vin. Abr. Bye-Lawa, B, present who might have been employed in- pl, 7, I of defendant ; 1 Stra. 468. <„', io II. 7, ■. 7 («) Clerk».LeCren,9B. &C. 52;Har- (6) Wannell b. Chamberlain of London, ri on v. Iman, I Burr. 12. i Burr, ll Shaw d. PoynU r, '2 A. & E. 312 ; and in Wagoner'a case, 8 Rep. 129; Arris v. vid. S. C. aa to form of declara 1VVj '| K,l,. ; (k) Hex v. Chamberlain of London, 3 Mi, i. Hearne, Sira. 1086 ; S.C. Burr. 1322. emp. Hardw. 402 ; Andr. 91. (O Fazakerly e. Wiltahire, Stra. 462. (e) Player >. .iuue~, 1 Venlr. 2) ; S. C. BYE-LAWS. 93 All companies incorporated for carrying on public undertakings, are empowered by the Companies Clauses Consolidation Act (m) to make, from time to time, such bye-laws as they shall think fit, for the purpose of regulating the conduct of the officers and servants of the company, and for providing for the due management of the affairs of the company in all respects whatsoever, and from time to time to alter or repeal any such bye-laws and make others, provided such bye-laws be not repug- nant to the laws of that part of the united kingdom where the same are to have effect, or to the provisions of this or the special act, and such bye-laws shall be reduced to writing, and shall have affixed thereto the common seal of the company, and a copy of such bye-laws shall be given to every officer and servant of the company affected thereby ; and they may by such bye-law impose such reasonable penalties upon all persons, being officers or servants of the company, offending against such bye-laws, as the company shall think fit, not exceeding five pounds for each offence ; all the bye-laws to be made by the company shall be so framed as to allow the justice before whom any penalty imposed thereby may be sought to be recovered, to order a part only of such penalty to be paid, if such justice shall think fit. The production of a written or printed copy of the bye-laws of the company, having the common seal of the company affixed thereto, shall be sufficient evi- dence of such bye-laws in all cases of prosecution under the same. Joint stock companies, when registered and incorporated, are em- powered (n) to make bye-laws, from time to time, at some general meet- ing of shareholders specially summoned for the purpose ; such bye- laws to enure for the regulation of the shareholders, members, directors and officers of the company ; provided that such bye-laws be not re- pugnant to or inconsistent with the provisions of the Joint Stock Com- panies Registration Act, or of the deed of settlement of the company ; and all such bye-laws must be reduced into writing, and have affixed thereto the common seal of the company, and be registered at the office for registering joint stock companies, and until they be so registered they shall not be of any force, and be printed and circulated for the use of the shareholders, and a copy given to every officer of the com- pany, and to every shareholder who shall require the same(o) ; and in all actions, suits, and other legal proceedings for the enforcement of such bye-laws, or other penalties for the breach thereof, the production of a written or printed copy of the bye-laws of the company, having the seal of office of the registrar of joint stock companies affixed thereto, shall be sufficient evidence of such bye-laws ( p). Railway companies incorporated by act of parliament have frequently granted to them, by their special acts, power to make bye-laws, and to enforce them, by the imposition of penalties, upon persons other than the servants of such companies ; and it having appeared to parliament (m) 8 Vict. c. 16, ss. 124—127. (,.) 7 & 8 Vict. c. 110, s. 47. (n) 7 6c 8 Vict. c. 110, s. 25, pi. 11. (p) lb. s. 48. 94 BYE-LAWS. expedient that this power should not he left wholly without control, the law now is, that no such bye-laws are valid until two calendar months after a fortified copy thereof has been laid before the Com- lni-ioners of railways, unless before that time approved of by the Commissioners of railways (7). The Commissioners of railways may disallow any BUch bye-law ; and if at the time of such disallowance it i- already in force, may further prescribe the time at which it shall cease t*> operate, and become null and void (r). All provisions of railway aets requiring the concurrence of courts of quarter sessions, ,\>-.. to give validity to bye-laws, are repealed(f). Subject to these provisions, the Railway Clauses Consolidation Act empowers incor- porated railway companies to make bye-laws for regulating the use of their railways, provided every such bye-law is passed under the common seal, and contains a fixed penalty not exceeding 5/. (0, pro- vided that certain regulations for the due publication of the bye-laws be observed!//): all which being duly observed, such bye-laws are declared to be binding on nil parties (x). (9) 3 & 4 Vict. c. 97, s. 8. And beit enact- ed, tint no such bye law, order, rule, or regu- lation made under anysuch power, and which -ball not be in force at the time of the passing of this act, and no order, rule, or regulation annulling any such existing bye-law, rule, order, or regulation which shall be made after the passing of this act, shall have any force or effect until two calendar months after a true copy of such bye-law, order, rule, or regulation certified as aforesaid, shall have been laid before the lords of the said com- mittee, unless the lords of the said committee shall bcfoie such period, signify their appro- bation thereof. Then the <) <\ 10 Vict. c. 105, s. 2, transferred all the powers, rights, and authority then veiled in the said loids of the said committee, by an\ mean- whatsoever, to the commissi (r) 3 & 1 \ nt. e. <)7, s 9. And be it :t it shall be lawful for the lords of the laid committee, at any time, either be- fore or alter anj bye-law, order, rule, or re- gulation which shall have been laid before them shall have come into operation, to tiiv to the company who '•hall have made the • , their disallowance tin reol ; and in case the same shall be in lorce at the time ol racfa disallowance, the lime at which the same shall to he in force ; and no bye-law, order, rule, or regulation which shall be so disal- lowed -hall have any force or effect whatso- . ,• at the I such disallowance, it shall cea-e to have any I : ; , . i .,t tin- time limited in the no- ■, disallowance, savin- in so tar as penalty mas have bet d then already in- curred under the same. I hen the !t Si Ml \ mi. e in.'., s. -2, transferred all tin- powers, . ■•! the board ol trade to the comim-ioners of rail* 1 Vict, i 97, I. It -hall be lawlul for the company subject to the pio- visions (as above) to make bye-laws, and from time to time to repeal or alter such bye-laws, and make others, provided that such bye- laws be not repugnant to the laws of that part of the United Kingdom where the same are to have effect, or to the provisions of this or the special act ; and such bye-law shall be reduced to writing, and shall have affixed thereto the common seal of the company ; and any person offending against any such bye- law shall forfeit for every such offence any sum not exceeding five pounds, to be imposed by the company in such bye-laws as a penalty for any such offence ; and if the infraction or non-observance of any such bye-law or other such regulation as aforesaid be attended with danger or annoyance to the public, or hin- drance to the company in the lawful use of the railway, it shall be lawful for the com- pany summarily to interfere to obviate or re- move such danger, annoyance, or hindrance, and that without prejudice to any penally in- curred by tin- infraction of any such bye-law. (u) b,\ U Vict, c 20, s, 110. The sub- stance of such last-mentioned bye-law, when confirmed or allowed, etc., under any act in force regulating the allowance or con- firmation of the same, is to be painted on boards, or printed on paper and pasted on boards, and hung up and affixed, and con- tinued on the front or other conspicuous part of every wharf or station belonging to the com- pany, according to the nature or subject- in. liter ol such bye-laws respectively, and so as io give public notice thereof to the parties interested therein or affected thereby; and boards Bhall from time to time be renewed a- otti n ae the bye-laws thereon, or any part thereof, shall be obliterated or destroyed, and no penalty imposed by any such bye-law shall be recoverable unless the same shall have been published and kept published in manner aforesaid. (*) U \\ Cla. 21 ; by a select body, is void; Parry v. Berry, 781, Hence | •"»'<.) a <-<>r- Com. It. 269. od newly created under the powi (o) 5 & 6 Will. 4, c. 76, 8. 91. Thissec- by the Municiral Corporations Act, must tion applies all the provisions ol sections IJ7 laws as nil within the class to 133, inclusive, to breaches of any bye law ued, by an assembly of the made by virtue of the act. v.|,<,|. On the other I law (6) Vid. diet. per Buller, J., 1 T.R. 125; made by the body at urge, when by the eon- for i. 129, nJ. mjra. stitution of the corporation it ouylit to be made BYE-LAWS. 97 from pursuing any other remedy (c) ; and therefore an action of debt or assumpsit to recover the penalties on such bye-laws does not seem to be open to them. If these bye-laws had been left to be made under the common law power of the corporations to make bye-laws, the case would have been different, for then the statute would, have been construed only to have given a remedy cumulative upon the common law remedy by action (d). The mode of levying the fine to be imposed, by bye-law for the re- fusal to accept office is pointed out in s. 51. On the other hand, the summary remedies given by this act are only applicable for the enforcement of bye-laws passed by virtue of this act, and consequently every municipal corporation is left to such remedies as it had before the passing of this act for the recovery of penalties under bye-laws passed previously. These will be found stated above. All persons, who were possessed of any corporate benefits before the passing of the act, under any usage, custom or bye-law, or otherwise, are confirmed in their enjoyment of them by s. 2 (e) (provided such usage, custom or bye-law, be not inconsistent with any of the provisions of the act; s. 1). (c) Vid. per Cur. Dundalk Western Railw. porators, are not within the meaning of these Co. v. Tapster, 1 Q. B. 670. words, where the lolls are levied within the (d) Chapman v. Pickersgill, 2 Wils. 146; corporate jurisdiction, and the exemption was vid. 2 M. ^ Cra. 628. in virtue of the corporate character solely; (c) Exemptions from tolls, enjoyed by cor- vid. infra, Markets. I 98 ) PROPERTY. W i proceed to state some remaining characteristics, or, a> they have usually been called, incidents of corporations in general ; and, first, with respect to property. It has been laid down generally that a corporation aggregate has an incident power to purchase lands and goods (f). At present every corporation aggregate, not being restricted by its constitution, may acquire and take in succession personal property to any amount, and goods and chattels granted to them go in succession, without express words in the grant (g) indicating the intention that they should do so. But with respect to lands and tenements, the legislature began early to impose restrictions upon the right of corporation- aggregate to acquire and transmit them in succession, by various statutes called the Statutes of .Mortmain. These restraints were first considered to be necessary in consequence of the extent to which landed property was accumulating in the hands of the great religious or ecclesiastical corporations, and the earliest of them is contained in Magna Charta(//). The imposition of the necessity that a corporation aggregate must in general have a license from the crown to enable it to hold lands and tenements in mortmain is a relic of the feudal restraints on alienation (i). 1 [owever, the necessity still remains, and it is subject to it, that every corporation aggregate is said to have a capacity to take and hold lands and tenements in succession or perpetuity. It is not correct therefore to say that every corporation aggregate, as such, has power to acquire lands as an incident to its incorporation; the proper mode of stating the law seems to be that, subject to the discretion of the crown or par- liament as to the grant of a license in mortmain, a corporation has a capacity to take and hold in perpetuity (J). This license was usually conveyed in the royal charter erecting the corporation, and the righl of the crown to grant such license was fully i rtablished by the Btatute 7 & 8 Will. 3, c. <\~, which provided that the crown for the future, at its own discretion, might grant licences to aliene or take in mortmain, of whomsoever the tenements in question might be holden. The Statutes of Mortmain (A), which bear upon the interests of cor- porations at the present day, are principally the following: ( f ) Corn. Dig French • -, I . 15; 10 of corporations, as hospitals ; 39 Eliz. c. 5 ; I:. .30; I Bla. Coin. I 13 & 14 Car. 2, c. 12; parsons, 17 Car. 2, I Rep. i> I b. c. 3 ; 29 Car. 2, c. 8. (j) Vid. Sugd. Vend. & Purch. 884, edit. I Bla. Com. 268. Various statutes have 184li ; Co. Litt.99a. relaxed the rule in favour of particular cla--ci (k) The mortmain acts are: Magn. Ch. PROPERTY. 99 The statutes 7 Edw. 1, st. 2, c. 1 (De Religiosis), and stat. West- minster 2nd, enacted in substance that no person, religious or other whatsoever, (i. e. body politic, ecclesiastical or lay, sole or aggregate), shall buy or sell any lands or tenements, or under the colour of gift or lease, or by reason of any other title, receive the same, or by any other craft or engine shall presume to appropriate them to himself, whereby such lands may in anywise come into mortmain, under pain of forfeiture of the same, and within a year after the alienation, the next lord of the fee may enter ; and if he do not, then the next immediate lord is from lime to time to have half a year to outer in; aiid for default of all the mesne lords, the king shall hkyGipfe $ands* 5 sb«alieijat<^fGr ever, and shall enfeoff others by cei tarn services (/). '' 15 Ric. 2, c. 5, extended the statute De Religiosis to all ?and.s and tenements, fees, advowsons, and other possessions, purchased or to' be purchased to the use of guilds o> fraternities: —and, moreover, it is assented, because mayors, bailiffs and commons of cities, boroughs and other towns, which have a perpetual commonalty, and others which have offices perpetual, be as perpetual as people of religion ; that from henceforth they shall not purchase to them, and to their commons or office, upon pain contained in the said statute De Religiosis ; and whereas others be possessed, or hereafter shall purchase to their use, and they thereof shall take the profits, it shall be done in like manner as is aforesaid of people of religion." It does not appear to be necessary for our purpose at present to refer particularly in this place to the other Statutes of Mortmain, but we will consider a little the effect of these statutes on corporations. With respect to real property, it has been said, that to grant and purchase are incident to a body incorporate (m); and that if any sole corporation, or aggregate of many, either ecclesiastical or tem- poral, purchase lands or tenements in fee, they have capacity to take, but not to retain, unless they have a sufficient license in that behalf; for within one year after alienation, the next lord of the fee may enter ; 9 Hen. 3, c. 36 ; 7 Edw. 1 , st. 2 ; 13 Edw. 1 , is a mere dictum of the reporter ; the case he c. 32; 13 Edw. 1, c. 41; 18 Edw. 1, st. 1, cites from Fitz. Abr. Grants. 30, and which c. 3; 27 Edw. 1, st. 2; 34 Edw. 1, st. 3 ; 18 is there cited as 22 Edw. 4, is in fact 21 Edw. Edw. 3. st. 3, c. 3; 15 Ric. 2, c. 5; 21 Hen. 4, fol. 55, pi. 28. Coke therefore had not 8, c. 6, s. 5; 23 Hen. 8, c. 10; 1 & 2 Ph. & looked beyond the abridgment; but neither M. c. 8, s. 51 ; 35 Eliz. c. 4; 21 Jac. c. 1 ; there nor in the last mentioned case is there a 13 & 14 Car. 2, c. 12; 17 Car. 2, c 3, s. 7 ; syllable to show that a corporation may grant, 22 Car. 2, c. 6, s. 10 ; 29 Car. 2, c. 8 ; 7 6c as an incident to its incorporation. In fact, the 8 Will. 3, c. 37 ; 9 Geo. 2, c. 36, as far as it doctrine seems to have originated with this relates to conveyances to corporations to cha- loose note of Sir Edward Coke, and to have ritahle uses ; 43 Geo. 3, c. 108, s. 1 ; 9 Geo. thence found its way into the books ; but in the 4, c. 85 ; and 2 & 3 Will. 4, c. 1 15, as to Ca- absence of any case deciding the question, the tholic donations, &c. vid. 2 M. & K. 221. observation of the Court of Exchequer Cham- (0 7 Edw. 1, st. 2, c. 1; vid. Bac. Abr. ber, upon an extrajudicial statement of the Mortmain, (A.), edit. Dodd. See also stat. full Court of King's Bench, seems applicable. W estm. 2nd. (13 Edw. 1, st. 1, c.32). This " These various repetitions, derived from the enactment extends to rent and commons, same source, cannot raise the authority of the though they are not lands or tenements, 19 proposition itself higher than that which it Yin. Abr. 515, pi. 39. oiiginally possessed;" Veley v. Burder, 12 A. (m) 10 Rep. 30. As regards granting, this & E. 307. 11 <> 100 PROPERTY. and if be do not, then the next over lord, and so on, each mesne lord having half a year to enter in; and in default of all the intermediate iwn may tak lion of the lands as escheating (n). To take, first, the case of purchasing. The meaning of the doctrines e laid down, which at first Bight appear to involve some degree of contradiction, is this, that a corporation. Lte or sole, when once ted, may, without a license to hold in mortmain, take lands and tene- ments i to them or him in mortmain, for they have at common law a capacity so to do ; and that, without a license, they may hold such lands, and si of them, provided neither the lord or n, no' \}y crown, assert their rights and h lands; in other words, or gift in mortmain is not u.\i,'b'ut only voidable by the lord or the' crown entering for the i Alienation in .mormain gives n.\ right to an action at law to the mesne lords, or to the crown ; lor the thing which passes to the lords or the crown by the alienation is a title merely, without any such right cause of action (o). That title can only be legally as- serted by mean-; of some act to be done by the lord; the forfeiture does not vest the estate in the lord without some act on his part(p); and hence in case of an alienation in mortmain of an advowson, as the only mode of entry is by presentation (q), therefore if the lord pre- sents at any time within his year, though the living has been lull for six months, it will be good to give him the title, which must be per- ! by quart impedit, to be brought within the year (r). It seems that nothing but entry on lands aliened in mortmain is requisite on the lord's part. In case of the king, however, it is said that there cannot be entry made on the lands until office found (.s). At any rate, of things not lying in tenure, as rents, commons, and the like, • certain that the king is not entitled to them until office found, and until then they remain in the corporation (I). The entry of the immediate lord for forfeiture tor alienation in mort- main must be made within a year, computed from the day next after the alienation Where lauds are conveyed to the use of A. for life, with remainder '. 2 li. Abr. 443 ; in case of the crown, Did. 17 Vin. I ... Lilt 34S 1< : I' 1 \ in. Abr. 231, Abr. I pi. 7. Tbestatufa (r) 17 Vin. Abr. 338, pi. 23; id. 392, rights of entry, &c, pi. 3 ; Dyer, 25 b. pi. 163, marg. but umblt, that statute does noi apply to the (^) Doe d. Haynev. Redfera, 12 East, 96; ■a all, )'< \ in. Abr. 533; it Rep. Doe d. Evans v. Evans, 5 B. & C 587, note. 74 h, nor to subjects with respect to litli I the crown shall have the issues of the of this kind; nor smite, does 7 Will. 4 lands from the time ol the iuquisition taken, fit I . . 3, which j and not before; Vin. Abr. Alienations, l>. i pl.5. Even in treason, until the atat. 33 Hen. d. laylerson, 11 A. & B. 1008, 1019. B, c. 20, the lands did not vest in the crown B. 8c I . until office found; 4 Vin. Abr. 271, pi. 10, . Vid. 17 Vin. Abr. 422, pi. 1 1 ; id 4 (n Shi If. Mortm. 8. pi. 4, marg. ; id. 427, 483. The lord is said (u) Plowd. C. 202; Vin. Abr. Mortmain, U. have a title to enter, but no ri^hl , lb \ in. C. 3, pi. 6. PROPERTY. 101 to an unlicensed corporation, the forfeiture docs not accrue until the death of the tenant for life (x) ; and so where a remainder-man aliens to an unlicensed corporation, the lord cannot enter until the determination of the particular estate (?/). The meaning of the term unlicensed corporation is this. As was observed above, the conveyance of lands to a corporation was not made void to all intents and purposes by the Statutes of Mortmain, but only voidable at the option of the lords and the crown ; consequently if the mesne lords and the crown all consented to waive the escheat, each in their respective rights, the corporation to whom the land was granted enjoyed the property unmolested. In process of time the rights of the lords becoming difficult to trace, a license from the crown was gene- rally considered sufficient to ascertain the right of property to the cor- poration ; and this license it became usual for corporations to obtain from the crown, enabling them to take lands to such a value, notwith- standing the Statutes of Mortmain. In strictness, however, the license to hold in mortmain was only a waiver of the right of the crown to enter on the lands alienated ; for as no royal charter can per se take away the property, or prejudice the interest of the subject, such license did not abrogate the right of the mesne lords to enter, and therefore with respect to them the corporation was not secure until the lapse of the periods respectively limited for the assertion of their rights (2). In fact the king's license had only the effect of waiving the crown's right to the escheat, but if there were any mesne lord, he might have taken advantage of the Statutes of Mortmain, notwithstanding the royal li- cense, and have entered for the forfeiture (a) ; and if he did not, and the crown, on office found, entered, and granted the lands, the grantee held the land of the chief lords as before, and not of the crown (b). Formerly, previous to the grant of a royal license to hold in mort- main, a writ of ad quod damnum must have been sued out, directed to the escheator, to inquire what damage it would be to the king or to other persons, if the king do grant such license (c), and whether the intended donor would by the gift or grant be disabled, for want of suffi- cient lands, to pass upon assizes and juries ita quod jiatria magis solito non oneretur seu gravetur (d) : but, notwithstanding, the language of the writ implies that it was desirable to provide, that others as well as the mesne lords and the crown, were not injured by the projected alien- ation. It was the law, as stated above, in effect, that the mesne lords might grant licenses of alienation in mortmain, so far as they were (x) Vin. Abr. Mortmain, B. pi. 19, C. The settled rule is that the king cannot pre- pl. 6. judice the interest of the party ; 2 Hawk. (v) Vin. Abr. Mortmain, C. 3, pi. 4. P. C. 390 ; Anon. 12 Rep. 29, 30 ; Freem. (s) 2 Hawk. PI. Cor. 390, cap. 37, s. 29. R. 138. A license in mortmain is not of the essence of (6) Vin. Abr. Tenure, F. pi. 9. the corporation, which is perfect without it; (c) Fitz. N. 1!. 222 a, where see form of Case of Sutton's Hospital, 10 Rep. 31 a, 26 b. writ. (a) Ilarg. Co. Litt. 99 a, note 108 ; Vin. (d) Fitz. N. B. 222 b. Abr. Mortmain, C. 2, pi. 1, 4 ; id. U. pi. 3. lOg PROPERTY. respectively concerned, and the ground is stated to be the maxim qui- libet j)ottst renunciarejuri pro se introducto(e). But this writ of ad quod damnum has been long disused^/), and, instead of it, the license may contain a clause dispensing with the necessity of that writ or any other writs, inquisitions or mandates (//). Also in modern acts of par- liament, enabling corporations to hold lands, there is usually a clause dispensing with that writ as well as with the Statutes of Mortmain (A) j so that the writ, though disused, is by no means obsolete (i). But in such license to hold in mortmain it is now always implied that the lands be granted in the manner prescribed by the statute 9 Geo. 2, 6, which we shall presently have occasion to refer to more fully (A). The license, like other licenses or authorities, must be strictly pur- sued (/). Thus, if the king licenses a man to alien his manor of Dale, the alienation of the manor, except twelve acres, is not good, not being iu pursuance of the authority (w ) ; for a man cannot do less than he has an authority to do (n); and so if the license be to make a feoffment by deed, a feoffment made without deed will not be valid. So if the license to a man be to alien a third part of his lands, and he aliens all his lands, this is invalid (o). Such license is not assignable over. But it may be countermanded or revoked at anytime before execution (p). However, the demise of the crown between granting such a license and its execution is not a revocation (y). With respect to the form of the license, it has been decided that a license to purchase in mortmain lands and tenements empowers to purchase advowsons (r), and the same would be the case if the word hereditaments (5) were used. The license is usually granted by writ of privy seal or letters-patent (the latter seems to be the more regular course), empowering the licensee to hold lands to such an annual amount in value, and fre- quently also empowering all the subjects, whether incorporated or unincorporated, to alien in mortmain to the licensee up to such amount (0- hi the cases of trading or other private corporations, the acts of parliament or charters constituting them usually express in each case , , Litt. 99 a. J ; - I'' 23i • lll!k - Cent. 215. , Shelf. Mortm. 33; Ilarg. Co. Liu. Ml en, J. Bridgtn. 114. bum. Dyer, 92 a; Palm. 74 i 2 Rol. B-. 1 ,l> Shelf. Mortm. 40. (9) Co. Litt. 52 b; Fitz. N. B. 223; 3 ,\ 4 Vict. c. GO, i.2 ; 6 & 7 Plowd. C. 457. _ 22. \ in. Abr. 279. pi. 2; I-.hh1.hi v. fk) Mom v. Hodgi t,2Vi Colli g. Church of Southwell, Hob. 303, 304. 98; .1. Bridgm. 114; Inon. Dyer, 323; Anon. Dyer, 350b; M.r. Alienations, B. pi. 3, •» ; Anon. 1" EUp. 65 b. Bulstr. 105; Butler o. Bakei i • form of such license to a college, 33 , p exa ir, Shelf. Mortm. Append. 891 ; and Bee a great , ,„ , - ,i the license ii number <>!' licensee granted under 7 & 8 to alien two |'-irts of the manor, and lie aliens Will. 3, c. 37, in 22 Commons Journ. 708, the win. r p. 85. 710. (n) Co. Litt. 52 bj Vin. Abr. Authority, PROPERTY. 103 the extent to which the corporation may hold lands ; if no amount is mentioned in the license, or charter or statute, they may hold to any extent. The crown grants this license at present under the authority of an act of parliament, which was passed to get rid of what seems a merely imaginary objection to the legality of such licenses on the old practice; because it was said the king thereby took upon him to dispense with the Statutes of Mortmain (u). The legislature therefore enacted that the crown at its discretion should and might lawfully " grant to any person or persons, bodies politic or corporate, their heirs and suc- cessors, license to alien in mortmain, and also to purchase, acquire, take and hold in mortmain, in perpetuity or otherwise, any lands, tenements, rents or hereditaments whatsoever, of whomsoever the same shall be holden" (x) ; and they declared " that lands, tenements, rents or hereditaments so aliened, or acquired and licensed shall not be subject to any forfeiture for or by reason of such alienation or acquisi- tion" (t/). The question whether, on the interpretation of this statute, a person, not having a license to alien in mortmain, can alien to a cor- poration having only a license for themselves to hold in mortmain (without the clause enabling all persons to alien to them), so as to prevent the entry of the immediate lord or of the crown for the escheat, seems never to have been settled, and perhaps is more curious than practically important (z). A question of more difficulty is as to the position of corporations, who have taken, and continue to hold, lands beyond the annual value which their license to hold in mortmain authorizes. It would seem that with respect to such surplus lands, the corporation is liable to entry by the crown on default of the mesne lords at any time; for although it is true that their title would be good after the lapse of sixty years, and adverse possession from the time at which the title to the land accrued to the crown (a), on default of the mesne lords (such adverse possession being established by acts of ownership done in the assertion of a right), yet it would seem that the title to the land does not fully and in its completeness accrue to the crown until office found after the alienation ; and as at common law, before the statute of Geo. 3 (b), there was no limitation to the crown's entry on the land, the only restriction being that the crown should have the issues of the land only from the time of inquisition taken, and as the title of entry is not perfected and matured into an absolute right to the land until office found and actual entry, the sixty years does not begin to run until that event, and therefore the crown may enter at any time, pro- vided office has first been found. (u) Co. Liu. 99 a, Harg. note (103). (b) 9 Geo. 3, c. 16. The stat.3&4 Will. 4, (x) 7 & 8 Will. 3, c. 37, s. 1. c. 27, not mentioning the crown expressly, (y) Id. ibid., s. 2. cannot, it is conceived, be construed to in- (:) Harg. Co. Litt. 99a, note (108). elude the crown in the words "body politic," (a) 9 Geo. 3, c. 16; Doe d. Will. 4, v. and if so , has no bearing on the question. Roberts, 13 M. & W. 520; Broom's Max. 47. 101 PROPERTY. The question is of the more importance, as there is no doubt that many corporations have greatly exceeded the limits of their license, and hold Mich surplus lands without any right derived from it for their doing bo. It is dear, however, that if a corporation have exhausted their license to hold in mortmain, that fact does not make a devise or com eyance to them void. The only result is, that they may take, though, unless they can obtain an extension by the crown of their license, they cannot hold the lands (c), unless the mesne lords and the crown choose to sleep upon their respective titles. A condition in a grant or devise that the grantee or devisee should alien in mortmain is void, and the grantee or devisee takes an absolute estate (a 7 ). Though it seems that a condition in a feoffment that the feoffee should not alien in mortmain to such a religious house, or to any corporation, was perfectly valid: although the devise in this form created a fee simple conditional, which it has been formerly said could only be done by act of law not of a party ( ma le, and llie subject naturally resolves itself into three parte : 1. What estates a corporation with license may take by way of pin- ch.: (m) 3 & 4 Vi 17. take lunds without license in mortmain. I 6 & 7 Vict. c. 31 mof (p) By 7 fit 8 Vict. c. 110; 10 fit 11 Vict t by a corporation, 7 k 81 'lie- c. 78, a. 1 ; joint stock companies incorpo- rated are empowered i" hold and dispose of . j: ; ii./. also 1:5 .v 1 » lands, tenements ami hereditaments under a 1 blisbing corporations for the license, not from the crown, but from the relief of the poor, and empowering them to board of trade. PROPERTY. 107 2. What estates with license they may take by way of devise. 3. What estates they may take by way of lease or demise. I. What Estates Corporations may take by way of Purchase. As regards buying lands and real property, all corporations were empowered, by 22 Car. 2, c. 6, s. 10, to buy one species of real pro- perty, viz., fee farm rents, and other rents belonging to the crown, or parcel of the duchies of Cornwall and Lancaster, and which were con- veyed by grants from Car. 2 previous to the 24-th June, 1672, whether under the great seal, the seal of the duchy of Lancaster, or the seal of the county palatine of Lancaster, which letters-patent were ordered (by sect. 4) to be expounded most beneficially for the grantees (q). However, 19 Geo. 3, c. 45, s. 1, repeals so much of this statute as relates to such rents, &c, as were then remaining unsold in the duchy of Lancaster ; and 26 Geo. 3, c. 87, s. 10, repeals it as to rents within the survey of the Exchequer, and not then sold or disposed of. All corporations, therefore, who have purchased such rents, &c, pursuant to the statute of Car. 2, are entitled to hold them, whether licensed or unlicensed, and if the former, they are entitled to hold them, over and above the annual value limited in their license. By 42 Geo. 3, c. 116, s. 50, any bodies corporate may give any sums of money for the purpose of applying the same in the redemption of the land-tax charged on any manors, messuages, lands, tenements or hereditaments settled to any charitable use, which sums may be applied accordingly, any statute of mortmain or other statute or law to the con- trary notwithstanding. With respect to the mode in which corporations take lands gene- rally, it is to be observed, that a corporation may take by way of bar- gain and sale (r), or by feoffment (s). Where lands held by homage and fealty were conveyed to a corpo- ration aggregate, they were considered to be held by homage and fealty, although the corporation could not do homage or fealty it) ; and perhaps it was out of consideration of the ancient law of tenures, that the distinction arose between a grant by the king to the men of Isling- ton of lands rendering rent, which they could take, and which, with- out more, made them a corporation, for the purpose of paying the rent ; and a grant by the king to the men of Islington, without more, which it was held was void ; and one reason seems to be, that in the latter case the lands would have been held of no one, there being no (q) Vid. 22 & 23 Car. 2, c. 24 ; Yigers v. Bonis, 1 Leon. 183 ; 2 Leon. 121 ; 3 Leon. Dean, &c, of St. Paul's, 18 Law J. (N. S.) 175 ; vid. 13 Hen. 7, 9, pi. 5. The bargain Q. B. 97. The mode in which the corpora- and sale must have been by indenture en- tion takes, in cases under the statute, is ex- rolled, if under 22 Car. 2, c. 6. pressly prescribed to be by indenture of (s) Bailiffs, &c, of Ipswich v. Martin, bargain and sale enrolled, vid. per Wight- Cro. Jac. 411 ; vid. Butl. Co. Litt. 207 a, man, J., 18 Law J. (N. S.) Q. B. 100. note (102). (r) Sulton's Hospital case, 10 Rep. 34; (t) Bevill's case, 4 Rep. 11; Co. Litt. Watk. Convey. 530, 8th edit.; Holland v. 65b, 68a; Harg. Co. Litt. 68 a, note (17). 108 PROPERTY. reservation of any kind in the grant: in the former, the reservation of rent implied that the lands were held by fealty, the tenure being socage tenure With respecl to municipal corporations, they are allowed to purchase and hold in perpetuity lands to the extent of five acres in the whole, either within or beyond the limits of the borough, and to build thereon a town hall, council house, police office, gaol or house of correction for the borough ; but this enactment leaves untouched any powers that such corporations maj have, of taking and holding (x) in mortmain, by royal license in their charters or otherwise. Municipal corporations appear, however, to be restricted from acqui- ring by any application of the borough fund in the way of bargain and sale, any more land than the five acres mentioned above, as it has been decided, that, from the passing of the Municipal Corporations Act, the property of all municipal corporations within the act became trust pro- perty, being held in trust for the benefit of the inhabitants in each case(?/). They cannot take by grant or devise without license to hold in mortmain, and without the formalities required by the statute of Geo. 2. We shall have occasion to examine the consequences of this alter- ation (if it may be so called) of the law, when we arrive at the subject of charitable trusts as connected with corporations. It has been laid down broadly that a corporation, having a license in mortmain, may. in general, buy land to the extent of their license out of the corporate funds (c). A corporation cannot take lands by conveyance from trustees of those lands for charitable purposes, although the conveyance to them disclose that the lands were held by the grantors in trust for those purposes; the Courts of Chancery will decree them to reconvey the lands to the (») It was socage tenure for the reasons whole five ncr Rep. 123a : tb< i must have the formalities pre- i. 10 Hen. 7, fol. 23, pi tat. 9 Geo. 2, c. 36 j vid. 9 7 Will. 4& 1 Vii . 4, c. 85, 8.1. And it seems the Court !, that it shall b<- lawful for ibe of Chancery will not direct or sanction such application of corporate funds, considering it by tl. to contract lor the purchase to be against the policy of the - 1 ;t t . 9 Geo. 2, of, and to have and to hold to them aod tb< ir c. 36; Ait. -Gen v. Wilson, 2 Keen, 685. any lands | the WHAT ESTATES CORPORATIONS MAY TAKE BY WAY OF PURCHASE. 109 trustees, for, as it seems, the corporation may not hold such lands even subject to the same trusts as the original trustees (a). It is at length perfectly settled that a corporation may in general (there are exceptions in the case of colleges in the universities, who cannot hold lands in trust for purposes uncongenial with those of their institution,) hold lands in trust for any one, and even for purposes quite private (Z>). A corporation cannot hold lands by copy of court-roll (c) ; nor can two corporations be joint tenants of land, but they may be tenants in common (. B. I I icepl when the grant is made by in- l \\ . Bla. 165. denture, Cro. Eliz. 862, when their sealing l ••. '1 1,. tin: counterpart i- a sufficient acceptance, (o) Cooj" ,G 1 Cro. («) Hence if the master of a college defise ( /O I'ut in pleading, if the corporation en- lands to the college, they cannot take, because title thi :. ri.t, it i^ nut neces* at tin- moment of his death they are an in- lary for them to snow the letter of attorney to complete body; Dalison, 31 ; Corpus Christi ■. , for all necessary circumstances (oil. case, citing 13 Hen. 6, fol. 13, where it bliall tie intended to havi been observi I; issaid, pei Brook, J., " if the head is severed Bailiffs, tie., of Ipswich v. Martin, Cro. Jac. tin.' corporation 1-- void," i.e. wants active 411. Perl 'V he referred to the vitality. So Genes, cap. 1, v. 2, " And the general principle Quando tiliqms jier ehartam earth was without form and void.'' .' occtpil omnia ftcittt videtur sine qiiibus WHAT ESTATES CORPORATIONS MAY TAKE BY WAY OF PURCHASE. Ill there is an intermediate estate, the difficulty does not arise : thus if, during the vacancy of the head, a lease for life, or a gift in tail, be made to A., remainder to the mayor and burgesses of B. and their successors, this grant is good to vest the remainder, whenever, during the continu- ance of the particular estate, the corporation first becomes complete by the appointment of a head (0- This, therefore, is scarcely an excep- tion to the rule respecting remainders that commence by deed, viz. " that it behoveth that the remainder be in him to whom the remainder is entailed, before the livery of seisin is made to him which shall have the freehold" (w) ; for though the corporation, before and at the mo- ment of the creation of the particular estate be not in full life and the complete exercise of its functions, which for the time are suspended, yet it has an existence, and cannot be said not to be inrerum natura, which is one of the cases of exception to the rule(#); and though the remain- der do not vest immediately, it suffices if the inheritence pass out of the lessor at the time of making the deed (y), and there be some person or persons in whom the remainder can vest in possession eo instanli that the particular estate determines (z). If, however, a grant be made in remainder to corporation A., and there is no such corporation in existence, either actually or potentially, at the time of the grant, it is wholly void, though such corporation A. be erected before the determination of the particular estate (a). The reason is, that the possibility of the corporation's being erected is too remote (b). Still such estate in remainder may be granted by the same charter which creates the corporation (c); and there may be circumstances ren- dering good a conveyance by way of bargain and sale of lands to a corporation, the erection of which was contemplated by the grantor, though no such corporation was in existence at the time of the execu- tion of the deed, nor license to amortize the land obtained; but here the possibility was not too remote, because the grantor, by the same deed, supplied the means of founding and endowing the corpora- tion (d). With respect to the duration of estates which a corporation may take by grant, it appears to be held that there is no authority for con- sidering that the Mortmain Acts prevent the taking and holding of any estate which is not in itself perpetual; ex. gra., a rent issuing out of an estate in tail male(e). (0 Co. Litt. 264 a. The state of a corpo- (a) Per Hobart, C. J., in Counden v. ration during a vacancy of the head seems to Clarke, Hob. 33. be that which Sir E. Coke calls a corporation (b) Chomley's case, 2 Rep. 5. in abstrarto ; 10 Rep. 31a. (c) Bro. Corporations, 89 j Sutton's Hosp. («() Litt. s. 721 ; Co. Litt. 378 a ; Cogan case, 10 Rep. 33 a. v. Cogan, Cro. Eliz. 360. (rf) Sutton's IIosp. case, 10 Rep. 1 ; vid. 3 (x) Co. Litt. 378 a. Yes.jun. 727. (y) lb.; Hob. 33. ( e ) Vigere o. Dean and Chapter of St. (s) I id. dirt, per North, C. J., Taylor v. Paul's, 18 Law J. (N. S.) Q. B. 97. Biddall, 2 Mod. 292. ^ J 1 I - PROPERTY. II. Wiivi Estates a Corporation, being licensed, may take i.\ w \v of Dn [se. Before the enactment of statute .'):.' Henry 8, c. 1, there was no mentary power over freehold lands of inheritance. That statute gave a power to devise, and the explaining statute, 34 & 35 Henry 8, c. •">. enabled every one having a sole estate or interest in fee simple, or in coparcenary, or in common in fee simple, to give, dispose, will or devise to any person or persons, except bodies politic and cor- porate, by Lot will and testament in writing/). Owing to this ex- press exception, no corporation, sole or aggregate, could take by devise, unless in places where, as in London, there was a custom to devise to corporations, lands lying within the district over which the custom extended. The custom of London in this respect having been confirmed by various statutes, and acted upon by the courts for a succession of ages, was held not to be touched by this statute (g), or by the Statutes of Mortmain (A). The exclusion of corporations from the benefit of the statute was absolute, and related as well to lands devised to them for their own benefit, as to lands devised to them for any purposes of trust for the benefit of others. A devise of lands for either purpose was held to be void, and the lands so devised descended to the heir absolutely, if they had been devised to the corporation absolutely ; charged with the trusts if they had been devised to the corporation upon trusts (i). If, however, the heir chose to consent to the devise it would be supported in equity, the general rule there being, that consent of heirs will make void devises good (k). This disability, it will be remarked, was perfectly unqualified, relat- ing equally to all corporations, whether licensed or unlicensed ; there- fore, the effect was to prevent any corporation whatever taking any real estate by dei i The act of 7 Will. 1 & 1 Vict. c. 26, has repealed 34 & 35 Hen. S, c. 5, and has not revived the prohibition against corporations taking real estate by devise. At present, therefore, the law is, that every (f) The statute only rendered • !' visable a Rep. 64 b; Case of City of London, 8 Rep. portion of t:. lands. J lie 12 Car. 129; Middleton p. Cator, 4 Bio. Chan. Cas. 2, c. 24, completed the power ol devi ring 409. lands in this country. The custom does not extend to empower a (:;,> There is some variety in the mode in citizen toatien'w mortmain. which the ci entautho- Formerly the devisor, as it seems, must nit the reader will probably find that have had a license to alien in mortmain, to i authorized form of it is, that citizens make the devise valid ; Year b. 45 Edw. 3, fol. ■ n tod inhabitants, and also pay- 26, pi. 39 ; Anon. Dyer, 255 a. ing scot and lot, have the right to devise in (h) Elme's case, Dyer, 373 b; vid. 8 Rep. .:i, without license! their landi and I real property situate within the city of Lon- Sonley v. Clockmakers' Company, 1 don, lo any corporation, whether sole <»r ag. Bro. Ch, Cas. 81 ; commented on by Sir E. 1 103; Sugden, C, Ir., I Dru. & War. 331 , 332. ..n i. alien, Cro. Car. 248; Trinity t '. ) Lord Cornbury v. Middleton, Chanc. ib; 7 Vm. Abr.239, Cas. 209. pi. 6, 7 ; ( ase ol Waiden StC. ot Sadlers, 4 WHAT ESTATES A CORPORATION MAY TAKE BY DEVISE. 1 13 corporation which is empowered by license in mortmain to take and hold real property at all, may take it by way of devise to the extent of its license, as well as by any other means ; but that no corporation, without such license, can take real estate by devise any more than before the late Wills Act. For it is necessary to bear in mind, that the operation of the statute last mentioned was to repeal the exception in the old Statute of Wills, which alone rendered corporations incapable of taking by devise to their own use(/); and that the repeal of that statute has replaced corporations in the situation, in this respect, in which they stood before its enactment, with this difference in their favour, that the right of thus devising to them is quite unrestricted, ex- cept by the extent of their licenses in mortmain. In general, there- fore, whether for their own benefit, or in trust, corporations being pre- vented, by the old Statute of Wills, from taking realty by devise, the estate, as stated above, descended to the heir, either absolutely or charged with the trust intended by the testator to have been admi- nistered by the corporation. However, this did not long continue to be the law with respect to trust estates; for by the 43 Eliz. c. 4, re- citing that " whereas lands, tenements, rents, annuities, profits, here- ditaments, goods, chattels, money, and stocks of money, have been heretofore given, limited, appointed and assigned, as well by the queen and her progenitors as by sundry other well disposed persons, some for relief of aged, impotent, and poor people, some for mainte- nance of sick and maimed soldiers and mariners, schools for learning, free schools, and scholars in Universities, some for repair of bridges, ports, havens, causeways, churches, sea banks and highways, some for education and preferment of orphans, some for or towards relief, stock or maintenance of houses of correction, some for marriages of poor maids, some for supportation, aid, and help of young tradesmen, handi- craftsmen, and persons decayed, and others for relief or redemption of prisoners or captives, and for aid or ease of any poor inhabitants con- cerning payments of fifteens, setting out of soldiers and other taxes, which lands, tenements, rents, annuities, profits, hereditaments, goods, chattels, money and stocks of money, nevertheless have not been em- ployed accordingly to the charitable intent of the givers and founders thereof, by reason of frauds, breaches of trust, and negligence in those that should pay, deliver, and employ the same;" proceeded to enact, for redress and remedy of the same, that " the Lord Chancellor might award commissions under the great seal, authorizing commissioners to inquire, by a jury sworn, and by all other good and lawful ways and means, of all and singular such gifts, limitations, assignments and ap- pointments aforesaid, and of the breaches of trust, negligence, misem- ployments, not employing, concealing, defrauding, misconverting or (/) Vid. per Sir John Leach, V. C, in 206; Incorporated Society, &c, of Dublin v. Atl.-Gen. v. Skinners' Company, 5 Madd. Kichaids, 1 Dru. & War. 295—332. 1 1 1 PROPERTY. tvernment of any lands, tenements, vents, annuities, profits, here- ditaments, goods, chattels, money or stocks of money theretofore given, limited, appointed or assigned, or which thereafter should be given, limited, appointed or assigned, to or for any of the charitable and . uses before rehearsed," and to make orders which, not being repugnant to the orders, statutes or decrees of the donors or founders, should stand good, and he executed accordingly, until altered by the Lord Chancellor, upon complaint of any party grieved(m). When the courts came to interpret this statute, it was at first decided that a devise to a corporation to a charitable use, that is, to a use of the kinds enumerated in the statute, was wholly and absolutely void in law (n). Nevertheless, the courts of equity, laying hold of the word "appointed" in the statute, held that a devise of lands for any of the above statutory purposes, though not good as conveying the land to the corporation, was good as regarded the charitable disposition of it, and that the heir took the laud, subject to and clothed with the use de- signated by the testator (o). Perhaps the courts of equity came to this decision partly upon the ground, that, in fact, equity has an inherent jurisdiction in matters of charity independent of the stat. \o Eliz. c. 4(/>)- Such a devise was upheld in equity, though it was altogether bad in law on a collateral ground, namely, for a misnomer of the corporation to whom the testator had intended the property to go (tj); though courts of law have held that a devise to a municipal or other corporation of a local character, though it be misnamed in the devise, is good, if the name in the devise be that by which the corporation is popularly known (r), and it is distinguished sufficiently from other bodies (s). Then it was held, that under the statute of Elizabeth, a corporation could take an annuity or rent-charge by a devise to a charitable use (/). Later cases enlarged the doctrine, and it was at length held, that a devise of lands to a corporation to any of the statutory charitable uses good, not merely in equity, as an appointment to such uses, but in law as a devise ; the -tat. of {,'> Eliz. c. 4, s. 1, being at length inter- preted to have repealed pro tanto the exception in 34 & 35 Hen. 8, c. (m) Vid. 43 Eliz. C. 4,8. 1. rhea com- | I tolls' case, Moore, 879 ; Rivall's case, missions bare been Inn.; disused . Mayor, id. • ,G eenbouse, 1 Bli. N.S. (p) Incorporated Society, &c, ». Richards, 61. The proceeding bj way of information 1 Dru. & \\ ;ir. 2'>ii. has taken their place; id. However, if there ( Beav. 220. So if Innds are vested in a 1 I i 1 1 Bra corporation for the benefit of the city, &C, i, which w.is not ill.- case "i a this gives the Coartof Chancery jurisdiction; charity; rid. I Dm. & War. 307,831, 332; \ r iae.Gorl i . Ah.-(k m.,6 Dow. 186 ; rid Att.- Willa \'f. 7 Will. I ,\ I \ ici. c. Gen. a, Mayor, &c, of Galway, 1 Molloy, up. p 109. 95 ;S. C l Beat. 298; 1 Chit Ea. Ind.295. (ii Incorporated Society in Dublin for (m) Att.-Gen. v. Mayor, itc., of Carlisle, 2 i Bglish Protestant Schools in [re- Sim, 437 ; Ait. <.< d. v. H< > lis, 2 Sim. \ St. land .. Richards, 1 Dm. • 1 . 332 77. (k) A l.-Geo. i. Aspinall, 2 M. & I ra. («) Mayor, 8tc, of Gloucester v. Osborne, Mi. (on. v. Heelis, 2 8im. & -.7'.. 1H. Lds. 285. kc, of Dublin. I BH. (o) Durour t. Molteux, 1 Ves. sen. 320. N.3. 312, ,of (p) Att.Gen.t>. Ruper, 2 P. Wn». 125. WHAT ESTATES A CORPORATION MAY TAKE BY DEVISE. 117 of money to a charitable corporation is good, and equity has no ground to interfere for the appropriation of it, but it will become part of the general funds of the institution ; though it is different where the legacy has to be applied exclusively for certain permanent charitable trusts (tatute and tin- other bad, that devise will stand under the statute, and be carried out according to the directions which conform to the sta- tute (// . A devise with a trust in mortmain may be legal as to the rest of it, though illegal as to that part (<"). In furtherance of the great principle, that all corporations taking lands for trust purposes Bhall Btrictly pursue the intentions of the donor, the courts of equity have even taken the estate from the corporation and ordered it to be conveyed to the proper parties. Thus where a corpo- ration were trustees of a freehold estate for the benefit of a charity, and misapplied the revenues, and grossly misconducted themselves in the idon of their trust, and were unable in consequence to pay the Minis due from them, the Court of Chancery directed the trust estate to l)t- conveyed to persons more able and willing to execute the trust faithfully for the benefit of the poor (A). Nevertheless the Court of Chancery does not exercise a general regulating and controlling power over eleemosynary corporations constituted by charter or act of parlia- ment (/). The powers of that court with reference to charitable cor- porations, and corporations holding lands in trust for charitable pur- s, are not, as has been observed, solely derived from the statute of Elizabeth: for that statute created no new law on the subject of charitable uses, thougb it created a new and ancillary jurisdiction (m), namely, that of a commission (now disused), and thougb it is from the terms of that statute that the jurisdiction has been moulded (n). An instance of the great extent of the powers of the court in these cases is the following: lauds were devised to the poor people maintained in the Reading Hospital for ever, which of course, as the objects of the devise were not incorporated, they were incapable to take; the court however decreed that, the corporation of Reading being governors of the hospital, the lands must be assured to them for the maintenance of the hospital (o), though it might have appeared that the devise would been void for want of a proper description of a devisee capable of takii We Bhall now proceed to state various cases in which grants and devises have been held bad or otherwise upon the above principle-. .lit by the crown for a term of years of the right to lay chains i"i- mooring vessels in the bed of the Thames, is void within the ) Mayor, &c., of Reading i. Lane, 1 Duke, Cbarit. I ses, 81 ; vid. Incorporated • iv, &C, in Ireland t>. Richards, I Dru. ■ .'indling Hospital, 2 \ • -• 42, 47. c* War. 2!'0 — 332. (/) 2 Ve«. 47 , vU U ep. 34. WHAT ESTATES A CORPORATION MAY TAKE BY DEVISE. 121 statute of Geo. 2 (p) : so money secured on turnpike tolls was held to be an interest in land within the statute (ut on land, that is, in building on land,, which the testator expected that the lord of the manor would grant if some one else did not, the purpose being for the establishment of a school, makes the devise void, a- lain- against the policy of the statute; for it tends to bring more land into mortmain (m). Legacies to he laid out in land in Scotland have lain held valid (n). Lands in the colonies are not within the statutes ; nor lands in the East Indies (p); nor lands in Ireland i y); nor are policies of insurance, even where the assets consist partly of real >J Dor is East India stock within it, and therefore a 1, . so much East India stock to the corporation of Christ's Hospital was held good (<) ; nor is stock in the public funds (t). But the money must be beqeathed in a legal way, otherwise the corporation cannot take. Thus where an hospital was incorporated by a statute | 1 .' Geo. .'. c. 81) which enabled them to take " all monies whatsoever," it was held that thifl must he considered to mean only such monies as were given according to law, and that therefore a devise of " residue of personal estate," arising by sale of real estate, was void, as being contrary to Geo. ,'i, c. SG(u). But a legacy to the Bath Infirmary, given out of the produce of real estate, has been held valid ; because the stat. 19 Geo. 3, c. 23, enables the governors of that institution to acquire lands, or any interest in them, or any money or personal pro- perty, to be laid out in land, pursuant to any will or otherwise, not exceeding 1000/. per annimi(x). The following case is singular. A testator gave 1000/. to such cha- ritv as he had under his hand formerly directed. The person entitled to the e-tate, subject to this charge, took possession without paying it. governors of Christ's Hospital having discovered the charity to the crown, a -i'_ r n manual directed the money to be paid to the relators for tin- u-e of the mathematical hoys of the foundation; and on infor- mation by the governors to recover the money, although the defendant urged that he had not found the paper alluded to by the testator, and that there Was therefore no direction how the 1000/. was to be disposed (/) Society for Propagation of the Gospel ported Shelf. Morton. 266; Boyle Charities, ,3 Roa. I 327i cited 5 Beav. 43b; pid.Att.-GeD. v. (m) Mather i. scott, 2 Keen, 1 7 J . Att - Stewart, 2 Merit. 143. <,,„. p.Tyndale, Amid. 614; Att-Gen. d. (p) Mitfordv. Reynolds, 1 Turn. & P. 185. Hjde, Ambl.761 ; Shelf. Mortm.204; Chap- («) Fid. now 7 6 R Victc 97,8. 16; 8 *\ 9 manv. Bro* blett v. Hobeon, Vict. c. 25 ; 8 \ 9 Vict. c. 66, as to Roman 3 My, & K. .017. apparently overruling Ait.- Catholic colleges in Ireland. n, 647, and Vaughan (r) March p.Att.-Gen. 5 Beav. 455. p. 1 rrer, id. 182, In J and thai il tends Boyle Charit. 3'27. to hrinp more l.ind into mortmain would do) (t) Pieschel v. Paris, 2 Sim. & S. 384. of a gift by abbot and Hut a debt secured by judgment is within, .i to another co rp o ration, which was Collinson v. Pates, 2 Huss. ix M. 344; and mortmain and required a license; the proceeds of laud directed in the will to he Bold are so, Curtis V. Mutton, 14 Ves. ,037; (■) Oliphant v. Hendrie, 1 E . Ch. I vid. 2 Sim. & 3. 5 .07 l . , 16 V( 30 ; (u) Mogg o. Hodges, 1 Cox, 9. rid. • . rlntton, l t \ U -. 037 | i j Mail I km d, Hooper, 4 Bro. Ch. Cas. I I | | 1836, re- 163. WHAT ESTATES A CORPORATION MAY TAKE BY DEVISE. 123 of, and therefore that the devise was void, the court nevertheless held that the money must go as directed under the sign manual (y). Although the general rule is that a devise ought to take effect on the death of the testator (z), a devise to a collegiate corporation not in esse at the death of the testator may be good (a) ; thus a devise to a corporation, to be established in the university of Cambridge, and to be named, after the testator, Downing College, in case the crown should grant a charter incorporating the same, and a license to hold lands in mortmain, was held to be valid (b); and the reason is that there the devise itself as- signed the means of founding and endowing the corporation. But it is said that an absolute devise to a non-existing corporation, as well as a devise to a corporation, which, though in esse at the time of making the will, has ceased to exist at the death of the testator, is void (c). There has never been any doubt that, where a man might devise in mortmain, he might devise an estate to any one for life, with the re- mainder to a corporation to its own own use(c?); but if the devise of the life estate be upon condition, and the heir enters for condition broken, the remainder to the corporation is gone (e). Generally speaking, the corporation of the college or hospital must be capable of all its functions, and not suspended at the death of the testator, otherwise the devise will be void, because the body designated in the will is not in full life when the will takes effect (e). Therefore the head of a college cannot devise to the college, which, at his death is in a suspended state, and capable of no corporate act, except electing a successor ; it is not a person able to sue an action or to make con- tinual claim (/). Though, as we have seen, money bequeathed to a corporation (not licensed) to be laid out in land cannot be taken by them, because such bequest is within the Statutes of Mortmain, yet money left to add to the buildings of corporations, on land already in mortmain, is well bequeathed, and the corporation shall take, for no more land is thereby put into mortmain, and the statutes are not infringed (g) ; and therefore a be- quest by a rector, to be laid out in building a new parsonage house, &c, was held to be not within the statute (h). But it is a general rule of construction of wills that a direction to build includes a direction to purchase land for the purpose of building, unless the testator distinctly refers to land already in mortmain (i). A bequest of money to improve, (y) Att.-Gen. v. Siderfin. 1 Vern. 224 ; S. 223 ; S. C. Dalis. 31. C. 2 Freem. 330 ; vid. Shelf. Mortm. 270. (/) Litt. s. 443. (s) 9 Hen. 6, 24 b ; Perk. s. 505 ; 8 Vin. (#) Att.-Gen. v. Nash, 3 Bro. Ch. C. 588 ; Abr. 56, pi. 1; Corpus Christi College case, 4 Giblett v. Hobson, 3 M. & K.517 ; Att.-Gen. Leon. 223. v. Hodgson, 10 Jur. 300. (a) Att.-Gen. v. Bowyer, 3 Ves. jun. 727 ; (fe) Glubb v. Att.-Gen., Ambl. 373; Att.- Att.-Gen.r-. Downing, Wil mot's Notes, 1 1, 13. Gen. v. Parsons, 8 Ves. 186. (b) Corbyn i>. French, 4 Ves. 418. (i) Pritchard v. Arbouin,3 Russ. 456; Gib- (r.) Vid. supra, p. Ill, the case of a grant lett v. Hobson, 3 My. & K. 517; Att. -Gen. v. of the same kind. Munby, 1 Meriv. 327 : Pelham v. Anderson, (d) 8 Vin. Abr. 391, pi. 1. 2 Eden, 296; Att.-Gen. v. Parsons, 8 Ves. (e) Corpus Christi College case, 4 Leon. 180; Mather v. Scott, 2 Keen, 179. Astothe JO i PROPERTY. or build upon, land not already in mortmain, or to induce the corporation to give the necessary haul for the building, is bad (A). The two universities i. e. Oxford and Cambridge), all colleges within them, and the foundations of Eton, Winchester and Westminster, were excepted out of the statute of 9 Geo. :.'. c 86, bo that bequests to them are good Bince Btat 7 Will. 1 & 1 Viet. e. :.'(>, and conveyances to those bodies need not have the formalities prescribed by 9 Geo. 2(1). The devise to a college must nevertheless not be to a charitable use, other than the use of the college itself; or if it is, that will in general avoid the devise ; though if part is to another use, and part beneficially to the ,f the college, they will take the whole (m); and a college may take in trust for the benefit of particular members of the corporate body only in). Perhaps it may be worth while to observe that these bodies may either accept a devise (o), or they may refuse (/?), or they may sus- pend their decision (7). Devises to colleges of a frivolous or selfish character, adapted merely for ostentation on the part of the testator, will not be carried out ; a good devise to a college must be for purposes identical with, or at least allied to, those of the collegiate body (r). It may be desirable, although the subject is not quite immediately connected with the purposes of this treatise, to advert shortly to the Statutes of Superstitious Uses. The effect of the Statute of Superstitious Uses, 23 Hen. 8, c. 10, was to make absolutely void all alienations of manors, lands, tenements, and hereditaments aliened in mortmain, " to the uses and intents to have obits perpetual, or a continual service of a priest for ever, or for sixty or eighty years, or to any other like uses or intents ;" but the same uses were authorized if they were limited to continue not longer than twenty years. The stat. 1 Edw. G, c. 14, abolishing chauntries, &C., gave the pro- perty in all estates devised for such superstitious uses to the crown (s). It In to be carefully observed, in the interpretation of these statutes, that the superstitious uses meant by them are such uses as were then held to be superstitious {t). But the uses which have been held to be evidence necessary to prove the land dens, bridge, Jac. R. 392; Att.-Gen. v. Baliol ii already in mortmain, Ingleby u. Dub- College. Oxford, 9 Mod. 409; Att.-Gen. v. bon, 4 Ruaa. 342. I'. mbroke College, 2 Sim. fit Stu. So of \, ,.(,,„... |).o • 9 V( 644. other bodies, Att.-Gen. v. Christ's Hospital, 3 (0 Fid. a. 4, and 7 \\ dl. 4 & 1 Vic. c.26. 15ro. Ch. Cas. 165; Att.-Gen. t. Christ's (m) .\u. -(." -<".>■ I'l.nt. In, ch, Sect. 6; Att.-Gen. v. Downing. Wilm. Notea, 10; R. p, Newman, 1 Lev. 284; nd. (p) Vi'1.2 Keen, 163; 3 Ves. 322. 3 Vee. iun, 726. \ • (,.... \-A •■■■■■. i \-> jun.633, (t) Vid. An. -Gen. i. Kishmongers' Com- Fohn'a College, pany, 2 IJeav. 151, 584; S. C. 4 My. & C. I t. Piatt, Pinch, Rep. 222; An.- 11; Cary t>. Abbott, 7 Ves. 495; Porter's . i ., of Catlieriiie Hall, Cam- case, 1 Rep. 25 a. WHAT ESTATES A CORPORATION MAY TAKE BY DEVISE. 125 superstitious since those acts, render the devise merely void, and the lands, &c, are not considered forfeited to the crown (u). Still the de- vise is not void in such a way as to go to the next of kin; but the crown appoints by sign manual what charity the bequest shall be appropriated to (x). It appears that in some cases, where a superstitious and a charitable use were limited in the same instrument, the money payments destined to the former shall be vested in the crown, but not the lands given for the latter (y). Probably it would be held that the doctrine of superstitious uses still applies to Roman Catholic foundations, the Roman Catholic Penal Acts Repeal Act(z), and the Religious Opinions Relief Act (a), not touching the question ; for it seems that the grounds, on which the Statutes of Superstitious Uses have been construed, remain unshaken at the present day, although the legislature has changed its policy with respect to the Roman Catholic religion. Thus, a foundation of a col- legiate body, with the object and for the purpose of praying for souls, would at the present day, it is apprehended, be bad under the statute of Edw. 6, although the parties designated to be corporators might be laymen, poor, and worthy objects of support, so as to give to the insti- tution some colour of being a hospital, and though it were actually called a hospital by the founder (6). Otherwise the statutes do not ex- tend to restrain uses in favour of learning and relief of the poor (c). To resume the subject of charitable devises. From what has been said, it appears that all dispositions of lands, tenements, or hereditaments, or of any estate or interest therein, or of any stocks, &c, to be laid out in the purchase of real estate, to or in trust for any charitable use whatever, if made without the formalities of the statute 9 Geo. 2, c. 36, are wholly void (d) ; and that this is the case whether the corporation to or for whom they are made is aggregate or sole(e?). But there is, as has been seen, this important exception to the generality of the above, namely, that the act does not extend to make void dispositions of any lands, &c, made without the formalities (it) De Garcia v. Lawson, 4 Ves. 433 ; & 3 Will. 4, c. 115. This act has been held vid. 3 Salk. 334; 4 My. & C. 11. to have a retrospective effect; per Lord ( i) Per Sir W. Grant in Cary v. Adams, 7 Brougham, C, Bradshaw v. Tasker, 2 My. & Ves 490. K.2'21. But in Att.-Gen. v. Drummond, 2 (v) Hewet v. Wotton, cited 4 Rep. 109 b; Dru. & W. 379, 380, Sugden, C. Ir., ap- Chibnalu. Wotton, id. ; vid. Adams and Lam- peared to doubt the correctness of Lord bert's case, 4 Rep. 104 ; vid. J. Bridg. 106; Brougham's decision in that case. Cro. Jac. 51, 52 ; Shelf. Mortm. 89. Aliter (6) Pits v. James, Hob. 121 ; S.C. Palm, where the principal cause of the whole gift 124. was a superstitious use, then all went to- the (c) Porter's case, 1 Rep. 25 b ; Martidale king; Humphrys v. Knight, Cro. Car. 455; v. Martin, Cro. Eliz. 288 ; Att.-Gen. v. Lady vid. tarn., Ilait v. Brewer, Cro. Eliz. 449. Downing, Wilm. Notes, 11 ; vid. Gibs. Codex, (s) 7 & 8 Vict. c. 102. 645. (a) 9 & 10 Vict. c. 59; vid. 31 Geo. 3, (d) 9 Geo. 2, c. 36, s. 3. The master of c. 39, s. 17 ; 10 Geo. 4, c. 7, s. 29 ; 2 & 3 a college cannot avail himself of the saving to Will. 4, c. 115; Westw.Shuttleworth,2My.& devise to his college, because no corporation K.684; vid. Hob. 122. The last named statute can take during the vacancy of the head; does not authorize superstitious uses; West v. and therefore a devise to them by the master Shuttleworth, 2 My. & K. 684. Gifts to Ro- is void ; Corpus Christi College case, 4 Leon, man Catholic schools are charitable uses ; 2 223; S. C. Dalis. 31. 126 PROPERTY". required by the act, to or in brusl for either of the two universities within that part o (Great Britain called England, or any of the colleges within either, or to or in trust for the collegi - of Eton, Winchester, or West- minster, for the better support and maintenance of the scholars only upon the foundation of the said colleges of Eton, Winchester, and Westminster (e). These corporations, however, like all others, must hare a license in mortmain previous to the devise, &c., to enable them tu huld the lands, &c., in mortmain, and in respect of lands, &c, de- vised, etc., after their licenses are exhausted, the lords or the crown may enter. On the other hand, a license to hold in mortmain, even when embodied in a statute, implies that the lands, &c., be conveyed, a,., to the corporation in the manner prescribed by the 9 Geo. 2, 6 'J). But though this is indispensable, the courts, in other respects, construe favourably common law devises to charitable uses, for the pur- pose of carrying into effect, as nearly as possible, the testator's inten- tions. This has been already illustrated from the old cases. The following is an instance of a recent decision : a testator having before 9 < >eo. 2, c. 36, left funds to the corporation of Reading, in trust to pay a Bum yearly to the poor of Reading for ever, and directed that if his gift should happen to be by the said corporation disposed contrary to his meaning, or if his will, touching the same, should be left unper- formed by the space of one whole year, then the said sum should early paid by the said corporation to the treasurer of Christ's II spital in London, to be applied to the purposes of the hospital, or else that the corporation of Reading should convey over the property to the mayor and commonalty of London, to be employed as afore- said : some time after the testator's death, a decree was made by the 1 Exchequer in equity, in consequence of the strict execution of the will having been found inconvenient, establishing certain details of a plan for administering the fund in various ways for the use of the • : Reading, and ordering that, if the corporation of Reading should neglect to perform the requirements of the decree, &c, for one whole year, at any time, a part of the legacy, which had been formed into a fund, should be paid over to the corporation of London to the use of Christ's Hospital, and that the lands, in which the rest of it had l)i in laid out, should he conveyed to the same corporation to the like use. ( )n a bill by the corporation of London against the corporation of I ;> ading, the directions of the decree, as well as those in the will, having been unperformed for more than a year, it was held that the testator's limitation over took effect; for that it was not within the rule against I i I, C. 86 ( - 4. 1 lit subsequent the licenses to several colleges in the univer- clauu: Limiting ili<- edvowsoni to be held by ritiee, 22 Coins. Juum, 708 — 710, many of ie Dumber • I ol the fel> them containing also a license to all subjects, lowthij I; 45 Geo. 3, C. I'M. whether incorporated or not incorporated, to in the universities of alien lands, See, to the corporation, not ex- ( Ixford and ' ami i ling in value the amount of its license. {j M . d. Hodges, 2 Ves, sen* 63. !'<<'. WHAT ESTATES A CORPORATION MAY TAKE BY DEVISE. 127 perpetuities, being merely the substitution of one corporation and one use, for another corporation and another use ; an arrangement which did not render the property either more or less alienable than before ; and that as the property had continued in the possession of the corpo- ration of Heading, who, after the acts of neglect, &c., which formed the ground for the substitution, became trustees for Christ's Hospital, there was no adverse possession ; and, therefore, though more than twenty years had elapsed since hese acts, and since the plaintiffs knew of them, the lapse of time was no objection, and the property was decreed to be transferred to the plaintiffs (g). III. We now proceed to consider what kind of estates may pass to a corporation so as to be held by them under a demise. A husbandry lease has been held to be not objectionable within the Statutes of Mortmain, and that any corporation were at liberty, so far as regarded those statutes, to take one (h) ; and it may be laid down without hesi- tation, that every corporation, within the scope and object of whose institution it is to take a farming lease, may do so at pleasure (/*); but with respect to the duration of the lease, there seems some discrepancy in the cases. It has been declared that a lease for 100 years to a cor- poration is mortmain (i) ; and the same has been said of a lease for eighty-one years (k) ; but on the other hand, it is laid down that a lease for ninety-nine years is good within the Statutes of Mortmain, being a usual term (I). Moreover, it is said that a lease to a corporation for the life of the lessor is good (m) ; and a grant of an estate tail to a cor- poration has been held not to be mortmain (n). A corporation must always have made an express or actual surrender of a lease for years of lands by deed under their common seal, but they might make surrender in law by accepting a new lease ; the same con- tinues to be the case, corporations being, in this respect, unaffected by the late statutes for simplifying the transfer of real property (o). There- fore a lease for years, whether of incorporeal or corporeal hereditaments, must be surrendered by deed under the corporation seal, if the surrender be an express one ; the first, both on the general ground that of things lying in grant, a disposition or demise can only be made under seal, and can therefore only be surrendered by an instrument of a like nature ; the other, both because a lease for years of lands could only be made to a (g) Christ's Hospital v. Grainger, 19 L.J. ' (m) Bac. Abr. Corporations, E. 1. In one (N. S. ) Chan. 33. case it was intimated by the Court of Queen's (h) Master, &c, of Jesus College, Cam- Bench, that there vvas no authority for holding bridge, v. Gibbs, 1 Y. & Coll. 146. that the statutes of mortmain forbid a corpo- (i) I'er Warburton, J., Howies v. Mason, ration to hold that which is not in itself per- 2 lirownl. 197 ; per Tanfield, B., Cotton's petual ; Vigers v. Dean of St. Paul's, 18 L. case, Godb. 192; vid. 15 Yin. Abr. 485, J. (N. S.) Q. B. 103. pi. 20 ; 1 Piatt, Leases, 541. (u) Vid. last note and S. C. in Exch. Ch. (k) Hemming v. Brabazon, 0. Bridg. R. 19 L. J. (N. S.) Q. B. by Bannister, 119. (o) 7 & 8 Vict. c. 76, s. 4 ; 8 & 9 Vict. (0 15 Vin. Abr. 485, pi. 21 ; vid. 1 Piatt, c. 106, s. 3 ; Sheph. Touchst. 302. Leases, 541. 1 .N PROPERTY. corporation by deed, ami therefore must be surrendered by deed, and also on the ground of the general application of the late statutes. But a con- current lease can only be surrendered by operation of law(/>). The above rales, both with respect to charitable and to superstitious uses, apply to leases ; thus where a lease was made for twenty-three years of a chapel lor the use of a congregation of dissenters, reserving a peppercorn rent during the lessor's life, and lo/. a year after his death, it was held that such lease was bad, for, not being within the exception of the second section of the Statute of Charitable Uses ((j), as there was no full con- sideration paid for the lease, it was therefore void as a conveyance for the benefit of a charitable use (cj), not made with the statutory for- mal it u> We may hire remark that it is, in no respect, necessary that the object or charitable purpose for the benefit of which the lease, conveyance, or other transfer of land, &c., is made, should appear upon the face of the instrument; for to require that, would be to open the door to perpetual evasions of the statute (s) ; but to arrive at the grantor's intention, the court will look to the accompanying facts both before, at, and after the execution of the lease (t). In general, lands or other real property can only be demised to a corporation aggregate by deed, and they must accept sueli demise under their common seal, according to the rule of the common law(?/). Also, wherever a corporation hold by lease, they must surrender by deed (a:); except where the acceptance of a fresh lease operates as a surrender in law of the first, in which case it is not necessary that the corporation should manifest their intention to give up the first lease, by writing under seal, or otherwise (y). I'rom what has been said, it appears then that landed property, coming to corporations by whatever means, vests in the invisible and metaphysical entity, the members of the corporation having no individual interests in the land of the corporation, and being, to the same extent as any Strangers, trespassers if they go upon the land without due authority from the corporation; but to this general rule there are some excep- tions: in cases of trading corporations, established chiefly by statute, where the legislature having attempted to combine the characters of the copartnership and corporation, the reverse of the above principle takes 138 a; Wilson !. Sewell, 1 rid. Owen, 143 ; 12 Hen. 7, 25, 26. If the 'VN ils. ' corporation grant over the lease, the grantee, (. I I \'>. granted to Ida de Haltun one hide of land, sine omni foil,) tt sine omul hareditate de nobis tenendum quamdiu benl et honesti se hdbuerit, reserving five shillings yearly, with condition that if she demises, tbe land shall revert to tbe grantors (A). A.I). 1 [86, the Prioress and Convent of St. Bartholomew, in New- castle-upon-Tyne, granted certain waste land to Thomas Lokwood and bis heirs, ad feodi firmam, to be held by tbe usual services of tbe capital lords of tbe fee, on payment of rent of 6s. 8d. a year, with clause of distress (i). So about A.n. 11S1, tbe Prior and Convent of tbe Church of Christ of Canterbury, grant to one and bis heirs, 183 acras de nobis tenendas guamdiu <■• nsum constitutum benl raid I (In- hit et fideliter sc erga nos et ecclesiam nostram habuerint, the rent being two marks and a half pi r an., or 1/. 13*. \d. So tbe Prior and Convent of Brayton, 31 Edw. ,'), grant to Robert htred and Katerina, his wife, one bushel Jrumenti boni et purl grant ac benl ventulati, to be taken on their manor of Horselegh, Gloucestershire, every week, for the term of their life and tbe life of the Burvivor, with clause of distress on the said manor, if the grant be behind for bait' a year, &C. &C. Datum apnd Brueton die Dominica proximo post festum nativitatis Beata Maria, ,'51 Edw. .'} (It). ■ tbe Abbot and Convent of Bordesley grant to Thomas Aventre, pro servitio impenso, one annual rent of 13*. Id. for tbe term of bis life, with clause of distress on the abbey, dated 12 December, 4 Hen. 6(1). Thus it appears thai e of these grants bear out tbe proposition, for which some of them have been referred to, viz. as showing that, at Mad. I in . . I, ,4; Mad. 24th year of Hen. 6. (O .Mad. Porta. Anglic, f. 588; vid. other di) Ma. I, Formal. Aaglic. form. 601. iti bj corporations of lands for lives. Mad. Firm. Burg. cap. 1, s. 4; Mad. rendering rent, id. form. 213, 216, 217. i . \ < i r.ini by corporation oi a reversion t<> four Mad. Formal. An rm. persons for their lives, id. form 218. \ lailifit and similar grant to a f'enu covert and her son, Huntingdon to Sir John IIn' — • % . M theii lives, id. form. 219. Demises of . to lands for porations may I" hol'l " to him and ln-> form 220 to 231. 1 form. our bi term ol lifi \ I',. Madoi gives no examples Sealed with tlio of grants of lands by corporations in fee, pro- February, in the perly so called. WHAT ESTATES A CORPORATION MAY GRANT. 131 common law, civil corporations might alien in fee; and there appears to be little doubt that the grants themselves are so anomalous in their nature, and so much opposed, in various respects, to modern ideas of the law of real property, that no argument can be derived from them to prove the present state of the law as to alienation by corporations; nevertheless, as the absence of express decision of the point, in any modern case, rendered it advisable to show clearly, on what grounds alone, the sweeping doctrine is made to rest, which gives to corporations the same power of alienation of their lands that belongs to individuals, where statutory enactments do not interpose (m), they are stated. Before quitting this important part of the subject, however, it may be desirable to point out, as showing still more clearly the distinction between such grants as those mentioned above, and what are now known under the term alienations in fee, that where the rent was thus reserved on the durable estate of the feud (even without a clause of distress or re-entry in the deed), the feud itself and the chattels there- upon were pledged for the rent ; and if the land were unstocked for two years, the lord had his cessavit per biennium to recover the land itself (rc); and in ancient times he had a process of seizure by distress of the freehold or land itself, the process issuing out of his own court (o). In other words, the reversion was in the grantor ( p). Passing to a period somewhat later than most of these old grants, we still find no authority of a decided case to sanction the idea that cor- porations were considered to have power to alien. The doctrine does not appear to have been known to the courts during any part of the time over which the reports in the Year Books extend. It is true that Sir Edward Coke, in a note to one of his reports^), appears, at first sight, to vouch for direct authority for the statement that to alien is incident to a corporation, a decision in a Year Book. The passage stands thus: after laying down that when a corporation is duly created, all other incidents are tacitly annexed to it, he proceeds thus : — " And for direct authority on this point in 22 Edw. 4, Grants, 30, it is h olden by Brian, Chief Justice, and Choke, that a corporation is sufficient without words to implead or be impleaded, &c, and therefore divers clauses subsequent in the charter are not of necessity but only decla- ratory, and might well have been left out as (I) by the same to have authority, ability, and capacity to purchase, &c; but no clause is added that they may alien, &c, and it needeth not, for it is incident." (m) Vid. 1 Kyd, Corporations, 108, note N. B. 208 H.; 6 Edw. 1, c. 4 ; 3 Bla. Com. (b). The other authorities there cited, viz. 232. Co. Litt. 44, 300, 301 ; 1 Buir. 221 ; relate (o) This was the case until the privilege solely to ecclesiastical corporations. Of the was taken away by a stat. of 52 Hen. 3; Harg. power of alienation by these latter, we shall Co. Litt. 144 a, note (2). speak hereafter. It appears that the restrain- (p) Vin. Abr. Aid of the King, F. pi. 3, ing acts are only declaratory of the common marg. where the distinction is clearly pointed law ; (Jlanv. Lib. vii. c. 1. out between a grant in fee farm and a grant (n) Gilbert, Rents, 93 ; Bac. Abr. Kent, in fee. K. 6; Harg. Co. Lilt. 144 a, note (5^); Fitz. (g) Case of Sutton's Hospital, 10 Rep. 30 b. k2 I ; .' PROPER! "» . it is remarkable thai this citation, which might .seem at first it to be intended as an authority for the statement that to alien is incident to a corporation, lias nothing in it to justify such inference; for the citation is made nut from the Year Book, but from Fitzherbert'a Abridgment, title Graunt, pi. 80, where an extract purports to be made from the Year Book, Trin. 22 Edw. 1. In that Year Hook, however, there i- no such The place meant i- Mich. 21 Edw. 1, fol. 55, pi. 28, where the two questions raised in the case before the court wire, — I. Whether the king could grant to a corporation exemption from serving on juries out of their town. II. Whether having made the mayor, sheriffs and citizens a cor- poration, the charter was correctly drawn in proceeding " et conces- s'tmits civibtu prcedictis" &c, not to serve on juries, &c.; and both questions were resolved by the court in the affirmative, the remarks cited by Fitzherbert, as having fallen from the Chief Justice and Choke, J., being let fall obiter, and having little or no connection with the main question. Moreover none of the judges, in the course of the . used any expression sanctioning the idea of the free power of a corporation to alien. Sir Edward Coke must have written this note with some degree of negligence, or he would have discovered the mis- take- in Fitzherbert's Abridgment, and would have rendered it more clear that the doctrine we are discussing was his own inference merely, and did not rest on the authority of the King's Bench of Edward the Fourth's time. The authority of those judges only extends to the words '• That a corporation is sufficient without words to implead or be im- :" not a syllable of the rest of Sir Edward Coke's note, as rds this subject, is supported by what they say. Now that no trace should remain of any decision in a court of common law, in which, on argument, it lias been laid down that corpo- rations generally have power to alien their real property, is certainly a remarkable fact, ami seems to point directly to the conclusion that, at common law, no such power was inherent in them. It is also very irkable that(r] Sir Edward Coke should be the sole authority, till ! 1 Holt's time, (except the note by Siderfin) for this very important principle. That corporations were not supposed to have the right of aliening at pleasure, i- a view, which seems to be somewhat Btrength- I, by referring to the Btatutes of mortmain, and the objects for which they were passed. Thus one of the inconveniences to be re- medied by the -tat. 7 Edw. 1, stat :.', c. 1, De lietiyiosis, is stated to be, " that the winch are due of such fees, and which, at the tining, were provided for the defence of the realm, arc wrongfully withdrawn, and the chief lords do lose their escheats for tin- same." And the reason given in 15 Hie.:.', c. ">, lor including, by express (') I ■ . I I ;>. 30 b; Co. Lilt. 325 b. WHAT ESTATES A CORPORATION MAY GRANT. 133 enactment, "mayors, bailiffs, and commons of cities, boroughs, and other towns, which have a perpetual commonalty, &c," within the penalties of the Statute De Rdigiosis, is that " they be as perpetual as people of religion," and then goes on to enact " that from thenceforth they shall not purchase to them and to their commons upon pain contained in the said Statute De Eeligiosis" And Sir Edward Coke, in explain- ing what is meant by the word mortmain, intimates that the term arose from the fact of lands alienate*} to corporations being said to come to dead hands, as far as the lords were concerned; "for that by alienation in mortmain they lost wholly their escheats, and in effect their knights' services for the defence of the realm, wards, marriages, reliefs and the like, and therefore was called a dead hand, for that a dead hand yieldeth no service" (s). Now, to say the least, it does not seem to be clear how the lords could " lose wholly their escheats," if land aliened, to corporations was capable of being again aliened in fee, as unreservedly as if the corpo- ration were an individual. It would seem that in such case there was no more reason to prohibit alienation to a corporation than to a feme sole, who was equally with a corporation incapable of rendering the services for defence of the realm, &c. ; especially if what is said by Sir Edward Coke {t) be true, that if the crown grant to a corporation to hold by knight service they shall find a man, &c, or pay escuage. The same view appears to have been present to the minds of the framers of the stat. 9 Geo. 2, c. 36, intituled " An Act to restrain the Disposition of Lands whereby the same become unalienable," who must have been of opinion that the effect of aliening lands, in the manner the statute was meant to check, was to render such lands un- alienable, otherwise the title of the act would be idle and insensible, which cannot be presumed ; for though it has been said of the title of this act, and generally, that the title is no part of the act, yet that doctrine cannot be taken to mean that the words placed by the legis- lature, at the heads of their enactments, may be wholly disregarded, as being frequently devoid of significant meaning (u). The courts, in putting constructions upon statutes, have frequently founded their reasoning, in part, on the titles of those statutes (#); and (s) Co. Litt. 2b; and mortmain is ex- Abbott, C. J., and Best, J., in R. v. Carlile, plained, Co. Litt. 70 b, to mean " they held 3 B. & A. 162, 166; per Sir J. Nicholl, in fast their inheritance " Vid. 1 Reeve's Hist. Brett v. Brett, 3 Add. Eccl. R. 210; per Lord Engl. Law, 240, ace. ; so Plowd. Com. 193; Mansfield, C. J., Timmins v. Rawlinson, 3 ■\Yrotesley v. Adams. I'>urr. 1607 ; per Aston, J.. Askew v. College (0 Co. Litt. 70 b. of Physicians, 4 Burr. 2201 ; per Yates, J., (it) The titles of acts of parliament cannot id. 2389, 2462; per Lord Trevor, C. J., 1 be said not to be enacted by the legislature; Stra. 325; per cur. Stradling v. Morgan, for the question is put on the title, and it is Plowd. Com. 203; vid. Callis, Sewers, 26 ; agreed to just as much as every section, schu- 2 Exch. 283, per cur. Excli. Ch.; Dimes t>. dule, &c, in the act. That the title of an Grand Junction Canal Company, 9 Q. B. act is not surplusage, vid. per Holt, C. J., 19 515; per cur. llinton ('. Dibbin,2 Q. 15.663; \ in. Abr. 510, pi." 17, marg. per Lord Chanc. in Free v. Eurgoyne, 2 Bli. (i) Per Dodderidge, J., W. Jo. 163; per N. S. 78 ; per cur. 7 Q. B. 952. Bayley, J., 8 B. & C. 469, 470; vid. per l.il PROPERTY. we may further remark that it is quite manifest, from the debates on the Btatute !> Geo. 2 in the House of Lords, that both sides assumed most distinctly that corporations becoming possessed of lands could not alienate. Whoever will consult the fifth volume of Chandler's" Debates in the House of Lords, pp. 34, o(i, may see ample reason to ■ nvinced of this. As ha. bein before stated, no decision of the common law courts directly in point, can be found, laying down the law to be, that to alien its real property at pleasure is incident to a corporation. It is true, that in a celebrated case Lord C. J. Holt said, obiter, " It is a funda- mental point of law that a lee may be charged or aliened (Litt. 360), and n<> person, natural or politic, who has a fee but may alien it"(y). Hut there are peculiarities in the nature of the estate which a corpora- tion has in its real property, to which Lord C. J. Holt does not appear to have adverted, in .peaking as though a corporation had a fee, in the .one sense, that a natural person is said to have a fee in landed pro- perty. For Sir E. Coke, in commenting on the very section of Little- ton cited by C. J. Holt, shows that what is there said is to be " understood of conditions annexed by the party to the grant or sale of the lands, and not to any other collateral thing" (c). Even a private individual may constitute a fee simple conditional of this kind. Thus, where a man devised lands to his wife, to dispose and employ them on •If, or on his or her son or sons, at her will and pleasure, it was held to be fee simple conditional, so that if the wife aliened to a stranger it would be a forfeiture (a). So a condition may be annexed by custom to an estate in fee simple; as the payment of a heriot in respect of a tenement of free lands held in fee simple of a manor(i). And the grant of lands, &c, to a corporation differs, in this, from a grant in fee of lands to an individual, that in the latter case the whole interest and property is out of the grantor, "so as he has no possibility of a reverter" (c), which is not the case in a grant to a corporation, where there always is a possibility of reverter on the event of the dis- solution of the corporation; for in such case the lands revert to the donors, or their heirs (c), that being a condition of law annexed to (y) The ('..inker's case, Skin. 602. A gift tical corporation, on condition not to alien, to a corporation a par Dod- is good ; Co. Litt. 224a; Com. Dig. Condi- ,i rood, Rol. Hep. ;t?n, don, D. 6. 37 1 ; x ,d. Junk, i l bis (") Anon.Dalison,58; which case was cited certainly be true of private corporations and acted upon in Crockett i. Crockett, 2 i a nature that lai l'liill. 5. r )7. mtv for the maintenance of tin: | (/<) Duntnll i. Protheroe, 10 Q. 15. 20; ncorporation ; ex. gr\< equally applicable to all filled ■ si 1 l.ni'l , ex.gra. other corporations, mutatii mutandis. . he (t) I id. per Sir ('. Pepys, M. R., in Att.- different, and they may be entitled I G< 1 «. Mayor, &c, of Liverpool, 1 My. & of them; Croft v. 1 low el I, Plowd. Com. 538. C. 201. Ai present, therefore, an information I I Vin. tinst a corpoiation, alleging that it was . 1 . ["he mode of pleading estati for purposes of public I oration points to the same utility, and that it had sold part of such WHAT ESTATES A CORPORATION MAY GRANT. 137 therefore, to be reduced to this, can any corporation, of a civil and public character, be said to hold lands otherwise than " clothed with public duties." Such lands can only be held for corporate purposes, or, in other words, subject to public duties (n). Moreover, there appears to be some difficulty in coming to a sa- tisfactory conclusion on the question, how for the courts of equity will sanction alienation of trust property, for charitable purposes, by the corporation in whom it is vested for those purposes. Lord Eldon appears to have repudiated, for the Court of Chancery, the power of ordering a charity estate to be sold, saying, that an act of par- liament would not go so far, and that acts were sometimes passed to authorize the exchange of an estate belonging to a charity for another, but not to convert it into money (x). Though four years pre- viously, Sir T. Plumer, M. R., had been of opinion that there is no positive law which says that, in no instance, shall there be an absolute alienation ; adding, that on many occasions, by authority of the court, alienations had taken place; and mentioning a case of a dilapidated house, which there were no funds to rebuild, and which it had been found, on a reference to the Master, it would be advantageous to the charity to sell, and Sir W. Grant, M. R., on the authority of a decree by Sir T. Clarke, M. R., or Sir T. Sewell, M. R., had directed to be sold(?/). Again, it was laid down by Lord Brougham, in the House of Lords, that an alienation may not only be harmless, as regarded as a breach of trust, but may be fit for the trustees to adopt, and be such as, on an information by the Attorney-General, they might be com- pelled to make; and he put the case of 1000 guineas being offered for the corner of a field for some particular purpose (z). On the other hand, it has since been held, that where ten acres of charity land were alienated by the trustees in consideration of 55/., and a fixed rent charge of 61., it was incumbent on those who claimed the benefit of the alienation to show that the transaction was beneficial for the charity, and that not being done, the transaction was invalid (a). And in another subsequent case, though the authority of the court to order a sale was asserted, it was limited to very special cases (b). Still later, an order of reference to the Master to enquire whether it would not be estate, and was proceeding to sell the rest, ing societies, or any other corporations within would be good; vid. Att.-Gen. v. The Cor- the scope of whose institution it may be to poration of Carmarthen, Coop. 30; Att.-Gen. deal in land by sale, &c. Vid. Lowe v. r. Mayor, &c, of Plymouth, 9 Beav. 67; Govett, 3 B. & Ad. 864. which decides that where a corporation has un- (x) A tt.-Gen. v. Buller, Jac. R. 412, a.d. dei'taken the performance of a public trust, 1822; rid. Att.-Gen. v. Brooke, 18 Ves. 320. they cannot divest themselves of the means of (y) Att.-Gen. v. Warren, 2 Swanst. 300, fully executing it. In Reg. v. Mayor, &c, 302, a.d. 1818. of Liverpool, 9 A. & E. 435, corporation (s) Per Lord Brougham in Att.-Gen. v. funds were treated as property held, since the Hungerford, 2 Cla. & ¥. 357. Municipal Corporations Act, as in trust for the («) Att.-Gen. v. Bieltingham, 3 Beav. 91. public, which shows that the above doctrine (/») Atu-Gcn. v. Mayor, &c, of Newark, is not unknown to the courts of common law. 1 Hare, 400. A sale was ordered in such a (it) Of course nothing that is said in the very special case in Atl.-Gun. i. Nethercoat, text applies to such corporations as hold cited id. 400. lands for purposes of trade; ex. gra. build- 138 PROPERTY. for the benefit of the charitj to sell a ruinous house, which the charity had no funds to repair, was refused \\ here an estate has been improperly alienated and diverted from a charitable purpose, length of possession, although by a charitable cor- poration, to the charitable purposes of which the proceeds of the pro- pertv have been applied, the alienation will not prevail against the original charitable trusts. Thus, where a legacy for the benefit of of a parish had been laid out in land, and vested in fe- ofiees, who afterwards sold it to a person who, for a pecuniary consi- deration, disposed of it to the corporation of the governors of Christ's pital, and the latter had continued in the enjoyment of the rents and profits fa- fifty-four years without question, they were obliged to re-convey the property upon the original trusts (J). Perhaps it is not too much to say that the weight of authority is against the assumption of such power by the Courts of Chancery; and at all events it is admitted, apparently on all hands, that corporations have no power of themselves, and without at least coming to the Court i hancery to enable them, to alienate charitable trust estates (in which term are now included all the real property of municipal corpora- tions (e),) under any circumstances, unless when authorized by parlia- ment. Equity will always decree an account, in those instances where cor- porations have been empowered by parliament to undertake public duties, of a nature calculated to benefit the inhabitants of the town or city. Thus where a corporation was empowered by statute to supply their city with water, and to levy rates on the inhabitants to meet the expense of bringing the water, &C., and had appropriated part of the Due arising from the water rates in a manner not strictly falling within the provisions of their local act, they were held to be answerable for .ill sums thus appropriated (/). But it must be observed, that when a corporation is trustee of funds for public purposes, they cannot bo made accountable to any private person in a suit in equity, though they may be accountable to the crown on an information {y). This is a distinctive characteristic of a corporation, that it is account- able in equity for misapplication of trust funds, whereas any other body of men, ai a parish, can only (where relief can be had at all) be touched through the individuals, or their representatives, who have committed the actual breach of trust [h), mi tiiiu-, it would appear, that, not merely lands but funds, held by corporations in the circumstances just stated, have been considered as I ,. In 1. [0B1 (e) Parr v. Ait.-Ccn.. 8 Cla. fit P. 409. • 171, i.o. Mayor, ficc, of Dublin v. Att-Gen., I rporatioD of Ply- F. 289 ; Att.-GeD. v. Lord Gort, 6 . P. C. 136. (d) An.. ( i.-u. i. Chi I, 3 M •■ I pany v. Irish Society, I; el nd. pei Sir E. S .. Ch. 12 Cla. 8c F. 4 I ol Donation ». Wy- ('i) Ei parte Powlser, 1 Jac. 6c \V. 70. DIM! 194. WHAT ESTATES A CORPORATION MAY GRANT. 139 funds held for charitable purposes, and the jurisdiction of equity over them has been asserted on that gound, which seems to be asserting the same principle, only less directly, that has just been stated with respect to lands; at any rate this doctrine strengthens the view which has been sub- mitted in the above observations; for if funds in the hands of corpora- tions are treated as inalienable, or, what seems to be the same thing, as inapplicable to any other purposes than those declared purposes for which corporations hold them, it follows that lands held for specific public purposes cannot be applicable to any other purposes, much less to the private purposes of the existing body of corporators at any given time, in disherison of their successors for ever. Thus we find it laid down, that funds supplied from a gift of the crown, or the gift of the legisla- ture, or from a private gift, for any legal, public or general purpose, are charitable funds to be administered by courts of equity (i). Applying this position to the case of real property, no proof appears capable of being given, that any civil corporation, of a public character, ever received lands by grant from the crown, from parliament, or from individuals, for any other than " public or general purposes," that is, the purposes of the corporate existence of the body politic, excepting of course the cases in which corporations hold lands in express trust for specified objects, which they may do for objects of a nature with which the public and the corporation at large have no concern (k). If that be so, the difficulty is great of conceiving how it can be competent for a body, with a per- petual succession, to which lands have been granted in furtherance for ever of certain objects, to the support and maintenance of which, in the judgment of the donors, the possession of lands would be instrumental, to part with that land for the personal benefit of the existing members of the corporation, without any regard to such intentions of the donors, and as it were barring the entail to the successors. With respect to lands bought from corporate funds, the same difficulty arises. How is it consonant with the acknowledged principles of corporation law, that one generation of corporators should have power to devote, to their private emolument, funds that a former generation has invested agree- ably to the purposes of the institution (Z)? When corporations are authorized to part with real property, the best mode of conveying it is by feoffment, it is said (w) 5 though it seems (i) Att.-Gen. v. Heelis, 2 Sim. & S. 76. parliament to purchase and alien lands; 5 & (k) Mayor. &c, of Gloucester v Osborn, 6 Will. & M. c.20, s. 20 ; 8 & 9 WU1.& M. 1 II. Lords' R.; vid. sup. p. 116. The doc- c. 20, s. 26. So the stat. 15 Car. 2, c. 17, trine is recognised, that if a corporation which incorporating the commissioners of the Bed- cannot take by the Statutes of Mortmain has ford Level, expressly empowers them, by s. 2, an estate devised to it in trust, not for cha- to purchase lands and to dispose of them to the ritable but for private uses, the uses are not use of the corporation. So the stat 32 Geo. 2, defeated by this deficiency ; 1 Bro. Cha. Cas. incorporating London Hospital, Whitechapel- 8 1 . road . (0 Hence, when the Bank of England was (m) Walk. Conv. 411, 8th edit. established, it was expressly empowered by 1 10 PROPERTY. that bargain and sale of land, by a corporation, will be held a good and valid conveyance (n). Of this however there is some doubt (o). Municipal corporations, since the 5th day of June, \. i>. 1835, are icted as to alienation, mortgage, demise, lease, or other dispositions of their land-, tenements, or hereditaments, by the following special provisions of the -Municipal Corporations Act, which for ever set at rest the above questions as to them. And be it enacted, that it shall not be lawful for the council of any body corporate to be elected under this act(p), to sell, mortgage or alienate the lands, tenements, or hereditaments of the said body corpo- rate, or any part thereof, except in pursuance of some covenant, con- tract or agreement, buna fide made or entered into, on or before the fifth day of .lime in this present year (i.e. 1835), by or on behalf of the body corporate of any borough, or of some resolution duly entered in the corporation books of such body corporate, on or before the said fifth dav of June, or to demise or lease, except in pursuance of some covenant, contract, or agreement, buna fide made or entered into, on or before the said fifth day of June, by or on the behalf of such body corpo- rate, or in pursuance of some resolution duly entered in the corporation books of such body corporate, on or before the said fifth day of June; or, except in the cases hereinafter mentioned, any lands, tenements, or hereditaments of such body corporate, or any part thereof, or to enter into any new covenant, contract, or agreement (except in the cases here- inafter mentioned) for demising or leasing any such lands, tenements, or hereditaments, or any part thereof, for any term exceeding thirty-one years from the time when such lease shall be made, or, if made in pursuance of a previous agreement, then from the time when such ement shall have been entered into; and in every lease which the said council is not hereby restrained from making, there shall (except in the cases hereinafter mentioned (q) ) be reserved and made payable, during the whole of the term thereby granted, such clear yearly rent(r) BS to the council shall appear reasonable, without taking any tine for the same: provided nevertheless, that in every case in which such | n ) Holland V. Bom, 2 I Such include corporations <•:■ the passing mode of convi baa been laid down, of tins act, for their councils must be elected would at an j ■ on which under this act. It appears to be doubtful the ri tunded wen made by whether a corporation wonld be indictable for way i • common law, with actual contravening this enactment ; Reg. v. Nott, 4 entry by the lease ; Wal ' ■■ Now, Q. B. 773, org. Corporations had been au- bowever, 7 v\ *i \ to thorized generally to sell lands, rente, &c, for Be 9 Vict the purpose of redeeming the land tax, with the assent oi two i>, Croydon Ho-pital /. ■ ■. , (> Taunt. 467. .1 (q) I nl. bs, 95i 96. \ nut reserved, payable quarterly or snot hall yearly, is still a ye irly rent, and therefore Buttl ( i>. I. ilt. I 1 ;i ; Dean of : p.37 ; 12M.& W. 362, •V'l . , 6 ^ 6 Will. ".ill Vv II \T ESTATES A CORPORATION MAY GRANT. 141 council shall deem it expedient to sell and alienate, or to demise and lease (s), for a longer term than thirty-one years, or upon different terras and conditions than those hereinbefore mentioned, any of the said lands, tenements, or hereditaments, it shall be lawful for such council to repre- sent the circumstances of the case to the lords commissioners of his majesty's treasury ; and it shall be lawful for such council, with the ap- probation of the said lords commissioners, or any three of them, to sell, alienate, and demise any of the lands, tenements, and hereditaments of the said body corporate, in such manner and on such terms and conditions as shall have been approved by the said lords commissioners : provided always, that notice, of the intention of the council to make such application as aforesaid, shall be fixed on the outer door of the town-hall, or in some public and conspicuous place within the borough, one calendar month at least before such application, and a copy of the memorial intended to be sent to the said lords commissioners shall be kept in the town clerk's office during such calendar month, and shall be freely open to the inspection of every burgess at all reasonable hours during the same. Sect. 95. Provided always, and be it enacted, that in all cases in which any body corporate shall on the fifth day of June in this present year (1835) have been bound, or engaged, by any covenant or agree- ment, express or implied, or have been enjoined by any deed, will, or other document, or have been sanctioned or warranted by ancient usage or by custom or practice, to make any renewal q£ any lease for years, or for life or lives, or for years determinable with any life or lives, at any fixed or determinate or known or accustomed period, or after the lapse of any number of years, or on the dropping of any life or lives, and years determinable after the lapse of any number of years, at a fine certain, or under any special or specific terms or conditions, and also in all cases in which any body corporate shall theretofore have ordi- narily made renewal of any lease for years, or for life or lives, or for years determinable with any life or lives at any fixed or determinate or known or accustomed period, or after the lapse of any number of years, or upon the dropping of any life or lives, upon the payment of an arbi- trary fine, it shall be lawful for the council of such borough to renew such lease for such term or number of years, either absolutely or deter- minable with any life or lives, or for such life or lives, and at such rent, and upon the payment of such fine or premium, either certain or arbi- trary, and with or without any covenant for the future renewal thereof, as such body corporate could or might have done in case this act had not been passed. (s) Vid. s. 96. The word mortgage being mortgage or charge, demise or lease, and to omitted in this part of the clause, in order to every other disposition of the same whatsoever, remove doubts it was enacted bj (> l\ 7 Will. which shall be so approved of as aforesaid." 4. c. 104, s. '2, that this power of disposition Semble, this approval ought to be obtained " shall extend to the disposition of such lands, previous to expenditure intended to be covered tenements and hereditaments, with such ap- by the mortgage, &c. ; vid. Att -Gen. v. Eurl puliation as aforesaid, whether by way of of Mansfield, 2 Kuss. 501 . absolute mortgage or by way of exchange, ] |£ PROPERTY. Sect. 96. Provided nevertheless, and be it enacted, that in any of the instances hereinafter mentioned it shall be lawful for the council from time to time to demise and lease, or to enter into any contract or agreement fur demising ami leasing, any of the said lands, tenements or hereditaments to any person, body politic, corporate or collegiate, for any term not exceeding seventy-five years from the time of making the lease or agreement, that is to Bay, of tenements or hereditaments, the greater part of the yearly value of which shall at the time of making the lease or agreement consist of any building or buildings, of land or ground proper for the erection of any houses or other building there- upon, with or without gardens, yards, curtilages or other appurte- nances to be used therewith, and where the lessee or intended lessee shall covenant or agree to erect a building or buildings thereon of greater yearly value than such land or ground, of land or ground proper for gardens, yards, curtilages or other appurtenances to be used with any other house or other building erected or to be erected on any such ground, belonging either to such body corporate or to any other proprietor, or proper for any other purpose calculated to afford convenience or accommodation to the occupiers of any such house or building (t). By sect. !)7 it is provided, that collusive sales, demises, and purchases of corporate property made since the 5th June, 1835, may be set aside ; and the mode of doing it is fixed, and the costs ordered to be paid out of the borough fund in all cases, whether there were no consideration or an undue consideration for the transaction (u). And where a lease had been granted by the unreformed corporation, bearing date July 14, [885, by indenture, and the corporation and the lessee had respec- tively retained the lease and counterpart, but the reformed corporation being of opinion that the lease was granted collusively, and that the nut reserved was too small, summoned a jury under this section, who found that the rent ought to be much increased, and the lessee elected to pay the increased rent, and the finding of the jury was indorsed on his counterpart of lease, it was held, in an action against him to recover the increased rent by the corporation, that the lessee was bound to produce his counterpart and allow a copy of the indorsement to be taken, although the inquisition itself was in the possession of the cor- poration (z). (t) No mention, it will be observed, is that had been the usual mode of Idling; Att.- made in this Motion ot the fine to he taken or (Jen. i. Crook, 1 Keen, 121. the rent to h referred, although bj act. 94 (u) As to the jurisdiction of the Court of t',\ real iihj-u he reserved in )■ Chan to restrain appropriations of cor- under that section. In it< property not wan-anted by this act, lity, it i- provided by6& 7 Will. 4, notwithstanding the special remedies pointed ;, -. J, that the power of disposition out in. »ect 97, vid. Att.-Gen. ». Aspinall, 1 given to the council bj this section " shall My. & C.613; Att. -Gen. ». Wilson, 9 Sim. . i ither at a re- 30 j Bid. infra; 4 Beav. 325. rent or a fine, or both, as n (i) Mayor, Sec, of Arundel <. Holmes, shall think ht." And the corporation might 8 Dowl. lib. their charitable; trust lauds at a fine, if WHAT ESTATES A CORPORATION MAY GRANT. 143 With respect to demises for years, it seems scarcely necessary to observe, that where, by their constitution, a corporation are restrained from granting leases for more than twenty-one years, they cannot covenant for a renewal of the term, any more than they could have originally granted a lease exceeding twenty-one years ( y). But where there was only some evidence of the lands being held by a corporation subject to a payment to a charitable use, but not sufficient to establish that the property was trust property, and the lands had been usually let by the corporation on leases renewable for ever, the corporation was compelled in equity to grant a new lease (z). On a covenant in a corporation lease to renew upon the falling in " of one life for ever," there is no equity to extend it to the case where two lives are suffered to fall in, and it makes no difference that a compensation is offered (a). A corporation might have leased their real property for a life or lives by deed, constituting an attorney under their common seal to make livery (b), although before the statute of Anne, upon principle, it would have been difficult perhaps to have supported such a disposition of the common property, because during the term they could have no remedy for the rent reserved ; but that statute (c) enacting " that it shall be lawful for any person having any rent in arrear or due upon any lease or demise for life or lives, to bring an action of debt for such arrears of rent, &c," includes corporations, who may therefore, by virtue of it, demise for life or lives, with no more detriment prima facie to the cor- porate property than in the case of a demise for years. Now, however, as the stat. 8 & 9 Vict. c. 106, s. 2, has enacted that all corporeal tene- ments and hereditaments shall, as regards the conveyance of the imme- diate freehold thereof, be deemed to lie in grant as well as in livery, it seems doubtful whether livery of seisin is necessary to be given by a corporation any more than a common person, and consequently whether such warrant of attorney is required to complete the conveyance of an estate for life from a corporation. Where a corporation had leased for ninety-nine years, determinable on three lives, and covenanted that they and their successors, when and as often as either of the said three lives should die, and there should be only two lives remaining in the premises, if the lessee, his (y) Lydiatt v. Peach, 2 Vern. 410; Tay- to give livery, for without livery it is not a lor'w. Dulwich Hospital, 1 P. Wms. 655; demise; Vynior's case, 8 Rep. 82 b; Throck- Watson v. Hemsworth Hospital, 14 Ves.333. morton v. Tracy, Plowd. Com. 149. More- (s) Gozna v. Aldermen, &c, of Gran- over, omnia rite acta esse prtesumuntur, is a thain, 3 Russ. 261 ; vid. per Lord Hard- maxim applying especially to corporations, vvicke, C, Barnard. Ch. Rep. 151. and not to be departed from even in their (a) Bailey v. Mayor, &c, of Leominster, favour ; Yarborough v. Bank of England, 16 3 Bro. Ch. Cas. 528. East, 6 ; vid. 4 B. & Ad. 315; Cro. Jac. (ft) Throckmorton v. Tracy, Plowd. Com. 153 ; 3 B. & A. 156, 160, n. (6). The au- 149. The warrant of attorney giving seisin thority given by such warrant could not be may be contained in the lease itself; Moyl v. granted over ; Finch, Law, 17 ; but it might Ewer, Cro. Eliz. 905 ; vid. 2 Wils. 165; 2 be countermanded at any time before it had Rol. Abr. 8, pi. 12. But it is not necessary been put in execution ; Finch, L. 32. for any one in pleading such lease to show (c) 8 Ann. c. 14, s. 4; vid. Talentine v. that the corporation made warrant of attorney Denton, Cro. Jac. 112. ]|| 1 ROPERTY. . should within six months next ensuing the decease of such life, &c, apply for a new lease, &c., and pay a line of 4-1 for a new lease i f the said premi ., they would add a third life in the said premises, and grant a new lease, &c, &c., and so from time to time ever after, as often as the case should so happen," and the plaintiff(who was one of the lives, and assignee of the interest of another of the livi s did not apply for a renewal of the lease until the other two lives had dropped; it was held, that, the plaintiff having exercised his elec- tion whether to renew or nol on the falling of the first life, the corpo- ration were not bound to renew after the falling of the two, and that the lea-e was forfeited d). A lease by a corporation of charity pro- perty for ninety-nine years, determinable on two lives simpliciter, may be good, if, with a view to all the circumstances, the court can be satis- fied that the contract has been for the benefit of the charity, that this mode of letting has been the ancient and uniformly pursued mode, and cially if it be the mode usual in the district where the estate lies (c). However, a mere husbandry (not a building) lease, for 260(f), for g ), or for 70(A) years, where the rent is invariable, and where there is no consideration but the rent, will not be supported in equity, be- cause making such a lease is almost equivalent to parting with the in- heritance. Still less, in general, can a lease for 999 years be sup- ported /) ; but even such a lease will not be set aside if made in Mich circumstances as to show that the transaction was for the benefit of the charity at the time, and that the lessee had made valuable im- provements on the land at great expense, not being merely ornamental but substantial, as by large buildings, . Brook, .. Griffiths, 1 3 \ 126; lrt.-Gen.».Kerr,2Beav. 420. i / ) Ait.-(.. ii. i).l i ..<.k. I Keen, 121. \u..(i.i,. ei (in) Att.-Gen. e. Pembroke Hall, 2 Sim. Bt . Ladyman, 1 C. P. Coop. Stu. 441 j S. C. affirmed, 1R. & My. 751. WHAT ESTATES A CORPORATION MAY GRANT. 145 what shall be the duration, the corporation cannot exceed that limit, either by direct or indirect means (71) : and it has been laid down, that it requires an act of parliament to empower a trustee of charity property to deviate from, by overstepping, the intentions of the founder or donor of the estate (0). On the other hand, it seems that courts of equity exercise the power of controlling a trustee from leasing for three lives or thirty-one years, though the founder's will enabled him to do so, when they are satisfied that it is for the benefit of the charity not to act on the power so granted to the trustee (p). Again, a lease of charitable trust lands, of whatever duration (as it seems), will be set aside if the land be let at an under-value (o) ; but it must be fully proved that the under-value is considerable in amount (r). However, unless it be proved also that the lessee has acted unfairly or dishonestly, he will not in general be turned out (s) ; but if he were himself one of the corporation in whom the trust is vested, or one of the governors of the charity, he would, as a matter of course, be pre- vented from remaining lessee (t) ; and, in general, it is held, that when- ever a lease is set aside on these grounds, the whole transaction is an- nulled, so that neither party can sue on the executory covenants of the lease (u). On the other hand, where a lease of charitable lands has been granted by the corporation, contrary to their duty, and in breach of the trust, the lessee (in circumstances) may be made to account for the rents and profits, and be saddled with the relator's costs (x). With respect to the form of corporation leases, it is only necessary to observe, that no particular language is required in such leases, any more than in any others (?/). Formerly almost absolute accuracy was required in setting out the name of the corporation demising, and the courts allowed corporations to invalidate their own leases on grounds of misrecital of this nature, that would now be considered quite fri- volous (2), but the injustice of such proceedings was very manifest, and equity very early, at latest in the reign of James 1, began to relieve against this doctrine of the courts of common law, Lord Ellesmere, 00 Att.-Gen. v. Griffith, 13 Ves. 565; Baliol College, 9 Mod. 407, 411 ; Att.-Gen. Lydiatt v. Fouch, 2 Vern 410 ; Att.-Gen. v. v. Kerr, 2 Beav. 420 ; Att.-Gen. v. Griffith, Master of Hemsworth Hospital, 14 Ves. 333. 13 Ves. 580. («) Att. Gen. v. Mayor, &c, of Rochester. (<.) Att.-Gen. v. Morgan, 2 Russ. 306. 2 Sim. 34; Att.-Gen. v. Warren, 2 Swanst. (x) Att.-Gen. v. Corporation of Cashel, 3 302, 303. Dru.& Warr. 315, where Att.-Gen. v. Mayor, (p) Exparte Berkhampstead School, 2 Ves. &c, of Exeter, 2 Russ 362, was cited for the & B. 138 ; vid. 2 Vern. 596. principle on which corporations who have re- (. Mag wood, 18 words show the parties to have contemplated Ves. 315. the creation of a present interest in the sub- (s) Ex parte Skinner, 2 Meriv. 453, 457. j ect- matter ; I'oole r. Bentley, 12 East, 168 ; (t) Att.-Gen. v. Dixie, 13 Ver. 519 ; Att.- Doe il. Morgan v. Powell. 7 M. & Gra. 989. Gen. v. Earl of Clarendon, 17 Ves. 500; (s) Fid. 1 Piatt, Leases, 182, 183, a list vid. Att.-Gen. v. Green, 6 Ves. 452, as to of cases in which objections of literal and additional rent. Allowance may be made for other trivial errors in the corporate name lasting improvements, not being merely orna- have been held fatal to the lease, vid. eiutm, mental, when lease set aside ; Att.-Gen. v. 6 Taunt. 4b7 — 483. ] \C> PROPERTY. (' . laying down, in effect, that an error in the name of a corporation demising by lease was of no importance, so long as it could be Been that the same corporation was infant, and that there was no other cor- .011 to which the name in the lease could be reasonably taken to . and he added, that this was the old law, and that judges might have done well at the firsl to have expounded it so (a). At present it may be considered to be perfectly settled, that a corporation being proved to have duly executed a lease or other instrument, will not be allowed to urge, in avoidance thereof, that they have miscalled them- selves in their own deed (6). The maxim is, nihil facit error nominis cum (It carport constat. \ lease by a corporation, like every other act of the corporation externa] to the body politic, must be the result of a regular corporate ution, that is to say, a resolution passed by a majority of those nt at a meeting of the corporation duly summoned, held in the accustomed place, and attended by the integral parts of the corporation ; or a resolution duly passed at a meeting of the council, or such other body as may be duly authorized to represent the corporation (c). Therefore, no lease can be made by a corporation during the vacancy, by death or otherwise, of the headship, or the office or place of any other integral part of the corporation, for during such vacancy there cannot be a regular corporate meeting, and therefore the powers of the corporation are in suspension or abeyance, and no corporate act can be dune except the filling up the vacancy. The reddendum need not make the rent payable to the corporation and their successors ; to make it payable to the corporation is sufficient, and indeed preferable; for a lease by a corporation differs, in this respect, from a lease by a common person, in which, if the rent is re- served to the lessor, without adding "and to his heirs," the rent is by hi- death, and the lessee holds the land for the remainder of the term discharged of rent (d) ; but where a corporation leases, its (a) Cary, 4-1. I: - • n 18 that there are corporation, absolute accuracy in the name is e being done. 33 Y,\h. Ld. not requisite, provided the evidence does not Audi' loth. 228 , '"'. Com. show that the inaccuracy is so flagrant as to 1.1 amount to a variance; Doe d. Mayor, 6tc, (fc) ( roydon Hospital o. Farley, 6 Taunt of Maldon v. .Miller, 1 B. & A. 699; vid. 480; i 122; Clark's case, 4 I eon. II. But a distinction , i B. & Ad. ■ - i. J omlist. 234; baa been taken between laying a demise by a Gilb. Hist. C. li. sole and an aggregate corporation, lor though 181 ; I I'-. In a lease by ;t cor- in the latter case it is not necessary to slate porat t the the christian name of the head, the christian i. Newton name of a corporation sole ought to be stated ; 3 3%lk. 103; but in | Carter v. Cromwell, Dyer, 86, marg. ; Com. by a corporation, the com ftbecor- Dig. Pleader, 2 B. 1. poiition ought to In.- stated, it would seem, (<•) Hascard v. Somamy, Freem. 504. the full na (it) Co. I.itt. 47 a ; Cro. Car. 289 ; Finch, ividnab mentioned in pleading ; AppeL Law, 65; 2 Wins. Saund.367. Soifacor- i. Blancb, 14 M. fit W . 164 . I"urner poration by deed under their common seal granl m annuity to a person in fee, without 1 iT'i . I v,r\ II i. Aynsworth, 'J Str. 787 ; saying that ibey grant it for them and their ' Bay ley, J., sue the successors are charged with in Jo • !''• How- the annuity, because the deed charged the ever, in laying the demise in ejectment by a whole corporation ; though where a man WHAT ESTATES A CORPORATION MAY GRANT. 147 characteristic of continuous identity obviates any question of this nature, for it continues the same lessor throughout the term. A fundamental proposition of corporation law declares, that no inte- rest can pass out of the body politic, except by deed under the common seal (e). Consequently, every lease by the corporation, whether of cor- poreal or incorporeal hereditaments, must pass under the corporation seal, otherwise it is void ah initio (f); and, as it seems, such lease heed not be signed (g), notwithstanding the Statute of Frauds provides that all leases " not signed by the parties making the same, or their agents, thereunto lawfully authorized by writing, shall have the force and effect of leases at will only." However, the safe and unobjection- able mode of demising by a corporation is to seal the lease with the common seal, and also to sign it by the hand of an agent duly thereunto authorized by a separate instrument also under the common seal (A). Generally the deed of a corporation is complete by affixing to it the common seal, and does not require delivery (i) ; but in the case of leases, the usual course was for the corporation to seal the lease with the common seal, together with a warrant or letter of attorney to some one to enter upon the land, and deliver the lease, on behalf of the corporation, to the lessee (A"), and until such delivery on the land, no interest passed (7); for though it is true that sealing with the common seal of a corporation is tantamount to a delivery of the deed, yet in the case of a lease which was not intended to come into operation until delivery on the land, it is otherwise ; and the sealing did not include an effectual delivery, in the technical sense of the word, so as to make the writing a deed eo in- stanti ; for if it did, the second delivery would be null and void, it being a maxim, that if there be one effectual delivery of a deed, a grants an annuity in fee, without saying his Moore, pi. 191 ; Dyer, 132a; Sheph.Touchst. heirs, they shall not be charged, for it is de- 57. If the name of the lessee were left in termined by the death of the grantor ; Vin. blank when the deed was sealed, it would be Abr. Annuity, B. pi. 3 ; id. pi. 1 ; vid. Anon. void; 6M.& W. 214. Also, the presump- Dyer, 24 a. tion appears to be, that the common seal is (e) Yearb. 7 lien. 7, 9; Winne v. Bamp- irremovable from the domicile of the corpo- ton, 3 Atk. 475. Equity, however, will de- ration ; Jenk. Cent. 10. cree execuiion of an agreement to grant a (i) Com. Dig. Fait, A. 3; Anon. 1 Ventr. lease, though such agreement be made at a 257 ; vid. 9 East, 360 ; Davys, 44 b. time when some members of the corporate (k) Willis v. Jermin, Cro. Eliz. 167. At- body are wanting, if the consideration be torney to deliver a lease must be appointed paid ; 3 Atk. 475. under the common seal ; Dumpor v. Syms, (/) Yearb. 12 Hen. 7, 25, 26 ; Bro. Abr. Cro. Eliz. 815 ; Hibblewhite v. M'Morin, 6 Corporations, 51 ; Co. Liu. 85 a; 5 M. & M.& W. 2 14, is an authority that the principle Gra, 183, note; Rex v. Inhabitants of Chip- is general. ping Norton, 5 East, 239 ; R. t>. Inhabitants (I) Anon. 1 Ventr. 257; Good v. Ash, 3 of North Duffield, 3 M. &. Selw. 247. Keb. 307. The delivery of the lease may be (g) Cooch v. Goodman, 2 Q. B. 580. made to the attorney of the lessee ; Finch, (/<) Vid. sup. Common Slal. YVilks v. Law, 66, 73. With reference to pleading, it Back, 2 Fast, 142; Frontin v. Small, Stra. must be remembered, that a deed is always 705. But it seems unsettled, whether an intended to be delivered and have its essence altorney may be authorized to execute the at the time of the date ; and therefore, if a lease on behalf of the corporation, either by corporation declare on a lease as of such a affixing lo it his own seal or the corporation date, and afterwards reply, Nc, that it was seal, on the land out of England, as it might delivered subsequently, that is a departure ; be convenient to do in some case's, ex.gr. if the Oshey v. Hicks, Cro. Jac. 264 ; Hall v. Den- corporation held lands in the colonies; vid. bigh, Cro. Eliz. 773. l2 1 ' 8 PROPERTY. •id delivery is void (w). An illustration of what has just been said may be found in the case where a corporation made a lease for lives, dated :.'(;ih Nov. 17;<(). to commence from the day of the date, kc, and empowered an attorney to enter, &c., which he did on the 28th May, 1751, and the court held, that until the latter day the freehold remained in the corporation, and that the lease was good, although made to com- mence from the daj of the date (n). In case of a lease for years, the habendum can only he considered as marking the duration of the leasee's interest; the date defines the length of the term; the lease operafa grant prospectively only (o). The rule then is, that every lease by a corporation must be made under its common seal. Nevertheless, where a demise is made by a cor- ition, which is void as being by parol, hut the tenant enters and pays rent to them for the premises, such payment and receipt of rent is evi- dence from which a tenancy from year to year will be presumed, and the tenant will be held to be estopped from disputing the resulting lia- bility (p), for he has had all the advantage from the occupation of the premises that he could have had if the lease had been sealed with the common seal. On the other hand, it has lately been laid down as a ral principle, that although to enforce an executory contract against rporation, it may be necessary to show that it is by deed, yet where the corporation has acted as upon an executed contract, it is to he presumed against them, that every thing has been done that was necessary to make it a binding contract on both parties, they having had all the advantage they would have had if the contract had been ! uly made(o). The court, in pronouncing this decision, observe, " This i- by no means inconsistent with the rule, that in general a cor- poration can only contract by deed; it is merely raising a presumption \-\ them from their acts, that they have contracted in such a manner as to he binding upon them, whether by deed or otherwise ; and we are not aware of any decision or authority against this view of the case"(r). It might have been added, that the decision is strictly in accordance with avery old rule; that the maxim omnia ritt esse acta prccsninu/i- (lu) I'.rl. '. auIi approbation, 849,])!. 11. ph. Touchst 60; Co. Litt. (;-) Wood v. Tate, 2 \. 11.247; Doe d. 48 b, Stephen v. Eliot, Cro. 111/. 483; Pennington v. Taniere, 18 Law J. (N.S.) Jennings i Hep. 35 b ; Williams Q. B 4!i ; \ in. Aim. CorporatioOB, K. pi. ■ I ; Willi-, i. Jenny D, 11, 41. So where a lessee has enjoyed the 1 1. thing purported to Ik: demised under a pa- I p < man i. West, 'J WiU. 165; Hoc rol lease, he shall not be allowed to ael up d. Hale o. Rashleigh, 3 B ■> a. 156; Wal- the want of tbe forma required by the Statute terv. Dean and Chapter of Norwich, Moore, of Frauds; Karl of Ayleslord's ease, Stra. Tbe letter "t attorney may be con- 783. f; Moyl i. Ewer. Cro. (g) Doe d. Pennington v. Taniere, I8L.J. I il.Abi.8, (N.S.) Q, B. 53; vid. Edwards <. Grand fl. 12 , Salter i. Ki'l^le\, tarth. 77; Co. Junction Railway Company, 7 Sim. 337; ..it 55 1 My. -\ I . Sh w v. Kay, I Exch. 412; Enys v. < Doe d. Pennington t. Taniere, 18 L.J. Donmli .rr. 1190; 1 Rol. Abr. (N. 8.) Q. B. 53. WHAT ESTATES A CORPORATION MAY GRANT. 149 tar obtains absolutely and invariably with respect to the acts and pro- ceedings of corporations, so that it will not be departed from even in their favour is). The distinction between contracts executory and executed, as re- spects corporations, has already been noticed, and it is not necessary to say more upon it at present, but it is desirable, with reference to the subject of leases, to point out that the effect of the decisions respecting the occupation of corporate property is this, that whether the thing enjoyed by the person, holding from the corporation, be a corporeal or an incorporeal hereditament, the corporation may maintain either debt or assumpsit for the use and occupation thereof; for such action does not necessarily imply any demise (it is said) ; it is enough that the de- fendant use and occupy the premises by permission of the plaintiff, and a corporation as well as an individual may, without deed, permit a person to use and occupy premises or hereditaments of which they are seised (0- The distinction between a lease by a corporation which is voidable and one which is void, is this — Where a lease from any reason is voidable, there acceptance of rent by the corporation sets it up. If the lease is actually void from any defect, the payment and receipt of rent is evidence from which a demise from year to year will be pre- sumed in the case of a corporate, just as in that of an individual, lessor («). A lease may be made by the corporation to a corporator, and though such corporator should become head of the corporation before the end of the term, yet that does not vacate the lease (x), notwithstanding the old maxim that the same person cannot be lessor and lessee ; but where the head is an integral part of the corporation, and a lease is attempted to be made by the corporation to him, this is a void lease, agreeably to the above principle {y). And it is hardly necessary to say that the same (s) Yarborough v. Bank of England, 16 (N. S.) Q. B. 49 ; vid. 1 M. & W. 407 ; East, 6 ; vid. 4 B. & Ad. 315; R. v. Powell, que tarn, whether mere acceptance of rent by 8 Mod 165. a corporation without other circumstances, (t) Barber Surgeons of London v. Pelson, such as lying by and allowing tenant to lay 2 Lev. 252; Dean, &c, of Rochester v. out money on the land, &c, sets up a void- Pearce, 1 Campb. 466 ; Mayor, &c, of Slaf- able lease ; vid. Jenkins v. Church, Cowp. ford v. Till, 4 Bing. 75 ; Mayor, &c, of 483. At any rate the payments must be Carmarthen v. Lewis, 6 Car. & P. 608. A made and accepted as rent; Right v. Baw- declaration founded on a parol demise, when den, 3 East, 276. the demise ought by law to be under seal, is (x) Vid. 15 Vin. Abr. 362, pi. 3, marg. in ordinary cases bad on general demurrer; (y) Yearb.21 Edw. 4, fol. 15 ; 13 Hen. 8, Bird v. Higginson, 6 A. & E. 824. Though 12 ; 1 Hen. 5, 10 ; 14 Hen. 8, 2, 29, 30 ; 1 such allegation would be good after verdict, Salk. 398 ; Plowd. C. 155; Salter v. Gros- for the court will intend that the deed which venor, 8 Mod. 304 ; Soutlicott t>. Stowell, 2 was necessary to make the demise valid, was Mod. 211. So per Lord Mansfield, C. J., 3 proved at the trial ; vid. Partridge v. Bull, Burr. 1563 ; Adams v. James, J. Bridg. 109. 1 Ld. Raym. 136; Yarborough v. Bank of Nor can the head of a corporation take a England, 16 East, 6; Lightfoot v. Bright- bond from them, for lie cannot be obligor and man, Hutt, 54. obligee; 6 Vin. Abr. 304, pi. 2. Nemo po- (u) Doe d. Pennington v. Taniere, 18 L.J. test esse tenens et dominus ; Gilb. Ten. 142. [50 PROPERTY. principle applies to a corporation sole J and therefore a bishop, in his corporate capacity, cannol demise to himself in his natural capacity, but such lease i- wholly void. A lease by a corporation of things lying in grant would always be affirmed by acceptance of rent ; and though, for any reason, a lease by a corporation be voidable by them, the acceptance of nut by them proves their election to Maud by and set it up: and so if the lease is actually void owing to any defect, such acceptance of rent is evidence from which the existence of a term from year to year will lie presumed (z). Corporations makin'g dispositions of their lands by lease to charitable have been held not to be within the words " person or persons " in the Charitable l"ses Act, 9 Geo. ~, C. 36, s. 1, so that a lease made by a corporation of its lands (being already in mortmain) to such uses -d, without the formalities of that statute (a). The proper mode of demanding their rent is by attorney appointed under the corporation seal. But a general letter of attorney to demand rent on any part of the land demised is not good: the corporation ought to specify the land out of which the particular rent demanded arises, and ought to mention the name of the party from whom it is to be demanded : if they make it general to demand the rent of any person to whom they have leased land, the letter of attorney will be bad (6). On the other hand, the appointment of a bailiff to distrain for rent in arrear need not be by deed, because the making a distress neither vests nor devests any interest (at least this was the reason when the distress was only i . Austin, 3 I'oil-tr. 43. Still " a present- 10. liut an acquittance of a debt made by ation is ti"i t" be compared to a gran 1 or oilier the mayoi for the time being was not good, un- lar ;" ptr Coke, C. J., lees made in the name of the corporation, i :tij On tin- other hand, there ia though the practice from very early ttnu i ciion on this acore to a corporator en- otherwise; xearb. 2 Hie. 3, fol. 7, pi. 13; 7 • • and livery ol r- Hi n 7. fol. l<», pi. 2. poralii part (c) 26 Hen. b\ H. 1> ; Plowd. 91; WH- oorporation; tor ■ the same mot v. Mayor, &c, of Coventry, 1 5T.& Col. 518; I us i. Matthews, 1 Salk. 191; vid. i tion «ill not be tarn, Dixon v. Smelley, N, P. par Holt, C. J., • v km. 413. It would seem that now autho- en- rity to distrain, sell, and take the rentoul of tin proceed . ought to be under the common i ■ .Pen 18 L.J. seal. (d) Vid. Owen r. Saunders, Salk. 467 J 'A r . Richardson, 2 M. & W. S. C. I Ld. Raym. 53, 158. WHAT ESTATES A CORPORATION MAY GRANT. 151 and that a member may distrain in right of the corporation, and justify as bailiff ( make it binding upon both parties, according to the principle before Btated(o), the payments having been made and received as between landlord and tenant, and not on any other account or con- sideration ( p). A lease held under a corporation must now be surrendered to them (where there is an express surrender made) by deed, where the interest in the lands or hereditaments, held under the lease, was not a copybold interest (y). But a surrender will be made to a corporation, as it will to any other person, by operation of law, without deed, as where the lessee takes a new lease. This kind of surrender takes place inde- pendent of the intention of the parties (r), provided the second lease be a valid and good lease (s). But a concurrent lease can only be surren- dered by operation of law and not by deed, because there is no rever- sion in which it may be drowned (t). Where a lease under a corporation has expired, they cannot be com- pelled by mandamus to make a new one, for the court will not, in ral, interfere with a matter which, like this, is prima facie within the discretion of the corporation (u). It would be otherwise if the corporation were under obligation to renew by their constitution, or if they had contracted with the lessee to renew, and he would be injured by the refusal ; for in the first case the Court of Queen's Bench, and the second the courts of equity, would interfere to compel them to comply with their duty and obligations. Where a mayor had signed a (m) This rule does not extend to make it v. Bawden, 3 East, 260. for a corporation bringing eject- («) 8 & 9 Vict. c. 106, s. 3. • leinise to .lohn Doe to have (r) I, von/. Keed, 13 M. & W. 285, 306 ; ade by di ed, Sic. , Partridge p. Ball, Creagfa v. Blood, 3 Jon. 6; L. 133, per Sug- 1 Ld. EUym. 136; Doe PnocEBDiNG , Elections, .'Mandamus, md Cbapti r of Wells \<-. WHAT ESTATES A CORPORATION MAY GRANT. 153 contract for the sale of corporation lands, " on behalf of himself and the rest of the burgesses and commonalty of the borough," without being constituted the agent of the corporation for that purpose by instru- ment under seal, it was held in error, reversing the judgment of the court below, that he was not personally liable for the nonperformance of the contract ; and that although, not having been duly constituted the agent of the corporation, he was not competent to bind the corporation, they perhaps might have maintained an action for the breach of the contract (x). (i) Bovvcn v. Morris, 2 Taunt. 387 ; vid. 2 Brod. & B. 452. ( 154 ) ACTS AND PROCEEDINGS. \\i proceed to examine the rules under which a corporation acts, and enters upon and conducts proceedings. Every corporation being once constituted immediately becomes entitled to all the incidents of a cor- poration, so Ear as these are not excluded (as most incidents may be) by the charter or constituting act of parliament; but if it has become impossible to execute a power, given to a corporation by its charter, in the way appointed by the charter, and the 1 thing to be done is incident to the being of the corporation, it may be done under their common law authority to do all such acts as are properly within the scope of their institution (y). This is a principle to which it may be very im- portant in some cases to have recourse, as, for instance, where the corporation from negligence have allowed the day to pass on which the charter appoints a certain thing to be performed, or where a condition imposed on them by the charter has not been observed or performed in the appointed way, the default may sometimes be rectified by recur- ring to the general powers of the corporation as such. We may note here that where a charter grants certain things affecting the public, and annexes performance of certain conditions, the corpo- ration is liable to an action on the case, if in consequence of their non-performance of any of those conditions injury happens to an indi- vidual (z). It may be doubted whether the principle just stated, of recurring to the general powers of the corporation, with respect to chartered corpo- rations acting on their common law powers, holds with respect to those which arc constituted by act of parliament; and it would rather seem, according to general principles, that the mode specified in the statute for doing any act or thing must be adhered to with all its circumstances of time, place, &C; and that such mode being clearly indicated, no other could be adopted. The question does not appear to have been raised in the coin!-. Every corporate act must be done at a meeting, either of the whole body politic, or of such select body as may have confided to it, by the constitution, the performance of such act, which meeting must be duly convened by proper summons, and must be held in the usual place of meeting, the question being (in all cases not expressly provided for by the constitution of the corporation) to he decided by a majority of those (v) I Rot. Alir. 613, til. Corporation tt, 29. Bo of corporations constitute] by l i.iw. 4, fol. 55, pi. statute; Parnaby d. Lancaster Canal Com- p . I I \. ■ i 223, ACTS AND PROCEEDINGS. 155 present at the meeting, and voting on the question. Those who do not choose to vote on the question before the meeting, or who vote on any other question, are considered to vote with the majority of the voters on the real question, and so of those who are absent. When a meeting, at which a specified thing is to be done, is to consist of the different integral parts of a corporation, and each of these integral parts consists of a definite number of corporators, then the meeting will not be properly constituted, unless it be attended by a majority of the members of each integral part respectively (a). Where an act is to be done by a select body consisting of a definite number of corporators, it will not be valid, unless a majority of the select body are present at the meeting to do the act. If the act is to be done by an indefinite body, it is valid, if passed by a majority of those present at the meeting, however small a fraction they may be of the body at large. Formerly it was considered that notice to each member was only required in the case of select bodies, in order to have a properly con- vened meeting of the body ; of late, upon the ground that, in public corporations, it is the duty of a corporator to attend every corporate meeting of which he has due notice, the rule has been laid down that both in select and indefinite bodies the only mode of obtaining a regular corporate meeting is by duly summoning all those corporators whose duty it is to attend it ; that is to say, in case of a select body every member of the select body, and also in case of an indefinite body all that are members of it ; otherwise acts done at such meetings will be invalid (b). W T here there is a mode of summoning to corporate meetings founded upon long usage, that mode must be adopted, or the meeting will be irregular, and acts done at it invalid, even though personal notices or summonses were given to the corporators, whose duty it was to attend (c). Also where particular powers are lodged in a select body, they cannot act in the execution of those separate powers on a general summons of the whole body, but each member of the select body ought to be separately summoned in his distinct capacity (d). In corporations of a public nature, it being the duty of every cor- porator to attend corporate meetings, whether he means to take any part in the business or not, he cannot waive the summons, so as to excuse the summoning officer for not having summoned him on any given occasion, much less so as to make good acts done at a meeting, which is thus defective in respect of all who ought to be, not having (a) R. v. Bellringer, 4 T. R. 810 ; R. v. Mayor of Shrewsbury, Cas. Temp. Hardw. Morris, 4 East, 17. 147. (ft) R. u. Langhome, 4 A.&E. 538. Such (c) R. v. May, 5 Burr. 2682 ; R. v. Lang- acts will not be made good by showing thai it borne, 4 A. & E. 538. was by default of the summoning officer that (d) R. v. Mayor, &c, of Carlisle, 1 Stra. any corporator was not summoned; R. v. 385. 156 - \M> PROCEEDINGS. been, summoned (e). Nothing but impossibility will excuse the service immons in such public corporations, because the public have a right to the security arising from the Bervice of notice on each member of the meeting. The impossibility spoken of above arises in the case of ■ corporation having a local jurisdiction where the corporator has wholly removed from,and deserted, the locality (/); or where he left it temporarily, but upon reasonable inquiry the corporation cannot get information where he \s(g)] or where they do get such information, and find he is at too meat a distance to be able to attend at the time appointed for the meeting. In case of other corporations, still more special circumstances must often become ingredients of the question of impossibility, and perhaps almost the only rule that can be given with safety is, that the corporation in such cases should always be in a condition to prove that, at the proper time previous to the meeting, the usual summon- was served upon the corporator, or was left at, or in the usual way sent to, the corporator's usual or last known place of abode. cially in cases of elections, either of members, or officers, must notice of the corporate assembly be given to all corporators within summons (h). From what has been said, it might have been inferred that in cases where the constitution of trading corporations vests the management in a select body, who, in certain specified circumstances, are to perform corporate acts binding the whole body, and in other circumstances the whole corporation are to do the corporate act, the general body of corporators are equally concerned that due summons should be sent to v corporator, who has a right to be present at the meeting, on either of the above occasions ; for so only can they be secure that the general interests of the corporation at large will be properly provided for at the •ne.:. That security which the public have a right to in the case of public corporations, it seems that all persons directly interested in the concerns of trading corporations have equally a right to, in respect to their corporate meetings. The charters or constituting acts of parliament of such corporations ;ly provide, with considerable minuteness, for such matters, although probably, in most case8,the principles of the common law, resting on a number of decisions, and well known and ascertained, would have defined and decided rights of this sort quite as beneficially, and with more uniformity than has been done by the legislature. A corporator attending an ordinary meeting of the corporation is not ome, i I. A E.538. The Cas. Tern. Hardw. 151; It. v. Grimes, 5 ,<1 Burr. 2601. mi- (g) 7 Taunt. fiR8. for that time would probably render the > Burr. 2681 ; per Parke, ■ cling; It. r... 6 Q. I'.. ",i»7; Kynaaton V. Mayor of Shrewsbury, 2 Stra. 1051. iry, ACTS AND PROCEEDINGS. 157 privileged from arrest (i), though perhaps, if he were a member of a particular class of corporators specially ordered by mandamus to meet and do a certain act, then he would be privileged whilst going to, attending, and returning from, that assembly on that occasion (k). Generally every corporator is privileged and exempted from all question for acts within the competency of the corporation to perform, regularly done under the common seal, in which he has taken a part. A case, in which a corporator is individually responsible, in an action, for his share in a corporate act, is when it can be shown that he has made the corporate character a shield under which to effect malicious purposes of his own (Z). The summons ought usually to give some account of the business intended to be transacted at the meeting ; but it has been resolved that neither summons, nor other corporate notice, need be served out of the suburbs of the corporation (m). The only meetings for which no sum- mons is necessary, without it be expressly required by the constitution of the corporation, are the meetings for which set days are appointed by the constitution ; because, as every member is intended to be cog- nisant of the constitution of the corporation to which he belongs, he must be taken to be aware of what are the set days, and what the sub- jects ordained by the constitution to be brought before the meetings on those days (n). If, however, it is proposed to transact any other business, at one of the set day meetings, than such as is ordained by the constitution to be transacted thereat, summons must be made as in any other case(o). When business, that has been duly and regularly commenced at a meet- ing duly convened, &c, for the purpose, cannot be brought to a close at that meeting, it seems, though the point is not quite clear from doubt, that to every such meeting the power of adjournment is incident, for the purpose of finishing the business so begun (p). But when notice has been given of a corporate meeting for one particular object, and the meeting takes place, and enters on that business, they cannot go on to any other business without the consent of the whole corporation (q). But although all these forms be duly complied with, and no objection be alleged, either on the ground of the meeting not having been duly summoned, or not having been held in the proper place, or the votes not having been properly taken, although, in short, every thing has been (i) Nixon v. Burt, 7 Taunt. 688; Read v. become personally responsible for the costs Burt, 1 Moo. 413. occasioned by such delay; Reg. v. Mayor, (k) 7 Taunt. 688. &c, of Cambridge, 4 Q. B. 801. (/) Ilarman v. Tappenden, 1 East, 555. (m) Per Lord Hardwicke, C. J., in R. v. An action on the case at the suit of the party Mayor of Shrewsbury, 2 Kelynge, 283, 284. iniuied, id. ibid., or probably an indictment, (/() R. v Trevenan, 2 15. ^ A. 339. 3 Q. 13. 230, lies upon proof of malice ; vid. (<>) Per Coleridge, J., in Reg. v. Grimshaw, Att.-Gen. v. Wilson, Cra. & P. 1 ; et vid 9 Q. B. T. T. 1847. Ch.&c F. 269, 280; Att.-Gen. v. Redford, (/>) R. v. Mayor, &c, of Carmarthen. 1 M. 3 My. & C. 489 ; R. v. Watson, 2 T. R. 204. & Selw. 704. This power is apparently re- And where there is no malice, and the parties cognized by the legislature as belonging to merely delayed to do a corporate act from a meetings of the council in municipal corpora- doubt as to the legal bearing of the circum- tions; 5 & 6 Will. 4, c. 76, s. 69. stances in which they had to act, they may (tf) 6 Yin. Abr. 270, pi. 11. ACTS AND PR(H EEDINGS. done in the most regular manner as regards forms, yet a resolution or corporate act, having for its object to destro) the existing constitution of the oil ..rati. >n, is in the common law courts, if effected, as for as the form of affixing the common BeaJ goes, regarded as null and void, being beyond the competency of the corporation, whilst the courts of equity, in a case where that final step has not yet been taken, will interfere to prevent it 1>\ injunction until the hearing. Thus, in the case of a cor- don, not of a trading character, but having a capital or common Btock in which each corporator was interested individually, and which might become productive of pecuniary benefit to each, where a large majority had concurred, by a regular vote, in a resolution to surrender the existing charter for the purpose of getting a new one, altering the constitution of the body, it was held in equity that the charter, having limited the powers of those who were to authorize the affixing the com- mon seal, by conditions inconsistent with the notion of applying it for the purpose of annihilating the society, and the common law containing no principle allowing the interest, created by the charter in the funds of the corporation, to be destroyed without the consent of the whole body, an injunction must issue to restrain from affixing the common seal to such contemplated surrender, until the hearing (r). There is an obvious distinction between this case and that of muni- cipal and most other corporations, in which it is certainly true that a majority may in general authorize the surrender of the charter, so long a- there is nothing (which is usually the case) in their constitution to make it incompetent for the majority to come to such a resolution. But in the case just mentioned there are two points of distinction : First, the powers given to that part of the body to whom was entrusted the duty of affixing the common seal, were such as to exclude an object of this nature: and— Secondly, the mode in which the property of the corporation was held is different from that, in which the property of the other corporations referred to is held; and it is with respect to these last that the decisions forming the law of surrender of charters were made; for in those cases surrendering the charters involved only the parting with property held in right of the corporations, to no part of which was any corporator entitled individually (unless we take into ac- count rights of common held by corporations to be enjoyed by the indi- vidual corporators, an exception which can scarcely be considered as coining up to thi- case, because such individual corporators had not given value tor those rights of common, as each of the above mentioned tv had done for his Bhare in the common fund), and therefore the surrenders did not place an] our in ;i different situation from that, in which he stood before becoming . Severn Railway Company, 2 B. (u) Re°-. v. Eastern Counties Railway & A. 646; R. v. Bristol Dock Company, 2 Company, °10 A. & E. 549. Q. 15.64; 6 B. &l C. 181. (x) Rex v. Severn Railway Company, 2 13. (z) Ex parte Robins, 7 Dowl. 566. ](][) ACTS AND PROCEEDINI 3. the defendant was liable to pay the duties, and being so liable, promised to paythem,in one count, and to declare generally in indebitatus assumpsit in another count. In one case, it was declared, that the practice had been universal to declare B0(a); and it docs not appear that any decisions since the promulgation of the new rules of pleading have expressly altered that practice; but it seems contrary to the intention of the new rules to allow such counts to be used together, for certainly a distinct subject-matter of complaint cannot be said to be intended to be esta- blished in resped of each, unless distinct rights can be established ; but in tact, however the right be derived, whether from prescription or ancient grant, or grant in modern times, and whether the evidence to be brought forward, in proof of it, rests on letters-patent or long usage and acquiescence in the payment of the duties, the legal assumpsit to pay arises on the right to take, and therefore the right must be the cpaestion in dispute on each issue ; and therefore, unless distinct rights to the duties are to be set up on the two counts, they cannot, it would seem, be joined consistently with the new rules (b). Where a corporation is owner of a port they may sue in indebitatus assu)»psit, or debt, for duties incident to a port, as metage(c), weigh- age (d), water-bailiff's dues on goods imported (e), and generally for all petit customs and port duties they may maintain indebitatus assumpsit or debt, without stating any consideration ; for a port duty is held of itself to import a consideration, namely, the liberty of using the port(/), and it is not necessary for the corporation to show that they own the soil or repair the port, for it may not want repairing once in 200 years (g). Or they may sue, entitling themselves to the port and the incident duties, by prescription, or grant from the crown (h), stating that (a) Per Buller, J., Seward v. Baker, 1 T. 102. A corporation may have granted to it Tl. 618. Bui it seems that a claim for port a port duty, although it has no ownership of duties may be joined with a count claiming tolls the port ; Master Pilots, &c.,of Newcastle v. Ily, though, as it Hems, distinct claims Hammond, 18 L. J. (N. S.) Exch. 117. in respect <>t each count were not intended to ( f ) .Mayor, &c, of Exeter v. Trim let, 2 ace Bruoe v Thomp- Wil's. 95; Mayor, &C, of Yarmouth v. Eaton, 13; 8.C. 1 Car. & M. 34; 3 Burr. 1402; .Mayor, &c, of London v. M..\ W. \(>. A .(Mint for toll traverse Hunt, 3 Lev. 37 ; Mayor, &c, of Exeter v. be joined with one for toll-thorough, Warren, 5 Q. B. 773. am were claimed in both (g) Vid . 3 Burr. 1 -106, 1407 ; Warren v. counts; 1 M. .\ W. 19. Prideaux, 1 Mod. 104. It is better not to (M I'iJ. Jenkil , I M . & W. allege the consideration of keeping the port in 16. A declaration for tolls, charging that the repair, because, to do so, lets in questions lent was indebted to the corporation in whether such consideration is sufficiently al- a portion of the goods tl e.g.in500 leged; Wilkes ». Kirby, 2 Lutw. 1519 ; vid, quarters of wheat, without stating the value, 5 Q. B. 781. is bad forth r,&c.ofRead- (A) 17 Yin. Abr. 264, pi. 5 ; Mayor, &c, . | larke, 1 B. Si \. 268 ; although debt of Exeter v. Trimlet, 2 Wils. 95. The duties or indebitatus ammptit will he for a chattel; are incident to a port, because goods could l.arl of Falmouth t>. Pel 8 B. & C. : '"S5. not be brought there at all for landing, unless (r) Jenkioi v. 'Inlmr. I M. *\ W. lfi. As there were a port, ami that port being granted to what is the legal definition of • |ort, vid. to the corporation, the permission to land olleeted 5 Q. B. 789, 790; goods there is a consideration lor the duty 'j B. 'V Ad. 43 -. i"/. form of count in debt moving from them ; vid. /x-r Coleridge, J., 5 and port dues, 6 Q. B. 773. Q. B. 794. In pleading to a claim of port .; r, StC, of London i. Hunt, 3 dues, ifil b to state the right ot the 17; vid. I Mra. • subject to repair to ports, it will be demurrable (c) Muyur, 6tc, of Hull r. Horner, Cowp. to rest such right on a custom ; Bro. Abr. ACTS AND PROCEEDINGS. 1G1 the defendant became liable to pay such duties, and thereupon promised, &c. ; for the crown may create a port by its prerogative, and create port duties, being reasonable, and for the good of the subject (i), and grant the port, when the duties follow, or might, in ancient times, grant the duties, retaining or not retaining the port, to a corporation (It), who may sue for the duties in either case, and entitle themselves, by pre- scribing or showing the grant according to circumstances, that is, accordingly as the letters-patent have been lost, or can be produced (I). It may be here observed, that a claim for port duties is not against common right, as is the case with respect to tolls in a fair or market, but may originate, i. e. (semble) where the duties themselves are ancient duties, in a modern grant from the crown (m), and such claim may be enforced either for import (n) or for export (o) duties. The grant of the port must not, however, interfere with any vested right of a subject, but, provided that is avoided, the crown may create the port and assign its limits, though the soil be in a subject, and such creation is of itself a good consideration for the receipt, by the grantee of the port, of petty customs and port duties throughout the port so assigned, and therefore it is not necessary, as before observed, to allege tbaL«£\orporation in such case either owns the soil or repairs the po^t (t*)-* ^or * s ** neces " sary to prove either of these circumstances^ ^entitle the corporation, provided they can show that they Jfa«|«/*in fact, been in the habit of receiving and dealing with suchtyjwnes and customs, or bring forward other evidence from which a jury may infer the existence of a port, and Customes, 59; 7 Vin. Abr. 175, pi. 5. As to the effect of a modern grant of a port by the crown, vid. Hale, De Jur. Marit. Harg. Law Tracts, 33. (i) Vid. 12 Rep. 34; Cowp. 106, 108 ; 3 Burr. 1407 ; 1 T. R. 616 ; 2 C. M. & R. 398, 404 ; per Lord Kenyon, Ball v. Herbert, 4 T. R. 261; Davys, 8, 9, 10 ; 1 W. Bla. 590 ; 16 Vin. Abr. 578 ; Mayor, &c, of Exeter v. Warren, 5 Q. B. 773. What is reasonable toll was considered a question for the court; 2 Inst. 222. Of late it has been left to the jury, 4 Q. B. 545, 546, where vid. diet, per Lord Denman, C. J. In all cases where a defendant justifies taking toll, or distraining goods for toll on behalf of a corporation, he must show their title accurately and fully, or the pleading will be bad on general demurrer ; Sargent v. Reed, 2 Stra. 1229 ; 8. C. 1 Wils. 91. As to the couits taking judicial notice of the extent of ports, 1 Stra. 469 ; Stockton, &C., Railway Comp. v. Barrett, in Dom. Proc. 7 M. & Gra. 877. (k) Mayor, &c, of Exeter v. Warren, 5 Q. B. 773 ; Mayor, &c, of Southampton v. Scurlag, Mad. Firm. Burgi. 220, ch. 10, s. 29 ; vid. Cowp. 106, 107. But ijucere whe- ther the duties must not be defined in amount ; Brune v. Thompson, 4 Q. B. 543 ; Palm. 86. (/) Where the grant appears in evidence to be enrolled of record, but is not produced by the plaintiff, it seems the jury ought not to be directed to presume such grant upon mere evidence of usage; Brune v. Thompson, 4 Q. B. 543. Otherwise a grant may be pre- sumed, though, if made, it must have been made within time of legal memory ; Mayor, &c, of Hull v . Horner, Cowp. 102. (m) Jenkins v. Harvey, 2 C. M. & R. 398, 404; vid. 12 Car. 2, c. 4, s. 6; vid. Mayor, inc., of Exeter v. Warren, 5 Q. B. 773. Con- siderabledoubl has been thrown on the doctrine of Jenkins v. Harvey by Brune v. Thompson, 4 Q. B. 552. (n) Mayor, &c, of Hull v. Horner, Cowp. 102; Master Pilots, &c, of Newcastle v. Hammond, 18 L. J. (N. S.) Exch. 417. (o) Mayor, &c, of Yarmouth v. Eaton, 3 Burr. 1402. Whether ancient port duties can be applied to new articles of export is a question ; Brune v. Thompson, 4 Q. B. 543 ; vid. definition of tolls, 2 Inst. 5B ; 8 Rep. 46 b : of customs, 6 A. & E. 924 ; Termes de la Ley, 201. ( p) Mayor, &c, of Exeter v. Warren, 5 Q. B. 773. Every owner of a port is bound to repair, an indictment will lie if he does not ; Wilkes v. Kirby, 2 Lutw. 1519; as to evi- dence of the extent and limits of a port, vid. 5 Q. B. 773 ; Callis, Sewers, 56, note (h). Or an action on the case will lie against the owner at the suit of one who has lost his navi- gation on a given occasion by reason of the non repair ; Mayor of Lynn v. Turner, Cowp. 86; Hart v. Basset, T.Jo. 156. M 1 G.-2 u ra \m> proceedings. the liability of goods landed there to pay duties to the corporation (q). 1 - - ight can be attributed to the acquiescence of parties in the pay- ment of such duties than is usually due to the circumstance of acqui- ;i a payment, and therefore that circumstance is not of much to show that a corporation is entitled to port duties; for ship- owners may naturally be inclined to submit to an impost which they conceive to be levied without right, rather than engage in expensive tion with a wealthy corporation (r); but, notwithstanding this obvious consideration, proper evidence of user, and of long enjoyment ich duties, will warrant the presumption of any fact necessary to make the taking ol' them legal, and when' such evidence is brought for- ward, the jury ought to be directed to presume accordingly (s). On the other hand oon-user of a privilege, or right, conferred on a corporation by it- charter, will not, under circumstances, operate to affect their right when it becomes necessary to exercise it ; thus, where the corporation of the Trinity House of Hull had a right by charter to appoint pilots, and though, from the time of the grant of the charter to 1828, about 200 years, thcV had never exercised the right in question, it was held to be no objection (t). From what has been said, it appears that a corporation, whether being owner of the franchise of a port, or grantee of the tolls, may maintain the actions mentioned, either for import or export duties, without showing any consideration, as by repairing, &c, and without being owners of the soil. Further, it is no defence to such an action to >tate, that the corporation, being owners of the port, ought to clean and maintain and repair the port, and that they neglect to do so ; for that nonfeasance may be the ground of an indictment (it), or of an action on the case, under circumstances, by a private individual (x), but does not bar the right of action in the cases we have been examining^). Where a corporation sued ten masters of different merchant ships in indebitatus assumpsit for certain tolls, port duties, buoyage, anchorage and other dues, in ten separate actions for various sums, the court declared that they had no power to consolidate the actions at the request of the de- (q) Mayor, kc, of Exeter v. Warren, 5 Will. 4,c.xlii. s.15; vid. Callis, Sewers, 56, Q. B. 778. Vid. that ease for what b admis- 59; Hale de Port. Mar. liar. 47, 50,51; nee thai the corporation had been Hull Dock Comp, p. Urown,2 B. & Ad. 43; used to receive the dues, if there ia no other Reg. o. Hull Dock Comp. 7 Q. B. 2. evidence of the right to the toll than usage, 3hephard v. (iosnold, Vaugh. 170; and the jury find lh;it the alleged amount of Hull Dock Comp. V. hrowne, 2 B. & Ad. 43. toll ; . ble, a smaller amount found (s) 5 Q. H. 800, 801. by them to be reasonable oannot be recovered; a) Beilbyv. Raper, 3 H. & Ad. 284. •i. i Q. I'.. 543. The fact (») Per Powell, .!., Wilkes p. Kiiby, 2 called a port in a statute, is I.utw. 1519; Mayor, &c, of Lyme v. Henley, nut conclueivt thai H U « * perate port ; thus 2 C. i\ F. 331 ; vid. Att. -Gen. P. Corporation i .. mli i- called a port, 23 lien. 8, c. 8, of Shrewsbury, 6 Beav. 220. ». 1 ; v> it was h it to the jury to infer, from (i) Mayor, &c, of Lynn v. Turner, Cowp. the whole o! the evidence, whether it was not 86. The plaintiff, however, must, it seems, a part ol the port of Exeter, which they found show special damage ; Mayor, &c, of Col- it was ; Mayor, • of 1 ■• -r ■ w arren, G . Brook, 7 Q. M, 773. I 1 Geo. 3, c. 56, - 42 . 2 ( >i) Mayor, &c, of Kxeter p. Warren, 5 U. oc Ad. 43. It is called a harbour, 6 Gt 7 Q. L5. 800. ACTS AND PROCEEDINGS. 1G.3 fendants, although it was sworn that the actions were brought in respect of the same right, and that the trial of one would decide the right in all (x). The master of the vessel is the proper party to be sued, because of the difficulty of finding the real exporters or importers of the goods (y) ; but where the grant of the duty directs or states it to be pay- able by the owners of goods imported, and the importer by uniform usage has been held liable, he is the proper person to be sued (z). Besides these rights of action to recover tolls, there is always a col- li) teral and alternative remedy by distress («), which is considered as being incident to every toll (b), and it seems it is not necessary that it should be made only on the thing out of which the toll is payable (c); but any goods of the party are liable. Where a right to tolls has once been established by a court of law in favour of a corporation, they will be entitled to a decree from a court of equity for an account (d ) if it be necessary. Indebitatus assumpsit also lies at the suit of a corporation having a grant of beaconage and buoyage, against the masters or owners of ships passing their beacons or buoys, though the ships do not come to anchor near such buoys (e). Other tolls prima facie arising from ownership of the soil of a port are, anchorage for every anchor cast ; ballastage, for the liberty to take ballast from the bottom of the port ; keelage, for every vessel coming within the port ; lestage, a duty on goods unladen ; moorage, a payment for liberty of fastening ships to posts on shore (f). The corporation of the City might have brought inde- bitatus assumpsit for scavage or sheicage, which is a duty on every one who exposes foreign goods for sale, which have been entered at the Custom House (g). The corporation of London had also a right by custom to a duty called weighage for goods brought into the port, and might bring an action for it without showing any consideration for the claim ; and the action was well brought against the master of the vessel, and need not (i) Corporation of Saltash v. Jackman, 1 Clark, 4 M. & Selw. 288. Where the charter D. & L. 851. imposes the duties on the masters and owners ( y) Vinkistone v. Ebden, 1 Salk. 249. of ships passing, &c. (3 T. R. 769.) (s) Master Pilots, &c, of Newcastle, v. (f ) Harg. Hale, Jur. Marit. 74—76; vid. Hammond, 18 L. J. (N. S.) Exch. 417. id. 76, 86, for other terms relative to ports and (a) If in trespass or trover for seizing and port duties, detaining a ship till the tolls, port duties and (g) Mayor, &c, of London v. Gorce, 1 charges be paid, the corporation justify, they Ventr. 298; vid. 3 Keb. 491; Mayor, &c, of must not allege a right to distrain for the toll London v. Bre, Freem. 400, 401. All other onlu, because, as every justification must ex- corporations are prohibited from taking this tend to the whole of the thing complained of, duty under a penalty of 20/. by 19 Hen. 7, c. the plea will be defective for that cause; 8, s. 1,2; via. Carth. 92 ; 1 Show. 35. In l'itts v. Gaince, 1 Ld. Raym. 558. this case, and it seems all other cases, of tolls (h) Hickman's case, Noy, R. 37 ; Yearb. and port dues originating in a custom, the 30 Edw. 3, 20 ; Heddy v. Wheslhouse, Cro. payment may be demanded on goods which Eliz. 558. are quite new articles of commerce, if they fall (c) Vinkistone v. Ebden, Carth. 357 ; S. within the reason of the custom ; for every C. 1 Salk. 249; 1 Ld. Raym. 384; 12 Mod. custom extends to things within the reason of 216; vid. 6 M. & VV. 564 ; 4 C. B. 545. it, though they have had their origin within (d) Mayor, &c, of Carlisle v. Wilson, 13 the time of legal memory; Vanacker'scase, 1 Ves. 276; Mayor, kc, of London v. Ainsley, Ld. Raym. 496, 4th edit. 499: Snellina's 1 Anstr. 158. case, 5 Rep. 82 b; S. C. Cro. Kliz. 409; (e) Vid. Masters, kc, of Trinity House v. vid. 4 Q. B. 552 ; 3 Sc 4 Will. 4, c. 66. M2 164 \< ra lnd proci edings. be brought against the owner of the goods (A). A corporation having a port and port dues in. iv also bring indebitatus assumpsit for wharf- ing duties for the use of wharfs belonging to the corporation, and for drawing goods out of vessels by means of a crane kept and maintained by the corporation (I). Lastage is a duty of ao much in every last of corn exported from the port of the corpora- tion {in), and may bo sued for in like manner, and as in the case of the exaction of other port dues, it seems a quo warranto information may . in order to know by what authority such impost is levied on the subject («)• Also by custom a corporation may have a toll-traverse for every boat that passefl a river running by the town (o). It has been said that a corporation claiming a toll-traverse by prescription or patent ought to make particular mention of the sum which is to be paid in respect of it, because such claim is contrary to common right (p). Toll-traverse is iK lined to be toll for going over the proper soil of another (7); and the use of the soil is a sufficient consideration for the toll, and it is not necessary to state any other in support of it (r). Therefore the corpo- ration must have the ownership of the soil to support the action or dis- tn S3 for this duty. This duty may arise in respect of a private bridge under circumstances (s), and in such case is not strictly connected with ownership of soil properly so called, it being the ownership of the bridge that gives the right. In such case the toll is in the nature of pontage (Oi which is a duty for carrying or passing over a bridge. Pannage is a duty for paving the streets; passage for ferrying persons, &C., over a river (a); and the corporation refusing or neglecting to perform any of these duties will be answerable in damages to those whom such refusal or failure injures (a-). Primage is a duty due by cription (it is said) to the crown of so much per tun and so much (h) Mayor, ..m., of London v. Hunt, Exch. Reading, 1 Y. & J. 4. Ch. a Le». :37 ; vid. 1 Stra. 469. (p) Vid. Yearb. 9 Men. 6. 45; Smith v. (1) As to ul.. 11 tilt ri^lit to wharfage at Shepheard, Cro. Kliz. 711 ; Palm. 85. on Km does oot exist, vid. Hull Dock (. Mayor, 222; Palm, 77; vid. indictment against a ol Lynn, 1 II. Bla. 206. As to metage, corporation for non-repair ol a bridge, 6 M. . (k< ., ul Rodu Itei P, I.' ■ . 10 Jur. 40. fil eelw. 365, DOte. I hat it is DOt necessary (iii l ill. ill. Bla. 214. to lay that th<*y have repaired ration* tmurc, f C ester, Yearb., 21 21 tdw. 4, 38, pi. 3 ; Callis, Sewere, 1 16. pi. 25, recognized Hill v. Hanks, (u) 8 Rep. 46,47, Yelv. 103; Brownl. 2 BnlsL 203. Distress maj be taken for 215. loll ; Cro. III/. 711 ; 'l B.Gc C. 223. Ferguson v. Earl of Kinnoul, 9 Cla. A* to evid dayor, fito, ol & 1.251. ACTS AND PROCEEDINGS. 165 per last on wet and dry goods respectively, imported from beyond seas. A corporation having a grant of it may sue in debt(r/). Toll-thorough is a claim in respect of cattle, &c, passing through the ville, or street, or river of the corporation, and is always in a highway ; and a corpora- tion in prescribing for it must show something done by them beneficial to the party against whom it is claimed, as that they repair a causeway, bridge, &c. (z). But the repair of some streets in a town is not a suffi- cient consideration to support a claim to toll-thorough in all parts of the town (a). A general liability to repair is not a sufficient considera- tion, as in the case of a port (b); but a special consideration must be shown, because toll-thorough is against common right (c), and it seems that they must show they are bound to and do repair the very street, bridge, &c, in respect of passing over which the toll is demanded (d). But a corporation may declare in general indebitatus assumpsit for tolls, and prove a right of this nature in support of the count (e). This toll can only arise by prescription, custom, ancient grant, or act of par- liament, which last is the modern mode of conveying the right to canal, railway and other companies ; therefore a corporation, who render a river navigable within time of memory, and support locks, &c, on it, cannot claim as a right, without act of parliament, a certain sum as such toll(jf), for passing along it. Fairs and markets are places of public resort for the buying and selling, at certain times, of goods and cattle brought there. They are either constituted, appointed, and established by letters-patent from the crown, granting the franchise of holding a fair or market, or they de- pend upon immemorial usage and prescription, which supposes a grant from the crown (g); or (of late years) they are "constructed" by act of parliament, perhaps upon the precedent of the 10 & 11 Will. 3, c. 24, constituting Billingsgate market (h). This is the legal definition of the words (fair being only a more extensive market) (i), but the latter word is sometimes used, by the courts and by the legislature, to signify the (i/) Master Pilots, &c, of Newcastle v. (d) Hill v. Smith, 4 Taunt. 520 ; Breit v. Hammond, 18 L. J. (N. S.) Exch. 417. Beales, 10 B. & C. 510. Prisage defined, Hale, J., Marit. Harg. 75, (e) Mayor, &c, of Carlisle v. Wilson, 5 121 ; pisage, id. 76. East, 2. (z) Smith v. Shepheard, Cro. Eliz. 711 ; (/) Juxon v. Thornhill, Cro. Car. 132; per Best, J., 1 B. & C. 234, 235; vid. 16 Vin. Abr. D. a. pi. 1, pa. 577. As to Mayor, &c, of Nottingham v. Lambert, Wil- canal company's tolls, 8 & 9 Vict. c. 42, les, 1 1 1, as to prescribing for such toll ; Tagg s. 4. v. Simmonds, 4 D. & L. 582, as to plea justi- (g) 2 Inst. 220 ; 1 Black. Com. 274. As fying under right of corporation to distrain for to evidence of such franchises, 6 M, & W. such toll; vid. 6 M. & W. 564. 234; 13 M. & W. 313. (a) Brett v. Beales, 10 B. & C. -08 ; vid. (h) 10 Vict. c. 14, where the word " per- per Holt, C. J., Mayor, &c, of Warrington son" extends to corporations as well aggre- v. Mosley, Comb. 297. Distress for this toll gate as sole, s. 3. Vid. 5 M. & W. 375. may be taken in the highway, 3 Com. Dig. Jus Nundinarum a Seuuiu ant a principe im- 111; Smith v. Shephard, Cro. Eliz. 710. petrandum est ; Arodii Decret. Lib. ii. 133. (6) Mayor, &c, of Yarmouth v. Eaton, 3 That the right of market and of taking tolls Burr. 1402; Mayor, &c, of Lynn v. Turner, was a prerogative of the crown before the Cowp. 86; Haspurt v. Wills, 1 Ventr. 71 ; Conquest, vid. 2 Kemble's Saxons in Eng- S. C. 1 Mod. 47. land, 73, 75. (c) Mayor, &c, of Exeter v. Trimlet, 3 (i) Vin. Abr. Market, A. 3, pi. 1. Burr. 1407. ACTS AM) PROCEEDS mbly of persons present at B market. In the following remarks shall speak of markets almost exclusively when discussing the sub- ject of tolls, because th< ; part of fairs in England (it is said) arc five from toll (ft). .Mm, it will lie understood that such markets only are meant as have their origin in grant or prescription ; the incidents of those that have been constructed by statute must depend upon the provisions of the private act in each case, and therefore no useful pur- oould be answered by treating of them. But corporations being frequently, either by grant or prescription, grantees or lords of mart, ther with tin- tolls, to which therefore they have a direct right, or bring owners of the soil of spots to which markets are attached, and having therefore a consequential right to certain payments, dues or tolls, in respect of such ownership, it is necessary to explain at some th, and in detail, the means by which they are enabled to enforce the claim in each case. Now there are two principal classes or kinds of toll (Z) deinandable in relation to markets ; viz. that which is properly called market toll, the right to which is derived immediately from a grant or prescription ; the other, that which is payable to the owner of the soil on which the mar- ket is established, and which is a legal, though not immediate, conse- quence of such ownership, depending ultimately on contract. Market toll is denned to be " most properly a payment used in cities, towns, markets and fairs for goods and cattle brought thither to be bought and sold, and is always to be paid by the buyer, and not by the seller, except there be some custom otherwise (/«). That is, market toll i> a duty payable by the buyer of goods and cattle brought into markets and fairs held in cities, towns or other places where markets and fairs are established, and sold in the market or fair, such goods and cattle being tollable goods and cattle. Market toll is not incident to a market as of common right (??), and therefore the grant of a market l.liz. 591. " Mart " » a greater 13 M. -\ W. <>!">. per Parke, B. fair rear; '.: but 221. \ rermes de la Ley ; Vin. Abr. Toll, D. pleading Bale in open fair, I pl.2; Fitz. N. B. 228. E. ; 2 Inst. 58; Com. oarket, bol Dote 1 Dig. Toll, k; Jfearb. 7 Hen. 4, 44 ; 2 Rol. mi. 13 Edw. I, c 6, Forbids I, pi. 5; per Bayley, J., 3 B. .V A. irds. 37u. Therefore do toll is due till the goods (j, actually Bold, Leight v. Pym, *- Lutw. •I of .i fair or market 1331 ; 2 lost. -il\ ; unless there be an im- iich an: payable either memorial usage to the contrary, Yearb. 9 by buyer <>r seller; I < raylor, 2 Hen. 6, l"> , 2 Inst 221; Hill v. Hawker, 1519, i ,, word toll in a grant may Moor. 835; L e. a usage making the party ioclui • who brings goods into the market to be sold 31, ; II and stall- liable for a certain payment in respect of |j ,,;.'( \. iods, whether actually sold or not, . A (n) llr.l.ly p. Wl I ro. Eliz. 558, ..'I I ; Hollowaj i . Smith, -2 Stra. 1171; Com. •..I1-, Dig. Market, P. 1 ; Cruise Dig. Franchise, I . i-t 7' 1 . Lowdon *. Hierons, 2 J. B. Moo. 102. ile,tbe tolls \- toll is not incident to a market, the loll the benefit <>f the whole corporation ; Mayor forfeit* d, bul the mark i remain ; /"■/■ 1 Venlr. v of cur. Case of Corporation of Maidenhead, veil Palm. 82. 7; I M ,86,i.l ACTS AND PROCEEDINGS. 1G7 does not convey a right to claim market toll ; for there may be and are many free markets ; and the grantee or lord of a market has, as such merely, no right to claim market toll; he must have a grant of, or pre- scriptive right to take, tolls ; if he has them by grant, they must be expressly given by clear words in the letters-patent (o). It seems, the amount ought to be reasonable (p) ; and a grant of a fair or market with an express grant of tolls, passes reasonable tolls, though no amount be specified in the grant (q); if the corporation claims by pre- scription, it will be bad, if the toll is either insufficiently ascertained, or unreasonable (r). From what has been said, it follows that all actions for market tolls are stricti juris ; if, therefore, a corporation adopts the method of action for the recovery of market tolls withheld, the claim must be laid (and proved) strictly (s), especially as the record will be evidence of the right in future (t). But a corporation may lay their title to have an immemorial market, without its being necessary to prove that they were a corporation by prescription (u), the question in the case being whether a certain custom existed from time immemorial to prevent persons sell- ing out of the market, &c. As has been stated, market toll can only be taken in respect of articles of a tollable nature actually brought into the market and there sold (x) ; and this principle is so strictly adhered to, that it is held the crown cannot grant a toll for goods not brought into the market (y). It is to be observed, that not only debt lies for tolls withheld, but an action on the case for selling tollable goods in a market without paying toll (z). It is obviously therefore important to fix the precise meaning of the words the market, with reference to locality, and this can only be fully done by an examination of the letters-patent on each case as explained by the usage ; but it is clear that there is no impossibility in law in the (o) Lightfoot v. Lerret, J. Bridgm. 89 ; penny for every pig brought into the market Holloway v. Smith, 2 Stra. 1171; Holcroft is not necessarily unreasonable; Wright v. v. Heal, 1 B. & P. 402; Earl of Egremont Bruister, 4 B. & Ad. 116. How to make v. Saul, 6 A. & E. 924. It is a general rule cognizance under a prescription to distrain for that a burden on the public can only be im- such duty, Savery v. Smith, 2 Lutw. 1 144. posed by the clearest and most unambiguous (s) Moseley v. Pierson, 4 T. R. 107, 108 ; words, even in a statute ; 2 Sc. N. R. 337 ; 2 vid. Seward v. Baker, 1 T. R. 616 ; vid. 6 B. B. & Ad. 58, 59. If the crown makes a & C. 385 ; Mayor, &c, of Readings. Clarke, grant of a market without expressly granting 4 B. & A. 268. tolls, a fresh grant cannot convey the right to (t) 4 T. R. 108 ; 4 Taunt. 529 ; 6 M. & claim them without a proportionate benefit to W. 234 ; 2 B. & Aid. 360 ; 1 Q. B. 790 ; the subject ; 2 Inst. 220. City of London v. Gierke, Carth. 181. (p) 2 Inst. 220; Heddy v. Wellhouse, (u) Mayor, &c, of Macclesfield v. Pedley, Moor. 474. Formerly it was held that the 4 B. & Ad. 403. Proof by a corporation of judges were to decide what should be a rea- right to market tolls ; Lancum v. Lovell, 6 sonable toll from consideration of the circum- Car. & P. 437. stances; but at the present day it seems to be (i) Per Powell, J., in Kerby v. Whiche- a question for the jury ; Card u.Callard, 6 M. low, 2 Lutw. 1498 ; Hill v. Smith, 4 Taunt. & Selw. 69 ; 2 Inst. 222 ; 5 Q. B. 546 ; vid. 520 ; Wells v. Miles, 4 B. & A. 564. As to tarn, per Dallas, J., in Lowdon v. Hierons, parliamentary markets in this respect, vid. 2 J. B. Moo. 1 13 ; Wright v. Bruister, 4 B. 10 Vict. c. 14, s. 13. & Ad. 116. (i/) Per Powell, J., 2 Lutw. 1502 ; Com. (q) Corporation of Stamford v. Paulett, Dig'. Market, F. 1, Toll, E. ; 4 B. & A. 566. 1 Cro. & J. 57, 400; vid. Brune v. Thomp- (z) Sprosley v. Evans, 1 Rol. Abr. 103, son, 4 Q. B. 543. et vid. 1 Vin. Abr. 598, pi. 2 ; Steinson ». (r) A toll claimed, by prescription, of a Heath, 3 Lev. 400; 1 Com. Dig. 224, A. 3. 168 acts and proceeds whole of the town or city, to the corporation of which the grant is made, being considered, with the exception of the churchyards, as the market intended l>y the grant a), though usage has in most cases con- fined the market to some particular spot in the town (b). If, however, there is nothing in the letters-patent to prevent it, as where the grantee is authorized to hold the market infra villain generally, it is settled that on giving due notice, the spot on which the market is holden may be altered and removed to another place within the town, as may be most convenient for the inhabitants of the town, and the persons re- pairing thither for the purpose o{' buying and selling on the market days(e), and a corporation, by their acceptance of the grant, have an obligation cast upon them to provide convenient accommodation for all who are ready to buy and sell in the market (d). If the corporation neglect to do so, or if after having once appropriated a particular site f.»r the use of the public as a market-place, they afterwards employ, or permit it wholly or in part to be employed, for other purposes, without providing as convenient a place for the public to buy and sell in else- where within the limits of the grant, the consequences would be, there would be a good defence to an action brought by the corporation against any person for selling out of their market to the prejudice of their right, provided such person had been prevented from selling in the market by the want of convenient room (e), or this breach of public duty on the part of the corporation might operate as a forfeiture of the franchise of holding the market, and furnish a ground for a scire facias to repeal the letters-patent (/); or perhaps the corporation might be indictable for a misdemeanour; and if so, an action would lie against them at the suit of any one who should have received any special in- jury by their default in the matter (g). For it is a general proposition (a) 2 In-t. 220; Curwen t. Salkeld, 3 the market beyond the limits of the borough, H: lid. 4 B. & A. 565. even though the charter or the prescription ill) Per Anderson, J., Anon. Godb. 131. assign no limits within which it is to be held ; As to parliamentary markets, vid. lo Vict, R. p. Cotterill, 1 B. &. A. 74. r. 14,-. 13; Bridgland d. Shapter, 5 M. & (e) Prince v. Lewis, 5 B. & C. 363 ; Mos- W. 375. I .of Winton. 13Edw.l, ley v. Walker, 7 B. & C. 40 ; vid. 12 M.& >nd markets are prohibited to be VY.23; S. C. 3 Cla. & F. 513; Vearb. 22 beld in churchyards. Hen. 6, 14; Huzzey o. Field, 2 C. ME. & K. (c) Cut'- - V38 ; an- 436. Primd facia a grant of a market to a i Islington Bdar- corporation enables them to hold the market ket Bill, Dm. Proe. 12 M . & \\ . 23; De anywhere within the borough; tic/. 5 A. 8c Rotzen i. Lloyd, 6 A. & I e pub- E. 462 ; 7 A. .\ E. !».">. lie moat be a- well provided for as before; (/) Peter v. Kendall, 6 M. &C. 703. \- to ew- < A r) 12 .M. ,\ \\ . 23. He must not bemi/i/ : inhabitants to the removal, injured as one of the public, 7 Q. B. 377 ; In re I t, 6 Price! 301. The but if he have been put to needless inconve- grant or prescript the nienee, as to have been obliged t'> carry his ..a which the (air or market is tn be goods to another market, ScC, it will be sufli- holde.ii. In general, a market or fair may lie cieul to state that to support the action; held on any dav hut Sunday ; 2 In-t 220; Mayor, ficc. of Lynn t). Turner, Cowp. 86 ; . 1 ; (hit. Conor. 423,3rd \\iik. s ,. Hungerford Market Co., 2 Scott, Within the city of London everyday 446; R i. Miles, 4 M. >\ Belw. 101; market day ; 5 Rep. 83 b; I . Groves, 1 D. & L. 63 ; Parnaby i». . 127 . vid. j7 II. n. 6, ••. r, . Hob. B7. I i •• i Canal Co., 1 1 A.& E. 223; Hart 12 M. 6c W. 23; <»i- Layboom v. v. Basset, T. Jones, 156. I Ml. Be w. 320. 'I bej cannoi hold ACTS AND PROCEEDINGS. 1G9 that where the law casts a duty on any one which he refuses or fails to perform, he is answerable in damages to those whom his refusal or failure injures (h) ; and when the king creates a market and grants such things as may be chargeable on the subject, the law presumes that the king creates it for the general good, and that the subject has quid pro quoii), every grant to the grievance and prejudice of the subject being void ; and therefore it is laid down that a grant specifying an unreason- able amount of toll is void (k), and the market or fair in such case becomes free (7); but if the grantee of a reasonable toll takes and usurps an excessive or outrageous one, or takes toll where none is due, the franchise or liberty of having and holding the market is forfeitable to the king on quo warranto (m), upon the ground of the abuse and usurpation, and the party injured may have satisfaction in damages by an action (w). It has been solemnly adjudged and declared that the subject has the same right to question the payment of unreasonable toll, whether the amount demanded is specified in the grant or not (n). The same principle apparently applies to a toll claimed by custom ; if the amount be unreasonable, the custom would probably be declared void by the courts (o). With respect to the question of what goods are tollable, or what articles of commerce and traffic are liable to the pay- ment of market toll, but very little is to be found in the books, probably because the decision of the question is only to be collected from the usage of each market. Of common right (it has been said), market toll is payable solely for live cattle, and not for victual or other ware ; for in respect of these the lord is satisfied in stallage and piccage, which are incident to the soil(p) ; but either by grant or custom, toll is taken at the present day on various other articles besides live cattle, espe- cially on corn; and indeed the only restriction which seems to have (h) Ferguson v. Earl of Kinnoul, 9 Cla.& 108 ; admitted, R. v. Mayor, &c, of Lon- F. 251 ; vid. Mayor, &c, of Lynn v. Turner, don, 2 Show. 265, 276. Other authorities Cowp. 86 ; Parnaby v. Lancaster Canal Co., say the right of toll only is forfeited ; vid. in- 11 A. & E. 223. In case of a demise of the Jra. market bv the corporation (which may be (m) Fitz. N. B. 94, F. ; 4 Rep. 94 b. without deed if from year to year only, 6 V r in. (n) Corporation of Stamford v. Paulett, 1 Abr. 292, pi. 41) and the lessee misconduct- C. & J. 81. But a defendant being a fo- ing the market, he, and not the corporation, reigner, i.e. a stranger to the corporation, will must be sued. not be empowered to inspect the corporation (i) The Maidenhead case, Palm. 77; vid. books for this or any other purpose ; Mayor, 11 Rep. 86 b ; Yearbs. 13 Hen. 4, 14 ; 30 ic, of Southampton v. Graves, 8 T. R. 590. Edw. 3, 15b; 9 Hen. 6, 45 ; 3 Inst. 236; (o) The doctrine of Sir E. Coke, 2 Inst. 2 T. R. 565. To all franchises there is an- 664, that a custom which once was reasonable nexed by law a condition that they be not becoming grievous by lapse of time, &c, can misused; Com. Dig. Condition, R.; 2 Inst. only be set aside by parliament, does not seem 223. The franchise of having a market not now to be regarded as law; for the courts de- forfeitable for non-user, 13 Vin. Abr. 512, pi. clare customs to be void without entering on 9; Finch, Law, 165. the question whether they once were reason- (k) 2 Inst. 220. When the thing de- able; vid. 10 Q. B. 42. However, a custom manded for wares or merchandizes does so is not void merely because no reason can be burden the commodity as the merchant can- given for it, as may be inferred from decisions not have a convenient gain by trading there- with respect to the practice of the courts ; vid. with, and thereby the trade itself is lost or 2 M. & Selw. 25; 14 M. & W. 152 ; 8 Sc. hindered, that is an evil loll ; 2 Inst. 58. N. R. 599. (0 Stat. Westm. First, cap. 31 ; 2 Inst. (p) Heddy v. Welhouse, Moor. 474. 220; Finch, Law, 164; Palm. 76; 3 Mod. 170 ACTS IND PROCEEDINGS. been pointed out in any decided case, is the vague one that toll is not payable " for hens, geese, and many other things of that nature" (g). A corporation may demise their market tolls by lease under their com- mon seal(r), or they may hold a fair or market by a grant from the crown, reserving rent; for though no distress can be taken on incor- •.1 hereditaments, as tolls are, yet the crown by prerogative may di>train on any lands of the corporation (s). A doubt may also be en- tertained, whether without very distinct words in the grant authorizing it, or words sufficiently large to comprehend it, a demand of market toll for things not to use or not known at the time of the grant would be maintainable (0- This is in principle the same question as whether ancient port duties can be levied on new articles of export, which has been raised and discussed, but not decided, though declared to be a proper question to be considered (u). In case of corporations consti- tuted by statute, or of corporations not constituted originally by parlia- ment, but empowered by statute to take market, or any other toll or tax, it is apprehended there could be no doubt but that unless the legislature had used words showing in the most unambiguous manner that it was intended to convey the right of taxing for all goods imported or exported, or brought to market (as the case may be), whether known or used at the time of the passing of the act or not, the corporation could not exact anything in respect of such goods ; for it is an univer- sally recognised principle in the interpretation of acts of parliament, which purport to impose a tax upon the subject, that the intention of the legislature to do so must clearly appear from the words used, and that it' there be any ambiguity in the language, the construction must be favourable to the subject (x). And there appears to be no ground to infer that the same principles of construction are not to be applied to a grant of this kind ; indeed, they appear to apply « fortiori to a grant from the crown than to a statutory power of taxing. The mode of directly recovering tolls by way of action has been treated of; but besides that, there is incident (y) to every toll in a fair or market, another mode of directly recovering arrears of toll due, viz. 1>\ a distress c) levied on the goods or even implements of trade of the Waterbouse t>. Keen, A IS. &C.208; (r) R. v. Chipping Norton, 5 East, 239; Dennd. Manifold a. Diamond, -i B. & C. vid. iup. p. 169, note (h). 243,245; Hull Dock Co. v. La M niche, 8 .. .... . Moor. 163; B.&C.48; North and South Shields Perry . Mayor, . - Co. a. Bi ch. 147 ; vid. 2 be. N. (.11'.". Vin.Abr. R. 337 ; 2 B. & Ad. 58, 69. I. ration, B. pL 2, G. pL 7. Bu( mch : Lutw. 1379; Cro. Bliz.551 K. 37 ; 5f earb. 30, Edw. 8, 20. Astojusti- ao as to enable bint to distrain, thou tying in virtue of such right to distrain, vid. turn of debt will lie on the I if. Sav< Q, 2 Lutw. 1144; Harris v. 47 a •. Co. I. m. 1 42 a. Hawkins, 1 Keb. 342; Specot v. Carpenter, (j) Vid, "<:•"• Maidenhead case, Palm. 85. 2 Jones, 207; Osburtonv. .lames, 2 Lutw. (hi Mayor, &c, ol Liver] 1 a. Bolton, 1379; Agar v. Lisle, Hob. 187. vid. A >>. . Mayor, (:) Bradby, Distr. 13. . ACTS AND PROCEEDINGS. 171 seller (a) ; and if the officers of the corporation are disturbed in dis- training for the tolls, an action of trespass will lie at the suit of the corporation (&). In fact the remedy by distress was at one time con- sidered so peculiarly adapted to the recovery of arrears of tolls due, that it was contended indebitatus assumpsit would not lie, but the objection was overruled (c). The right, however, does not extend to goods damage feasant in the market, being there to be sold ; for such goods cannot be distrained damage feasant, cither before (d) or after they are sold (e), because they were brought there to be sold pro bono publico. Another remedy which a corporation, having a market, may pro- secute in respect of the tolls, is an action on the case for the undue subtraction of tolls, whereby the corporation was defrauded of the tolls which otherwise they might and ought to have had and received. Thus, if A. has a market and toll, and B. is coming with goods to the market, for which, if sold, toll would be due, and C. hinders B. coming to the market, A. may have an action against C. because of the possibility of damage (/). A person who brings his goods close to the market, and then goes into the market and gets customers for them there, commits a fraud on the market, and is liable in an action on the case. A seller by sample will not be allowed to evade this rule ; for, selling in the market, he is benefited by the market as well as the seller of goods actually brought there and sold in bulk ; it seems, therefore, that his goods are considered as constructively brought into the market, and, therefore, to be liable to stallage ; and, therefore, if he refuses to pay the same rate of stallage that is payable by the seller in bulk in the market to the owner of the market and soil, he will be liable to an action on the case, for the injury done to the market, at the suit of such owner ( 7. A prescription to take 55; vid.tam. per Bavlev, J., 3 B. & A. 370, tell on goods sold by sample is bad ; Hill i . semh. com. In Bockwood v. Wood, 6' Q. B. Smitb, 1 I aunt. 520; I id. 1 B. fie Aid. 559. 46, 47, the court uses language implying that (i) Blakej p. D . Cowp. 661. If they may be different persons, and that in the their servant or officer is disturbed in taking plainest manner. So in Mayor, &c, of Nor- toll, they may have n-c or tn it v. wich v. Swann, 2 W. Bin. 1116, it was laid 122. On the other hand, down that right of market and right of soil their officer is indictable for neglect of duty, are things totally distinct ; vid. Thompson D. if he takes tolls or payments from the market Gibson, 7 M. & W . 466 ; Heddy v. Well- people, and refuses to perform the Bervices house, Moor. 474. In Yearb. 11 Hen. 6, on the ground of which the payments are fol. 23, pi. '20, it was held that a corporation made; per Coke, C. .'., 1 1 1 1 1 V. Hanks, 2 may prescribe lo hold a fair in the frank lene- Bulstr. 203, ment of another. I Bailiffs of Tewkesbury v. Distoo, 6 (n) Elsewhere it seems to be laid down I '. 438 ; i "i. 7 P.. & I in Lou- clearly that all persons have a legal right to don an action on COM lay h.r not weighing come upon the close where the market is 68- goods sold at tin- common beam b tablisbed to buy and sell on market days; riesc. Welkins, 3 Mod. 161. rid. 1 Wils.116; Palm. 82 ; 1 Pd. Raym. (i, note. The right to 149; Wigleyw. Peachy, lLd. Raym. 1589; Ham. restrain the lord of the mar* Tyson v. Smith, 6 A. at E. 762; Mayor of • to another place; "'. L&w Cro. Pliz. 75; vid. id. (m) Fid. per Littledale, J., 7 A. B.95, < .: 628; Nov, It. 19. 101, 106 who eiti ' B. fit C. ACTS AND PROCEEDINGS. the toll (o) (i. e. the market toll), but the youngest son shall have the stallage and piccage with the soil by the custom (p). It seems re- markable and strange that there should be no notice taken of the deviation from the general principle in such cases, if in reality a general principle subsisted, by which the ownership of the soil was declared to be inseparable from the lordship of the market. In a late case it was held that a grant of a market, with all tolls and profits, &c, to H. and his heirs, &c, where neither the crown nor H. had a right to the soil on which it was to be held, was good, and would enable H. to claim stallage, when he became possessed as owner of the spot on which the market was established (g). On the other hand, in the stat Westm. 1st, c. 31, and in Lord Coke's comment upon it (r), the necessary identity of the lord of the market and the owner of the vill seems to be sup- posed. On the whole, however, the law now seems to be understood, that the lordship of the market and the ownership of the soil are not inseparable, but that a grantee of a market may hold the market on land belonging to any other person, by the mere sufferance and per- mission of such other person, but that unless such grantee had actual possession of the soil he could not claim stallage (s). The mere suf- ferance and permission of such other person will be all that is neces- sary, for this reason (as it seems), that wherever a market is established by law, there all persons have, of common right, a title to enter to buy and sell (t ) on the market days during the time of market, otherwise they might be treated as trespassers, notwithstanding such mere suffer- ance and permission; because a license to enter and remain upon land for a certain time cannot be given without deed («), and it is manifestly impracticable to adopt such a course in case of a market ; and as a license cannot be transferred, it would be equally unavailing to give leave to enter, by deed under seal, to the grantee of the market and those claiming under him. Amongst the various and conflicting definitions of the word stallage, it is not very easy to discriminate with accuracy, but the following ex- planation may perhaps be found to reconcile many of the cases, and to be agreeable to the later decisions on the subject of markets. As has been observed before, in effect, every buyer has at common law a full right to repair to any market, and make use of it in buying, without payment of any toll or tax whatever ; it is only an express grant, or a well-ascertained and reasonable prescription, that can make him liable (o) N. B. The word toll in a grant may ton, J., that mayor and commonalty may include stallage ; Lockwood v. Wood, 6 Q. B. prescribe to have a fair in another's freehold. 31. (t) Wigley v. Peach, Ld. Raym. 1589; (p) Heddy v. Wellhouse, Moor. 474; Mayor, &C, of Northampton o. Ward, 1 Mayor, ike, of Northampton v. Ward, 1 Wils. 115, and cases there cited; vid. sup. Wils. 109. P-17'2, note(n). ^o, as it seems, in case of a (?) Lockwood v. Wood, 6 Q. B. 31. ferry, the passengers have a right to use the (r) 2 Inst. 222. land on the banks for embarking and disem- («) Lockwood v. Wood, 6 Q.B. 46, 47 ; barking; 6 B. 5c C. 702. Yearb. 11 Hen. 6, fol. 23, pi. 20, per Pas- (w; Wood v. Leadbitter, 13 M. & W. 838. 171 u M \M> PROCEEDINGS. to the lord of the market for any payments on his purchases. But in the case of the seller the circumstances are very different ; he mostly re- quires room and accommodation, as stalls, tables, rails, &c., to enable him to pitch ami display his . which may often be also of such a nature as to require protection from the weather, and if live cattle, may render nect ne means of restraining from escape, as pens, Sec. A pay- ment by the seller to the owner of the soil, or the actual possessor of it, who furnishes such accommodations, demanded and made in consider- ation of such accommodation, whether the goods are sold or not, is one description of stallage i.n. The other description is a payment made by the seller for the right of placing his own stalls, tables, stools, &c., on the market place on market days, during the time of market, in like manner due, whether the goods are sold or not (_//). In both these cases of stallage the payment is, in general, matter of ement between the seller and the owner of the soil (2), and un- certain, insomuch that it may vary at different times and on different occasions for the same accommodation; ex. gra. it may be greater on occasion of a fair than of a market (both being held on the same ground), and it may even be different for different situations in the same market place (a), unless a custom or grant, or prescription, binds the owner to the exaction of specific sums only (b), in which case no more shall be paid. In fact, the payment is in the nature of rent (c), and due to the owner of the soil of common right (d), although he may be restrained by particular circumstances from demanding it in par- ticular cases, as where an exemption from such payments is legally claimed by a corporation, for their corporators, in respect of their own stalls, &c., upon the ground of grant or prescription (e) ; and there is no authority, apparently, for considering that such exemption can ex- tend further than to enable such persons repairing to a market for the purpose of selling, to place in the market their own stalls, &c., without p iMiient ; it would not, it seems, in ordinary cases, be good to enable them to use the stalls, Sec., of the owner of the soil without payment. (r) Blount'l Law Diet Minshew ; Spelm. take certain toll by way of stallage is good ; DuFresoe; Tyson v. Smith, 9 A. & E. 425. A custom roch. Antiq. G I ■ , de to take it in a particular way resolves itself !. I., v ; Cewell. [nterp. into agreement ; 9 A. & E. 4/25. ( v ill lie at the suit of a cor- (a) Vid. Lockwood v. Wood, fi Q. B. 50, poration who have the freehold or actual pos- 51 ; K v. Colterill, 1 B. & A. 69; Duke of of the soil of the market place, against 1 ledford o. Emmett, 3 l'>. & A . 37 1 , 373, :iuli<> places stalls, tablet, &c, there ('<) Mayor, &c, of Northampton t>. Ward, without their leai <>t Nor- 1 Wils. 114; Spelm, Gloss. Stallangiator; wich i . Swarm, 2 W. Bla. lllti; vid. form of Prescription for stallage, 2 Lutw. 1517; vid. itton, 9 Went*. Prae. 113; Mayor, 6Q.B.31; Quo Warr. case, p. 16. rthampton v. Ward, 1 \\ il-. I o7 , (c) Psr Lord Denman, C.J., 6 Q. B. 54, (d) I Wils. 115, i.e. some payment or ,,ol Northampton v. Ward, other is due of common right, not any par- 1 Wils. 114. The right is titular sum. onreyed by ^r.mt along with the (e) ti Q, B. 54, 62, 69 : lyson v. Smith, 'ip take market tolls; Palm. 76 J fj 9 \ & I- 406 < Inhabitants cannot claim Q. B. 31. 1 ' I cauteld ; sm h exemption, at It asl under a modern '.Taut, 2 Show. 34; 1 n. .\ I'ul. -102. Ami a pre- from a subject; Lockwood v. Wood, 6 Q. 15. scriplion (which always supposes a grant; to ale. the xller is under the necessity of breaking the soil of the close on which the market or fair is established (t). This right is frequently conveyed to the owner of the soil in the same letters-patent (u) as grant the market and the right of claiming market toll, but in this case, as in that of stallage, the word seems to be inserted only ex mqjori rant, In, a- i- very commonly done in the old grants of markets, for it seems clear that the claim lor some compensation to the owner or actual possessor of the soil of the market place is due of common right, the amount of the payment being in most cases left to be fixed by agreement between the parties, though it is frequently ascertained by immemorial custom. Mayor, &C, ol M . Pedley, operate to make such shops markets overt, 4 B. & La. 397; vid. Mosley v. Chad wick, qtuere; Clifton r.Cancellor, Moor. 624; Com. 7 B. & C. IT . M iyor, 6»c, of Devizes v. Dig. Market, E. ; B Rep, 127. (y) Mayor, &c, of Northampton v.Ward, (») Mayor, &c* ol Macclesfield c. Chap- MVils. 115. 12 M.& W 10 Vict. C. II. <• I I'er cur. Tyson v. Smith, 9 A. & E. s. 13. 425. ; B.&C. \0\ 12 M ■ W. 19 Every (•) Vid. Harris v. Hawkins, 1 Keb. 342 ; (.'nut oi ;i market I ihe im- vid. ii M. Si W , 564 ; <> & 7 Vict. c. 30. plied condition that it snail not injure the (i) Termes de la I.ey; 2 Stra. 1238. It is ., like stallage, an uncertain pay- I .. leria, 10 Mod. 259 ; 2 ment; Qu. \\ arr. case, Treby'sargum. p.2l ; I 106 Plowd I 6 A. Palm. 77. (;0 As to win i' D< w oiar- (u) Vid, 3 13. Sc A. 367. ket by the crown at the present day could ACTS AND PROCEEDINGS. 177 In such cases it is to be observed, that the custom, in fact, comes back to an agreement which has been evidenced by such repeated acts of assent on both sides from the earliest times, beginning before time of memory and continuing down to our times, that it has become the law of the parti- cular place (x). It may be, therefore, stated generally that piccage, like stallage, as to its amount, is regulated by agreement between the lord of the soil, or actual possessor of the soil, and the sellers who have occasion to break the soil for the above mentioned purposes. Claims of this nature, standing on the same footing as stallage, may be sued for by a corporation entitled to the soil in precisely the same manner, or may be distrained for, as well upon the goods in respect of which the breaking the soil is necessary, as on other goods of the offender (?/). Connected with the claims for stallage and piccage by the owner of the soil on which a market is established, there is another for sweeping and cleansing the market place, &c, but this is not due as of common right, but requires a special custom to support it(z). Pen- nage is a payment for the use of the pens furnished by the owner of the soil, which differs little in its nature from stallage (a). Toll-turn is a duty payable for cattle or goods in their return from a fair or market (b). Another toll or duty connected with markets is murage, levied for the making or repairing of the walls of the town and other public works (c), upon goods sold in market overt (d); or, as seems to be the better opinion, upon every cart, wain, and horse laden that comes into the town (e). It must be reasonable, and is due either by grant or pre- scription (/), and is due in a highway but not in a private way (g). It must be observed, that a corporation suing several parties for tolls due from them respectively, must bring a separate action against each party, and cannot join them in one action (/*). Further, when once the right to tolls has been established to be in a corporation by the result of an action at law, the Courts of Chancery will decree an account of the arrears (i). A corporation may lease their market and tolls, and sue (x) Tyson v. Smith, 9 A. & E. 425, 426. (a) Vid. Rex v. Marsden, 3 Burr. 1812 — Therefore a claim by custom of so much pic- 1823. cage for each stall, &c. fixed in the soil would (b) Com. Dig. Toll, B. ; Cro. Eliz. 71 1 ; seem to be good ; vid. Com. Dig. Market, R. v. Boston, VV. Jones, 162. F. 2. The doctrine of 2 Inst. 664, thatacus- (c) 8 Rep. 47. torn which once was reasonable becoming (ef) Case of Customs, Davys, 13. As to grievous by lapse of time, and not answerahle the effect of a grant of tolls for this purpose, to the reason on which it was grounded, can Att. Gen. v. Mayor, &c, of Shrewsbury, 6 only be abrogated by parliament, vid. Mix v. Beav. 220 ; Att.-Gen. v. Mayor, &c, of Gal- Gardiner, 2 Bulst. 195, 196, seems now to way, 1 Molloy, 95 ; S. C. 1 Beat. 298. be disregarded, for the courts take upon them (e) 2 Inst. 222. to declare customs to be void ; vid. Rogers v. (f) 2 Inst. 222 ; per Coke, C. J., Hill v. Brenton, 10 Q. B. 42 ; Hilton v. Earl Gran- Hanks, 2 Bulst. 203. ville, 5 Q. B. 701. (g) Fitz. N. B. 227, note (c) ; 13 Hen. 4, (y) Yinkinstone v. Ebden, 1 Salk. 248; 15. It ought to be so reasonable that the vid. 6 M. & W.564. What amounts to rati- subject have more benefit thereby than charge; fication of distress made by bailiff of corpora- Yearb. 13 Hen. 4, 14 ; 5 Rep. 63 b. tion, Lewis v. Read, 13 M. & W. 834. (h) Corporation of Saltash v. Jatkman, 1 (s) Hill v. Hawker, Moor.835 ; S. C.nem. D. & L. 851. Hill o. Hanks, 2 Bulst. 201 ; 1 Rol. R.44 ; (i) Mayor, &c, of Carlisle v. Wilson, 13 vid. Quo. Warr. Cas. p. 6 ; 9 Hen. 6, 45; Ves. 276; Mayor, &c, of London v. Ainsley, 21 Hen. 7, 16. 1 Anstr. 158. N ITS hjTS AN D PROCEEDINGS. in covenant for the rent reserved in the indenture of demise (A), and it has been ruled at nisi prius that assumpsit for use and occupation of their tolls will lie at the suit of a corporation (I), but the decision does licit -rem to be in accordance with principle, lor an incorporeal here- ditament cannot be occupied. But, however this may be, there can be no question that an owner of tolls, unjustly detained from him by a corporation, may sue them in assumpsit for money had and received to his use (///), although in general i poration, and especially a municipal corporation, cannot bind itself, its interests, except under seal. To an action for a particular amount of toll by a corporation, it would print,! facie lie an answer, to show that various amounts had been taken bv them at different times, or from different persons, in respect of the same kind of toll ; but if their lessee of their tolls vary, by a temporary arrangement, the amount of toll claimed from individuals, that will not affect the right to the tolls if it appear to have been a variation, not for the purpose of claiming more at one time than another, but for the con- venience of both parties (/<)• A corporation seised in fee of an ancient market, has at its disposal a means of protecting and realizing its rights in such market, in addition to those rights of action and distress for the tolls which have been men- tioned : for it is laid down that if any one erects a new market within seven miles of such ancient market, that is the subject of an action on the case at the suit of the owner of the ancient market, as being a nuisance to such market (0), and if that new market be held on the - ime day or days as the ancient one, it shall be, on that ground alone, intended by the court to be a nuisance to the old one (p), but, if on other days, then it shall be put in issue whether it was a nuisance or not, and the plaintiff must prove it to the jury to be so (p). In case the new market, holden on the same day as the ancient one, has been erected by letters-patent from the crown, the second patent is void and may be repealed by scire facias (q), and so, if being holden on other days, it occasions damage to the owner of the ancient market; for the letters-patent granting a fair or market always contain a clause that it shall not be to the nuisance of another fair or market. Yet these words (k) Mayor, &c, of PooU V. W lull, 15 M. (n) Laneum v. Lovell, 6 Car.fit P. 463. & W. 571. (o) 2 Rol. Abr. 140; Pit*. Abr. Action iii Mayor, &c, of Carmarthen v. Lewis, on the Case, pi. 28 ; Terry v. 1'a^e, I. ill. ou. t."»., oid. ^ M. ,\ Gra. Bntr.30; 3 Bla. Com. 218; 1 Reev. lli-t. 249, d. In Palmero. Gooden, H M. & \\ . Engl. Law, 346. conld not be an entry ) lit/. .VI'.. 184, A. note (ft) ; 3 Bla. on lolla ; oid. l."> M. ,\ W. 671 . 2 Boa. ■> I'. Com. 210. Answer of the judges in Re Is- 223; 13 M.& W.282. lington Market Bill, in Dom. /'<■><'. 12 M. & Hall v. Mayor, &c., of Swansea, ■', W. 20, 21 ; S. C.SCla. & F. 613. Q. B.626. Though in many cases s eorpo- (7) Yearb. 22 Hen. 6, 14, and upon the . may briog an action where '.li Per Lord Mansfield, C. J., 3 Burr. i . ;i iic 1 n bi - been said that L816 ; Moslej i . Chadwick, 7B.&C -17. a. persons frequenting such market were punish- (. 529. ... 2 Show. 201; au. tarn. 8. C. (/) Pid.psr Holt, C.J., R.t>. Mayor.&o., line, ll'', rfrf.2Ht.wk. P. C. 262, a '■> ; of London, I Sliow. 280; S. C. Skin. 310. tfaal none can bold a lair or market without ii') 2 Inst, -jj-j ; 2 T. R. 528. Taking • '.ii, -j Inst. 22'i. Indictment outrageous toll is an instance of such misuser srill lie ioi so doing, anon., '> Mod. I 83 ; 5 as forfi its the market in tins way; 2 Inst. 219, I I' ."■">; '"' 1 Mod. 121; an. I thai 222; n,i. tarn. Palm. 82 ; in/ p. 181. an indictment lies against a corporation tor On Vid.2 fast. 282; 2 T. It. 054, 568. ■ iMiion law, ll-/. Reg. i. in rid. answer of the judges, lun l lit I ii-UuJ Railway Obmpany, Islington .Market Bill, in Dom. I'roc, 12 M. . 315. fit VV.23. ACTS AND PROCEEDINGS. 181 given (j). It is also somewhat doubtful whether an injunction to stay the use of the defendant's market could be obtained even after the right had been established at law; Lord Hardwicke, C, refused an in- junction, saying, that if in any case he interposed it would be after the title was established at law(/e). Misuser of the Piepoudre Court, which is incident to every market(Z), or abuser of the right of taking toll, are either of them causes of for- feiture of the franchise into the king's hands, at least until the owner have made fine for his misdemeanor ; but there is a good deal of obscurity about the real state of the law in this respect (m). Holding the fair or market beyond the time or number of days allowed in the grant or prescription is cause of forfeiture (n). Taking outrageous toll (that is, more than is due, or taking toll where none is due) forfeits not the market, but the right of taking toll (o) ; for the maxim is in eo quod peccat, in eo puniatur. Non-user of a fair or market is also cause of forfeiture (/?). It may be of some importance to observe, that the remedies pointed out above for the recovery of tolls, market dues, petty customs, &c, generally speaking, are the only remedies which it is open to adopt. Equity will not, in general, interfere to establish rights of tolls, &c. Thus where the lord of a market brought his bill for toll of corn brought to market, charging that defendant combined to sell by sample at his house, thereby preventing corn being brought to the market, and prayed a discovery, the bill was held to be demurrable, because these were questions of law, and to be decided in the courts of common law (q), after which only such a bill might be brought (r). So a bill for beaconage was dismissed (s). So a bill for tolls due to a corporation of a town does not lie, though the town had been origi- nally granted in fee farm, a circumstance which, it had been said, gave the Court of Equity in Exchequer jurisdiction (t) ; and a similar prin- ciple was recognised in the case of a bill brought, in the first instance, for wharfage, keyage, and other dues (w). Accordingly, also, a bill will not lie to establish a right to toll-thorough (#). But where the action 0) Vid. 15 Edw. 4, 7, B ; Rex v. Qua- (q) Hawley v. Taylor, 3 Atk. 815; vid. dryng, R. v. Amery, 2 T. R. 522, et seq., 550; tarn. Mayor, &c, of Reading v. Winkworth, 2 Bro. P. C. 336 ; Yearb. 2 Edw. 3, 29. 5 Price, 473. (h) Anon., 2 Ves. 414. (r) Northleigh v. Luscombe, 2 Ambl.612 ; (/) Yearb. 1 Hen. 4, fol. 5, pi. 8. per vid. City of London v. Perkins, 3 Bro. P. C. Gascoigne, C. J. 607 ; Mayor, &c, of London v. Ainsiey, 1 (to) Vin. Abr. Market, F. pi. 5. 6, 7, 8. Anstr. 158. (n) Stat. Northampt., 2 Edw. 3, c. 15 ; 2 (s) Mayor, &., of Boston v. Jackson, Bunb. Rol. Abr. 124, 1.30. 101. (o) 2 Inst. 221 ; Palm. 82; Treby's Arg. (t) Mayor, &c, of Nottingham v. Wood, Quo. Warr. Cas.37. Where the tolls are given Bunb. 330. by act of parliament (semb.) assumpsit will lie (m) Town of Poole v. Bennett. Bunb. 270 ; for the difference between tolls taken from i.e. until the right has been established at law' plaintiff and what ought to have been taken ; a bill for an account, &c, will not lie, North- tic/. Kent v. Great Western Railway Com- leigh v. Luscombe, 2 Ambl. 612; 'city of pany, 4 Dowl. & L. 481. London v. Perkins, 3 Bro. P. C. 607 ; vid. (p) Manw. For. 81 ; Com. Dig. Liberties, 1 Anstr. 158. c - !■ (x) Att.-Gen. v. Ayre, Bunb. 68. [8 1 ACT LOCBEDH of indebitatus assumpsit would not give so complete a remedy, and the right has been previously established at law, a bill for an account and discovery, &c., of sums due as toll-thorough may bo maintained, and the ant may extend over the six years previous to the suit, and though it urged that the plaintiffs, having established the right at law, were only entitled at most to a discovery, and having got that, must use it in another action at law, but could not have relief in equity as well as a discovery, the objection was overruled (?/). Where, however, the parties whom the corporation would have to sue at law are numerous and with distinct rights, or to be sued for distinct offences against the corpora- tion- viLrht, the courts of equity will not compel them to establish the right or custom in a court of law before granting relief (z). The subject of markets and tolls would not be complete without some notice of exemptions from tolls. In early times the crown frequently gave charters of exemption from toll in one or more market towns in land to the corporations of favoured boroughs; such right of exemp- tion to be exercised and enjoyed by the corporators of the corporation in whom it was vested. Thus the corporation of London have a liberty or privilege, granted and confirmed by various charters and statutes, that the citizens of London, and all their goods, should be quit and free of and from all toll, and passage, and lastage, and other customs throughout the whole kingdom of England and the ports of the seas, except only the due and ancient customs of the crown and the prisage of wines (a). The proper remedy for a corporation, whose corporators were denied the benefit of this exemption in a corporate town, formerly by writ de essendo quietum de Theolonio(b). On appearance being entered, the plaintiffs declared, stating the defendants to have been Summoned to answer of a plea, wherefore they required the corporators of the plaintiffs' corporation to yield toll, passage, and lastage (or as the case may be) of their goods and things within the said borough and the port thereof (c). The corporation is properly made plaintiff in such : but a freeman of London, as such merely, is not exempted Wilson, 13 &c, of Lynn, 1 1L Bla. 206. That a corpo- tufficieot allegation in ration may take a grant or may prescribe lor a bill for an account that the ri r 'ht DBS been the benefit of its individual members, i id. olv established at law, Mayor, fitc., of Stables v. Mellon, 2 Lev. 246. One who . l'i Jurist, 40. claims exemption under such charter must Mayor, Sic, of Maiden <• Coates, 4 Bhow it; Bnckbam v. Dnndridge, Hoi. R. Mad Mayor, v.. of \«tk v. 296; 13 Vin. Abr. 82; vid. tarn, bain v. Pilktngton, 1 Atk.282; «d 2 Atk.484. Hut Cooper, 8 M. & W. 753. an injunction hat '• I to restrain a (r) Yid. 1 II. Bla. 210, form of declara- tion from proceeding with .in actum at talon. As to evidence in such proceeding, I II. law t the Bla. 2i I. Mode of compelling appearance, tw night ari-e out ol the answer; 1 II. Ilia. 206. Anon., I id) Mayor, &c, of London d. Mayor, & Co H. Bla. I. I lion of Lynn, in Dom. Proc, 1 Bos. & P. 487; ■ ■t wines, i I 8.0.1 Bro.P.C. 120,2nd edit It was held fulls. that tin: crown could ;rrant that any vill be i. Mayor, fit C, of Lynn, in /-)•■»>. Prae., I B. exempt from toll, in every city and vill in , J., Cooksedge V. Fa I land, with respect to ull their merchan- 117. sizes; Lewde o. Wilde, Yearb. 49 Edw. 3, r, fitc, of London v. Mayor, fol. 6, pi. 10; S.C. 2 Rol. Abr. 198; and so ACTS AND PROCEEDINGS. 183 from toll, although the charters give the exemption to omnes homines et omnes cives of London, unless he be resident within the city and paying scot and bearing lot (e) ; and this is perfectly agreeable to the definition of a citizen, viz., " a freeman and inhabitant who pays scot and lot" (/), which we find laid down elsewhere. Hence it appears that an inhabitant of a port cannot, by procuring himself to be made a freeman of the city of London, obtain a right to be free from tolls throughout the kingdom {g). Where a charter grants exemption from " tolls," that word may, under circumstances, include exemption from stallage (h). However, the Municipal Corporations Act has rendered questions of exemptions from municipal toll, (except for the citizens of London, which corporation is unaffected by the act), of less importance, because it has abolished all exemptions of corporators by charter from lawful tolls, &c, excepting only in the cases of persons who, on the 5th June, 1835, were inhabitants, or entitled to be admitted freemen or burgesses of any borough, or were the wives or widows, sons or daughters of any freeman or burgess of any borough, or were bound as apprentices at that date (i). Therefore beyond the lives of the classes of persons designated, no exemptions from tolls can survive, except for the citizens of London, under the conditions mentioned. We may add, that a mere claim of tolls from persons exempt may suffice to ground an action (k). It may be also observed, that a prescriptive right in a corporation to take tolls is not destroyed by a charter accepted by the corporation, confirming all the ancient rights of the corporation, but exempting the inhabitants of the borough from the payment of tolls in all places except London ; that is, the inhabitants must pay the prescriptive tolls to their corporation, notwithstanding the charter (I). In cases of exemptions granted to other than municipal corporations, " that they and all their a charter of Hen. 6, to Corpus Christi Col- in ancient demesne therefore are still exempt lege, Oxford, that they and their successors, from toll for goods bought or sold for or out and their tenants and servants, should be dis- of their tenements; 2 Inst. 221 ; Cro. Eliz. charged from payment of toll for pontage and 227; Fitz. N. B. 228, A. ; Com. Dig. Toll, passage in every place in England, has been G. 1 ; Yearb. 7 Hen. 4, 44 ; 9 Hen. 6, 25 ; held good; Wood v. Hawksell, 2 Rol. Abr. vid Lord Middleton v. Lambert, 1 A. & E. 198. But this would not extend to exempt 401. Such exemptions were held to be ille- from tolls of any sort goods which the corpo- gal, oppressive, and beyond the competence ration might buy and sell as merchandize, but of the crown to grant, in the reign of Rich. 2, only to goods for their own use; Rol. Abr. vid. Yearb. 2 Hen. 4, fol. 29, pi. 16. The Prerogative le Roy, T. pi. 2; vid. inf. Dean exemption appears to extend beyond actual and Chapter. 1 A. & E. 401. tenants in ancient demesne to inhabitants of (e) Mayor, &c, of London v. Mayor, &c, houses built on land in ancient demesne; of Liverpool, 1 B. & P. 522. n. Scot or shot Town of Leicester case, 2 Leon. 190. I low means share of municipal burdens ; lot means to plead ancient demesne, Savery v. Smith, 2 the turn or lot to perform public functions; Lutw. 1144; vid. 3 Lev. 190; Lev. Entr. Merew. & Stephens' Hist, of Boroughs, 901, 194 ; Ward v. Knight, 1 Leon. 231. Also a 1090, 1091. customary exemption for inhabitants (6 Q. B. (/) Case of Customs, Davys, 10, B. 31,) seems to be saved; vid. 1 Show. 255, (g) Vid. 1 H. Bla. 212; 1 B. & P. 522, n. 257. (ft) Lockwood v. Wood, 6 Q. B. 31. (k) Mayor, &c, of London v. Mayor, Sue, (i) 5 & 6 Will. 4, c. 76, s. 2. This does of Lynn, 1 B. & I'. 487. not extend to affect exemptions from tolls (/) Mayor, &;c, of Truro v. Reynalds, 8 enjoyed by virtue of other than corporate Bing. 275. rights ;6&7 Will. 4, c. 104, s. 9. Tenants 1S4 ACls AND PROCEEDIK nun shall be quit of toll, &c.," the- tenants to the corporation of lands included in their charter arc exempt from the said tolls, See, not only for articles going to, or coming from, the lands in question, for the . manurance and enjoyment of them, but also for goods sent out or coming in for the purpose of merchandize (w). Usually in grants cemption from toll to one u and his men," what we now call free- holder- were intended (n) by the latter phrase. But this was not always the case. It remains u, mention, with respect to future exemptions from or rem: : toll, that where a municipal corporation, before the passing of the Municipal Corporations Act, had lawfully charged the tolls pay- able to the corporation, the council cannot alter or reduce the amount, rant any remission of, or exemption from, such tolls, unless with the consent in writing, under the hands of a majority in number and amount of the creditors to whom such debt is due. They may, however, reduce or alter such tolls as soon as such debt and all arrears of interest due thereon shall have been fully paid and satisfied (o). And one corpo- ration may at the present day covenant with another (their tolls being uncharged that the burgesses, &c., of the other, shall be free from tolls with their merchandize in the covenantor's town, &c, and the cove- nantee may bring an action for breach of such covenant (p). is we have seen, the inheritance in an exemption from tolls, may be vested in a corporation, to be enjoyed by the individual members of the corporation, subject to conditions and restrictions ; so a right of common in gross may be vested, as to the inheritance of it, in a body politic, and be i njoyed by the corporators for their commonable cattle levant and couchant within the precincts of the corporate jurisdiction, and the corporation may prescribe for such common, or a corporator may justify by prescribing in them for such common (q), for it is well settled that a corporation may take a grant, or may prescribe for the benefit of the individual members of the corporation (r). (m) Lord Middleton v. Lambert, I A. & 346 e. All claim of common, as inhabit- ; i i.l. S.C.tt to exemptions from toll- ant of a town, can only be for beasts levant thorough and loll tr. and couchant; 1 Wins. Saund. 346, note (3 ). mi V. in li. L4 Hen. 6, 12; Harg. note(2), See further as to such claims, Merew. & St. i I ■,;:.; rid. as to the meaning of free- Hist. Bor< 1531, and the cases there cited ; 2 in the did law, Harg. Co. Litt.266b, Car. 2, C. 12; id. 1694. Generally a fran- 217); Co. Int. 830 b, note (285) ; EC chise may be vested in a corporation for the lain, Corb. & Dan. I.l. < i-. 155. benefit of the members of it, for the breach of (o) 6x7 Will. 4, C. 71, S. winch the corporation may have an action; (p) Mayor, etc., ol I tolas. Mayor, &c, Mayor, \c of Winton v. Wilks,2 Ld. Kaym. rby, Yearb. 48 Edw. •>. 17. The de- 1134, 4th edit 101 lay i he breach to have (r) Stables p. Mellon, 2 Lev. 246; 48 bet a Ij\ the corporation taking the tolls ol the Edw. 8, 17 ; Bro. Ahr. Prescription, pi. 28; plaint .provided it states that 1 Rol. Abr. 567 ; Waller v. Hanger, 1 Mod. Bnbycorporators(orservants) 832; per Holt, C. J., Ld. Raym. 952. Thus ol the i defendants; id,, ibid. In- the universities have, by ancient grant, the it is probable thai in no inheritance of returning members to parlia- oll would I.' breach "i ment vested in the bodies politic, the right of ivenant; mi, Ma\or, Sec, ol London i. voting being in the corporators; vid. 12 Rep. Mayor, &c, ol l.vnn, I B. & P. 487. 120,121; 4 Inst. 48; per Holt, in Ashby v. pateman, 1 Saund. 339— White, 2 Ld. Kaym. 938, 951. ACTS AND PROCEEDINGS. 185 But they cannot prescribe for common in gross without number (s), because there cannot be common in gross without number (t). So the inheritance in a thing may be vested in the corporation, the enjoyment of which may be confined to a certain class or trade amongst the corporators, to the exclusion of the rest (u). Thus by custom, cor- porators, being proprietors of ships, may have the sole right of digging gravel in a manor belonging to the corporation, for ballast for their ships, to the exclusion of the rest of the members (¥). And it seems that in all such cases, as in the case of the exemption from tolls mentioned above (x), one available mode of obtaining redress for a disturbance by a stranger of the corporators in the enjoyment of such right, is by suit in the name of the corporation (y). Since the alteration which has been made in the limits of boroughs by the late acts, it is very important, in many cases, to ascertain that the corporator, in whose favour the right is claimed, is within the prescrip- tion or grant in respect of his place of residence, &c. (2) ; for if the right be claimed " for every admitted freeman of the town and borough inhabiting within the said town and borough," &c, and the limits of the borough have been altered by parliament, on a plea denying the right, the variance will be fatal, though it be proved that the party actually did reside within the old limits of the borough ; because the statute (a) reserves rights of common, &c, to those who reside within the old limits only. But though it seems that, as has been said, the corpo- ration might bring the action for disturbance of the right of common by a stranger, and show, in support of such action, a disturbance of one or more of their corporators entitled to enjoy the common, yet such corpo- rator may elect to bring the action himself (b), prescribing in the cor- poration (d), and there is nothing in the judgment in the case (c) adverted to to show, as was contended in argument, that the right of a corporator in such case now depends solely upon the reservation in (s) Mellor v. Spateman, 1 Saund. 346 e ; they came to the book to be sworn ; Bro. vid. tarn. 15 Edw. 4, 29 b. So the corpo- Abr. 65, Corporations ; 2 Wils. 136; vid. 1 ration may have by grant an exemption from Keb. 840 ; or by plea, 2 Show. 526 ; Hex v. duties on wines, which shall be enjoyed not Sellars, vid. 2 Inst. 130; 1 Com. Dig. 219. by the corporation as a body, but by the (z) Beardsworth v. Torkington, 1 Q. B. members individually ; Waller v. Hanger, 782. cited per Holt, C. J. ; Ashby v. White, 2 Ld. (o) 2 & 3 Will. 4, c. 64, s. 35 ; 6 & 7 Raym. 952, 4th edit. Will. 4, c. 76, s. 2. (0 Per Kelynge, C. J., 1 Saund. 346 e : (6) Sir T. Chaworth's case, Yearb. 9 Hen. Benson v. Chester, 8 T. R. 396. 6, fol. 62, pi. 16; Mellor v. Spateman, 1 ( it) Mayor, &c, of Lynn v. Taylor, 3 Lev. Saund. 343 ; per Choke, C. J., in Boteler v. 160. Bristow, Yearb. 15 Edw. 4, fol. 29, pi. 7 i (x) Mayor, &c, of London v. Mayor, &c, Beardsworth v. Torkington, 1 Q. B. 782; of Lynn, 1 B. & P. 487. vid. S. C. as to pleading the name of the (3/) Any corporator being injured in the corporation in such case, White v. Coleman, enjoyment of the right by another, or by a Freem. 134,135. Where the commoner pre- stranger, might bring an action for the injury scribed under the corporation as having right in his own name, prescribing in the corpo- of common of estovers for them and for every ration; vid. Mellor v. Spateman, 1 Saund. inhabitant of the vill to burn in quibuslibet 343. An exemption granted to a corporation, messuagiis suis, the court inclined that sin's that their corporators shall not serve on juries shall intend the houses of every inhabitant, out of the corporate district, could only be and both new and old houses; id. claimed by the corporators themselves, when (c) 1 Q. B. 791. 186 ACTS AND PROCEEDINGS. section 2 of the Municipal Corporations Act, and that the existing cor- poration has nothing to do with Buch rights. But it must be remem- bered that though by the Municipal Corporations Ad the new boroughs are not made the same as the old for all intents and purposes, yet the ■ ration-; newly named and modelled under that act are not new corporations, hut merely continuances (so to speak) of the old ones(ef); then -, that they, or one of their corporators, may claim a right of this nature by prescription just as rightfully as before the . provided tin- above difficulty is avoided. So a corporation, being owners of a ferry, and lords of the manor within which it lies, may bring debt for breach of bye-law imposing certain restrictions on the inhabitant boatmen of the manor (/). Nei- ther a corporation, nor any other person, can setup a ferry de novo, without a grant from the crown (^7), or an act of parliament (A). But it seems that a corporation may take a grant of an ancient ferry from another corporation, in whom it was vested by prescription (i). An information in the nature of quo warranto lies against them, if they set up an exclusive ferry without title, but it docs not lie for merely taking money of passengers (k). On the other hand, equity will not enjoin by decree persons to use the common ferry of a corporation and no other (J); nor will equity, in ordinary cases, suppress another person's ferry set up to the nuisance of plaintiff's. But if a sole right to a ferry appear by record, that court will ^rant an injunction before answer (/), to restrain others from using ferry boats there, provided there are satisfactory affidavits produced that the plaintiffs keep up sufficient ferry boats (m). S 1 a corporation may bring trespass for an interference in their ral fishery (n), ami prescribe for the sole and several right of fish- int: in BUch fishery, or they may bring case for an injury to the oyster in such fishery, merely stating their possession at the time, when, &c., oi'the fishery and the oyster beds (o). In the case of oysters, it is necessary to aver the possession of the beds to be in the corporation at the time when the injury was done; but in an action for disturbance of fishery for Bwimming fish, it seems not to be ni cessary to claim the soil, for there may be a several fishery of this kind in alicno solo(p); and. . Ki it, - 1 \it.- C01 r, -2 Exch. 136. ...r, 8cC , of Newcastle, ■> I ■ a) Vid.2 Excb. 111. 314, (k) Rex 1. Reynell, Sin. 1161. (r) In/. t!»- reasoning of tin- court in (/) Churchman t». Tun-tall, Hardr. 162. lav. Brooke,? Q. B. (m) Anon. 1 \ es. 476. ( n ) Richardson 1. Mayor, Bee, of Orford, draveftend case, 2 Brownl. 177. 2 II. I'.la. 182; Mayor, &c., of Maldon v. Wool vet, I j \.\ E. 13; pi'd. 8 Q. B. 1000. » 1 1 » by royal licei Com. Dig, (o) Mayor, &c, of Colchester v. Hrooke, . Hard*. II 7 Q. I, 3 ll. f( ,■! i . Bailey, 8 <«.'. B. 1000 ; 149. 'a Entries, I it a fishery is an I ' ■- Hurt, V* hereditament, vid. Davys, 55 b; Coin. Dig. :i an (h) Sanderson's ■ D. 21. C. 764. On refusal of the corporation, a (c> rpus Chri-ti College, Oxon. mandamus will go to permit the holding of nt. 106. I the court, id. ; Et. t. Grantham, 2 W. Bla. 10 t.iktN wreck, within pre- 716. which tbey have a grant of wreck ; liagrove v. Wood, Godb. 142, pi. Bailiffs of Dunwicho. Story, I B Ac Ad. 831; 17.3; vid. Coke, Copyh., that they must ap- M. B. 91, D 10 Vict, c 99. point steward by deed, sect 45. Dig, Franchises, I. 19. (/) Vid. note, 1 Salk. 191, which states . I W . l'.li. Id. that the contrary decision in Mathews t\ Gary, I Dickmani Allen. 2 Veotr. 1 I Salk. 107 ; S. C. Carth. 73 ; 1 Show. 61 ; ' 121a; 10 I'.' ;>. :J Moil. 137, was reversed in Lxch. Ch. ; vid. pi. 79 ; Maul.;. .1 :i Lev. 107. ..II opt on) 1 s.ilf*. I'M; Manby v. Long, 3 Lev. < 107; 1 \\ ii,-. Sum- 1. 347 e, note (4 ) ; for it 1 ll'i); 19 is only in the nature of a pledge, and cannot ' ■ al !n Mid. R , 1 tL Sec, ol [lebetter, 2 B. Si the proper mode of pleading ACTS AND PROCEEDINGS. 189 for the seizure for the forfeiture alters the property (o), whereas in the former case the amerciament is a duty vested in the corporation by the affeerment, for which they may either distrain or bring an action of debt(p). However, the point is by no means free from doubt, for it has been held, that a private person, being lord of a manor, may, if he chooses to distrain, either sell the cattle, goods, &c, distrained, or may impound them(<7); from the first branch of which alternatives it follows, that the taking must be considered as vesting the property in the lord, and therefore, according to the above principle, the bailiff, where a cor- poration has the manor, ought to be empowered in this as well as in the other case, by warrant under the common seal, for the taking equally vests the property in the corporation. So if the bailiff of a corporation, lords of a manor, make conusance for seizing a heriot, he ought to show the warrant under the common seal, for it is the seizure that vests the property in the corporation (r). A corporation may bring an action of ejectment, and may, like a natural person, proceed in the action without executing a power ot attorney authorizing a person to enter and make the demise to John Doe on the land (s), as was required by the old practice (t) ; they may also state the demise, without averring that it was under seal (v) ; and a notice to quit by their steward or other officer usually employed in such matters, will be good, without showing his authority under seal ; the bringing the ejectment being a sufficient adoption of his act, as it is said(:r). And although it is desirable, in order to avoid delay and trouble, to state the name or style of the corporation with accuracy, in this action as in others, yet a demise in a declaration in ejectment may be good, though the name of the corporation be stated in it with- out strict and literal accuracy (y). But a distinction has been taken between the case of a sole and aggregate corporation in this respect, for the Christian name of the former ought to be stated in the de- mise (z), but to state the name of the head of a corporation aggregate in the demise, has been held to be unnecessary (z), as it is to state it in is to allege that he took the distress by com- (r) Vid. pleadings, Co. Entr. 613, A. B. ; mand of the steward of the court leet, not of Yearb. 38 Edw. 3, 7 ; Abington v.Lipscombe, the lords; Mathews v. Cary, Garth. 75 ; vid. 1 Q. B. 776; Price v. Woodhouse, 4 D. & Gryffyths v. Biddle, Cro. Car. 275. But L. 286 ; 2 Inst. 132. that there is great diversity of opinions as to (s) Chit. Archb. Pract. 1037, 8th edit. the proper mode of making conusance as bailiff (?) Gilbert, Kjectment, 35. to the lord of a manor, vid. Com. Dig. Pleader, (u) Patrick v Balls, Carth. 390; 1 Ld. 3 K. 27, 28, and the cases cited there. Raym. 136; Farley d. Mayor, &c, of Can- (o) And in making conusance in replevin, terbury v. Wood, 1 Esp. 198 ; Noble v. he must state and set forth such warrant, for Mayor, &c, Newark, 1 Keb. 345. there he is an actor, and makes title for a re- (x) Roe v. Pierce, 2 Campb. 96. As no turn of the goods ; Stephens). Houghton, Stra. interest is vested in the corporation by the 847 ; wii. 1 Show. 61, pi. 57. notice to quit alone, there is no need of an (/)) Freeman v. Abbot of Ramsey, Yearb. authority under seal. Q't. whether the adop- 10 Edw. 3, 9, 10; vid. 8 Rep. 43 b; 11 Rep. tion of the act ought not to be before the day 45 a; I Wils. 250, 251. They may also of the demise ; vid. Filchet v. Adams, 2 Stra. bring debt for an amerciament in their own 1129. court baron, 1 Wils. 250 ; vid. pleadings, 2 (y) Doe d. Mayor, &c, of Maldon v. Salk. 772; or distrain, Co. Entr. 570, B., 573. Miller, 1 15. & A. 699. (u) Griesly's case, 8 Hep. 43 b; vid. the (s) Carter v. Crumwell, Dyer, 86, marg. ; pleadings, Co. Entr. 572. Com; Dig. Pleader, 2 B. 1. lill) A< l- \M> PEOCEEDINl a lease (a). With respect however to the statutory quasi corporation, consisting of the churchwardens and overseers of the poor of a parish, it has been laid down generally, that when they sue in respect of land held by them in the nature of a bod) corporate, they must insert their proper names, and, in addition, describe themselves as churchwardens and overseers of the poor A , and this decision is doubtless applicable to the statement of the demise in an ejectment brought by them. W'htre a tenancy at will had boon created by the officer of a corpo- ration on land- of tin- corporation, and some time after, the successor of such officer determined the will, and it appeared from the defendant's admissions that he had considered these officers as having authority from the corporation, and it did not appear that the corporation, being a Btatutory one, was not empowered by parliament to constitute an agent without seal, it was held to have been properly left to the jury to saj whether they inferred an authority, without telling them that the authority ought to have been under seal, and a new trial was refused (c). It seems never to have been disputed, that a corporation could bring an action of trespass quart clausum f regit for an unauthorized entry on their lands (ri), and they may also bring trespass de bonis asportatis for taking their goods (e), and they may also have trespass for assault or battery, or false imprisonment, of the mayor, or (semble) other officer of the corporation, for an injury done to him in the execution of his office and duty (/), or, there seems to be little doubt, that they may prosecute criminally any one guilty of such misconduct as amounts to an assault on, or obstruction of, an officer of theirs, in the execution of his duty (y) ; but in either case they must appoint or retain the attorney, to carry on the proceedings, by writing under the common seal(/i)- One instance of false imprisonment of the head of a corporation being made the subject of an action of trespass by the corporation would be, if the mayor of a municipal corporation was taken in execution on a judg- ment on a bond given by the mayor, aldermen, and burgesses; in such case the corporation might bring trespass for the wrong done to their (o) . l'ravcrs, 3 Salk. 103. tions, R. pi. 1. They may prosecute crimi- (!•) Ward i. Clerke, 13 Law J. | \.s.) nally for an assault on the mayor, Reg. v. I Lichfield, -1 (J. I'.. 893. d. Birmingham • lg) Reg. v. Mayor, Sec, of Lichfield. 4 i. Bold, II Q. B. 127 ; gw. tarn, for the de- (}■ B. 893. The corporation must prosecute termination ol the estate at will re-v< ted an in their true corporate name ; Rex v. Patrick, -i in the corporation, and tembie, ought I Leach, Cr. C. 253. The prosecution, like therefore to have been Bhown to be done by all other acts, must he entered upon, in con- rity under their seal ; Cro. Eliz.815; I sequence of a corporate resolution regularly Rol. Abr. 514; Dyer, 222, pi. 21. passed; in the case ol municipal corporations, i ... 7 Hen. 7, '■> , Mayor, &c, of a resolution to pay the expenses of a prose* ■i. 2 \\ . Bla. lilt). \ in. cuii. hi i.i this kind, undertaken without the Abr. Corporations, K. pi. 9; ^ . pl.2;C.a. sanction of a previous corporate resolution, is pi. 9 , Grendon v. Bishop of Lincoln, Plowd. bad; Reg. i Mayor, Sec, ol Lichfield, 4 S03; Richardson <. Mayor, &c, Q. B. 893; Reg. v. Mayor, fiic, of Stem- ford, i Q. I',. 900. (r) \ i K. 3, pi. 5. (It) Arnold p. .Mayor, &c, of Poole, 2 If) Com. ■ ■ Dowl. .V S. 588. Abr. Corporation , ';3 ; \ m. Abr. Corpora ACTS AND PROCEEDINGS. 191 officer, for it is done to him as such, and is wholly disconnected from any act of his in his private capacity («'). A corporation having a grant of wreck may bring trespass against any one who takes it, even before it were seized to their use ; for they have, as such grantees, a special property in goods wrecked, and may maintain the action, though the owners claim the goods within a year and a day (k). A municipal or other corporation aggregate may be impropriate rec- tors of a parish, and as such, may sue on a feigned issue, under the stat. 6 8c 7 Will. 4, c. 71, s. 46, to try the existence of a modus in the parish, the corporation claiming all the tithes (I). Municipal, ecclesiastical, and lay eleemosynary corporations were frequently patrons of livings (though the first description of bodies no longer are allowed to be so, as it seems), and as such may bring quare impedit (m), An action of covenant may be brought by a corporation ; and if there be a covenant by the mayor, &c, of B. to the mayor, &c, of A., that the burgesses of the latter corporation should be quit of murage, pont- age, custom, and toll in B., and an action be brought by the mayor, &c, of A., and the declaration states for breach, that toll had been taken by certain of the burgesses of B. of certain of the burgesses of A., it seems that this is a good breach, without alleging that the burgesses of B. were empowered to take the toll under the common seal of their corporation (n) ; but it seems that this rests on the ground of the pri- vity between them and their corporation ; for it is intimated, that it is not so, if the taking is alleged to be by J. S., not stating him to be a burgess, for that then it must be shown he was authorized under the common seal (o). But it seems to follow, from the authorities cited below, that after verdict such omission would be well enough, if it ap- peared on the evidence that the taking had been by the servant of the corporation ordinarily employed in the taking of tolls ; for it would be held that the taking of the servant was the taking of the corporation. A corporation, therefore, may bring covenant in such case for an injury done to a corporator in breach of the covenant. (?) Vin. Abr. Corporations, Z. pi. 3. the covenants be between the mayors, on be- ( k) Bailiffs of Dunwich v. Sturry, 1 B. & haif of their corporations, the mayors must be Ad. 831. presumed to have been duly authorized under (I) Mayor, &c. of Bridge water r. Allen, 14 seals of their corporations respectively to enter 1\1. ,\ W. 393 j vid. Municipal Corporations into these covenants, otherwise they would Act, s. 139. not have bound the corporations; Bowen v. (m) Chancellor, &c, of Cambridge v. Bi- Morris, 2 Taunt. 374. shop of Norwich, 22 Vin. Abr. 5 ; S. C. Hob. (o) Vin. Abr. Corporations, K. pi. 2; 126 , vid. 2 Mev. & Man. 493 ; 10 Rep. 56 a. G. 6, pi. I. It may hereafter become a ques- Of course they are liable to the same action ; tion, whether the stat. 6 & 7 Will. 4, c. 109, Lord Petre v. Chancellor, &c, of Cambridge. s. 9, which prevents the abolition of exemp- 3 Lev. 332 ; S. C. 2 Lutw. 1 100, where see tions from tolls contained in stat. 5& 6 Will. 4, pleadings; vid. Municipal Corporations Act, c. 76, s. 2, from extending to exemptions en- s. 139. joyed in virtue of other than corporate rights, (n) Yearb. 48 Edw. 3, 17; Vin. Abr. operates to save exemptions under covenants Corporations, G. 6, pi. 1 ; K. pi. 2; vid. 26 of the above kind ; and this solution of the Hen. 8, 18 ; v>d. Mayor, &C, of London v. difficulty will turn on whether the legislature. Mayor, 8cc, of Lynn, 1 B. 6c Pul. 487. If in the later of the statutes, meant to save all 102 acts and PROcrrni N An action of account may be brought by a corporation (p), and in the cases of railways, ami other trading corporations, may frequently prove a much more expeditious and cheap mode of remedy than that of a bill or other proceeding in Chancery. Of late, indeed, the action has sometimes been ordered to be brought by the equity courts (7). An assignment of auditors by a corporation need not be under the Common seal (r). Actions on the case and of trover will he at the suit of a corpo- ration in cases in which natural persons are empowered to maintain them. A corporation may also maintain an action on the case, where, by prescription, charter or custom, any lawful privilege vested in their corporators, is unduly interfered with. Thus, before the abolition of customs in corporate towns, &c M that none but freemen should sell by retail within the corporate jurisdiction, the corporation might, in case of interference with such right, bring an action on the case against the offender (s). And. as has been observed, a corporation may bring this action against any one who disturbs their collector of tolls in col- lecting the tolls of their market (7), or who injures them by selling out of the market, or who disturbs their market in any other way, or who levies a nuisance against their market by setting up another within seven miles of their's (u). So a corporation may be owners of a ferry by pre- scription (x), grant (y), or custom, or they may be constituted by act of parliament for making, establishing and maintaining a ferry, and in either may bring this action for the disturbance of it(:). On the other hand, the corporation would be indictable if they neglected to keep boats and a station appurtenant to the ferry, or the neglect to do so would be an answer to their action for the invasion (a) of the franchise. Such in- but exemptions enjoyed by corporators, by virtue of prescriptions and royal grants, or to exclude tbe* - under covenants between corporations also. (p) l>ro. Abr. Corporations, 56. (7) Vid. Easoo p. Henderson, 18 Law J. Q. B. 69 (Mich. T. 1848). This action, although recommended to be abolish- ed by the common law commissioners ( rid. 3rd Report, p. 1*2, and again, "2n\ 6 Will. 4, c 76, -• 14, abolishing all exclusive rights of trading in corporate low r,s, • , Ion, :■- to the in «in< h 1 id, 121 , ( larks. Dent kd.97; Wood V. Serle, J. Bridgm. 140. (t) Collecting of tolls by wrongdoers, when the tolls belonged to a corporation, was con- sidered in ancient times a very high offence; RtZ.N.B. 1 I4.C. ; Com. Dig! "Trustees, G. 3. And any official collector may be indicted for misapplication of the tolls collected, per Coke, C. J., 2 I'.ulst. 203. (11) Prior of Dunstable's case, Yeaib. 11 Hen. 7, 19, cited 8 Rep. 127 ; 7 B. .\ C. 47; 12 M. ,v W. 20; Mayor, etc., of Mac- clesfield r. Chapman, 12 M. & W. 18. (i) Vid. 2 Each. 139. (v) What evidence of a right of ferry by grant, 6 M. 6: W. 234. (s) North and South Shields Ferry Com- pany 1. Barker, 2 Each. 136. Where dm/. Dta of declarations and pleas, and 6 M. & W. 234 ; I Each. 870; 10 M. ,\ W. 161; Giles P. Groves, 17 Law J. (N. S.) Q. How to describe in pleading, 2 Exch. 149. As to evidence, 6 M. & W . 234. As to 1 niering verdict distributively, Giles v. Grover, 17 Law J. (\. S.) ( v >. B. 323. (o) Yearb 22 Hen. 6, 14 ; 12 M. & W. 23; Hardr. 163; Huziev v. Field, 2 ('. M. & R. 436. As to duty 0! ferryman, 10 M. & W. 168; 1 \ Hi. Abr. "671, pi. 11. ACTS AND PROCEEDINGS. 193 vasion may be either by setting up another ferry, or may consist in the act of taking a person across who would otherwise have gone by it (b). Although, however, it is generally true that a corporation may sue for an interruption of a right vested in them for the benefit of, and to be enjoyed by, their corporators individually, this is not always the case ; thus, it has been held, that where a corporation has a grant exempting their corporators from being summoned on juries out of the city, the only remedy for a corporator empanelled on a county jury is by action on the case, at his own suit, against the sheriff(c). An action on the case at the suit of a corporation, or an indictment on their prosecution, may be maintained against a person who publishes a libel of the mayor or other head of a corporation entrusted with a local jurisdiction, while in the execution of his office (d). So to say of a cor- poration that the mayor and aldermen are villains, is indictable if said of them, and applied to them, in the execution of their offices (e) The principle seems to be, that in places where a corporation exercises a jurisdiction, the authority to do so is delegated to it by the crown ; and therefore, any libel or defamatory speaking of the principal officers, or of the corporation itself, in the execution of such jurisdiction, is con- structively an aspersion and contempt of the crown, and indictable ac- cordingly. An action on the case would lie at common law for counterfeiting the corporation seal affixed to a deed of presentation, &c, purporting to be the presentation, &c, of the corporation ( f). Also a corporation, having municipal or other local jurisdiction, in- volving the administration of justice, may indict a corporator, who, being eligible and duly elected or appointed, refuses to undertake and enter upon the duties of a corporate office ; but the indictment must show the liability to serve the office, and also by what act the defendant refused to accept or perform the duties of the office (g). An action on the case also lies, by a corporation having retorna brevium, against a sheriff who enters and executes process (h). A corporation may also have an action on the case for an interruption of a right of way vested in them ; but if they be created within time of legal memory, they must prescribe, it seems, by saying that such a one was seised in fee, &c, and that he and all those whose estate he had, &c, have used time out of mind, &c, and then derive title from such person, (6) North and South Shields Ferrv Com- Salk. 698; vid.W Rep. 95, marg. ; Cro. Eliz. pany v. Barker. 2 Exch. 149. 78, 689. (c) Yearb. 19 Hen. 8, fol. 5 B. pi. 21. (e) R.v. Cranfield,5 Mod. 203 ; 1 Mod.35. (o an information cannot be brought - vercropp, Moo. & M :■ before the Court of Mayor and Aldermen of Braddock, 3 Burr. 1856— Loudon, w lure the mayor is the party grieved, r, fitc, of Lon- because be is also ao integral part of the court; Wood, 12 Mod. 672; vid. Mayor, etc, L Salk. 426. Secut il he was not bound to ol Y. mi there ; Reg, i. 777. •wi (,/) Heskeu v. Braddock, 3 Burr. 18">7; I ' >■■ i. Sai ige, Hob. B7 ; 3 Bla. Com. 363 ; I; Popb. Esdaile v. Lund, 12 M. & W. 734. So kin- 29; i i.114j 4 dred to a corporator cause of challenge to juror, m. 11, 12; 7 Q B.742; 21 Vin. Abr. 261; Co. Lilt. 157 a. ACTS AND PROCEEDINGS. 195 consequently, the parties on either side are equally corporators (r) ; and such actions, it seems, may be brought by the corporation in the courts of the corporation, and may be tried by a jury of corporators. Gene- rally the objection is fatal ; and it has even been held that an act of parliament cannot be construed so as to make one judge in his own cause ; and therefore, if a statute give a man power to have or to hold cognizance of pleas of all manner of pleas arising before him within his manor of Dale, yet he shall hold no plea to which himself is a party (s). In all such actions, in which a municipal corporation sues as being the party injured, either directly by some immediate violation of a right vested in them, or indirectly, by the interruption of a right claimed by one of their corporators through the corporation, they must sue in their own name ; and there is no instance, it has been said, of such action (t) being brought for them (as by an officer), except in the case of the chamber- lain of the city of London (t), who, in virtue of one of the customs of the city of London, which have been at various times confirmed in the gross by parliament, may bring actions on behalf of the corporation to recover sums due to them for the breach of bye-laws and other- wise («). Generally, therefore, the law is, that in such cases the corpo- ration must be the party on the record ; but inasmuch as, in cases where a right enjoyed by a corporator has been interfered with, he may mostly bring an action for the injury to himself (x), prescribing or claiming in or through the corporation, when the question decided with respect to the right would be the same as that in an action brought by the COrpo- i^r ) City of London v. Vanacker, Carlh. 480; S. C. 1 Ld. Raym. 496; vid. per Ld. Mansfield, C. J.. 3 Burr. 1857 ; Mayor, &c, of London v. JVIarkwith, 9 Yin. Abr. 486, pi. 38. But even in that case, if the trial were had and verdict returned before a mayor, who was disinterested in the cause, and afterwards a mayor, who was interested, were appointed and gave judgment, that would be ground of error; Company of Mercers, &c, of Chester v. Bowker, 1 Stra. 639 ; vid. Cro. Eliz. 320. And though the interested party only has the power of sitting as judge, the court being usu- ally presided over by his appointee, a prohi- bition will lie; Sheffield v. Archbishop of Canterbury, 2 Show. 146. So Woodu. Mayor, &c, of London, 1 Salk. 398, 4th Resol., that a man cannot sue either before himself or his deputy ; Hardr. 503. (si Dr. Bonham's case, 8 Rep. 118 b. Of course, the crown cannot grant to any one the right of sitting as judge in his own cause ; Davys, 75. A judge of an inferior court, who does so, is guilty of a misdemeanor, for which he may be punished by attachment, for all misdemeanors in judicial officers of infe- rior courts are contempts of the Court of Queen's Bench ; Anon., Salk. 201 ; Wright v. Cramp, 2 Ld. Raym. 766; Anon., Salk. 396. (0 Bodwick i>. Fennell, 1 Wils. 235, 237. The exception appears to extend to thecham- O % berlain of the city of Bristol, where the cor- poration are empowered by their charter to make bye-laws, and sue for the breach of them by their chamberlain ; Hollings v. Hunger- ford, cited I Wils. 235; vid. Graves v. Colby, 9 A. & E. 367, 368. Also it seems that Bed- ford, Mayor, &c, of Bedford v. Fox, 1 Lutw. 562, and Chester, Hesketh v. Braddock, 3 Burr. 1847, are within the exception ; vid. 9 A. & E. 368; The Wardeus, &c, of the Weavers' Company v. Brown, Cro. Eliz. 803. ( u) Chamberlain of London's case, 5 Rep. 62 b. (jr) 1 Lev. 262 ; Yearb. 19 Hen. 8, fol. 5. pi. 21 ; Ashby v. White, Salk. 19; S. C. 2 Chandler's Debates of the House of Lords, 74, 79. Many of the old charters gave the right of returning members to parliament to the cor- poration, in which case the inheritance in the privilege was in the corporation aggregate; but the benefit, possession, and exercise, was in the corporators or persons designated by the constitution of the corporation to be elec- tors ; and therefore the wages of the members were always levied, not on the goods and chattels of the corporation, but on the goods and chattels of the corporators, &c. ; 2 Chand- ler's Debates of the House of Lords, 79. The only corporations, in whom this privilege of sending members to parliament now remains, are those of the universities of Cambridge and Oxford. O ACTs AM) PROCEEDINGS. ration for the same violation of the same right ; and as it would be con- trary to equity and to principles of lav that the corporation and the cor- tor should both recover damages for the same injury from the same defendant, it seems that a verdict and judgment with satisfaction in the one case would bo an answer to the action in the other, so that both cannot recover. \\ hen an officer of a corporation is made a corporation sole by cus- tom, as the chamberlain of London (y), or where the bead officers of a corporation, or a select body of the corporation, are made a corporation by themselves, there can be no doubt that they may take a grant in that capacity for the benefit of the general body of the corporation, and may Bue for it accordingly; or they may take for their own benefit in such . and sue as for themselves; because, being incorporated, they are capable of taking in succession (*). This is the case, it seems, of the M ster and Wardens of the .Merchant Tailors' Company of London (z), and of the principal officers in some other companies of the same kind. Some of the professorships in the universities of Oxford and Cambridge have been at times treated as though the several professors were respec- tively bodies corporate (a); at other times, some of the professors have been expressly made corporations for the purpose of taking real property in succession (b). But where that is not the case, it is manifest from tin- current of decisions that neither a successor in an office in a corpo- ration can sue on a bye-law (c) ; nor will he be bound by a covenant in a lease by the predecessor (d); nor can he take land in virtue of his succession (e), because the officer is not a corporation. On this principle it became necessary to have a legislative enact- ment to enable the treasurers of friendly societies to sue for the goods, &C, belonging to their societies, and to succeed to the possession of them, as though they were each a corporation sole(/), which, without Buch express provision, they could not have done. The same is done by other statutes in the cases of the Board of Ordnance {g), and other cases. (ti) 5 Rep. 62 b; Byrd ''. Wilton), Cro. nity in Oxford is made a body corporate, to Eliz. 464 ; Fulwo Rep. 64 b. lake a prebend m Worcester Cathedral; 1 <:) K. i. Attwood, -1 B. .\ Ad. 496, 196; 1'.. ,\ Ad. 77'). Many officers may prescribe mi. Graves i lu & B. 356, 374. for tecs, without being corporations; e. g., (a) By letters-patent James 1. annexed to the officers ol the superior courts at Westrain- the law professorship, within the university of ster; Ycarb. 12 lien. 7,fol. IB B. ; the Lord d, the prebend of Shipton, in the church Chancellor, Chiel Justice, Serjeants-al Law, mini, and made him a corporation sole , Sec, Com. I lig. Prescription, A. ; how sheriffs and the statute 13 8c 14 Car. 2, <•• 4, -. 29, ought to prescribe, 15 Edw. 4, fol. 29, pi. 7. admits the validity of the grant ; vid. Kin Graves v. Colby, 9 A. & E. 356, 374; Baylay, I lt..\ Ad. 761. Charlet [.granted Did. (am. 4 Com. Dig- 428, that ollicers may a pre be ml in the cathedral church ol Oxford prescribe or allege a custom, vid. Tinu p. to the professor of Hebrew, and bis Williams, 3 Q. It. 413. n ibe university ol Oxford, i" bold while (d) Clements p. Waller, 4 llurr. 215 I. they were respectively professors ol Hebrew, (e) Doe p. Woodman, 2 Bast, 830; John- ems the university was son v. Hodgson, 8 Bast, 38. placed i r, the position of trustee-, to convey ( / ) 33 (ieo. 3, c. 54, s. 11; vid. Cart- tbe freehold of the prebend on each vacao Griffiths, I It. & Aid. 57; J!< i p. Ad. 77d. Catherine Docks' < Icuppany, i B. ,\ Ad. 31 0. (/.; The Lady Margaret's Read* r of Divi- <-> Doc d. Legh v. Roe, 8 M. fit W. 579. ACTS AND PROCEEDINGS. 197 Here it may also be mentioned that, in general, in a corporation, the same person cannot unite the functions of judge and officer, any more than the same person can be judge and party in a cause; but this posi- tion must be taken with this exception, that by the ancient custom and practice of almost all boroughs having a gaol, the mayor or chief officer of the corporation was gaoler, or keeper of the gaol(/i), until the changes introduced by the Municipal Corporations Act and other sta- tutes, which will be fully stated hereafter. And where a man would have to be subjected in his ministerial capacity to his own control in his judicial, that in general is considered by the law to be so unreason- able, that it is not permitted (i). The principle on which these decisionss rest ultimately seems to be this, that "a man cannot do an act to him- self" (/<). However, it has been laid down, that by custom where the bailiffs, or mayor and bailiffs, of a borough are judges of the borough court, the bailiffs may also be officers to execute the process of the same court (I) ; but the principle laid down in subsequent decisions seems to be incompatible with such a junction of offices, for it has been stated that the same person cannot be a magistrate and also the officer who has to act ministerially under such magistrate {m). A corporation may cause to be instituted an indictment against indi- viduals, and especially against such as assault or interrupt their officers in the discharge of the functions and duties of their offices, if of a pub- lic nature (n), and such as slander their officers, if the slander be spoken of them in the execution of their offices (o), as to call them felons, if the words be applied to them in the execution of their offices. Every corporation aggregate, whether constituted by charter or act of parliament, may prove debts before commissioners of bankruptcy, by an agent, provided such agent shall, in his deposition, swear that he is such agent as is aforesaid, and that he is authorized to make such proof (p). Before this was laid down by legislative enactment, it had been decided in a court of law that the power " to sue and be sued by their secretary," given in a private act of parliament to an insurance company, did not extend to enable them to petition, by their secretary, (/i) "The course of all corporations is that (k) Finch, Law, b. 1, c. 3, pi. 20. the mayor which is the judge is gaoler also ; " (I) Crane v. Holland, Cro. Car. 138 ; Com. Smith v. Hillier, Cro." Eliz. 168 ; Dunne Dig. Officer, B. 6. So a bailiff, it lias been v. 1'alies, 2 Kol. Abr. 806 ; Widow v. Gierke, held, may also be steward of a manor ; Gyb- Cro. Eliz. 76 ; Com. Dig. Officer, B. 6 ; 1 son v. Searle, Cro. Jac. 178. Rol. Abr. 99, I. 15. The mayor in such case (m) Rex v. Pateman, 2 T. R. 779; Stani- would be the proper partv to ~.ue for an es- land v. Hopkins, 9 M. 6: VV. 178. cape ; 3 Com. Dig. 179 ; 2 Inst. 382 ; vid. (w) Reg. v. Lichfield, 4 Q. B. 893, 895 ; Charter, 13 Car. 2, making Mayor of Leeds or an action, e. g. for imprisoning the mayor, and his successors gaolers of the gaol there, Yearb. 21 Edw. 4, fol 70. Reg. v. Lancaster, 16 L. J. (N.S.) Mag. (») R. v. Cranfield, 5 Mod. 203. Case, 140; Hammond v. Peacock, 1 Exch. (p) 6 Geo. 4, c. 16, s. 46; vid. Ex parte. 41. the Governor, &c, of the Bank of Engl.md, (t) Milward v. Thatcher, 2 T. R. 84 ; per 1 Swanst. i0. By 5 & 6 Vict. c. 122, s. 93, Ld. Mansfield, C.J., R. v. Trelawney, 3 Burr. (the interpretation clause) it seems the legis- 1616; Rex v. Pateman, 2 T. R. 779; Rex lature meant to give to corporations all the v. Gayer, 1 Burr. 245; Rex v. Patteson, 4 powers, rights, £x.c, given to individuals; B. & Ad. 28, 29 ; Rex v. Tizzard, 9 B.& C. Flath. Archb. Bank. 182 ; vid. 12 & 13 Vict. 421. * c. 106, s. 164. 198 AND PBOCEEDINGS. for a commission in bankruptcy q). But the principles on which that decision was founded cannot be considered as applicable to a similar with respect to a corporation; nor, it is presumed (there being no decisions on the point), could there be any objection to a corporation (being a creditor of an insolvent) moving to rescind the final order, Sec, under the Insolvent Debtors Acta(r), by an agent duly authorized thereto. A genera] power of attorney would be sufficient authoriza- tion for this purpose (.v). Therefore we may conclude that every cor- te may petition for a commission in bankruptcy, or prove debts under a commission as above pointed out, or move in insol- vency, under similar circumstances, and on similar grounds, to those which entitle private individuals to act respectively. So a corporation may act in the choice of assignees by a person authorized, by a special power of attorney, to represent them on that occasion (t). A corporation aggregate cannot, in general, sue as a common in- former (?/ , but they may bring an action in debt qui tarn, &c, as the party grieved (a?), and in such action shall have costs on recovering (y), by virtue of the statute of Gloucester, and that, though the statute giving the penalty sued for were passed subsequent to the statute of Gloucester (z) ; for in such case, either the penalty is given by the statute, not to any one who likes to sue, but to the party grieved, or the statute mentions no one who is to sue for it, and the withholding it is in either case an injury, for which the corporation, being the party til. 111,1} Bue and recover damages, and if damages may be recovered, then costs will follow; that is the foundation of the doctrine with re- spect to costs in these cases (a). A corporation aggregate may, it seems, take and act upon a faculty giving them the right to use and occupy by their members, during divine service, and on other occasions, a part of a parish church within the district with which they are locally connected as a corporation (b), although they are not parishioners. With respect to suits in equity, it seems that corporations may main- (9) Guthrie r. I 'Uk, 3 15. «N. C. 178; iiil. the statute used the word-; " any person <>r per- 2 C. c\ J. 1 sons" only; rid. 2 Jn-t. 736; 1 Mod. 164. (r) 5 c\ 6 Vict. c. 116, s. 12 ; rid. 7 & (1) Corporation of Plymouth v. Colli] 28. Corporate bodies are Carth. 230 ; rid. 31 Kliz. c. 5, and 18 Buz. within the purview oi the latter net, as ap- c. 5, 1.6; ' nysicians v. Needham, iruin tin- interpretation clause, 7 \ 8 3 Keh. 672 ; 1 Vin. Abr. 199, pi. 18 ; Com. \ let c. '.ii>, s. 73. Dig. Dett, A. 1. The venue jd such action is (1) syds, 1 Molloy, 261. transitory j life v. liuusfield, 2 D. & L. 481 ; \t) • Governor, &c, of Bank of 8. C. 6 Q. B. K ! I. I ^n.m-t. 10. («) Carth. 230 ; Corporation of Cutlers of (n) I$y 18 l.h/. 1 . 5, -• I, "every informer Yorkshire p. Kuslin, Skin. 368; oid, 1 H. upon any penal statute shall exhibit his sun m I tla. 1 I . person," which excludes inch corpo- (:) Mayor, &c, of Plymouth v. Wening, ad tin- 1- made quite apparent from Willes, 440. 1 h ;. I iiforiii.iiiciii. A. 3; rid, (a) The College of Physicians v. Harrison, 1 Dmpany, a, 1. 0. Forrest, Stra. 9B.&C.527. If the defendant succeeds, of 1241, when »n does not appear to course he has costs; id. ibid.] iid. Com. l)iy. - irum the margin it J >< -it, A. I . ; ii bad been held in C. B. that Will. 4,c. 7fi,s 123. 5 the ma- Id. ~. 122. . .Mo/ ley i . Alston, 1 1'lnll. 790; vid. ( />) Dutch West India Co. v. Henriques, 7 Hare, 114. ' Stra. 612, affirmed in B. R. and Dom. Proc. ; (A) Pots r. Harbottle, 2 Hare, 4!H ; vid. S. C. Ld. Raym. 1535. The action whs os- Wallworth v. Holt, 4 M. fit Cra. 635; 17 lumptil for money lent; Ld. Raym. 1535. \. (g) Id. Raym. 1535; National Bank of (i) Preston v. Grand Collief Dock Com- St. ( harlesv. De Bernales, Ry. & I\l. 19(). I I Sim. 327 ; explained in Foss v. Har- In the List case the incorporation was proved bottle, 2 Haie, •". by producing an . xamined copy of the com- (fci ' Kford and Cambridge pany'a charter from the propet public office .. Rii lardso .. B \ 1 1. 706. al Madrid ; id. 190. (/) I i of London v. Corporation klivon v. Furnival, 1 C. M. & R. of Liverpool, 3 Anstr. 738. cate of matrimony and coha- l xearb. 19 Hen. B, fol. 5, pi. 21 ; vid. bitation of British subjects, nuclei the seal of i, 2\ Edw. 4. fol 5.">, pi. '.in, where a foreign municipal corporation, has been re- tbe jurymen demanded the right, showing the cdved in evidence in the courts here; Alsop charter, on being called to be sworn, which ii v. Bowtrell, Cro. .lac. 542; Omychund v. . fol. '., pi. 19 ; Barker, 1 Atk. 45. imihu grant to the governors and coin- ACTS AND PROCEEDINGS. 201 subject, gives way to and is ruled by the law of the foreign country (s). A corporation is deemed to be domiciled in the country from which it derives its act or charter of incorporation (t); and if it be incor- porated under letters-patent from the crown here, it is deemed a subject of the crown, so as to be entitled to hold and register ships or vessels under the stat. 8 & 9 Vict. c. 89, ss. 5, 12 and 13, although the indi- vidual members of the corporation be aliens (u) ; though foreign- made corporations may sue here. On the other hand, it is useless to make a corporation, that is domiciled beyond the reach of the pro- cess of the court, a party to a suit, as defendant, in an English court of equity (x) ; and the same reason, of course, applies against suing a foreign corporation in a court of law here. There appears to be no objection to creating a corporation of aliens resident in this country, and bodies of such persons have been often incorporated (?/). The above privilege of suing here seems to have been granted, and the courts to have consented to recognise, to a certain extent, foreign corporations, rather out of regard to the exigencies of the extended dealings of our traders, than out of deference to the early authorities, which seem to recognise no corporate body that was not named of some place in England. Of late, however, the general principle has been laid down, that a corporation, suing or being sued in the courts of this country, need not show how it became, or that it is, a corporation (z); and one of the learned judges is reported to have said on the occasion of this decision — " The rules of pleading are either positive or derived from precedents. There is no positive rule, nor is there any authority for requiring such a description." Now the fact is, a very great autho- rity, viz. Littleton, has laid down (a), with the sanction of the Court of Common Pleas of his time, a positive rule, extending to all such cor- porations as are not of a prescriptive origin, that such description ought to be given in declaring, and there are other authorities to the same effect. And certainly the constant and almost invariable form in the old precedents is to state, in declaring, how the plaintiffs became a corporation, as thus, that the plaintiffs, from time whereof, &c, were a corporation in, &c. (b); or thus, that from time whereof, &c, they (s) 11 M. & W. 890; vid. Robinson v. sicians v. Tenant, 2 Bulst. 185. In some Bland, 1 W. Bla, 258. As to pleading, vid. cases, ex. gra. in suing on a bye-law, it is General Steam Navigation Co. v. Guillon, often indispensable to set out the constitution 11 M. & \V. 886—896. of the corporation ; Feltmakers' Co. v. Davis, (O 3 Burge, Col. and For. Law, 881,882; 1 B & P. 102; Mayor, &c, of Colchester Story, Confl. of Laws, 836, 2nd. edit. v. Goodwin, Carter, 68. In making conu- (u) Reg. v. Arnaud, 16 L. J. (N. S.) sance, the bailiff of a corporation need not Q. B. 55. show how incorporate, or that he has a pre- (i) Att.-Gen. v. Baliol College, Oxford, cept in writing ; Manby v. Long, 3 Lev. 107. Mitf. Plead. 32. (a) Vid. 20 Edw. 4, fol. 2, pi 7 ; et vid. (y) Madox, Firm. B. 91, 214, 215. 218. 1 Edw. 4, fol. 6, pi. 15, ace; 18 Hen. 6, (:) Woolf v. City Steam Boat Co., 18 fol. 21, pi. 6, per Markhara. L. J. (N. S.) C. B. 125 ; vid. Norris v. Staps, (h) Wardens, &c, of Weavers v. Hrown, Hob. 21 1, ace. ; et vid. 2 Ld. Kaym. 1535. Cro Eliz 803 ; vid. 2 Wils. 266 ; 1 Wentw. " A corporation need not show how incor- 156; Mayor, &c, of London v. -Mayor, Sec, porated, for that ought to come from the of Lynn, 1 H. Bla. 210; 10 Rep. 29 b ; 2 other side;" per Coke, C. J., in Coll. of Phy- H. Bla. 1068. rfi \M> PROCl EDINGS. were a corporation by such a Dame, and that in such year such a king-, by his charter, &c. (c), incorporated them by the name, &c. So in a plea by one who justifies under a corporation, it is the most usual course to Btate how the body became incorporate, and even to trace the changes made in its name, &c, by charters (-/;. And there is also some authority that a private corporation, (not being one of which the courts take judicial notice, in consequence of its being mentioned as a corporation in statutes (<•. g. the Stationers' Company), or for other US , ought to show how it was incorporated, whether by prescrip- tion, patent, or statute (e). It had been decided before the case quoted from above, that the courts will, after verdict, take notice of a corporation erected by sta- tute (/). As a corporation may commence and prosecute a cause in the Arches Court, in order to obtain a license or faculty enabling them to hold and use seats or pews in a parish church within the limits of the district with which they are locally connected (g), although they are not pa- rishioners of that parish ; so a corporation may prescribe that time out of mind they have repaired the aisle, &c, of the church, by virtue whereof the mayor and aldermen have sat there, kc. (//) ; and payments for such repairs, made out of the borough fund, have been adjudged to be legal (i). We have before seen that a corporation may have a franchise vested in them, to be beneficially enjoyed by individual corporators, and the same of exemptions, rights of common, and other matters (A), precisely in the same manner as this right of easement in a seat at church is vested. There have been doubts entertained, and even positive denials ad- vanced, that a corporation aggregate can be executor, chiefly on the ground that a corporation aggregate cannot take the oath for the due i sedition of the office (I) ; but it appears to be law that it can be so named in a will, and on being so, may appoint syndics to receive admi- nistration with the will annexed, who are sworn like other adminis- trators («). There appears never to have been any doubt that a sole corporation may be executor («)• With respect to limitations of actions by corporations, since 31st of (c) Guston v. Shittington.Benl 21, pi. 36. Yin. Abr. 573 ; S. C. Salk. 551 ; . id. tint- id) Mellor v. Spateiioiu, 1 Saund. 340; ton's case, Latch, 116; or they might pre- ki rl>y i. Wbichelow, I.utw. 1498 ; Puts o. scribe in a . [a general the Q.B. 926. will not iakr nol cor- (fc) Ld. Raym. 952; 1 Mod. 832; 1 Deration; IS \m. Abr. 198, pi 1 t. Thej Saund 343; It. v. Mayor, &c of York, (i of corporations of towns, becau* A. & E. 419; vid. 4 15. & C. 750, 755 ; I tin- Dimea ol all town- were of record in the B. & C. 31 i,, law, |, 92; I Mod. 13. (/) 1 Bla. Com. 477; Com. Dig. Admi- (/') Church i. imperial (■ Co., <> niatration, B. 2. (m) K.rwil's case, Yearb. 12 Edw. 4, iek v. Chancellor, &o., of Univ. fol. 9, pi. 24; I Wins. Exors., 186, 187,4th i i :,r.. 9 Dowl. edit (/,) Jacob i. Dallow, <> Mod. 231 ; 17 (n) 1 \\ 187. ACTS AND PROCEEDINGS. 203 December, 1833, no corporation can make an entry or distress, or bring an action to recover land or rent, but within twenty years next after the time at which the right to make such entry has first accrued to some person through whom the corporation claims, or to the corpo- ration itself (o\ Perhaps, of all the acts and proceedings of corporations, the most important is that of election, whether the power or duty be applied to filling up vacancies in the body of members, or in appointing the officers or agents necessary for carrying into effect the objects of the constitution. Every corporation aggregate has necessarily, at common law. an implied power of electing new members to provide for the main- tenance of the perpetual succession, which is the attribute of every cor- poration, and such power the aggregate of the members of every cor- poration may and must exercise as occasions occur, except where the succession is otherwise provided for by the constitution of the body politic (p). In the absence of any special restriction, the right to demand a poll is by the common law an incident to the popular elec- tion of a person to an office (7). In all cases of corporate elections it is indispensable that an actual vacancy shall have occurred before the election is made ; there cannot be a valid election until a vacancy in the office, to be elected to, has actually occurred (r) ; and an election to an office or place A., which is supposed to be vacant, cannot be referred to another office or place B., which is really vacant, though both offices or both places be of the same nature (s). (0) Vid. 3 & 4 Will. 4, c. 27, ss. 1,2. (p) 1 Rol. Abr. 514; id. 513, pi. 5; Town of Launceston's case, per Holt, C.J. , Phillips v. Bury, reported 2 T. R. 352 ; Glover, Corporations, 220 ; 3 B. & C. 685, 687 ; 12 Mod. 225. Though a charter in- corporates the inhabitants of a district, after the original grantees, every inhabitant must be admitted before he can become a corpo- rator, and, consequently, a corporate elector ; 2 Burr. 2200 ; 8 M. & W. 36 ; 2 Peckw. El. Cas. 311 ; 4 East, 337. (?) Campbell v. Maund, 5 A. & E. 865, 880. And where a poll is demanded, the show of hands becomes null ; Anthony v. Seger, 1 Hagg. Cas. Consist. 913. The pre- sident of the meeting is the proper party to grant a poll, and also to adjourn the meet- ing, Reg. v. Hedger, 12 A. & E. 159, and to decide upon tbe validity of votes, R. v. Gaborian, 11 East, 77, subject to an action on the case it he refuses a vote maliciously, Cullen v. Morris, Corb. & Dan. El. Cas. 168. He has the power of proposing the business to be done, and of regulating the proceedings, Machell v. Nevinson, 11 East, 85, 87, n. ; and of dissolving the assembly, vid. per Ld. Ellenborough, 11 East, 89, 90; R. v. Parkyns, 3 B. & Aid. 677. An action will lie against the presiding officer for re- fusing a poll, Hunt v. Dowman, 2 Rol. R. 21 ; and, generally, where an officer does anything against the duty of his place and office, and damage thereby accrues to any party, he has an action against the officer ; Turner v. Sterling, 2 Ventr. 26 ; 1 Vin. Abr. 572, pi. 33 ; Ferguson v. Earl of Kinnoul, 9 Cla. & F 280. On the other hand, the pre- siding officer may have an action on the case against any persons who interrupt and pre- vent him from taking the poll; Shaw v. Col- chester, 2 Mod. 228. Again, if he makes default in the performance of any part of his duty as presiding officer, he may be com- pelled to perform it by mandamus ; R. v. Everett, Cas. Temp. Hardw. 261 ; R. v. Wil- liams, 2 M. & Selw. 144. One part of his duty is to exclude all irrelevant motions, and to admit voting only upon such as are within the purpose and competency of the meeting; Gosling v. Veley, 7 Q. B. 46. As to muni- cipal elections, vid. infra. (r) Owen v. Stainhoe, T. Jones, Rep. ; Skin. 45, S. C. The reason seems to be, that the king has no reversion of an office, nor can he grant it by that name ; much less, therefore, can a corporation, who are only grantees of a part of the powers of the crown, viz. such as relate to the local government of the district over which they have jurisdiction, assume such a power; vid. R. v. Kempe, I Ld. Raym. 49. (s) Rex v. Smith, 2 M. & Selw. 407. 20 1 -U rs AND PRO< EBDINi Where the presiding oflScer at an electoral assembly, who by the stitution of the corporation is an integral part of such assembly, Becedes after the meeting has been duly constituted and the election entered upon, hut before it is completed, an election made after his departure is void t\ and it makes no difference that he improperly or even criminally absents himself (a). The election is also void if held before a person who was not the proper officer to preside (x). Also j election is void that is made by part of the electors by way of BUrprise or fraud upon the rest ( y). Where there is one or more vacancies in a definite integral body in the corporation, the court will always grant a mandamus to proceed to tin- election, but not to supply vacancies in an indefinite body which there i- no pressing necessity to fill up (z). Tlu' questions necessary to be treated, in order to give a clear view of tin.' law of majorities in corporations aggregate, and the mode of ascertaining them, having been already discussed, it will suffice here to state that when an elective assembly in a corporation is duly convened and assembled in the proper place, and duly constituted, and proceeds to an election for a single place or office, the candidate who has the majority of votes, if there be more than one candidate, is the party elected ; if there be only one person nominated for the vacant place or office, then, if he has a majority of those who vote on the occasion, he is duly elected, although a majority of the entire assembly altogether abstain from voting (a), and though the latter body protest against the (lection; for it is a general rule, that whenever electors are present and do not vote at all, they virtually acquiesce in the election made by those who do (b). The same would have been the case had the recusants gone away after the business was begun (c), although such body con- stituted a majority of the entire assembly. And so it is with reference to those who stay away altogether from a properly constituted meeting (having the right to act and vote there) ; their votes must he considered ..led to the majority of votes given at the meeting or assembly, at least in all cases where the object of the election is to supply a single vacancy, and there are not more than two candidates (d ). (i ) Tl. i . Boiler, 8 I I acbell v. a candidate at the election ; 1 W. lila. 524. I 1 East, 84, 87, n. II the office (b) K. v. Foxcroft, 2 liurr. 1021 ; Gos- giving the prank Dcy ia tilled by two persons ling v. Veley, 7 Q- B. 439. moat both preside . EL v. Smart, l Burr. (c) Rex v. Norm, 1 Marnard. B. R. 385. 2243. (rf ) Case of St. Saviour's, Soutbwark, {.<) EL v. Williams, 2 M. ,\ Selw. 141. Lane, K. 21 ; iuI. .Merew. & Steph. Hist. FLo. White, 5 A. v\ I.. 613; R. v. Boroughs, 2249; et m■ Fowey, 2 B. ance at electoral meetings. The principle in ■'<>>. the t< Et also follows immediately from the vright, 2 Hurr. 1020. doctrine of the court in Gosling v. Veley, 7 1 lection, any one i- ■ Q, B. C>7, et teq.\ et vid per Tindal, C.I., for whom u vote ia naked; but the Ruttei <. Chapman, 8 M. & W . 99. poll-books are the only evidence of who ACTS AND PROCEEDINGS. 205 Therefore the votes of persons who stay away from an elective as- sembly cannot be said, in the case specified, to be altogether lost ; but if persons attend an elective assembly, and, being electors, either vote wrongly with respect to the object and character of the election, or to the character of the candidate, as regards eligibility to the candidature, or the office, in either of these cases the votes of such persons will be absolutely thrown away, having no more operation or effect than if the parties giving them had not been in existence at the time of the elec- tion. Thus instances occur of votes perversely given in regard to the object of the election, where the election being for a person to fill a single vacancy, six persons vote for A., and six others for B. and C. jointly; the joint votes are absolutely thrown away(e)- Another case of this kind occurs where electors knowingly vote for a disqualified candidate; there also the votes given for such candidate are wholly thrown away (/). In fact, several varieties of this description of case occur; but instead of detailing them, and marking the several inci- dents in which different circumstances have lent different aspects to particular instances, it perhaps will be more useful to give the result which has been judicially deduced from the previous decisions, in a case which was solemnly argued at great length, and determined after much deliberation, and on a very important and interesting occasion. That result is this: — " Where the majority of electors vote for a dis- qualified person, in ignorance of the fact of disqualification, the election may be void or voidable; or, in the latter case, may be capable of being made good, according to the nature of the disqualification; the objection may require ulterior proceedings to be taken before some competent tribunal in order to be made available: or it may be such as to place the elected candidate on the same footing as if he had never existed, and the votes for him were a nullity. But in no such case are the electors who vote for him deprived of their votes, if the fact become known and is declared while the election is still incomplete. They may instantly proceed to another nomination, and vote for another candidate; if it be disclosed afterwards, the party elected may be ousted, and the election declared void; but the candidate in the mi- nority will not be declared ipso facto elected. But where an elector, before voting, receives notice that a particular candidate is disqualified, and yet will do nothing but tender his vote for him, he must be taken voluntarily to abstain from exercising his franchise; and therefore, however strongly he may in fact dissent, and in however strong terms he may disclose his dissent, he must be taken in law to assent to the election of the opposing and qualified candidate; for he will not take (e) Rex v. Withers, cited 2 Burr. 1020, cited Cowp. 537; S.C. 3 Luders' Elect. Cas. mam.-, vid. Cowp. 357; Reg. v. Mayor of 324, note(H.); Claridge v. Evelyn, 5 B. & Leeds 7 A. St E. 963. A. 86. It is not material whether the can- (/') R.' v. Parry, 14 East, 459; R. ». didate be legally or physically incapacitated Hawkins, 10 East, 211, affirmed in Dom. from executing the office; R. v. Courtenay, Proc. 2 Dow, 124 ; Taylor v. Mayor of Bath, 9 East, 261. 206 u ra and pro< eedini the only course by which it can be resisted; that Is, by helping to the election of some other person. Il> mt as an elector; his pre- sence counts as such to make up the requisite number of electors, where a certain number is necessary; but he attends only as an elector to perform the duty which is cast on him by the franchise he enjoys as • t; he can speak only in a particular language; he can only do certain acts; any other language means nothing; any other act is merely null; his duty is to assist in making an election. If he dissents from the choice of A., who is qualified, he must say so by voting for some other also qualified; he has no right to employ his franchise merely in preventing an election, and so defeating the object for which he is empowered and bound to attend the elective assembly of the corporation. And this is a wise and just rule in the law. It is neces- sary that an election should be duly made, and at the lawful time; the electoral meeting is held for that purpose only; and but for this rule the interest of the public and the purpose of the meeting might both be defeateil by the perverseness or the corruption of electors who may seek some unfair advantage by postponement. If then the elector will not oppose the election of A. in the only legal way, he throws away his vote by directing it where it has no legal force; and in so doing he voluntarily leaves unopposed, that is, assents to, the voices of the other electors. Where the disqualification depends upon a fact which may be unknown to the elector, he is entitled to notice, for without that the in- ference of assent could not be fairly drawn. But if the disqualification be of a sort whereof notice is to be presumed, none need expressly be given; no one can doubt that if an elector would nominate and vote only for a woman to fill the office of mayor, or burgess in parliament, his vote would be thrown away ; there the fact would be notorious, and every man would be presumed to know the law upon that fact"(<7). where the disqualification is specified in a statute ; but where there is such specification no one is at liberty to infer that any thing analogous to BUch specification also constitutes a disqualification (A). Probably it will be found to hold good, that where the fact which the law considers to disqualify for the candidature is patent, as in the case of a woman nominated for civil or municipal offices, which women are disabled from holding by the operation of the Municipal Corpora- tions Act (t); or where the candidate already held a corporate office if all right to be elected whilst it lasts; aqua- umk-r :i charter a - the inhabitants lifieauon, on the other hand, does not in listrict, the corporation eral give any right to be elected, R. •■ . doI .Hi inhabitant V B. Mayor, 8tc M of West Looe, 3 B. & <'. 677; tli.it , ey is only a qua* even where it has been ascertained and re- litigation; it does not ^i\< even an inchoate ported by a body of corporators appointed u.i. Biayor, Etc. ol Weal Looe, 3 l>. lor that purpose, It. p. Askew, 4 Burr. '2190. (i > G ,\ 6 Will. 4, c 76, s. 9, exclu (&) E. V. Chitty, 6 A. & E. 609, 613. A but males of full age, 6lc, from the burgess- ACTS AND PROCEEDINGS, 207 considered in law incompatible (j) with the office sought; or if he had been convicted in the courts of the corporation, or found guilty and had judgment, in a superior court, of a crime rendering him incapable of holding the office sought, in any of these cases the law, whether arising out of the general law, or the constitution of the corporation, would be presumed to be known to the electors, and parties voting for such candidate would throw away their votes (k). But if the disquali- fication of the candidate was such as arose out of a non-compliance with some condition precedent to his holding the office, as, for ex- ample, if he had not taken certain oaths, or was not possessed of a certain amount of property in money or land, or was not born in a cer- tain district, or any other cirumstances were in operation to disqualify him, with which the electors, not having means of knowledge, could not fairly be presumed to be acquainted, there the maxim, ignorantia facti excusat, would apply; the votes given to him, if given without express notice, could not be considered to have been absolutely thrown away and exhausted for that election, but upon the fact becoming known in time, they might be used over again (/) for some other can- didate, who was duly qualified, and the votes in such case would be as effectual as if they had not already been given in a way that turned out to be nugatory. To ascertain the law with respect to throwing away votes is the more important in the case of corporations; because it is held that the rules on that subject are not confined to votes in elections (m). We shall therefore proceed to state such other points relative to the question as seem of sufficient importance to deserve ship. A man's being a Jew seems to disqualify is bound to know the general law of the land for the candidature°for an office, on admission relative to that duty or franchise. Ferguson to which, oaths, which a Jew cannot take, are v. E. of Kinnoul, 9 Cla. & F. 251; vid. 11 required. Vid. Reg. v. Humphery, 10 A. & A.&E. 223, 4 Burr. 2004 ; and besides E. 369. 'his, every member of a corporation is pre- (j) It seems that to a criminal information sumed to be aware of the particular conslitu- against a party duly elected, for not serving tion and bye-laws of his own corporation, and the office, it would be a good plea to state a of the rights and liabilities arising thereon, judgment which rendered him incapable of R. v. Trevenen, 2 B. & A. 339. Also it is the office, for that is not his own incapacity, presumed that every person is attentive to for judicium redditur in invitum; and so of a what passes in a sovereign court of justice, statutory disqualification, which he could not and must therefore know of such prosecution remove by something done by himself; but and the event of it; vid. Worsley v. Earl of he shall not be heard to disqualify himself, as Scarborough, 3 Atk. 392. Hence it follows to plead that he is non compos; if a man non that a fact relative to a corporate election compos be indicted, the judges ex officio shall being known to a corporator, he is bound to discharge him, because the king takes care know the operation, on that fact, both of the of all such persons; H. v. Larwood, 1 Lord law of the land and of the constitution or by- Kayrn. 33; vid. 2 Bla. Com. 291,292; 6 & laws of the corporation; so that if a person 7 Will. 4, c. 104, b. 8; Harrison v. Evans, be disqualified by reason of a judgment hav- 6 Bro. P. C. 157. Nor can he plead that to ing passed against him, and the fact of the take upon him the office would be inconve- judgment is notorious, the judgment need not nient; K. v. Leyland, 3 M. & Selw. 188. be produced at the election ; Corb. & U. El. (/<) Whether or not it be to all intents Cas. 1P6, 187 ; vid. 7 Q. B. 439. and purposes correct to say that the subject (I) Gosling v. Veley, 7 Q. B. 437; but it is bound and presumed to know the law of is not the duty of the presiding officer to call the land, which has been strongly questioned, on parties who have thus misvoted to claim ]>er Maule, J., in RIartindale v. Falkner, 2 to vote anew; 7 Q B. 148. Com. B. 719, 720, at any rate the decisions (m) Per Coleridge, J., in Gosling v. Veley, appear clearly to go to this extent, that every 7 Q. B. 433 ; et vid. 2 Atk. 405. one who exercises a public duty or franchise \( T< \M> PROCEEDIH notice. Ajb has been stated, a disqualification, patent or notorious, at ..nee causes the votes given for the candidate labouring under it to be tin-own away (a); the same would probably be held to be the case where the electors bail the- means of knowledge of the candidate's qua- lification, or the contrary, and might have ascertained the fact if they had pleased o : the same is undoubtedly the case where the electors had the incapacity (p), and nevertheless perversely gave their votes lor the ineligible person. If there be one candidate only lor the vacant office or place, and he is in this predicament, a mandor nuts will go to proceed to a fresh election; and the court will not insist on an information in the nature of a quo warranto being first brought, ami the party removed on judgment of ouster, tkc(q). The mandamus must be directed to the corporation by their corporate name, as mayor and burgesses, although the office to which the election is considered null be that of head of the corporation, and consequently there is no mayor, or other head of the corporation, at the time of issuing the writ(r). It is to be observed, however, that a mandamus will not be iied to a relator who knew of the disqualification of the candidate at the time of his election, and nevertheless afterwards assisted at the admission of the candidate to the office, (s) A corporate election, it was held, could not be made by putting up a list of names and taking the vote on the whole list collectively instead of individually ; as if there be seven places vacant in a definite body, and a list of seven candidates is thus voted on(0, or if the names be put forward for the purpose of being added to an indefinite body, in either case, whether the vote be unanimous or contested, all votes given for the list collectively will be thrown away, and the election will be wholly void (u) ; and the ground on which this decision rests is, that this mode of putting the question to the electoral assembly is calcu- lated to produce, not a real, but an apparent unanimity, each voter being by this means tempted to compromise his own opinion in order to induce others to do the same (a:). But it has been since held that the (n) Cor!. 186, 187 ; viJ. or where the party does not dispute the luct ; 4 Burr. 201 1 : Gosling Q. B. 4:57 Corb.& Dan. El Cas. 13. And an action on — 4:3!'; < laridgi 5 B. .\ A. 86; the case will lie against him it" he maliciously . i . Hiorns, 7 Boa- refuse a vote : CuTlen o. Morrii, Corb. & Dan. , Cowp. ~)'~i . II" rotes, are equally El. ('as 168. Otherwise his decision against thrown awa] fter notice of disquali- the validity of the vote is final; R.v. Gabo- fication, whether tl i before rian, 11 East, 77. or after the election commenced ; K p. Haw- (./> R. i. Courtenay, 9 East, 261 ; R. v. «t,21l; Did. Corb. & Dan. I.I. Mayor. &c, of Cambridge, 4 Burr. 2010 ; K. i. Mayor, &c, ol Bedford, I East, 79; Reg. Such W eem to fall within %. Mayor, &c, of Pembroke, 8 Dowl. 302. I far within it, thai wh i: . Mayor, &c, of Pembroke, 8 i is bound to \pvc notice, every man is Dowl, 302. hound to t Deacle, - i ne, 2 Q. 15. 463 ; vid, 4 Did I M. B. & A. :;:'.!>. < ;. i R.«. Hswkins, lOEast.211, affii in R. v. Monday, Cowp 630. i* bound in) K.r. Player, 2 B. & A. 707; Bid, to t.ik<- notice of tin: disqualification wh I Hedger, 12 A. iV E. 156. judgment of a court of law, 1 1 ) it. i. Player, 2 15. \ A. 708, 709. ACTS AND PROCEEDINGS. 209 rule only applies where an addition to an indefinite body is to be elected (y) ; for there, it is said, the claim of each person in the list is essentially distinct, and his individual fitness or unfitness is alone to be determined. " This cannot be done when electors are required to vote for or against many candidates at once. They may think it so desirable that A. should be a member of the corporation, from respect and confi- dence in him, that his election would be cheaply purchased by receiving B. and C, both of whom they may deem wholly unfit for the office ; or, on the other hand, may think him so highly objectionable, that it is better to exclude a long list of well-qualified persons, than permit him to come among them. Everything, therefore, would unavoidably run into bargain and compromise, where they would be obviously unnecessary and improper, and even inconsistent with the direct purpose of such an election, which need not take place at all, and which calls on the electors to exercise no other judgment than on the competency of each individual proposed" (z). On these grounds, therefore, it has been considered that though to put forward a list of candidates' names, and take the vote upon them in a batch, is not good, where the object is merely to add numbers to an indefinite body, and where the election is not obligatory, yet where a certain number are to be elected on a given day, under a statute, to an official situation, that very mode of proceeding is the only one that can reasonably be acted on (a), provided that each elector have the opportunity afforded him of proposing a list of his own (J). In the case in question the contention was, that to propose and vote upon a list of seven persons to supply seven va- cancies in the office of alderman was a bad mode of proceeding to the election, but the court decided as above mentioned, explaining that the point on which in such a case the voter must exercise his judgment, was not whether any particular person on the list would make a good alderman, but whether that person and the others on the list would form a good board of aldermen, and that the proposer of the list must be considered as laying it before the assembly as the board which he recommended (c). And since the decision of that case, the same mode of proceeding to the election of aldermen in a municipal corporation has been prescribed by statute (d). If, however, the candidate be (y) Accordingly it has been laid down, poration of Launceston. that where by charter or prescription the cor- (s) Reg. v. Brightwell, 10 A. & E. 176. porate body ought to consist of a definite (a) Ibid. number, and the corporation neglect to fill up (/■) 10 A. & E. 176. vacancies as they occur, a mandamus will is- (c) 10 A. & E. 177. sue to compel them to proceed to an election ; (d) 7 Will. 4 & 1 Vict. c. 78, s. 14 ; 10 Bull. N. P. 201. But where the number is A. & E. 178; rid. inf. Aldermen. The indefinite, the court will not in general inter- case of Keg. v. Brightwell, 10 A. & E. 176, fere to compel an election ; Rex v. Corpora- is still an authority where a given number are tion of Grampound, 6 T. R. 302. The right to be elected on a certain day in corporations of election to corporate offices being incident other than municipal, though as to the latter to the whole body at common law, if the the above statute has prescribed the course election by custom, or bye-law founded upon laid down therein, thus placing the principle a custom, be conducted otherwise, it should be above dispute as to such corporations; vid. so stated in pleading, and the manner how per Lord Denman, C. J., 12 A. 6c L. 157. explained; 1 Rol. Abr. 513; Hicks v. Cor- 210 ACTS AND PROCEEDINGS. eligible, capable of the office, and duly elected to it, then he has a right of admission to the ofiiec; and on application and refusal or neg- lect to admit him, a mandamus lies to the proper officer or body to admit him ( . Admission to the office, and Bwearing in (where that is required), together form the consummation of the title of the elected person to the office (/). An oath niav be, by Btatute, or immemorial custom (g), part of the form of admission to the office, and the authorities in whom resides the duty and power of admission may prescribe the order in which the ceremonies forming parts of the admission shall take place (/t); and there may be circumstances in which the neglect to present himself for admission will be a waiver of the election on the part of the person elected (*). Where an oath or declaration is imposed by the legislature as an incident or indispensable part of the ceremony of admission, the party must take or subscribe them at his peril (k) ; it is not the duty in eral of the officers or body before whom the oaths, &c., are to be taken, to tender them; the party must present himself and demand that the oath, 8tc., be administered, and if the proper parties refuse, a mandamus will lie to compel them (I). The peril under which, in such . the party acts in the office is, that of being ousted on an informa- tion in the nature of a rjuo warranto, for that is the only judgment that can be given, if it be found against him, that, although duly elected, he was not duly sworn (m) ; for an elected candidate becomes a corporate officer when he is sworn, and not when he is elected (n). A person holding an office or place in the corporation which is incompatible with the office that is vacant, is ineligible to that office so long as he holds the first, and votes given for him at an election to the vacant office will be absolutely thrown away; he must vacate the one in order to be elected to the other; but where elections to one class of officers in a corporation were to be made out of another and inferior class, the effect of the dection of A. from one of the latter to one of the former, and his acceptance thereof, is to vacate the latter; and it makes no (e) Townsend's case, T. Raym. 69. Rule Humphery, 10 A. & E. 371. absolute in tir-t instance to an archdeacon to (i) Humphrey v. Reg. 10 A. & E. 335. swear in a churchwarden, on affidavit of due ( k ) U. v. Jordan, Cas. Temp, I lardw. 2')7. election, demand and refusal ; \ < parte Win- . May. 5 Burr. 2681. It is an old and probably Lord Keuyon, C. J., 1 East, 46 ; vid. 2 Q. general rule of law, that a meeting for public B. 462. purposes of any kind must be held in the (r) R. v. Godwin, Doug. 382; R. v. usual place, e.g. a sheriff's tourn ; Crocker v. Clarke, 1 East, 45, 47. Dormer, Poph! 28. p2 \N l> PROCEEDINGS. least properly appointed, place for such assemblies to take place {y). A meeting, though of the majority of the whole body of electors, not in the usual place, unless such meeting is holden out of the usual place in consequence of a previous notice for it to be held in another place, apetent authority z), or in consequence of a legal adjourn- ment to such fresh place (a), is not a legal meeting for the purpose of an election; and an election made there will be invalid on that account, though it have been in other respects legally conducted (6). That all the members <>f the electoral assembly must in general be summoned, i- bo far from being a flexible rule, that a custom to hold extraordinary meetings upon summons of all, subject to a provision that the accidental omission of summons to one should not vitiate the meeting, is bad (c). If an electoral assembly be summoned, and meet for one particular purpose, they cannot proceed to any other matter without the unani- mous consent of the whole body of corporators, who have a right to be ] resent there; but if every member be present and consent, then an election made under such circumstances will be good, though they wen not originally assembled for that purpose id). If the object of a meeting of an electoral assembly is to appoint an officer to succeed the one who, by the constitution of the corporation, presides at such assemblies, in virtue of his office, and before whom the election ought to take place, and the election ought to be made by a certain day, and such officer adjourns the meeting over that day, and over the day on which his office expires, it seems that an election made or completed at such adjourned meeting is bad, as being made before (y) On the day appointed for the election, no other business can have precedence of the : nor, if the election be once begun, can the assembly proceed to any other busi- ij« — till it is finished ; H. v. Parkyns, 3 li. & rid. 1 llurr. 2020. In municipal corporations, where an election is appointed t< to lie on a particular day, and does not take place on that day. it may be legally : 'Is j 7 \\ llf. 4 ,\ T\ il i - . I Hardw. 23. (s) / i. i''\ the legal president of such -, who may lor sufficient cause ap- point the meeting to U ke place out of the u-u;tl place, lor he may adjourn a meeting in the proper place, Reg. <■ Hedger, 12 A. & I.. 159, unci, :i> incident to the power of ad- journment, may, in the firsl instance, under circumtt I the usual place was burnt down, appoint a fresh one, vid R. p. Mayor, I < armarthen, 1 M. 8c Selw. 70 1, in) The president of the meeting has the authority to adjourn it, ft. i. Pish, l Wils. . D'Oyley, 13 A. A l . I to responsibility to the (dun ol ', Bi di ii ii i ii to disturb the id. 160; Machell i . N< ill. • . S 1 • \ o 1 1 ' ! i ■ requisite of the adjourned meeting where the business has been entered on at the regular meeting ; R. i. Harris, ] I'.. ,\ Ad. 936. (c) R. v. Langhorne, 4 A. fit E.538. An elector cannot dispel -■• generally with service of summons upon him, id. ; and a meeting taking place without bis being summoned is bad, and the proceedings void, id. If there is business to be done by a select body, they must have a separate summons in their dis- tinct capacity; they cannot act on a general summons to the whole body of the corpora- tion ; W.i. Mayor, &c, of Carlisle. Stra. 385. (d) Machell v. Nevinson, 11 Kast, 85, 87, note. They have a righl to complete freedom of action during the period of election ; any attempt to disturb them in the lawful exer- cise oft!-! is unlawful; ami if made by more than two persons coming to the assembly for the purpose of interruption by ad clamour, thai is a riot, for which an indictment or a criminal information may be bad; Reg. v. Soley, Salk. 594. Bui there is a distinction between a riot and a disturb- ance under a claim ol lijlit ; R. r. Atkins, 3 Mod. 22; K. r. Parkyns, 3 B. 8c A. 677. Any elector who is excluded, may have an action on the case ; Phillihrown i>. Kyland, Str.. 624; S. C. 8 .Mod, 351. ACTS AND PROCEEDINGS. 213 one who was not qualified to act as president of the assembly, (espe- cially if the adjournment was made without cause), and also as being made after the appointed day (e). This, however, can only happen where the officer ceases to be officer de facto and de jure at the same time. In some cases of annual officers, the law gives a power of hold- ing over until the successor is elected (_/), so that an election before such an officer would be good, although after his year of office had expired, if circumstances render it impossible, or highly inconvenient, to conclude the election sooner. In cases where by statute, or the constitution of the body, the election was required to be made on a Sunday, or on a day which happens to be a Sunday, the election is now required to be made on the Saturday previous or the Monday following; and where it is not made on the Saturday, and the office would expire on the Sunday, the officer is enabled to hold over until the Monday following {g). Election means due election ; a merely colourable and elusive elec- tion, as, for example, the election to an annual office of a person who was absent beyond seas, and who, it was known, would not return in time to discharge the duties of the office, is absolutely null and void ; and upon such facts appearing to the court, they will declare it to be so, and issue a mandamus to the corporation to proceed to a fresh elec- tion (h). If the officer be already sworn in, or if the facts be questioned or doubtful, they perhaps may, in their discretion, leave the party to bring an information in the nature of quo warranto, and try the facts upon the issues thereon (i). On the other hand, if the candidate has been duly elected, and swearing in or subscribing a declaration con- stitutes, by immemorial custom or statute, part of the form of admission to the office, the court, upon refusal of the proper parties to admit the person elected, will grant a mandamus to compel them to administer the oath or receive the declaration, and do whatever else is necessary to (e) R. v. Poole, Cas. Temp. Hardw. 26, (h) R. v. Mayor, &c, of Cambridge, 4 27; vid. 5 A. & E. 613. Where the con- Burr. 2010 ; vid.R.v. Mayor, &c, of Lyme, stitution of the corporation appoints a day for (Mitchell's case), Dougl. 85. Every writ of the election to an annual office, it seems there mandamus must be tested in term time ; Reg. cannot be, at common law, an election to the v. Conyers, 3 Q. B. 981. office on any other day; R. v. Robbison, (i) 4 Burr. 2010 ; 1 East, 79; 8 Dowl. Stra. 555. However now every meeting, or 302; vid. R. v. Corporation of the Bedford adjourned meeting of a corporation, whether Level, 6 East, 356, a case, where one for the nomination, election, appointment, or elected by means of illegal votes had been swearing in, or admission of any officer, or sworn in, and the court granted a mandamus for the transaction of any other secular affair to swear in the candidate with the majority of of such corporation, which is required either legal votes. However, an information quo by statute or the constitution of the body to warranto, in such case, may sometimes be the be held on Sunday, or any day happening to proper remedy ; R. v. Mayor, &c, of Col- be a Sunday, is to b^ held either on the Sa- Chester, 2 T. R. 259 ; infra ; vid. 6 c\ 7 turday next preceding, or the Monday next Vict. c. 89, s. 5. Mandamus cannot go to following ; 3 6c 4 Will. 4, c. 31. one integral part of a corporation to elect the (f) Foot v. Rouse, Stra. 625; vid. 4 B. whole of another integral part which has be- & C. 376- come extinct, for the corporation is thereby (g) 3 & 4 Will. 4, c. 31, s. 1 ; to meet on dissolved; Ft. v. Mayor, \c, of Colchester, any other day and proceed to an election, 2 Dougl. Elect. Cases, 59; S. C. cited 3 T. would be an indictable offence, R. v. Atkyns, R. 234. 2 Show. 236. £1 1 ACTS AND PROCEEDINGS. complete the form of admission (k). With respect to all public corpo- ration-, as it seems, but certainly in all eases of municipal corporations, a motion for a mandamus to .-wear in a corporator, upon refusal of the proper parties, is a motion of course (/), and upon the return to the writ, the whole question may be brought before the court by argument founded on affidavits. But this does not include any question respect- ing the rights of the electors; as, for example, whether they or some of them were duly qualified to vote: for such questions, can neither be entered upon by die court, nor tried collaterally by a jury, upon the question of the election of any person (;>/); in other words, the titles of corporate electors cannot be impeached through the medium of the elected, at least where there are other means by which the titles of the electors can be tried (n) ; if, however, there do not exist any other means by which the right to elect at all can be ascertained, then the court will allow that to be done by impeaching the election of the party returned (o) ; but this seems only to be allowed from the absolute neces- sity of the case, for if this mode of inquiring into the right of any corporate electoral body, against whom, from the nature of the body, a quo warranto information would not lie, were refused, the members of that body would be wholly beyond the surveillance of the Queen's lunch, and in fact exempt from the control which that court exercises over corporate bodies, and the parts, and individual members of such bodies (p). Perhaps, however, the rule is more accurately and pre- cisely stated as follows: that where the qualification of the electors depends on the tenure of a corporate office or place, that qualification cannot be questioned through the medium of proceedings impeaching the title of a person elected by them to any office; but where the quali- ion depends upon inhabitancy, or any other circumstance, which cannot be directly challenged by a legal proceeding, then, from neces- sity, it may be questioned and tried through such medium (7). But, as in corporations, there is almost always some other available mode of (k) Townsend's case, T. Raym. 69. An (0) R. v. Mem, 3 T. R. 597. attachment "ill isf the party C. J., in R. o. Latham, 3 liurr. 14B;'j. and l, till. j,rr Lord Kenyon, (.'. .L, in 3 Lord Ellenborough, C. J., in K. v. Smith, 5 ') . R, 598, commenting upon Symmeri n, ti.lt, Selw. 271, speak as if their minds were I.- Bayli \, .' ., m R. v. Hughes, 4 B. not satisfied oi the praise extent of the rule. ACTS AND PROCEEDINGS. 215 trying the right of electors, the court, it seems, will not, in general, suffer it to be done by the above mode. Thus far, however, the court will go, where the electors' title has, in a previous proceeding, been shown to be bad, as if they have been ousted from office on a judgment on quo warranto ; there that may be shown in a proceeding against an elected party (r) ; the distinction apparently being, that where a person is in possession of the office, which he must hold to be quali- fied to elect, his title shall not be brought into question in this way, but that the judgment of ouster, showing that he never was possessed, may be given in evidence. Also it is competent to a party opposing the elected candidate's reception and recognition as an officer of the corpo- ration, to show, in a proceeding against him, that the presiding officer at the meeting at which he was elected, was not de jure entitled to preside, and that consequently the assembly was not duly constituted, and the election null (. PROCEEDINGS. first sight it will perhaps appear that there is some difficulty in deter- mining from these decisions when a mandamus and when a quo war- ranto information is the proper remedy. But the law seems to be this; when- one of two candidates has been admitted (upon some form of election at least and -worn into, and is acting in, the office, so that there n officer de facto, and the disappointed candidate has open to him, from the nature of the ease, the remedy by information in the nature of quo warranto, that is the proper remedy for him to apply for, and not a mandamus to admit him also (z). If, however, the election be merely colourable, and therefore void, so that in point of law the office is vacant, and vet there is a wrongful exclusion of the disappointed candi- date, then the disappointed candidate is entitled to a mandamus, not to admit him. but to proceed to an election de novo, the former pretended election being a mere nullity (a). And it will be found on examination of the cases in which a mandamus was granted to admit the disap- pointed candidate, (there being no imputation against the election as not being bona fide), that something remained to be done, so that the office was not full de facto, and therefore that quo warranto was not, in those circumstances, an applicable remedy (b). So that whenever there has been a bond fide, but (as it appears nevertheless) a disputable elec- tion, then the party questioning it ought, if the party elected has been actually admitted into and acts in the office, to apply for an information quo warranto against him, that being the appropriate remedy in such (c). The distinction turns ultimately on the question whether the office is full de facto. Accordingly, where a disqualified person is elected, (being the only person who came forward as a candidate), the court orders a mandamus to issue for a fresh election, and not a quo ranto information, for the office is vacant (d). Tf, however, there were more candidates polled for, the mandamus would be to admit the candidate with the next greatest number of votes. It is material to observe, that the question which furnishes the test in these cases is not whether the party acting in the office be duly elected, for he may be duly elected and yet only officer de facto, as for example, where, notwithstanding a due election, he has not been duly sworn in, where swearing in forms part of the ceremony of admis- (:) It. i. M:»vor, Sec, of Colchester, 2 Bedford Level, 6 East, 356. I. R. 260; oid. 6 A. k E. 363. A quo (c) R. t>. Mayor, &c, of Oxford, 6 A. & mio information can only be had in cat B. 353 ; R. t>. Beedle, 3 A. & E. 352 ; It. r. of public corporation* ; at feast that is the Attwood, 4 B. \ Ad. 483. rule, )"/• ((/) 11. v. Courtenay, 9 East, 261 ; 11. v. (. ! j. Ma; . .(•., of York, 4 T. U. 9 Ann. c. 20, s. 8, since repealed bj 3 St 4 . Oi thai from the Vict c. 17,^. 1 Patteson, J., 5 A. nature of the corporation and the office, there • . 2 Sim. 1003, 1157. I; i. Corporation of ACTS AND PROCEEDINGS. - ^17 sion () Vanacker's case, I Ld. Roym. 496 ; Burr. 2140. S. C. Salk. 142. (h) R.v. Lisle, Stra. 1091. (p) Id. ibid.; Mayor, kc, of York v. (i) Vid. R. v. Nance, cited 4 Burr. 2132 ; Toune, 1 Ld. Raym. 502. R. o. Harper, 5 Fast, 219. 218 rs AND FROCEJ DINGS. recusant party might be indicted, or proceeded against criminally by information in the Queen's Bench. Where, however, it appeared that the corporation might have exacted a penalty for the refusal, and it did not appear that the puty had obstinately refused, and lie did not usually reside within the borough, the court refused to grant an information (), nor appoint the election to be made in a particular mode not prescribed or sanctioned by the constitution of the body (c). So where by the charter an election is to be made by the majority of a particular body, a casting voice, in case the votes are equal, cannot be given by bye-law to the presiding officer, for such alteration is not sanctioned by the charter, although it may be extremely convenient (J). The principle seems to be here applicable, that no one can transfer a larger right than he himself is possessed of(e); but in the case just mentioned, the corporation possessing only the power of election, through the medium of the particular body, specifically granted by the charter, attempted to convey out of themselves an addition to that right, which they could not do, because it had never been vested in them (/). So a corporation has no power, in the absence of words conveying it in their constitution, to appoint that an election shall be made by a specific majority, ex. gr. two thirds of the whole body of electors, instead of by a simple majority, which alone is the kind of majority known to the common law. But by statute, charter, or ancient custom not inconsistent with the charter, elections to offices may be made by one body, and the right of approbation vested in another body (g) ; and if the latter body refuse their approbation without due cause, a mandamus to compel them to admit will issue (g). Subject to these restrictions, however, all corporations, not being municipal (elections in which are now regu- (z) R. v. Miller, 6 T. R. 268. Bumstead, 2 B. & Ad. 699. No officer of a (a) R. v. Spencer, 3 Burr. 1827 ; vid. 4 corporation has a casting voice of common B. & Ad. 502, 503, 504. A custom that no right; 15 Vin. Abr. 184, pi. 8 ; Reg. v. Chap- person shall ever be eligible to an annual man, 15 Vin. Abr. 214. pi. 4 ; but a casting office, after serving two years successively, voice may be given by charter or prescription; may be a good custom ; R. v. Mayor, &c. of id., per Holt, C. J. ; vid. Anon., 7 Mod. 12 ; London, 1 T. R. 423. Anon., 12 Mod. 232. Instance of casting (b) it. v. Bumstead, 2 B. & Ad. 699. voice given by charter, 3 T. H. 201. (c) Per Parke, J., in R.v. Bumstead, 2 B. (e) Broom's Max. 352. If there be an & Ad. 704. Nor will any degree of laches equality of votes, there is no election, and a in the whole body in abstaining from the ex- mandamus may be had to compel an election ; ercise of their vested right of election, suffice if it is disobeyed, the whole of the meeting to give it to a select body ; the right of elec- may be brought up as in contempt ; Keg. v. tion being a franchise which they cannot Mayor, &c, of Bath, Holt, R. 443. surrender or transfer by mere non user ; R. (/) Vid. per Parke, J., 2 B. & Ad. 704. v. Toinlyn, Cas. Temp. Hardw. 316; R.v. (#) Reg. v. Mayor, &c, of Norwich, 2 Grosvenor, 7 Mod. 198 ; R. v. Castle, And r. Salk. 436; vid. Salk. 190, 191; Barbers. 124. The court will direct a feigned issue Boulton, 1 Slra. ul4; R. v. Tucker, 3 Burr, where the right of appointment to a corporate 1835; aid. 4 T. K. 486; vid. 3 B. & Ad. office is contested between strangers to the 263. The right of approval may be in a corporation ; Sandys v. Sandys, 1 Q. B. 316, stranger to the corporation; Wright v. Faw- note. cett, 4 Burr. 2041. (d) R. v. Ginever, 6 T. R. 732; R. v. i ACTS AND PROCEEDINGS. Kited by Btatute), have the power of settling the maimer of their elec- tions by I'M -law | j . An important principle in corporate elections, from which spring many nice qu< hich however it would not be useful to enter upon at present, is the following. Wherever a power of election is vested in a definite number, and quorum A. and B. are to be two, the presence only of A. ami B., and not their assent, is requisite to make a valid elec- tion(0; otherwise Buch a provision would operate to confer a veto on the proceedings upon A. and 15., and a veto is never construed to be conferred upon any body in, or any particular member or members of, a corpora- tion, without the clearest words to show the intention of the charter or jtitution to be so, and even then it might be very doubtful whether such an express provision in a charter would not be bad, as being con- trary to the general law of the realm, which, it seems, knows nothing of any other mode of election than by a simple majority (m). We may add here, that where the number of electors is indefinite, and some unqua- lified persons vote, on the want of qualification being discovered, it would seem that the bad votes ought to be cast out, and the election decided according to the reckoning of the majority of good votes («). But where by the constitution the number of electors is limited, and there are some who vote without being qualified, it would seem that the election is void for the whole (o). In the first case, if the disquali- fication had been discovered before the votes were given, there is no doubt that, in other than municipal elections, they might have been re- jected by the presiding officer; in the second case, the election would be void, because it cannot be known which way the votes of those who ought to have been on the list instead of the unqualified parties who actually voted, would have gone had they been present, and exercised the right, nor can it be told how far the bad votes might have influ- enced the rest, and so affected the result of the election ; and if their disqualification had been discovered before their votes were given, and (i) Newling v. Francis, 3 T. R. 189- order to interrupt the proceedings, is a riot in (/.; Fid. tup. Majority. those persons ; Reg. v. Soley, II Mod. 115. (I) Reg. t Bailiffs, Bee, of the Town of An affray arising among the members of a Ld. Raym. 1232; Cotton o. Da- corporate assembly is to be visited on the parties guilty ; 19 Vin. Abr. 237. ..i \. (ir II., or both, (m) Vid. Rol. Abr. Corporations, (i. pi. t>. would vitiate the election; but it may be (») Vid. 8 Mod. 34. I question whether it would amount to a riol ; (o) It. v. Mayor, &c.,of Bedford, 8 Mod. it rather seems only to have the character of 34, (jit. turn. So where a certain number are an affray . at 1 act U it took place during the to be nominated by one body, and one is to ■i, and not before the election were be elected out of them by another body, all i ; for that which would be a riot if the the nominees must be qualified in every re- hly were not lawfully met upon ;i law- sped ; H. v. Peacock, 4 T. R. 686. \\ bere ful oc< ' affray, in the then- is a dispute between two pans or b ambly dul;. • of officers of a corporation at to which has and met h>r the lawful purj I of nomination to an advowson be- tion ; Corporation of Grampound case, Ld. iration, the court may di- . I Hawk. P. ' reel a Feigned issue to try the right; Gape v. \g Vin. Abr, 236. Bui the disturbance of Handley, cited 3 T. R. 288; ft vid. 1 Will. bly by more than two per- 4, e. 21, s. 4. sons, who come with clamour and noise, in ACTS AND PROCEEDINGS. 221 their votes had been rejected, there could not have been an election at all, until their places had been properly filled up, so that this case is not like the former in this respect. ^\'c have seen that generally where a corporator, being eligible, is duly elected to a corporate office, the Court of Queen's Bench will interfere, if necessary, by mandamus, to compel the corporation to admit and give him complete seisin of the office ( p). On the other hand, when, not being exempt or disqualified, a man is duly elected to an office, the court, if the corporation is a public one, and the office of a sufficiently important nature to justify its interference, and in all cases where the office is connected with the administration of local jurisdiction vested in the corporation, or the administration of justice, will interfere by mandamus, in case of his refusal, to compel him to take upon him and serve the office (g). This seems to be the result of the cases, and it is remarkable, because, in most of the instances designated above, to re- fuse the office is a common law offence and punishable by indictment(r), or criminal information (s), and therefore to grant a mandamus in such case might seem contrary to the principle on which the court professes to act, namely, that the writ will be refused where there is another specific and adequate legal or equitable remedy ; but in fact the punish- ment of the corporator by fine or imprisonment is no remedy to the corporation, who are nevertheless deprived of his services in the office to which they have appointed him, unless he may be obliged to take upon him the discharge of its duties, notwithstanding his recusancy. The corporation have, probably, the remedy of an action on the case for the breach of duty ; for every corporator, upon entering the corpo- ration, is bound to perform all the duties that may be cast upon him by his position as a corporator ; he takes the burden and the benefit to- gether (t). Such is the general rule ; but in the case of municipal boroughs it is now provided (u), " that every person, duly qualified, who shall be elected to the office of alderman, councillor, auditor or (p) The Courts of Chancery disclaim all Grosvenor, Stra. 1193; S. C. 1 Wils. 18; jurisdiction either as to the election or amotion and the granting a criminal information in of corporators of any description ; Att.-Gen. such cases is discretionary with the court ; v. Earl of Clarendon, 17 Ves. 491 ; vid. per Reg. v. Hungerford, 11 Mod. 142. Dodderidge, J., Dyer, 332, B. marg. As to («) R. v. Wodrow, 2 T. R. 731; per elections of fellows of colleges, Att.-Gen. v. Buller, J., in R. v. Whitwell, 5 T. R. 86 ; Talbot, 3 Atk. 662; 1 Ves. Sen. 474; Mitf. R. v. Larwood, 1 Lord Raym. 29; S. C. Plead. 225. Salk. 167 ; vid. R.v. Denison, 2 Lord Keny. In the Queen's Bench the application is 259. of course; R. v. Rye, 2 Keny. 48. (0 Vid. the reasoning in mayor, &c, of (q) R. v. Leyland, 3M.& Selw. 186; R. Lyme v. Henley, 1 Bing. N. C. 222. It t Wodrow, 2 T. B. 731. The corporation makes no difference that the duty is only im- may pass a bye-law for the purpose of com- posed by charter, and not by statute; id. pelting persons elected to take offices upon So if he accepts the office, but omits to per- them ; Vanacker's case, 1 Lord Raym. 496 ; form the duties of it, an action lies at the suit 4th edit. ; S. C. Salk. 142 ; Hoilings v. Hun- of a party injured, though no fees are payable gerford, cited 1 Wils. 235. to him. (r) Vanacre's case, Carth. 480; S. C. 1 (u) 5 & 6 Will. 4, c. 76, s. 51. For the Lord Raym. 499; R.v. Mayor, &c, of Bed- details of elections of these officers as pre- ford, 1 East, 77. It must clearly appear to scribed by that statute, vid. the heads, Mayor, the court that the refusal is an offence in the Aldermen, kc, respectively, injra. circumstances of the party charged ; R. v. ACTS AND HUM I EDINGS. ry councillor who shall be elected to the office of mayor for any borough, shall accept such office to which he shall have been elected, or .-hall in lieu thereof pay to the mayor, aldermen and - of Buch borough, Buch fine not exceeding fifty pounds in of aldermen, councillors, auditors, or assessors, and such fine not hundred pounds in ease of mayor, as the council of such borough, by a bye-law to be made as hereinafter provided (.r), shall ire in that behalf; and such fine, if not duly paid, shall be levied by the warrant of any justice having jurisdiction within the borough, who is hereby required, on the application of the council, to issue the same, bv distress and sale of the goods and chattels of the person so refusing to accept office, with the reasonable charges of such distress ; and every such person so elected shall accept such office by making and subscribing the declaration hereinbefore (y) mentioned, within five davs after notice of his election, otherwise such person shall be liable to pay the said fine as for his non-acceptance of such office, and such office shall thereupon be deemed to be vacant, and shall be filled up by 3D election to be made in the manner hereinbefore mentioned (z): provided always that no person disabled by lunacy or imbecility of mind, or by deafness, blindness, or other permanent infirmity of body, shall be liable to such fine as aforesaid: provided also that every per- 1 to any such office, who shall be above the age of sixty- five years, or who shall have already served such office respectively, <-r paid the fine for not accepting such office respectively, within five \t ars from the day on which he shall be so elected, shall be exempted from accepting or serving the same office, if he shall claim such ex- emption within five days after notice of his election : provided always that nothing in this act contained shall extend to compel the acceptance of any office or duty whatever in any borough by any military, naval, or marine officer in his Majesty's service on full pay, or by any officer or other person employed and residing within any of his Majesty's dockyards, victualling establishments, arsenals, or barracks." This enactment supersedes, in municipal corporations, the ancient mode of compelling by mandamus the service of any corporator duly elected into a corporate office, for it gives the means to the corporation of compensating themselves by exacting a fine, fixed by a previous bye- d with that object, from the recusant party, and declares that the office shall thereupon be considered as vacant, and a fresh election proceeded with in order to fill it. In all other corporations, however, of a public character, and entrusted with any description of local juris- diction by tin- crown, and in respect oi 'all offices in municipal corpora- tions not within the above list, it appeals that the method of mandamus to compel the partj to serve is available; and the principle upon which 6 Will 4, c 76, 1.90, and <-) Vid. the titlea Mayoti, Aldermbk, (ii i oiis, Auditors, Assessohs, respee* I; 7 A. lively, tn/ra. ACTS AND PROCEEDINGS. 223 such compulsory process issues is this, that it is the prerogative of the sovereign to command (a) the services of all his subjects, at least, in all offices relating to the administration of the government of the realm ; and when any portion of the realm is confided, by the crown, to the local jurisdiction of a corporation, the powers of the crown will also be ex- tended to aid them in compelling the performance of such duties as may be necessary for exercising and preserving the jurisdiction en- trusted to them. In confirmation of the view above taken of the effect of the provision just stated in superseding the process by mandamus, we may observe, that before the date of that statute it was held that the payment of a fine, under a bye-law, did not discharge a corporator, when duly elected, from the obligation of performing the office, where the fine was not payable by the bye-law in lieu of such service (&). Here, however, the fine is declared to be in lieu of the acceptance of the office, and on payment or levy of it the office is declared to be vacant, &c, as before stated. Even if a bye-law were passed by any public corporation of the description before referred to, not being a municipal corporation, imposing a penalty for not accepting a corporate office, and expressly stating that the penalty should stand in lieu of service of such office, it does not appear quite clear that such bye-law would be valid to take away the common law power of compelling service in such cases ; for though it is universally true that quique potest renunciare juri pro se introducto, yet that maxim does not extend to enable a body invested with public functions to waive the rights which have been given them for the public purpose of securing the proper execution of such func- tions. The above view is also fully borne out by a subsequent provision for the resignation of officers in municipal corporations, and for refusals to take office on conscientious grounds, as follows (c) : "And whereas no provision is made in the said act (5 & 6 Will. 4, c. 76) for resigning any corporate office on payment of a fine or otherwise, be it enacted, that every person elected into any corporate office in any of the said boroughs (d), may at any time resign such office on payment of the fine which he would have been liable to pay for non-acceptance of the same (a) Knowles v. Luce, Moor. 109, 111; titled to do any more than to sell a franchise; R. v. Larwood, 1 Lord Raym. 32. R. v. Breton, 4 Burr. 2260. Vid. tarn. R. v. (ft) R. v. Bower, 1 B. & C. 585, which Wodrow, 2 T. R. 731. case also decided that it was an offence at (c) 6 & 7 Will. 4, c. 104, s. 8. common law to refuse an office when duly (d) This refers to s. 1, where we find that elected; et vid. Com. Dig. Indictment, L). ; the boroughs intended are those named in R. v. Burder, 4 T. R 778. It is very doubt- schedules A. and B. annexed to the stat 5 & ful whether a bye-law thus commuting the 6 Will. 4, c. 76. Hence it may hereafter be- sei vices for a payment would be good, unless come a question whether this provision ex- under a special provision in a charter or sta- tends to enable officers in municipal corpora- tute ; for it would be unjust and unequal in tions, created since the passing of that act, to its operation, being calculated to favour the resign on payment of a fine, which in fact is rich ; it would in most cases be an alteration the same doubt which caused the above enact- in the constitution of the body ; and it would ment, 6 & 7 Will. 4, c. 104, s. 8. I'id. infra, be selling an exemption, which there seems to Resignation. be no reason why a corporation should be en- 224 ACTS AM) PROCEEDINGS. office : provided that no person enabled by law to make an affirma- tion [,:., instead of taking an oath, shall be liable to any line for non- acceptance of office in any borough, by reason of his refusal, on con- >unds, to take any oath or make any declaration required by the said act, or to take upon himself the duties of such office." These provisions Beem to tend strongly to show that the payment of the line was intended, by the legislature, to have the effect of completely purging the offence of refusing the office. With respect to the fine, as it is called, in the above enactments (/"), it must be fixed previously to the case arising in which it is to be exacted, or the bye-law affixing it will be bad: for every bye-law must be prospective and also general in its operation, not being good if made pro hue vice, although it may be intended to stand for future occasions also(^). Also there is nothing to prevent the corporation, provided they keep within the statutory limits as to the sums in each class of cases, from repealing such bye- law, anil making a fresh one altering the amount of the fine, and re- peating the same process from time to time {k) (subject to the above- mentioned requisites), until they arrive at such an amount as may suffice to secure the performance of the service, or otherwise, as they may find convenient. In case the corporation should altogether omit to make these bye-laws, it is probable that, as directory provisions in a statute which concern the public interest are to be construed as obligatory, the Court of Queen's Bench would think proper to compel them to perform this duty by mandamus (i). But whether, if they failed to make them, that court would grant a mandamus to compel a corporator elected to an office to serve, and so remit them to their common law right, may be doubtful, for they would make the application with but a bad grace, as the necessity for it would be caused by their own laches. Another (e) 5 & 6 Will. 4, c. 76, s. 21 ; vid. 1 6c 2 qui vindicator vel propinquu ejui exsolvitur ; \ hi. cc. l-l, 15. Generally refusing to take Tacit. De Mor. German. XII. the oath is refusing to take the office; Lang- (g) Vid. supra, Bye-Laws, p. 76. 7 Q. ham's case, March, 179, 189, 190. The words B. 451 ; vid, City of York v. Town, 5 Mod. " any declaration required by the said act" 444. declaration under 9 Geo. 4, c. 17, (h) Per Ashhurst, J., 3 T. R. 198 ; vid. 12 s. 2 ; i id. per Patteson, J., in R. v. Winches- East, 22. Iit, 7 A. a R. 221. Form of mandamus to (i) Vid. Yanacre's case, 1 Lord Raym. administer the declaration. Corner's Cio. 499; S. C. 5 Mod. 440 ; R. v. Mayor, &c., PractQ. B. App. 136. of Norwich, 1 B. .V Ad. 310; l'enrce v. It would seem 'hat this payment is not Morris, 2 A. ^ K. 84 ; 2 Dwarr. Stats. 713, a tine, according to the legal et seq. ; 5 T. R. f)38, 636; Steward p. definition of the word, which is a penalty im- Greaves, 10 M. a W. 719; Cane v. Chap- posed by a court of record, Groenvelt v. I'ur- man. 5 A. & E.652; Reg. v. Eastern Coun- well, 1 Lord Raym. 454, 467, and having ties Railway Company, 10 A. & E. 531. It imprisonment for its correlative, so that where- is to be observed, that s. 90, to which the i\.r ■ man may be fioed be may be impri- above s. 51 refers, apparently, when speak- . Vearb. 34 Hen. 6, fol. 24; via. 4 ing of bye-laws to be made "as hereinafter . 380; I allis, Sewers, \~-'>, 176. provided," does not contain any reference to Also all tin. - foi ofJi ao - I" long to the king ; such bye-laws, but only gives power by the I e, 3 v alt, 21 words " it shall be lawful to make bye laws Lord Hardwicke, ( .J., Cas. Lmp. Hardw. for the "good rule and government of the It i- curious to ob* rve the antiquity of borough," with fines not exceeding./iue/>i>f< '»'.•<. this principle, and of that of a qui tarn action : Therefore there may be a doubt whether delictis pro mode patnarum powei is t^iven to make theu bye-laws, and, •gin i tm pecoi umque mantra rom icti mnletan- if not, whether the corporation can make them tar ; pari muleta rc^i vet ciatati, pars ipsi at common law. ACTS AND PROCEEDINGS. 225 question would arise, as to resignations, in case no fines were fixed, and perhaps, in such case, an officer would be allowed to resign without waiting for the acceptance of the corporation, without which at common law his resignation would be invalid. The application to the justice for a warrant to distrain for the amount of the fine, must be made, as all acts of the council are to be performed, in pursuance of a resolution, and ought probably to be in writing, reciting such resolution, with the parties' names and other particulars necessary for the guidance of the justice in making out his warrant. Reverting to the terms (k) used by the legislature respecting the fines, &c, just mentioned, it will be observed, that " every councillor who shall be elected to the office of mayor" is made liable to the fine upon refusal; and it would seem, from the broad distinction, which is preserved throughout the statute (/), between aldermen and councillors, that the omission of the word aldermen in this part of the section was designed, and that the effect is, that an alderman elected mayor is not exempted from serving by paying a fine, for in that case the section gives no exemption ; and though the corporation, notwithstanding, might, by their common law authority, pass a bye-law imposing a pe- nalty on every alderman refusing to serve, on being duly elected, and not being exempted, &c, for such bye-law would not be at variance with the other laws of the realm in general, or inconsistent with, or re- pugnant to, this statute in particular, and therefore would be valid ; yet that would not in general operate to exempt him from serving, not even, as it appears from what we have said above, if the bye-law should state that the payment of the penalty should stand in lieu of such service ; and, therefore, as it seems, an alderman so refusing would be compellable by mandamus to serve as at common law, for there is no other remedy ; and the rule is, that in general the court will grant a mandamus in support of charters, customs, and statutes, where there is no specific adequate remedy at law, as by quo warranto information, or by quare impedit(m), or in equity (n) ; and, in respect to officers in corporations, they will issue the writ to compel them to do the duty of their offices, though they may be under penalties for re- fusal, by bye-law or otherwise, so that the corporation might, to that extent, enforce by action the performance of the duties (o). The exemptions of lunatics and persons of imbecile mind seem to (k) Vid. sup. p. 222 ; 5 & 6 Will. 4, times go, though an indictment would enforce C. 76, s. 51. the doing the act ; Ei parte Robin?, 7 Dowl. (/) Vid. sections 25 and 49 especially. 56B ; vid. 2 B. & A. 646 ; 2 Q. B. 64. Such (m) R. i'. Chapter of Kxeter, 12 A. & E. mandamus must show that the thing required 534. It is the peculiar province of the Queen's to be done by it is within the range of the Bench to exercise jurisdiction over corpora- official duties of the defendant, Reg. i>. Hop- tions, in order to see that they act agreeably kins, 1 Q. 15. 161 ; and, in most cases, that to the end of their institution ; R. v. Askew, there has been a demand and refusal to do 4 Burr. 2188. it. It vvdl issue to an inferior officer where (n) Reg. o. Pitt, 10 A. & E. 272. there is no other remedy ; Reg. v. Kendall, (o) R.v. Everett, Cas.Temp. Hardw.261. 1 Q. B. 366. la cases of corporations the writ will some- 226 ACTS AND PROCEEDINGS. have been introduced into the statute from a needless excess of caution, because " fools and madmen are tacitly excepted out of all laws what- soever, and therefore it would have been ridiculous to have made an express exception of them"(/»). It is quite evident, therefore, that lunatics and persons of imbecile minds are in all cases ineligible as members or officers of corporations. The clergy also appear to be exempt at common law from the obli- gation .4' Berving corporate offices (ry) of every kind; and it is enacted by the Municipal Corporations Act, that no person in holy orders, or the regular minister of any dissenting congregation, shall be qualified to be elected, or to be a councillor or alderman of any borough men- tioned in the act (r) : the disqualification appears to be needless as re- gards persons in holy orders. Attornies are exempt, as such, from serving offices in municipal cor- porations (s) ; but they shall not be so if they have left off practice for a yoar(jy). The next point to which we may direct attention is a statement of the principles and modes in which the Court of Queen's Bench inter- feres to rectify mistakes or frauds in corporate elections by means of mandamus and quo warranto information. First, by a late enactment, the established modes of interference, which are writ of mandamus and information in the nature of quo warranto, are materially expedited in cases of elections to offices in corporate cities and towns, as follows (t) : — " And whereas it is expedient to render certain proceedings by way of quo warranto and mandamus, so far as they affect corporate offices in boroughs, more summary and expeditious, be it therefore enacted, that from and after the passing of this act, in all cases of intended ap- plication to the Court of Queen's Bench, either for a mandamus to proceed to an election of any corporate officer or officers in any of the aforesaid boroughs (w), or for an information in the nature of a quo ( p) Per cur. London City v. Vanacker, may be sued in forma pauperis ; nor is it a Carth. 483. ground for exacting security for costs; Reg. (q s Dr. Lee's case, 1 Ventr. 105 ; S.C. 1 v. Mayor, &c, of Malmesbury, 9 Dowl. 361. Lev. 303 ; *2 Inst 3. By the common law, where there was a va- (r) 5 6c 6 \\ ill. 4, c. 76, s. 28. cancy in a definite body of officers, which it (i) Mayor, 6cc, of Norwich v. Berry, 1 was the duty of the corporation to keep full, W. Bl i the court would grant a mandamus to thecor- (i) 6 Ac 7 Vict. c. 89, s. 5. ; form of man- poration to proceed to an election to a va- damus to proceed 'o election, Corn. Cro. cancy, though no one was particularly injured Praet. Q. II. Ajip. 131. of notice pursuant by their neglect to do so ; but in the case of thereto, id. 135; requisites of affidavits in an indefinite body, which, from the nature of support of an application for a mandamus, id. it, the corporation might add to by fresh elec- 2"20. tions as they see fit, or where there is a dis- (u) It appears by sect. 1, that these words cretion in a part of the corporation to approve mean the boroughs mentioned in Schedules A. the party elected, the court would not inter- and B. ol the Municipal Corporations Act fere unless the party applying could show that (5 & 6 Will. 4, c. 76). Hence it may be some legal injury was caused to him person- doubted whether the above enactment will be ally by reason of the omission ; R. v. Mayor, applicable to cases of elections in municipal &cc, of London, 3 B. & Ad. 255 ; Case of corporations created since the passing of the Nottingham, Bull. N. P. 201 ; S. C. Sayer, Muni- ipal Corporations Act. Any pen-on who 36. The general principle is that the court has an interest in the matter of the writ mav will not interfere with the discretion vested in be prosecutor of a mandamui ; poverty is no a corporation unless it is exercised so as to ground of objection to him by itself; a writ injure some one; but a duly imposed on the ACTS AND PROCEEDINGS. 227 warranto against any person claiming to be a corporate officer of and in any of the said boroughs, it shall be lawful for the party intending to make such application to give notice in writing thereof to the party to be affected thereby, at any time not less than ten days before the day in the said notice specified for making such application, in which notice shall be set forth the name and description of the party by whom such application will be made, together with a statement of the grounds thereof, and at the same time to deliver with such notice a copy of the affidavits whereby the application will be supported ; and thereupon it shall be lawful for the said last-mentioned party to show cause in the first instance against such application ; and if no sufficient cause be shown, it shall be lawful for the said Court of Queen's Bench, on proof of the due service of such notice and statement, and of the delivery of a copy of such affidavit as may be used for the purpose of supporting such application, to make the rule for such mandamus or information absolute, if the said court shall so think fit, in the first instance ; and also, if they shall so think fit, to direct that any writ of mandamus thereby ordered to be issued, shall be peremptory in the first instance ; and also that the venue in any information thereby ordered to be filed, shall be laid in the county of Middlesex or in the city of London, and that the issue or issues of fact thereon, if any, shall be tried at the sit- tings at nisi prius of the said court at Westminster or in London, by a jury of the same county or city respectively" (x). corporation, either by charter, statute, or per- haps immemorial custom, they will oblige them to perform generally ; 1 B. & C. 86 ; 3 B. & Ad. 266; 2 B. & Ad. 158. A single writ of mandu7nus may go to proceed to the election of more than one officer if there be more than one vacancy ; R. v. Mayor, &c, of Nottingham, Sayer, 36. But in no case can a mandamus to a corporation, complicated with various independent matters, be allowed ; R. v. Mayor, &c, of Kingston-on-Hull,Stra. 578; Case of Andover, Salk. 433; Anon. Salk. 436. In case of disobedience to a mun- damus to proceed to an election, the parties who ought to execute the order will be liable as for a contempt. In one case a disobedient mayor was imprisoned for three months and ordered to pay all costs; R. v. Mayor of Truro, cited 1 H. Bla. 209. (x) It has been settled that a burgess is not a corporate officer within this act ; In re Milner, 5 Q. B. 589. But it does not appear that a burgess may not still have a writ of mandamus to restore him to his place when improperly removed ; Clerk's case, Cro. Jac. 506; R. v. Mayor. &c, of Wilton, 5 Mod. 257. It seems to be questionable whether a borough coroner is within it ; Reg. v. Grim- shaw, Q.B., T.T. 1847, 16 L.J. (N. S.) Q. B. 385 ; S. C. 5 D. & L. 249. Where strong grounds are shown to the court for concluding that there has been such miscon- duct as to render an election void, they will grant a mandamus to proceed to a fresh elec- tion, although there be an actual plenarty of the office, where the question cannot he de- termined (from the nature of the office) by quo warranto information, or action at law, R. D. Rector, &c, of Birmingham, 7 A.&E. 254 ; or if the election was void, as being an election of a disqualified person, Reg. v. Corporation of Pembroke. 8 Dowl. 302. It is not necessary that the office should be free- hold (which is now considered to mean an office for life at least), nor one of consider- able permanency; the writ has been granted to compel the election to an office which was not necessarily more than annual, R. i>. St. Martin, 1 T. 11.146; and even in the case of ministerial officers it has been granted where they were necessary to the due execution of the powers confided to the corporation for the administration of justice, R. v. Mayor, &c, of Liverpool, 1 Barnard. B. R. 83 ; w'rf. cases cited 3 Q. B. 556—559 ; viil. inf. p. 238 ; An office granted qumn din se bene gesseiil is an office for life, and the grantee has a free- hold interest ; Cruise, Digest, Offices, s. 27 ; Davis v. Waddington, 7 M. & Gra. 42. The above enactment will probably be so con- strued as to supersede the practice of issuing cross or concurrent writs to elect, which was sometimes adopted on special grounds ; R. t>. Mayor, &c, of Oxford, Cas Temp. Hardw. 179 ; R. v. Mayor, &c, of Wi^an, 2 Burr. 784. But the enactment will not interfere q2 228 ACTS AND PROCEEDINGS. M it questions respecting the writ of mandamus arise on returns thereto. The first point to be remarked, with respect to the return to a writ of mandamvt in ease of a corporation, is that the return to it need not be under the common seal of the corporation ; for the return is always to be filed of record, and matter of record done by a corporation need not be sealed I y ; nor need il be signed by the head or other officer of the : >r at common law no officers were obliged to sign their returns, and if the head of the corporation procure a false return • made to the mandamus, it will be sufficient evidence against him that the writ was delivered to him, and that it has such a return made to it, and that will he presumptive evidence that he made the return until he shows the contrary; also the head, or any other officer, making a false return, makes it at his peril, for he is liable, in his private cape . to any one whose rights are affected with a possible damage by the falsehood of the return {b\. However, it is not enough on a return, that the party may be able to falsify it in an action ; but the matter must he so alleged that the court may be able to judge of it and determine whether it he a sufficient cause or not(c); for, in general, a return must be certain to every intent (c). The old rule of law has been asserted to be, that after a return made, wi'h the rule, that where there has been an ou-'er of the officer on qua wai runto informa- . the paity applying for a mandamut to pro'- til until judgment lie tnoves ; R. v. West Looe, 3 Burr. 1386; R. .. Mear», 4 B In virli case the relator Ins the priority of • before any one else; R. i. Wert l.i ■ . 3 Burr. 1387- R. .. M'Kay, 4 li. \ C. 658. As to costs, and the proper form of Hie rule for ihe payment of them, abridge, 4 Q. \\. 801 ; rid, ai to requisite! of affidavits. Corn. Cro. P..Q B. 221; 1 Q. B. ( v) I . l.i Exeter, 1 Ld. n. '2-2:!, 4th edit . IS Vin. Abr. '214 ; , ol I net fold, 2 Ld. Raym. I., Arnold p. Mayor, bcc. o( Poole. 2 Dowl. N. >. 688. I be re- turn appears to be ambulatory and revocable until it is filed, :) Burr. I 'ill. As to the ■■• sod return of the writ, 7 A. a. I . ol return to a writ of mandamut, Coro. Cro, IV. App. 1 14 ; •■ id. App. 2 li the pros ec utor omits '<> pro- to trial on return and at in ca*e of nonsuit j 4 T. R. 689 ; 3 Q B. 577. If the prosecutor object* to thi valnlity of the reiuin. he may demur bj 7 Vict. c. 'i7. a, I; il not, be pleads io or ■ !l or any of the n sttrial f icts in ■ Mm. to which the defendant o ty reply, ir, &c, as if in an action on ise for a fal^e return, by 9 Ann. c. 20, %. 2. and I Will 4, B.31, ». 3. Amend- mfnu before trial, 9 Ann. c. 20, ». 7 ; at trial. 3 & 4 Will. 4, c. 42, s. 23. As to da- • s and costs, rid. 9 Ann. c. 20, s. 2 ; It. 1 1. Mayor, \c, of Glamoigan. 2 Smith, K. 8 ; i. Fall, 1 Q B. 614 ; ii./. 1 Q.B.751 ; 2 Q B. 578 ; writ of error, 6 & 7. Vict. c. 67, s. 2 ; 3 Q. B. 528. (:) It. >. Mayor, Sec, of Kxeter, 1 Ld. Raym. 223; Reg. v. Mayor, £*c, of Thet- ford, 2 Ld. Raym. 848 ; II. p. Mayor, of Wigao, 3 Burr. 1644. The bunging of the writ admits the body to be a corporation ; R. .. Halse, 1 Keb.20. (n) Reg. r. .Mayor, &c, of Thetford, 2 Ld. Raym. 849; rid. 1 (,>. 15. 644. If he were to die between the making and filing, the court might direct an Usue to try the au- thenticity of the return ; K. v. Mayor, fico., of Wigao, 3 Burr. 1645. ( /- > Generally a possibility of damage, where a right is infringed, gives a ground of ac'io:. ■II. J .. Ishby p. White, '2 Ld. Raym. 948 ; "d. Hunt i . l)owman,Cro. Jao. 478; Wilson p. Mackrelh, 3 Hurr. II 5; Hollo, d p. Bailey, 18 L.J. l N. S.) Q. B, 110; Sterling i . I urner, 2 Ventr 206 ; ISOD p. Karl ol Kinnoul, 9 Cl.i. 6c F. 28 ( i. Where several join in the application for the mandamus, they most join in the action for the false return ; Bull. N. P. 202. The I Will. 4, c. 21, seems to have nearly superseded the action on the case for a false return, for it gives the prosecutor a right to damages and costs on a traverse to the re- turn ; Reg. v Kail, 1 Q. B. 644. (e) R. v. Mayor, &c, of Abingdon, Salk. 432. ACTS AND PROCEEDINGS. 229 no objection could be taken to the writ ; but it is otherwise now ; and an objection has been held fatal, after a return made to a peremptory mandamus, though such return cannot be heard (d). Every return to a mandamus, as has been said, must be certain to every intent (e), that is, it must have the utmost possible certainty. Thus, to a mandamus to restore to an office, the return was, that he consented to be turned out; it ought to have been more certain, as that he had, at such a court, or meeting, of the corporation or proper body, resigned, and that the corporation had accepted his resigna- tion (/"); for a resignation of an office is nothing until it is accepted by the corporation, who are entitled to the service of each member in any corporate office to which he may be appointed, and, therefore, have the option whether they will accept of a resignation or not. And a corporation appears to enjoy a completely uncontrolled discre- tion in this respect; nor is there any injustice or hardship in this ; for as no man can be made a corporator against his will {g), he must be understood, upon entering the corporation, to take the benefits and burdens of membership together. However, the above rule does not make a return bad which relies upon several independent causes (A); though if any of those causes be contradictory, the return is wholly void (i). That A. was not a burgess, that he was ineligible to the office of councillor, and that he was not elected, have been held not to be inconsistent averments in a return (k). And though it ex- pressly appear that the election could not have been good ; yet, be- cause the return was inconsistent, the court will avoid it, and put the corporation to their quo warranto, if they wish to get rid of the officer (I). (d) Reg. v. Ledgard, 1 Q. B. 624 ; vid. 5 Burr. 2742; Carth. 501 ; Slra. 896; Cas. Temp. Hardw. 362. But after a return has been made by the proper body in a regular manner, dissentient individualscannot he heard to dispute its propriety; R. v. Governors of St. Andrew's, \c, 7 A". & E. 284. Also the court has a discretion to amend improperly tested writs, which it may exercise after the return; R. v. Conyers, 15 L.J. (N. S.) Q. B. 300; vid. 4 T. R. 499 ; inf. p. 230. (e) R. v. Mayor, &c, of Abingdon, 1 Ld. Raym. 559 ; R. v. Mayor, &c, of Lyme (Mitchell's case), Doug. 80; It. v. Mayor, &c. of Carlisle, 8 Mod. 99, 101. Even a return to a mandamus to elect must be certain to every intent; Salk. 432. (/) Reg. v. Lane. 2 Ld. Raym. 1304; R. v. Mayor, &c, of Abingdon. 1 Ld. Raym. 559; Com. Dig. Mandamus, D. 5. (g) Per Yates, J., R. v. Askew, 4 Burr. 2200. (h) Reg. v. Mayor, &c, of Norwich, 2 Ld. Raym. 1244, 4th edit.; S. C. Salk. 436; vid. 4 Burr. 2044. Where such independent matters are part good and p:irt bad in law, the court may quash the return as to the bad part, and put the prosecutor to plead or tra- verse the rest; R. v. Mayor, &c, of Cam- biidge, 2 T. R. 456: but as the parly has now the power of demurring to the return, it is doubtful if the court would do so at pie- sent, vid. Reg. y. North Midland Railway Company, 1 1 A. & E. 955, note; 6 St 7 Vict. c. 67, s. 1. (?) Reg. v. Mayor, &c. of Norwich, 2 Ld. Raym. 1244, 4th edit. ; R. v. Mayor, Sic, of Cambridge, 2 T. R. 45S; R. v. Mayor, &c., of York, 5 T. R. 66. It had been held that the court may reject the bad part and admit that which is valid in a return; R. v. Arch- bishop of York, 6 T. R. 490 ; qu. lam. since the party has the power to demur. (A.) R. v. Mayor, &c, ol Cambridge, 2 T. R. 456. Where some issues are found for prosecutor, and others for defendant, vid. as to judgment, Reg. v. Trustees of Luton Roads, 1 Q. B. 860, et vid. 3 Q. B. 577. (/) Vid. Meg. v. Mayor, &C, of Norwich, 2 Ld. Raym. 1244 ; 2 1'. It. 460. U here a return was bad in part and good for the rest, the law used to be. that the bad part might be quashed, and the prosecutor put to plead to the rest; 1 1 A. 5c E. 955, note; lid. turn. 6 (S. 7 Vict. c. 67, s. 1 ; sup. n. t h). 230 ACTS AND PROCEEDINGS. So a return, that a person was not duly elected ; that there was a custom to remove ; and that he was removed pursuant to such custom, does not state inconsistent causes (rn) why they could not restore the partv. With respect to the question of evidence on the issue of not dulv elected, it was formerly held that a person who had only one of two qualifications to be elected, might be called as a witness to prove that the exclusive right to be elected resided with persons who had both qualifications, but that a person who possessed both qualifica- tions could not be so called^. But since the late enactments which remove the objection of interest to the admissibility of witnesses, the witness would be equally admissible in the last case as in the first (o). Upon a return to a mandamus to swear into an office, that he was not duly elected, the party must prove, on an issue thereon, that he has performed a statutory requisite to be elected, although to do so were not required of him at the election (p). In no case will the court /tear a return to a peremptory mandamus, not even if it state an attempt made to comply with the exigency of the writ, and the causes which frustrated it(. Reg., 16 Law J. (N. S.) Q. B. 433. \ndr. 105. (r) Bull. N. P. 201. However the attach- ( a > Stephenson '■ Nevinson, 2 Ld Raym. ment will not issue if it turns out, even on the 1353; S. I . Btra. 683 . H( ckley o. I.amb, I motion, that the writ of mandamus is vicious; Ld. I; 1. 731 j vtd. per Bailer, J., Walton 1 Q. B. 622. ■;, . 1 I. R (s) 1 Q. B. 618. A mandamus ought (n) 3^4 Will. 4, c. 42. s. 26, and 5 & 6 always to be directed to those, and to those Vict C. 85, S. 1. only, who are to obey the writ; Reg. v. (],) Tufton v. Nevinson, 2 Ld. Raym. Mayor, &c, of Hereford, Salic. 701; R. v. . and where he has not been admitted Mayor, &c, of Abingdon, Salk. 699 ; R. v. to the office it makes no difference that he Mayor, &c, of Norwich, Stra. 55; Com. had no notice that inch proof would be re- Dig. Mandamus, C. 1 ; 15 Vin. Abr. 209; 2 ol him at the trial; B.C. Stra. 585; 2 M, ,\ B< Iw. 599. I LRaym 1354. In case, however, the p;irty (t) 1 Q. B. 618. Form of peremptory had been long in the possession of the ortice, maiidumus, Corn. Cro. P. App. 143. ACTS AND PROCEEDINGS. 231 Where the corporation at large have the power and ditty to perform the act which will satisfy the exigency of the writ, there can be no question ; the corporation, by its name of incorporation, is the proper party for the writ to be directed to(w). But on disobedience, in such case the motion must not be for an attachment of the " mayor, alder- men and burgesses," or against the corporation, by whatever name it may be called; for a corporation cannot be attached(a-); but against the parties who voted against rendering obedience to the peremptory writ at the corporate meeting (y) on the subject, and who carried the question for disobedience, with the addition, it should seem, of those members of the meeting who, being duly summoned, stayed away with- out adequate excuse; for in such case, as we have seen(^), the absen- tees are considered in law to have voted with the majority; and it ought not to be tolerated that a party, by shrinking from his duty, should thus relieve himself from liability, as that would be a species of profiting by his own wrong. Therefore the majority of the corporate meeting, whether of the whole or of a section, who voted for disobedi- ence, plus those members who unduly stayed away, are the proper par- ties to be attached in case of disobedience to a peremptory mandamus, ordering something to be done which it is in the province of the cor- poration at large to do in the performance of their corporate functions. When the thing required is solely the duty, not of the corporation, but of an officer or officers, the writ ought to be directed accordingly, but the result of disobedience is not perhaps quite the same as before, for the whole of such body (if not itself a corporation), (or the officer,) would be equally liable to attachment for disobedience, though some of them might have been desirous to obey, inasmuch as the law appears (u) The corporation must be called upon dale, J., 1 Q. B. 619; Anon., T. Raym. 152; by the writ in such case, though by its con- 19 Vin. Abr. 152, pi. 12 ; R. v. Mayor, &c, stitution the duty may be actually performed of Rye, 2 Burr. 798; Morgan v. Mayor, &c, through the intervention, ministerially, of a of Carmarthen, 3 Keb. 350; vid. Tyndal's section of the general body; Reg. v. Led- case, Cro. Car. 253; conl. Cowp. 85; Fitz. gard, 1 Q. B. 623 ; vid. ace. Mayor, &c, of N. B. 185, D. These authorities refer to an Sandwich v. Reg., 16 Law J. (N. S.) Q. B. attachment of contempt, which only issues 433; per Wilmot, J., 3 Burr. 1643. The against the guilty corporators; but an attach- name, style, &c, of the corporation, or of the ment in the nature of a pone may issue against officers, must be correctly given ; Withering- the corporation to compel an appearance ; ton's case, 1 Keb. 61. Where the corpora- Mayor, &c, of London v. Mayor, &c, of tion have only the power of doing an act or Lynn, 1 H. Bla. 209. It is not sufficient to not at their discretion, and exercise it by return to a mandamus, enjoining the corpora- refusing to act, a mandamus will not go to tion to do that which they were constituted, compel them to act, the court never interfer- and authorized and empowered to do, that ing with the lawful exercise of a discretion the thing is impossible ; Reg. v. Eastern reposed in a body. Vid. instance, R. v. Mayor Counties Railway Company, 10A.&E. 531. of Liverpool, 1 Barnard. B. R. 82; vid. 1 (y) Vid. sup.' p. 3. It makes no differ- Burr. 131 ; R. v. Surrey Justices, 2 Show. ence whether the business falls within the 74; R. v. Mills, 2 B. & Ad. 581; R. v. functions of a meeting of the general body, or Mayor, &c, of London, 3 B. & Ad. 255. of a section, to whom, as agents meielu, by How to return discretion, &c, 3 A. & E. 544; the constitution, the performance of it may 15 East, 117; 3 B. & Ad. 255, 268; 1 Sua. be delegated; 1 Q. B. 623. U5 # (s) Vid. sup. p. 204; per Lord Hard wicke, (i) Per Keeling, C. J., in Approved Men C, in Charitable Corporation v. Tutton, 2 of Guildford v. Mills, 2 Keb. 1 ; per Little- Atk. 405. 230 ACTS AND PROCEEDINGS. to know nothing of any right of voting in such cases, and therefore calls upon all to act (en; and their meeting is not a corporate meeting. Whether to state that the party procured his election by bribery is a good return to a mandamus to admit to an office, in all cases, was formerly made a question (In, it being doubted whether bribery would make the election void, unless the office were an office within 5 & 6 Edw. ' ; . c. 19; for though (it was said) elections ought to be free, yet an elector might use his liberty to vote for him that had given him money; and a decision (c) was relied on, in which it was resolved, that a bond conditioned for the payment of part of the profits of the office of provost martial in the Island of Jamaica was a good bond, though it would have been void under the above-named statute if it had con- cerned such an office in England. But from subsequent authorities it seems that such a bond would be void at common law, and a court of equity would grant a perpetual injunction against proceeding upon it(<7). And it has been held an offence at common law, the subject of a criminal information, to promise to pay a corporate elector a sum of money to induce him to vote for a particular person to be mayor(e). But the statute certainly includes all offices and places concerning the administration of justice (/), and wholly disables the party bribing, &c, from holding such office ; and consequently an election in the corpora- tion to any office of that nature, in which bribery of the electors had been practised, on the part, or on behalf, of the person elected, would be (a) R. v. Chancellor, &c, of University of Cambridge, 1 W. Bla. 549, 550. The case of such bodies seems 10 be very similar to that of trustees under a power, where all must act, and the doctrine of majority does not apply; Brown v. Andrew, 18 Law J. | \ . s.) Q 13. ml Granville v. M'.Vile, 18 Law J. ( \. S. Chanc. 164. The party injured by onduct ol the body or officers men- tioned in the text, might maintain an action to recover compensation for such injury ill, or one or more of them, according to the principles recognized and laid down in the judgment of the House of Lords in Fer- guson ' . nnoul, 9 Cla. & F. 280. For su< h body or officers are merely minis- ter. ;il ai to the writ ; and where several per- sons are jointly bound to perform a duly of a merely ministerial character, they are jointly and severally liable for the failure or refu-al. to the pariy thereby injured . per Lord Bi . S.C., 9 ' i. \ I . 21 \ .■•lit officer was in one case imprisoned • for the contempt, and ordered Is; R, v. Mayor, a < ., of Truro, il. I'll. 209 So a return to a man- liamui to elect being made, that the voles li' hi thai this was a re- turn which the corporation was incompetent to make, and that they must I some one, and if not, they must all he brought •i ronten.pt; Reg. P. Minor, i\c, of Bath, Hell's R. 443; , „/. Reg. v. Chapman, 5 Mod. 162 ; tup. p. •2.31, n. ( i ). Par Holt, C. J., in Hep. v. Mayor, etc., of Norwich, 2 Ld. Raym. 1245. Lord Mansfield, C. J., speaks of bribery at elec- tions, generally, as a common law offence, 1 \\ . Bla. 383. (c) Blankard v. Galdy, Salk. 411. Eut the offence is punishable at common law ; R. d. Vaughan, 4 Burr. 2494 ; er gra. by criminal information; R. v. Cripland, II Moil. 387 ; Spinage's case, cited I W. Bla. 380, 383. What are offices within the above statute, vid. 2 Evans' Stats. 326; et vid. 49 Geo. 3, c. 126, which makes the offences of taking money, Sec, promising, &c, and soli- citing, misdemeanors, ss. 3, 4, et seij. In R. i. Mayor, &c, of Carlisle, Fortesc 200, it was held a good return to say that the pany was amoved for bribery. ( objection to the direction may be by re- ii by prescription, the constitution ol it, turning " no such officer," " no such corpo- u w< II a* the applicant's right, must be veri- ration," &c, &c, as ihe case may tie ; K. v. lavitj where il is bj charter, a Bailiffs ol Ipswich, Salic. 434; rid. Bull. N. copy of the charter or charters must be pro- P. '205. n r the direction may be sometimes it the time of making the motion ; hull. excepted to alter the return ; vid- Index. N. P y mandamus must be duly ■ Bishop of 699, there was no plenarty. and therefore a Lichfield, Stra. 1023; tid. R. i. Bailiffs of mandamus went, although the remedy by quo Morpeth, Stra. 58 ; a sexton, Com. Dig. warranto was applicable to the nature of the Mandamns, A.; a constable, Bac. Abr. office ; tid. 6 A. & E. 354. It seems that a .inns, ('. 1 ; a deputy registrar, R. v. quo warranto information for offices will only Ward, Stra, 893 ; a registrar ol an archdea- lie where the offices are of the nature of those coo, Lambert's case, Carth. 170; an auditor grantable by the crown; the remedy by ac- of the accounts of the corporation, aid, R. t. Uoo, in general, only lies where the office has Mayor, etc, of London, 1 T. EL \Sl\ one fees attached to it; Uarley v. Reg. 12 Cla. of the assistants of the Vintners' Company. & F. 520. Bull. N. P. 200; clerk to land-tax com- ACTS AND PROCEEDINGS. 239 , act in all things appertaining to the office that are obligatory upon him, and part of the duty of his office, at his peril ; that is to say, for any- thing which he omits or refuses to do, the corporation may have a man- damus to compel him to do it (*) ; or an individual, showing that he is injured by the laches of the officer, or that, upon being required, such officer refused to perform his duty for or to the complainant, contrary to his duty, may have a mandamus to compel him to do the act(w); but where a discretion is legally vested in an officer to do or not to do an act, and he (not refusing to entertain the question and exercise his discretion upon it, but) actually exercises his discretion by refusing to do it, neither a mandamus (x) nor an action (y) can be applied to the case, however erroneous the judgment of the officer may be, and though individuals be never so much inconvenienced in consequence (y). Discretion, however, is to be understood here of sound discretion ac- cording to law ; and if the officer travels out of the limits of his discre- tion, and acts so as to injure any one, he may be compelled to correct such misconduct in some cases by mandamus (z), or he may be liable to an action at the suit of the injured party. A mandamus may be had where the act is of such a nature as can be rectified by the officer him- self, and where that is the most expeditious and proper remedy ; and where it is the duty of an officer to do a thing which he refuses or fails to perform, he is answerable in damages to those whom his refusal or failure injures (a). With respect to the quality of the officers, for which a mandamus of this nature issues, there appears to be no limitation known to the law ; a mandamus has issued to compel a surveyor elected by a parish to do the duty of his office (b). On this subject it may be fit to observe, that ancient customs may well extend to newly created offices, and therefore that where an immemorial privilege is claimed for all officers of a certain description, other officers of a similar description, though constituted within the time of legal memory, may fall within the privilege (c). With respect to returns to writs of mandamus, it is the general rule that the return must answer the suggestion of the writ; but the rule is less strictly observed in returns to writs of mandamus to admit than in writs to restore. However, according to one authority, such a return is good, if it answer any material suggestion of the writ (d) ; and in ano- ther case it was held to be a good return to deny an immaterial allega- tion of the writ, even though the answer should amount to a negative (t) Sup. p. 225. As to refusal of the (:) Estwick v. City of London, Styl. 43. oaths being evidence of refusal of the office, («) Ferguson v. Earl of Kinnoul, 9 Cla. & R. v. Brain, 3 B. & Ad. 614, 623, 629. F. 251. (u) Vid. supra, pp. 56. 225. (6) Anon., Styl. 346. (x) Ex pane Garrett, 3 B. & Ad. 252; R. (c) Wilkes v. Williams, 8 T. R. 631, re- v. Hughes, 3 A. & E. 429 ; per Williams, J., cognized 3 B. & Ad. 634. 4 A. & E. 297. (d) Per Lee, C. J., in R. v. Mayor, &c, (u) Ferguson v. Earl of Kinnoul, 9 Cla. & of Lynn, cited in R. v. Mayor of Lyme F. 439, Lord Brougham's judgment. (Mitchell's case), Dougl. 82, per Buller, J. 240 ACTS AND PROCEEDINGS. pregnant (e) ; and the decision was rested on the ground that the answer pursued the suggestion of the writ. It is a good return to a mandamus to admit, to show that the party lias not complied with a lawful preli- minary to his admission. As where a city company returned to a writ to admit to the livery, that the company had by a bye-law imposed the fee of 312. \Ss.ld. for admission, and that the party had not paid it, and refused to do so, and therefore, &c., but that when he paid it, they would admit him (/). But where the writ states all the proceedings of an elec- tion, it is a bad return to say " that he was not duly elected;" for that is putting in issue a legal inference from the facts stated in the writ, which such return admits ; the proper course is to traverse some of the facts (g). Where an actual return is made by a mayor, but there is a suggestion that it was made by him and the minor part of the corporation, and that the majority would have obeyed the writ, and therefore they pray that they may disclaim and put in another ; the court refused, saying they could not examine upon affidavits whether the majority consented to the return, but should leave them to punish the mayor, if he were guilty ; and they gave leave to file an information against him (A). The next in importance of the acts of a corporation appears to be amotion, or the depriving of office an officer of the corporation. The power of amotion is incident to every corporation at common law, " for it is necessary to the good order and government of corpo- rate bodies that there should be such power as much as the power of making bye-laws" (i) ; and it is incident to the whole body, unless limited by express grant to a particular part (A), and must be exercised at a duly (e) R. t. Price, Stra. 1235. Vid. return the traverse to any mandamus, is entitled to bad for argumentativene-s, R. o. Stephens, some damages, thougli he might not have been T. Jones, 177 ; for inconsistency and negative sufficiently interested to have sued in case for pregnant, R. v. Mayor, \c, of York, 5 T. R. the false return ; Reg. v. Fall, 1 Q. B. 649. 766. Semb. this supersedes the use of a criminal (f) Tavemer's case, T. Raym. 446; Old. information in such cases. With respect to R. v. Humphrey, 10 A. oc E. 335. Where a costs of such traverses, vid. Emery t. Malmes- return that the party is not duly qualified, See, bury, 3 Q. B. 577 ; ii,l. 1Q.B.636. has been made, and the prosecutor takes no (t) R. v. Richardson, 1 Burr. 539 ; Bruce's further proceedings, tid. as to the proper mode case, 2 Stra. 819; R. v. Fonsonby, 1 Yes. for the detendani to pursue and as to costs, jun.7; R. v. Lyme Regis, Dougl. 153; R. Reg. f. Mayor of Dartmouth. 2 Dowl. N. S. p. Tidderly, 1 Siderf. 14, per Hale, C. B. 930. As to costs of prosecutor, where there The act of amotion must be under the common are several issues on traverses to a return, and seal, R. v. Mayor, &c , of Wilton, 5 Mod. he succeeds on some, Emery d. Mayor, 6tc, 259; at least, where the appointment has been of Malmesbury, 3 Q. B. 677. so, R. v. Mayor, &c, of Cambridge, 2 (g) II. ». Mayor, &c, of York, 5 T. R. Show. 70; Fepys's case, Yentr. 342; Had- 66, 76; vid. 9 Ann. c. 20, and 1 Will, 4, c. dock's case, id. 355; vid. per Powell, J., in 21, ss. 3, 6, which enable a prosecutor, sue- Gallon v. Milwich, Salk. 536. On such ap- ceeding on a traverse, to have damages and pointment there must be an ad valorem stamp ; costs, though he were not so interested as to 55 Geo. 3, c. 184, sched. pt. 1; Reg. v. have been entitled to sue in case for a false Welch, 2 Car. & K. 296. return ; Reg. v. Fall. 1 Q. B. ' ( k ) I'er Buller, J., R. v. Mayor, &c, of (h) R. i. Mayor, Sec, of Abingdon, Holt, Lyme, Dougl. 153. Amotion being an act of R. 4 ; •.. 431 ; Reg. v. Mayor, &c, an odious nature, all clauses in a chatter con- of Bath, Holt, II. 443. The stat. 1 \\ ill. 4, c. cerning it must receive a strict interpretation, 21 , has put an end to the distinction between and, therefore, the word majority, mentioned in matter of public interest and mallirof private a charter for that purpose, shall be under- damage.as far a* the writ of mandamus is con- stood of a majority of the whole corporation; ceroed ; and, therefore, a party recovering on R. p. Sutton, 10 Mod. 76. ACTS AND PROCEEDINGS. 211 convened corporate assembly, held in a corporate character (I) ; and that it was so. must be shown in the return to a mandamus to restore the amoved officer (/). The Queen's Bench is the proper court to ap- ply to for the rectification of mistakes, or miscarriages of corporations in i-fopect of amotions from their offices ; the courts of equity disclaim all jurisdiction both as to the election and amotion of officers in corpora- tions (m). The above is the general law regulating amotions with re- spect to the source from which they are to originate; but since the Municipal Corporations Act, it appears that the power of amotion must be considered to reside, in general, in such corporations, who are to perform it by means of the council, for the powers of the whole body are in general to be exercised by the council {n) ; but a usage or custom, a law, statute, or charter, vesting the exercise of a power of amotion elsewhere, would not, it seems, be inconsistent with the spirit and mean- ing, nor the express words, of the Municipal Corporations Act, and could scarcely be held to be abrogated or annulled under section 1. The causes for which a corporator may be amoved from an office, and which alone will justify his amotion, arrange themselves under three principal heads or classes. I. Offences against his oath or declaration, the duty of his office, and the common profit and general interests of the corporation (o). (0 R. v. Mayor, &c, of Doncaster, Sayer, 37 ; Mer. & St. Hist. Bor. 2058 ; R. v. Tay- lor, 3 Salk. 321. The power of holding such assembly is incident to the power of amotion ; R. v. Mayor, Sec, of Lyme (Fane's case), Dougl. 153. cm) Att.-Gen. v. Earl of Clarendon, 17 Ves. 491 ; per Uodderidge.J., Dyer, 332, 13., marg. («) 5 & 6 Will. 4, c. 76, ss. 6, 25, et seq. Where municipal corporations have a prescrip- tive power of amotion from office, the require- ments of such power must be pursued on amoving from old offices, for the Corporation Act has not erected these corporations anew, but merely continues the old ones; but in the case of offices newly constituted by the act, as, for example, that of town clerk, the corpo- ration may amove generally for reasonable cause, on due notice, and hearing the officer in his defence, without observing such for- malities in addition, as might have been im- perative under the charter, or by prescription or custom, with respect to the old office of the same name. The act does not regulate amo- tion bv any direct provision whatever. (o) This kind of offence is lo be tried and determined only by the corporation them- selves ; R. v. Richardson, 1 Burr. 539, i.e., in the first instance ; but if on a return to a mandamus, or on plea to an information quo warranto, they state the cause for which they amoved, the court will judge whether it is a reasonable or sufficient cause or not; R. v. Richardson, 1 Burr. 541. What is not such an absenting himself from the duties of his ollice as to justify an amotion, R. v. Richard- son, 1 Burr. 541. A total desertion of the duties is a good cause ; bull. N. P. 206. A wilful disqualification of himself, as by habi- tual drunkenness ; R. i?. Gloucester, 3 Bulstr. 190 ; R. v. Taylor, 3 Salk. 23 1 . So disqua- lification by poverty, such as to disable from paying scot and bearing lot; R. v. Mayor, &c, of Andover, 3 Salk. 229. Old age in general not sufficient cause ; Bac. Abr. Cor- porations, E. 9. Writing a scandalous libel upon the mayor has been held a good cause upon conviction; Lane's case, cited Cas. Temp. Hardw. 155; vid. tarn, per Holt, C.J. .Fortesc. 275, 276. Imprisonment, without hope of discharge, a good cause; 4 Dougl. 360. Hin- dering the gathering by the corporation of un- reasonabletoll not good cause; Keg.u. Mayor, &c, of Doncaster, 1 1 Mod. 214. Where the office concerns the administration of justice, the officer is liable to amotion for prolonged and obstinate non-attendance, Whitaker's case, 4 Burr. 1999; Salk. 435,3rd Resol. ; but not for one instance of non-attendance, R. v. Wells, 4 Burr. 2004; 1 Hawk. P. C. c. 66, s. 1. But non-residence within the jurisdiction of the corporation is not a good cause, except in the case of offices requiring perpetual exe- cution, as sheriff, coroner, &c, Bull. N. P. 206. Steward of a Tolzey Court, R. v. Griffiths, 3 B. & Aid. 371. So where the at- tendance of the officer at corporate meetings is essential to the interests of the corporation, II. v. Harris, 1 B. & Ad. 936. Non-attend- ance, even without actual damage to the cor- poration, may be a good cause; R. v. Ips- wich, 2 Ld. Kaym. l : io7 ; vid. 4 Burr. 2006. R .' ! I ACTS AND PROCEEDINGS. II. the public of a nature to render the officer in- famous, . In this cla^s of cases, the loss v? credit being the ground of the forfeiture, it is In general indispensable that a conviction, which constitutes the true ground of the loss of credit, should precede the amotion (p). But ^ some bere the party before conviction leaves the country, the presumption of guilt is so strong that it appears unnecessary to wait for legal proofs, but the corporation may proceed at once to amove (7). III. ( Offences of a mixed nature (or such as are not only indictable as 1 gainst the public), but also are at the same time offences contrary to his duty as a corporator or officer (r). The late changes in the law of corporations have made it unnecessary eat in much detail the classes of offences just stated; but some of the more important illustrations of them may be here stated, with a view to the guidance of the reader. It lias been held that a refusal to deliver up the corporation books, upon demand of them, by the officer who has the charge of them, is not a good cause of amotion of such officer within the first class, for the corporation, it is said, may bring detinue for the books, 8cc.(s). They may also have an action on the case against him for the breach of duty (t). Now all municipal corporations, mentioned in the Municipal Corporations Act, may proceed against him by the summary remedy given by the Municipal Corporations Act(/) by way of application to a magistrate, or they may proceed by way of action ; but they shall not do both(?/). It seems, also, that where the county magistrates have jurisdiction, they ought to be applied to rather than the borough magistrates (x). In one case the council of a borough, having demanded from the town crier, whom they had amoved, the bell be- \< aging to the corporation, on his refusal to give it up, were considered to be entitled to proceed in the summary mode before magistrates for (;>) R. 1. Mayor, &c, of Derby, Cas. brought, &c, unless it would have determined Temp. Ilardw. 154, i.e., followed byjudg- the matter; It. v. Mayor, &c, of Derby, Cas. meat thereon ; vid.per Ld. Mansfield, (.'. J., Temp. Ilardw. \[>6. What not a sufficient Cowp 3. A simple assault is not an offence offence, Earle's case, Carth. 17.3. The mis- of this class; Bull. V P. •_;<•«.. Bankruptcy conduct must he.it seems, such as speedily it at common law a cause of amotion, relates to the execution of his office. Ft. v. h some of its consequences may become Mayor, &C, * >t Wells, 4 Burr. 1 999 : vi* » , Pepys'scase, 1 \ entr. 342 ; K. o. with accept an amo- Churchwardens of Taunton, Cowp. 413. inal office: i;./. Pateman, (o) Reg. p. Bailiffs of lp-wich, 2 Ld. 2 T.I niland p. Hopkins, S M. & Raym, 1232; R. p. Mayor, ,\c, of Cam- \\ . I7>i ■. vid. A 11. & Ad. 24, bridge, 2 show. 69; Warren's case, I ro. (h) Bull \ P. Jac. 640. They need not state how ; 2 Show. p.1 nomas, 8 \. & E. 183, 69, 70. v- Gen. v. Mayor, See, of I'oole, 8 ACTS AND PROCEEDINGS. 215 doing so they show that when they amoved him, they did not mean to use their power of amoving at will (p). In general the rule is, that every officer, before amotion, shall be summoned and heard in his de- fence before the body in whom is vested the power of amotion ; but this rule is subject to various necessary exceptions, arising from the presence of circumstances which would make it useless to apply it. Thus there need be no. summons where the party has permanently left the precincts of the corporate jurisdiction, and in fact abandoned his office (f])\ for in such a case a summons or notice that the amotion would take place, would be merely an idle form ; and lex neminem cogit ad vana seu inutilia (r) ; and in such a case it is also wholly unneces- sary to summon the party to return and reside upon his office pre- viously to proceeding to amotion (s) ; and it does not make any difference that the office was a freehold office (s). Also there is no ground of excepting to the amotion that the officer was not summoned, if in fact he was present at the meeting of the amoving body called for the pur- pose of amoving him, and if he defended himself, and was heard in his defence (t), for those circumstances operate as a waiver of the right of notice (t). So if it is confessed that he was removed for good cause, the court will not interfere by mandamus to restore, although he had no notice to appear and defend himself; as for example, where an officer has repeatedly declared that he would not perform the duties of his office (u) ; for the effect of restoring him would only be that the corporation would amove him again, and it is an absolute rule that the court will never interfere by a mandamus to restore, where they can see that there is good ground of amotion, and therefore, that if they granted the writ to restore the officer, on the ground of proper formalities not having been observed, the corporation would immediately amove him again, observing those formalities, and consequently, the writ would (;>) 2 Ld. Raym. 1240; R. v. Mayor, 1 M. & Selw. 697. &c, cf Oxford, Salk. 429; R. v. Bailiffs of (u) R. v. Mayor, &c, of Axbridge, Cowp. Ipswich, Salk. 434 ; Crips v. Mayor, &.C., of 523 ; vid. 2 T. R. 182. A corporation can- Maidstone, 1 Keb. 812, 813. not on any pretence appoint themselves to fill (q) Cas. Temp. Hardw. 151; Reg- v. an office in their gift; nor can they pretend Truebody, 2 Ld. Raym. 1275 ; R.jj. Grimes, 5 to abolish the office and take the fees them- Burr. 2601 ; R. v. Harris, I B. & Ad. 936. selves; Hall v. Mayor, &c. of Swansea, 5 Q. The acceptance of a statutory office requiring B. 545. Generally, however, a corporation continual attendance at a great distance from may fill an office ; thus a corporation may be the borough, is a virtual abandonment of a warden of a hospital, and shall be called corporate office requiring perpetual attendance warden, and not wardens ; Queen's College, in the borough ; R. v. Griffiths, 3 B. 6l Aid. Oxford, case, 1 Leon. 134. By 6 & 7 Vict. 735. c. 73, s. 21, the corporation of the " society (r) Broom's Max. 189. When presump- of attorneys, solicitors, proctors and others, tion of abandonment of an office arises, R. v. not being barristers, practising in the courts of Harris, 1 B. & Ad. 936. law and equity of the United Kingdom," are (s) R. v. Mayor, &c, of Lyme (Fane's appointed registrar of attornies and solicitors. case), Dougl. 144, where the office was a So the University of Cambridge is clerk of the freehold office ; R. v. Harris, 1 B. & Ad. market in the town ; Case of University of 936; per Parker, C. J., Reg. v. Simpson, 10 Cambridge, Hetl. 145; S. C. Litt. R. 296. Mod. 380. So the corporation of London is conservator (t) R. v. Mayor. &c, of Wilton, Salk. of the Thames, though the office is executed 428; vid. R. v. Fishermen of Feversham, 8 by the Lord Mayor; Att.-Gen. i. London, T. K. 356 ; R. i>. Burgesses of Carmarthen, 18 L. J. (N. S.) Chan. 326. Ac 1> an D PROC1 EDINGS. fail of any practically useful effect (*). But with these exceptions, every officer in a corporation, holding a freehold office, has a right to notice of the intention to amove, and the grounds, or at least a sum- mons to attend thr meeting, and the reason why; and has a right to have such no- in- served upon himself personally a reasonable time previous to the meeting o[' the body in whom resides the power of amotion (y); and he haa tin- further right of being fully heard in his Tin' rights of officers in corporations are further guarded by the general rule, that all the members of the body who are to meet to do a specific art must be summoned to the meeting, and have notice of the business to be brought before the meeting (a), with this qualification, that no such previous notice is necessary where the meet- is held bv adjournment from one at which, by the constitution, . member of the corporation is supposed to be present (6), and where the subject was commenced and gone into to a certain extent. The amotion and election of the successor, where only colourable, do not call for a writ to restore, for the office is still tie jure full of the first holder ; but the court will grant a mandamus to enable the latter to exercise the office (c). Several formalities have been stated to be necessary in the case of amotion of officers of a freehold tenure; as that if appointed under Mil, they must be removed by an instrument under seal; that they must have notice a reasonable time before the meeting of the body having power to amove, and must be fully heard in their defence ; but what has been laid down to this effect does not of course apply to - where the office is avoided by the acceptance within the corpora- tion of another office of an incompatible nature ; for the due election by the proper electors to, and the acceptance of, such an office, operates either as a surrender of(d), or as an amotion from, the former; and it will operate as an amotion wherever the acceptance of the second office i- made bv or with the privity of the same authority in the corporation that had power to amove from the first (e); but there cannot be con- (x) W.v. Griffiths, 3 M. & Aid. 735; ii,l. (b) R. v. Harris, 1 B. & Ad. 936. _ Siderf. 6, 49, 72. Though (<•) R. v. Mayor, fee., of Oxford, 6 A & outlawry might not forfeit the office, it will E. 349. . 1 it v to be restored, sod to (d) II. v. Trelawney, 3 Burr. 1615; iid. entitle the party to a mahdamui to restore, he 4B, i\ Ad. 24. ihow to the court that the outlawry has (e) R. v. Patteson, 4 B. & Ad. 25; Stani- ■ l. K. i. Rowe, I Show, land v. Hopkins, 9 M. & W. 178. It has 188 ; S. C. Carth. 199. The general prin- been held genetally, that, to complete the r< - ciple is, that an outlaw cannot be beard in a signation, there must be a fresh election, for court of justii •:, i scent to M i aside the out- until then the party resigning may retract his Lwrv. resignation ; EL p. Mayor, &c, ol Ripon, i I srdson, I Bnrr. 540; Ft. p. Salk, 433, ou. tarn. The question, in cases ol .1,2 Burr. 7.U ; R. offices for life, would perhaps turn upon the \<>r, fitc, ol 2 Burr. 738; inquiry, whether what was done could be B. h Ad. 942 Che p ding brought within the principle that, upon an ■ on i^ incident to assent tiist bad, an I act done afterwards, a i Mayor, Nc., of Liverpool, 2 divested by parol without other circumstances. one, l \. ACTS AND PROCEEDINGS. 217 sideredto be any good authority, since the decision above cited, to show that in either case anything more than election and acceptance is requi- site as an act of determination of the first office. An officer cannot be obliged by the corporation to accept an incompatible office, in order that his original office may be vacated (/). Where an eleemosynary corporation, for want of an heir to the founder, became subject to the visitation of the crown, the mode of amoving a corporator was held to be not by way of bill or information in the court, but petition to the great seal (g). We shall now proceed to examine in detail the principal points con- stituting the law of mandamus to restore to an office. There is a great deal of difference between the case of a mandamus to admit, and a mandamus to restore, to an office. The former is granted merely to enable the party to try his right, there being no other legal remedy available for him ; but the court have always looked more strictly to the right of a party applying to be restored. He must show a prima facie title ; for if he has been before regularly admitted, he may try his right, where the office has fees attached to it, by bringing an action for .money had and received for the profits. Therefore, in order to entitle himself to this extraordinary remedy, he must lay such facts before the court as will warrant them in presuming that the right is in him (h). Hence, where several officers are removed at once, they cannot join in the writ, but must have separate writs ; for the election of one is not the election of another, and perhaps they may all have been chosen at several times, and it may be for several faults that they have been severally removed; therefore such a writ would not show to the court a prima facie case of individual right in each of them (i) ; and generally a writ complicated with several matters, as by requiring the corporation to restore, and also to do other things independent of restoring the party, will not be allowed (k) ; but where A. has been amoved, and B. elected and admitted in his place, the writ may direct the corporation to amove B. and restore A., these being dependent matters (/). Besides cases in which an officer has been actually amoved, the better opinion seems to be, that where he has been improperly sus- pended, the writ to restore lies (m) ; but it should only be to restore to (/) Baslon's case, Dyer, 332, B., marg., obtaining the writ; R. v. Mayor, &c, of cited Awdley's case, Noy, R. 78; 19 Vin. Bristol, 1 Show. 288; R. v. Howe, Carth. Abr. 151. It is not necessary, in pleading 199. In some cases the court have required respecting an office, to aver an acceptance of that a right should be shown before they it, unless in the case of a voluntary office not would grant a mandamus to admit ; R. v. cast upon one by law, where it is necessary Askew, 4 Burr. 2191 ; Com. Dig. Mandamus, to plead both the appointment and the ac- C. 3. ceptance ; Serra v. Wright, 6 Taunt. 65 ; vid. (i) R. v. Mayor, &c, of Chester, 5 Mod. 4 J>. &c Ad. 27. 11; S. C. Salk. 436 ; case of Andover, Salk. (g) Att.-Gen. v. Earl of Clarendon, 17 433; vid. Bull. N. P. 200. Ves. 491 ; Att.-Gen. v. Dixie, 13 Ves. 519. (k) R. v. Mayor, &c, of Hull, Stra. 578. (h) Per Buller, J., 3 T. R. 577, 578; R. (/) Shuttleworth v. Mayor, &c , of Lincoln, v. Mayor, &c, of Chester, 5 Mod. 10; vid. 2 liulst. 122; vid. Case of Christ Church, R. v. Mayor, &c. of Lyme (Mitchell's case), Bull. N. P. 200, 201. Dougl. 83. Outlawry disables a man from (m) Per Lord Eldon, C, 17 Ves. 323; 15 248 ACTS IND PROCEEDINGS. the exercise of the office, for the freehold remains in him during sus- pension. An annual officer may have a writ to restore if he be amoved before the expiration of his year of office The eflG mandamus to restore is to replace the party in his office, so that after the restoration he is in, not by a new right, but as of his original right to it o : so that the officer who is restored will be considered as having had a continuous enjoyment of the office from the period of his admission, just as though no amotion had ever taken place. The act of amotion is considered in such case as a mere nullity ab initio. But if A. haw been amoved, and B. elected and admitted in his place, and a mandamus to amove p>. and restore A. issues, hut another officer ofthe same class vacate- his office in the mean time, the i is, not that B.'s previous election to A.'s office gives him a right to claim the last mentioned vacant office, but by the writ he is remitted to his former station, and he must have a fresh election to entitle him to the- vacancy (/>). The return to a mandamus to restore is required to exhibit peculiar certainty (y). In excusing the amotion, it must show that the amotion was made at a meeting of the body, in whom the powej of amotion les by the constitution (r) ; that such meeting was regularly con- vened^), and held in the regular place for holding corporate meetings (0; that the charges against the part) were then stated to him ; that, having had notice of them a reasonable time previous to the meeting, he was fully heard in his defence (a); or else such other facts must be shown as make it appear either that he was out of reach of summons (ex. gra. from having left this country altogether), or that summons would be idle, (ex. gra. from his imprisonment in execution, without any probability of his discharge,) or such other facts as may fully warrant them in amoving without notice and hearing. It must also show, or at least state, in case he were heard, that the defence and answers that he made were un- satisfactory (a), or that he refused to answer at all (?/). And every thing material to excuse or justify the act must be stated by direct \ in. Abr. 192, pi. 19, marj. ; R, i (mil'!- vested in them, for it i? incidental, unless ford, 1 Kt Lev. 162. At otherwise disposed of by the constitution ; R. any rate the party suspended may try the p. Mayor, &c, of Lynn, 1 Dougl. 177; R.o. right in action for the profits > Fid. sup. p. 154. -Morris's case, cited in sue! court would grant a feigned 4 Mod. 37; H. o. Mayor, \c., of Wilton, issue if the |>aitie> consented, the case being Salk. 428. It will be sufficient to state that within 9 Ann. c. 20; or they might, in cases the body, &c, was duly assembled to amove, of non-municipal corporations, order oue uu- K. i . Mayor, Sic, of Doncaster, 2 liurr. 738 ; derl WilL 4, c. 21, t, I. S. C. 2 Ld. Keny.391. (»> Colchester Iowa i. Northern, 1 Rol. (/) Taylor's case, 3 Bulst. 18!); 15 Yin. Abr. < owp. 503. («) Vid. tup. p. 245. Protectoi d. Town Shuttleworth v. Mayor, i\r., of Lin- of Colchester, Styl. 446, 452. It is not coin, 2 Bulsti enough t<> -t:iic; that he was present whi . 239. chai ide, and did nol deny them . the arao- 8 T. 11. 352 . vid. 1 .M. & Selw. 697. lion to have been by the body ;it large.il (x) 3 Bulst. 189. need not aver that the power ol was (y) Vid, tup. p. 246. ACTS AND PROCEEDINGS. 249 averment, and not by way of recital or argumentatively (z) ; and there- fore it will not be sufficient to state that he was amoved secundum chartam, without they show a cause, and the manner of his amoval («) ; the object being that the court may see that they have properly pursued the authority vested in them ; unless the officer is removable at pleasure, when they must state that and the amotion accordingly (b). A return to a mandamus to restore, that the party was amoved for speaking opprobrious words of another officer, is not good ; for words (whatever may be the case of a defamatory writing) are no cause of amotion ; at any rate where they do not concern the corporation (c). A return that he was never elected is good (d) ; so that he was not duly elected, if the return, in using that phrase, pursues the language of the writ(e), though if it had not followed the writ (which it is a general rule that a return to a mandamus must do), there is authority to show that such a return would be considered evasive, and therefore bad(/), or, perhaps, as involving a negative pregnant ((/); but if election, and due election, mean the same thing, as seems settled (h), it is difficult to perceive any grounds for the objection ; for such a return would answer not, it is true, the words, which it need not do, but " the materiality of the writ," as it must do (i). But the return must not be that he was not duly elected, admitted, and sworn, for that would be fallacious, although it pursues the suggestion of the writ, but a return to such a writ that he was not duly elected, or admitted, or sworn, might be good (k). In later cases the return that he was not duly elected has been made without objection (Z). A return that the officer had been absent from his office for twenty- two years would undoubtedly be a good return in all but very peculiar cases, as where the office might be exercised by deputy, and had been so during that time by a sufficient deputy duly appointed (m). With respect to the quality of the offices for which the mandamus to restore will go, there appears to be little difference between the cases (z) Thus, if a custom be the cause, it is not (d) Com. Dig. Mandamus, D. 3 ; (vid. tarn. a direct affirmation of it to state that there has id. D. 4) ; Lambert's case, Carth. 170; S.C. been a usage to that effect ; Yates v. Mayor, 12 Mod. 2. &c, of Kingston-on-Thames, Styl. 477. So (e) Reg, v. Twitty, Salk. 434 ; Lambert's non constat nobis that he was ever elected, is case, Carth. 170; R. v. Hill, 1 Show. 253 ; a bad return ; T. Raym. 153. vid. 4 Burr. 2044. (a) Braithwaite's case, 1 Ventr. 19 ; vid. (/') Reg. v. Twitty, Salk. 434. Haddock's case, T. Raym. 437. ( g) Com. Dig. Mandamus, D. 5; vid. (b) Vid. sup. p. 244 ; Dighton's case, T. tarn, sup. pp.239, 240. Raym. 188. (h) R- «• Mayor, &c, of Lyme (Tvlit- (c) Jay's case, Ventr. 302; Clerk's case, cheirscase), Doug. 84, 85; per Lord Mans- Cro. Jac. 506. It is not likely that any re- field, C. J.. 4 Burr. 2011. turn of this kind would at present be held a (i) R. v. Mayor, &c, of Lyme, (Mit- good cause of amoving an officer, unless, by chell's case), Dougl. 85. amounting to a breach of trust, the words (k) Ibid. could be considered as wholly opposed to his (/) R. v. Mayor, &c, of Cambridge^ 2 T. duty. But this does not extend to a decla- R. 457, 461, which, however, was a rnanda- ration that the party will not do the duties of mus to admit; vid. ;>»/>. pp. 230, 239, 240. tlie office, for that is a good cause of amotion ; (w) H. v. Mayor, 6cc, of Newcastle, vid. sup. p. 245. Sayer, 39. 2.")0 At TS AND PROCEEDIN of this writ and that to admit. Neither lies for offices of no higher rank than those of mere servants : hut for some ministerial offices they will lie; as all offices (not servile) connected with the administration of justice and police, provided they be of a puhlic character (n), one test of which i-. if the officer is obliged by custom, charter, or statute, to take oaths upon admission (o) ; and the court is in the habit of granting them more freelv for freehold offices than for offices of a lower tenure. Perhaps the writ to restore is granted in some cases in which the court would not allow a writ to admit. A writ to restore has been granted* though with hesitation, for the office of treasurer of the New River Waterworks' Company (p). It has also been granted for the office of workman of the Mint (7) ; of sword bearer to the mayor of Bristol (r); of usher of a free school, of which a corporation was visitor (s); of clerk <>r surveyor of the city works (London), being a freehold office (0; of physician to Bartholomew's Hospital (k), notwithstanding the right of visitation was vested in the donor (tt); of scholar of King's College, ( Kf. »rd x) ; of receiver under the conservators of the Bedford Level (?/). A mandamus to restore has also been granted for a Serjeant at mace, being an officer for life (z); but the writ has been refused to a serjeant at mace to compel him to deliver up his mace, Sec. (a), there being a remedv by action (b). And the limits, to which the court will go, in granting a writ to restore, are evidently not measured by those, within which they restrain themselves, in granting a mandamus to compel one of their officers to perform his duty; for in such cases the principle has been distinctly laid down, that a mandamus is not to be granted to com- pel the execution of a duty by an inferior officer (c) ; meaning, it seems, by an inferior officer, one who is amenable to some superior officer or bodv(rf). However, in fact, in cases of corporate officers, this principle has not been adhered to at all; for a mandamus has been granted to a town clerk to deliver the corporation books, &c, to his successor (e) ; to a clerk of a city company to deliver books, papers, &c., the property of the corporation (/); to a town clerk to inrol indentures of appren- (n) White'- case, 6 Mod. 18; Vaughao (u) Cited Arnlr. 184. j. Company ol Gunmakers, o" Mod. ii'2 ; vid. (i) Ibid. . Abr 135. (>/) Anon., 1 I'nrnard. P.. R. 195. (..) Vid. 2 T. R. 182, note. (:) 11. >. Barnard, 2 Keb. 402; EL >. ( j>) Middleton's case, 15 Vin. Abr. 197, Major, ,\c, of Dartmouth, 3 Salk. 229. pi. •'). ManHamta to I to In: a But refused t>> swear in a serjeant at mace, member and assistant to the Company of who was removable at pleasure of the mayor ; - to the Bermudas; Trott's case, 2 It. d. Winter, 2 Keb. 134. 693. (a) It. '■ Todd, 2 Jur. 565. (q) Stirling's case, Sid. 304 ; It. v. Rowe, (b) Vid, LilL Kntr. 51. Carih. 199. "■ l.«'id Kenyoo, C. .1.. in Ft. ft, -.. K, Vin. Abr. 198. pi. 9. Bnstow, 6 I. K. 170; vid. K. v. Jeyes,3 A. U» i. Cr.ih.rd, Styl. 461 . Bid. Ac K. 423 : Bull. X. P. 199. lam. Ayhffe's ease, I- Joaes, I7t . S. ''. (,/) Vid. per Lord Denmao, ('..'., 3 A. & Trem. i'.< . A- to mandamiu to restore to E. I'Jl ; el vid. rwp. p, 225. ship of a college, 2 I ' ■ i Sid. 31, cited Cas. Temp, rlardw. Trem. P. C. 478; Appleford*! case, 2 Keb. 99. (/■) R. ft. Wildman, st ra .879. ft) 2 I. K. 182, ACTS AND PROCEEDINGS. 251 ticeship(^); to a surveyor of highways to deliver books, &c., to church- wardens (h) ; to the officer of a corporation having charge of the public books to attend and produce them at the next corporate meeting (i); to a town clerk to give up insignia of office, &c. (fc) ; to the keepers for the time being of the common seal of the University of Cambridge to affix the seal in a case of an appointment to an office with a salary, but there, it was said, there was no other remedy (I). From these cases, therefore, it would appear that the courts interfere by mandamus to compel the discharge of their duty, or to rectify mis- feasances by corporate officers (although such officers may be inferior in the above sense), when the remedy by indictment is not the quicker and better remedy ; and where the remedy by action (as in the case of books, insignia, &c), would be too tedious (m). As before has been pointed out, in municipal corporations, the remedy for the detention of books or other corporation property, is by application before two justices under the Municipal Corporations Act(ra), and therefore to such cases the remedy by mandamus is no longer applicable, but to other cases the above decisions are still applicable ; and we may safely infer from them, that where the court can see that the remedy by mandamus is either the only effectual remedy, whether in the courts of law or equity, or the spiritual courts, or the only one that can be made effectual within a reasonable time, they will grant the writ in cases of applica- tions on behalf of corporations, though the officer, who is to be com- pelled to discharge his duty, may be a mere ministerial officer. The reason why the rigour of the general principle, that a mandamus is not to be granted to compel the execution of his duty by an inferior officer (o), has been departed from in favour of corporations, is obviously this, that " the writ of mandamus is the proper remedy to enforce obedience to acts of parliament and to the king's charter, and in such case is demandable of right" (p) ; and, moreover, as all corporations, whether constituted by charter, or by the modern method of statute, are, by their creation, invested with a greater or less portion of the powers of the crown, it would be nugatory to give them such authority, with- out also extending to them the corresponding means of enforcing it (q) ; (g) R. v. Marshall, 2 T. R. 2 ; R. v. R. v. Bishop of Chester, 1 T. R. 404. The Coopers' Company of Newcastle-on-Tyne, 7 rule has lately been laid down by the court T. R. 543. that wherever the common law imposes a (h) R. v. Round, 4 A. 8c E. 139. duty, and no other remedy can be shown to (i) Case of Calne, Stra. 948. exist, or only one, which has become obso- (k) Crawford v. Powell, 2 Burr. 1013. lete or inoperative, the Court of Queen's (i) R. v. University of Cambridge, 1 VV. Bench will interfere ; Veley v. Burder, 12 Bla. 553. A. & E. 266. (ro) Vid. per Patteson, J., 3 A.& E. 424 , (q) That such means must belong to them R. v. Commissioners of Navigation of River may be deduced from the principle, than Thames, &c, cited 3 A. & E. 420; per which (it has been said by a very high autho- Pratt, C. J., and Fowys, J., Stra. 538, 539. rity ) " nothing is more certain in law," viz. (n) Vid. sup. p. 242. " that when an act is done under a power, (o) Vid. sup. pp. 225, 250. that act is deemed to be done by the grantor (p) Bull. A r . P. 199; per Buller, J., in of the power, and to have its validity from 252 u ra and procej dis for otherwise, although clothed with rights, and also with liabilities resulting therefrom, of a higher nature than belong to individuals, they would be left to maintain, defend, and support such rights, and answer such Liabilities, bj no higher authority than are at the command of private persons in ordinary cases. Incorporation under such circum- stances would become, in many respects, not a boon, but a burden, in which light there is no ground to infer that the law has ever con- sidered it. On the other hand, the extraordinary remedy of mandamus will not be granted to compel a corporation to do what by law they arc entitled t.. do,or not to do, at their discretion, not even to a party who has been injured by the mode in which they have chosen to make a fair exercise of their power; but it will be granted where they refuse to inn a duty cast upon them by the law of the land, or the provisions of their charter (r), though the applicant does not show that injury has ilted to any one from their misconduct. The court- of equity, however, are in the practice of interfering to date the exercise of the discretion of corporations for charitable purposes, but in those cases only in which the disposition of the re- venues is vested in the corporation or the governing body of it (s). We have had repeated opportunities of observing, that, generally speaking, where there is a plenarty of an office, for which an informa- tion in the nature of a (/no warranto will lie, the court will not grant a mandamus either to proceed to a fresh election, or to admit the party who contends he is duly elected, or to amove the party who is actually in the office ; tor a writ of mandamus only lies where there is no other Bpecific legal remedy, and here, in the two first cases, the quo warranto information is the appropriate and the most expeditious mode of trying the right. It is requisite, therefore, to examine when this information may be had for corporate offices. Now it is laid down, that the pro- ling by information in the nature of (juo warranto lies for the usurpation of any office, whether created by charter from the crown, or by the crown with the consent of parliament, if it be of a public nature, and a substantive independent office, not merely the employ- liim, and not from the person who executes it is not obligatory on them to make or renew, i, .»' Midd !1 ~. - Atk. 661. A in the absence of proof that any one is in- ndividual to conform jured by the refusal; R, u. Mayor, &c, of elf to an act done by a corporation within Liverpool, 1 Barnard. B. K. 83. The renson ope of their authority, u :i refusal to of the exception in l.ivour of an injured party that i er, and calls for is, that be has no other remedy j and "where i h<- mode of coercion which is appropri a te t'> a body baa a discretion conveyed to them, an authority of the crown or of par- erroneous exercise of that discretion, however at For example, if a corporation le- plain the miscarriage may be, and however rally elect to an office any corporator quali- injurious its consequences, they shall not V exempt from, serving answer for" to the party; rid. per Lord ,,_ a ,„„„,/,,, Brougham, in Ferguson o. Earl of Kmnoul, bim to perform, whai is in fad the command 9 I 1 1 ■ l . 290. It malice can be shown, it re, laid upon bim by lh« is different ... the corpo (i > Mitf. Plead. Chanc 100, n. I an ,i up. pp. 231, 241. So subject will be fully discussed hereafti • mandamus will '" compels iid inf. Chabitablk Trusts. ation to mi ■ ,( ''' ACTS AND PROCEEDINGS. 9J& ment of a servant or deputy at tlie pleasure of others (£); and the rule is so clear, that there will be found but little difficulty in applying it to particular cases. First, we may observe, that notwithstanding this rule, the court, in the exercise of its discretion, will refuse the information against a corporate officer where it appears that the object is to try the validity of a charter granted pursuant to the stat. 7 Will. 4 & 1 Vict c. 78, s. 49 (u). On the other hand, leave to file such an information will not be refused merely because the proceeding may or icill have the effect of dissolving the corporation (x). The discretion of the court, exercised on a view of the circumstances, both with respect to the re- lator and the other party, and also the consequences of granting the information, is the principle on which all the cases of this class turn (y). Therefore, the information will not be granted where some time has been allowed to elapse, and the court sees reason to think that the re- lator seeks by it to obtain an indirect decision on the merits of his own election to a franchise of the same class (2). A general principle on which the court acts with respect to the question of qualification to be a relator is, that he who has concurred in inducing a party to exercise an office cannot be heard on an application to turn him out of the office (a). Therefore, the borough officer, who administers an oath or declaration on admission to office to a party whom he knew to be dis- qualified at the time, cannot be a relator against such party (a). So, though the applicant did not know of the objection at the time that he (t) Darley v. Reg., 12 Cla. & F. 520, overturning the old doctrine that this pro- ceeding could only be taken where there was usurpation on the crown. Whether it is a good ground for applying for this information that there is no other remedy, seems to be unsettled ; vid. per Patteson, J., Re Aston Union, 6 A. & E. 785, that it is not; per Lord Kenyon, C.J., R. v. Bond, 2 T. R. 770, that it is. Information refused against registrar of corporation of Bedford Level, as being a mere servant of the corporation ; R. v. The Corporation of Bedford Level, 6 East, 356, 367. One information may be had calling upon the same person to show by what authority he exercises two offices, or, perhaps, more than two ; R. v. Patteson, 4 B. & Ad. 9 ; Reg. v. Thomas, 11 A. & E. 183. So one information may call on several persons to show, &c. ; 9 Ann. c. 20, s. 4 ; R. v. Foster, 1 Burr. 573. For precedents of informations in the nature of quo warranto, pleas, replications, 6cc, vid. 6 Wentw. Prec. 28—242; ex officio informations, Co. Entr. 527, et seq. ; ' et vid. 4 Burr. 2262. The parties in one information cannot be com- pelled to be bound by the result of another, though the objection is the same in each ; R. v. Cozens, 6 Dowl. 3 ; S.C. 7 A. & E. 285. (i<) Reg. v. Taylor, 11 A. & E. 949. By " the court" litre, and throughout this sub- ject of information in the nature of quo war- ranto, the Court of Queen's Bencli is always intended. The information will not he in the Exchequer ; Pippard v. Mayor, &c, of Drog- heda, 2 Bro. P. C. 328. (x) Rex v. Parry, 6 A. & E. 810; vid. contra, R. v. Stacy, 4 Burr. 1963, 2121 ; R. v. Binsted, Cowp 77 ; R. v. Dawes, 4 Burr. 2L24. If the corporation must necessarily be dissolved by impeaching the defendant's title and that of those who claim under bim, pro- bably the court would refuse the rule ; R. v. Bond, 2 T. R. 767 ; R. v. Trevenen, 2 B. & A. 479. On the other hand, it has been de- cided not to be an objection to the motion that the information is a friendly proceeding to enable the defendant to disclaim ; R. v. Marshall, 2 Chit. R. 370, vid. 11 A. & E. 8 ; 4 Q. B. 146, as to costs of disclaiming. (y) Per Lord Denman, C. J., 6 Q. B. 820', 821 ; rid. 2 B.vV A. 479; 11 & E. 949; 6 A. & E. 810. This last authority shows that the court may refuse, though a valid ob- jection to the title be shown ; rid. 1 East, 43, ace, per Yates, J. ; vid. He Ilanis, 6 A. & E. 475. (s) Reg. v. Anderson, 2 Q. B. 740. (a) Reg. v. Greene, 2 Q. B. 460; R. v. Trevenen, 2 15. & A. 343. This does not in general extend to a mere subsequent recog- nition of the election, It. v. Clarke, 1 East, 38; vid. R. v. Stewart, 3 East, 213; R. v. Bonney, 1 1'.. & Ad. 684; R. v. Carter, Cowp. 58 ; but it does extend to concurrence in the election of another officer to whose title the same objection applied, R. v. Parkyn, 1 B. ,\ Ad. 690. 25 1 ACTS AM« PRO< I!T>I\ concurred in the election, if the objection was one that he was bound to know of, ex. gra. if it arose out of the provisions of the charter, which every corporator is bound to be aware of (6). If the objection is not of a BOrt be vTM hound to he aware of,he must show that he was actually ignorant of il when he concurred in the election, &c. (c). Another genera] rule is, that a person whose own title to his office in the corporation Btands in the same predicament with that of the person whose title he seeks to impugn, cannot be a relator (d). But, Bubject to the above genera] principles, any one may be a re- lator, provided he i- subject to the local jurisdiction of the corporation ;1 > an inhabitant, although he be not a member of the corporation (e). Mere poverty does not disqualify from being a relator, though it may be a ground to induce the court to make the party find security for /;. If he dies pending the proceedings, it does not follow that the court will stay proceedings, for the crown has a right to have the proceedings brought to a close, because of the fine which may become due in case the defendant is convicted (g). It is not an objection that the information calls upon the defendant to show on what authority he exercises dillerent franchises or offices. Any number of franchises may be joined in one information against him Ui). With respect to the question, for what offices the information will be ■.ranted, perhaps no rule beyond the above general one can be laid down (i). To entitle a relator to the information, there must have been an user of the office, not a claim to it merely (J). A defect of title, or want of title, in the presiding officer, is no longer a ground of impugning the title of officers appointed by election in municipal cor- porations (k). But, perhaps, that one or more of the persons, before whom the officer ought to have been sworn in, was absent when he was sworn, and that therefore he had never been duly admitted, might be a good ground (/). (b) R. t. Trevenen, 2 B. & A. 339; vid. (h) Vid. cases cited Cowp. 499. 4 r. R. 223. The legal adviser of the officer (t) Informations have been granted for who advised him thai he was duly elected claiming and exercising the office of steward cannot be relator; H. r. Payne, 2 Chit P. ol a borough, 6 Weniw. Prec.81 ; town clerk and clerk of the peace, Keg. v. Thomas, 1 1 (c) R. t. Slylbe, 6 B. 8c ('. 240. A. At K. 183 ; aldermen and justices of the (d) K. i. ( ndlipp, T. EL 503 : vid. K. peace. It. v. Patteson, 4 B. & Ad. 9; sheriff lh, '■'> I. It. 573. of a county of a city or town, It. v. Whit- R. i. Parry, 6 A. .-. E.810; K... well, 6 T. R. 86. Ilodg.-. 2 B. fie A". 344 ; K.;:. i Quale, 11 (j) R. •. Whitwell, 5 T. R. 85; R. v. A. „\ | i be rule has been made ab- Saunders, 8 East, 119; m'- ■■. I; ,. Day, 1 DowL 32 ; EL pointed to take place, EL t>. Ellis, Stra. 994 ; S. C. more fully, it East, 252, n. ; iid. 4 Purr. i id. the Hi ease, cited >tra. 2135. ACTS AND PROCEEDINGS. 255 As it will be impossible clearly to state the law on this subject with- out perpetual reference to the statute (m) on which it principally rests, we shall here cite the two principal enactments, which are as follows. First, in case any person shall usurp, intrude into, or unlawfully hold and execute any of such offices and franchises {i. e. corporate offices and the franchises of burgesses or freemen of cities, towns corporate, boroughs, or places, in England or Wales), the proper officer in the Queen's Bench, with the leave thereof, may exhibit an information in the nature of a quo warranto at the relation of any person desirous to prosecute the same, and who shall be mentioned therein (n) to be the relator, against such person so intruding, &c. (o), and proceed therein in the manner usual in such informations ; and if it appear to the court that the several rights of divers persons to such offices or franchises can be determined on one information, the court may give leave to ex- hibit one information accordingly, in order to try their respective rights, and such person, against whom such information is prosecuted, shall appear and plead as of the same term or sessions in which such infor- mation was filed, unless the court shall give the relatee further time to plead, and the relator shall proceed thereon with all convenient speed (p). Corporations are under no restraint at common law as regards the mode in which they may take the votes of their members at elections of their officers ; and, provided they make no regulation which infringes the law of elections generally, as by giving a casting vote to the pre- siding officer, or other person, or by declaring that the election shall be (m) 9 Ann. c. 20 ; vid. as to officers in R. v. Braine, 4 A. & E. 664 ; II. v. Parry, corporate boroughs, 6 & 7 Vict. c. 89, s. 5. 6 A. & E. 810, 819. A party who has ex- (n) The motion will only be granted on ercised an office by usurpation may be pro- affidavit by the parties making it that they ceeded against by information, though he has are relators ; and such persons shall be resigned the office, and his resignation has deemed the relators in case the rule shall be been accepted by the corporation, for he is made absolute, and be named as such in the liable to a fine to the crown for the usurpa- information in case it shall be filed, unless tion, R. v. Warlow, 2 M. & Selw. 75 ; or the court shall otherwise direct ; vid. rule of after expiration of his year of office, 2 Ld. court, Mich. T. 3 Vict., 11 A. & E. 2. The Keny. 498; qu. tarn. vid. 2 Q. B. 744; affidavit must state at whose instance the ap- Reg. v Hodson, 4 Q. B. 648, n. plication is made ; it is not enough for the (o) A party who acts in an office where an party to depose, that if the court grant the oath forms part of the form of admission, information it is his intention to become really without being sworn, is such an usurper; and bond fide the relator ; Reg. v. Hedges, Case of Mayor of Penryn, Stra. 582, affirmed 11 A. & E. 163. As to the notice of the ap- Dom. Croc. 2 Bro. P. C. 294. As to the plication under 6 & 7 Vict. c. 89, in cases of proper judgment in such case, R. v. Clarke, claimants to corporate offices, vid. sect. 5 of 2 East, 75. A party who acts in an office that statute. If the relator be poor and un- after having duly re-igned it, or having va- able to pay costs, on the discharge of a rule cated it, " unlawfully holds the office;" R. wist for a i/"' 1 warranto information, there v. Payne, 2 Chit. R. 367 ; vid. 9 B. & C. being behind a person who is the real prose- 703. cutor, the latter will be ordered to pay them ; ( p) 9 Ann. c. 20, s. 4. It seems that the Reg. v. Greene, 4 Q.B. 646. The above franchise of sharing in the common lands or rule of court has the effect of withdrawing joint stock of a municipal corporation held by the indulgence formerly allowed to a person the old freemen, and in some cases by inha- who was himself estopped to be a relator, bitants, is not settled to be a franchise in a viz. thai he might be qualified to make such corporate place under this statute, so that the an affidavit as the court would grant the ap- court will grant an information in respect of plication on, provided the motion were made it; vid. per Bay ley, J., 10 B. Ck C. 233; on behalf of a properly qualified relator ; vid. Beg. v. Pepper, 7 A &c E. 745. 256 At 1 - \M> PRO< EEDIK carried by some majority other than a simple one, they may adopt any niotle of voting they please, as by show of hands, voting papers, ballot, &C. In municipal corporations the mock' of election is in most cases of corporate offices regulated and ascertained by the Municipal Corpo- ration? Act and subsequent statutes, and they cannot deviate from the arrangements so made; but with respect to other corporations, and with respect to offices in corporations not regulated as above, it may be useful to point out the great objection there is to voting in secret modes, as by ballot, arising from the difficulty of upsetting an election which there may be reason to deem bad, as depending on the votes of non- qualified electors ; for on an application for a quo warranto informa- tion, it lies upon the relator to show that the defendant's majority was obtained by means of bad votes, proof of which it is almost always im- practicable in such case for the relator to make out (7). However, ral of the old charters of municipal corporations expressly gave the power of voting by ballot (r) in corporate elections, Sec. In case this mode of election were to be revived in any such corporations in cases not provided for by the Municipal Corporations Act, the proper mode of raising the question of the legality of such proceeding, especially alter the non-user (which has been almost universal, it is believed, for eat length of time), would seem to be by scire facias, or information in the nature of quo warranto exhibited by the attorney-general (s). Referring to the latter part of the section of the statute cited above, it may be observed, that the only case in which the power there given seems to have been exercised of consolidating into one information ral brought to determine rights urged by various claimants to the same office, was a case where four persons claimed the same office (t); and the decision seems, though not very fully reported in regard to the circumstances, to militate against the doctrine that there must have been a user, as well as a claim, to lay ground for quo warranto inform- ation (m). to the time within which an application for an information in the nature of quo warranto must be made, it is enacted, that applications for the purpose of calling on any person to show by what warrant he claims to exercise the office of mayor, alderman, councillor or burgess (7) R. . & Ad. li~>~> ; places, M. ,\ Steph. Hist, of Boroughs, Faulkner*.] 157. \ ... 1567 ; trid. R v. Askew, 4 Burr. 2186, 2193. the name ol the candidate (*) Peter t). Kendall, 6 B. & (.'.703. without the u;i'i (OR '• Foster, 1 Hurr. ~>~3. All the u Ik- four parties against whom rules had been : ! the made absolute in that c;isc could hardly be rv ; said to be in possession and user of the office ; 1 corporation not audio- vid. Re{ d. Pepper, 7 A. & E. 749. n/..l to to do by charter or statute, could («) Vid. sup. p. 254 j per Lord Kenyon, • voting by proxy j R. C.J..4T.R. 146. A Bwearing in, and no- '• Ellis, 17 Si thing more, baa been held to be a sufficient ( r ons for voting by ballot in user without any possession being shown; d <'i mayor, in the cl R. p. Harwood, '2 East, 177; aid. R. ■■ I, to Pomfn , and other Tate, 4 East, 387. ACTS AND PROCEEDINGS. 257 in any borough, shall be made before the end of twelve calendar months after the election or the time when the person against whom such application shall be directed shall have become disqualified (x) ; and no election of mayor shall be liable to be questioned by reason of a defect in the title of such person to the ofKce of alderman or coun- cillor, to which he may have been previously elected, unless application shall have been made calling upon him to show cause by what warrant he claims to exercise such office of alderman or councillor, within twelve calendar months after such his election to the said office of alderman or councillor; and every election to the office of mayor, alderman, coun- cillor, or any other corporate office within a borough, which shall not have been called in question by such application within twelve calendar months from such election, shall be deemed to have been to all intents and purposes a good and valid election (y). Therefore, in all these cases, the rule nisi must be moved for within twelve months of the election or disqualification ; in all other cases of offices in cities or boroughs the application must be in time to admit of filing the infor- mation within six years from the day of swearing in, &c. (z). The affidavits in support of the application must state every material fact in the first instance; no amendment can be allowed (a); and, indeed, it would be violating a general rule of the Court of Queen's Bench to allow a party who makes an application, and fails in it from a defect caused by his own neglect in his materials, to move again upon amended materials (b) ; the only exceptions which the court will in general admit, are where the amendment consists merely of correcting an error in the title or jurat of the affidavits (c). But although the same relator cannot apply again upon amended materials, it is no ob- jection to an application that a former information, impeaching the defendant's title on similar grounds, had been abandoned (d). If an affidavit state that the election was contrary to the charter, it must state that the charter was accepted, or that the usage had been in con- formity with the charter (e) ; and if a custom as to the election, &c, be stated, the party must state his belief that it was immemorial (/). So, if the ground of objection be that the defendant was not elected by a majority of the legal electors, the relator must show who constituted the class entitled to vote, and that another candidate had the majority of (*r) 7 Will. 4 & 1 Vict. c.78,s. 23. (6) Reg. v. Barton. 9 Dowl. 1021 ; Ex (u) 6 & 7 Vict. c. 89, s. 1. parte Ilasleham. 1 Dowl. N. S. 792 ; Reg. ( ; ) 32 Geo. 3, c. 58, s. 3 ; Reg. v. Harris, v. Manchester, &c, Railw. Co., 8 A. & E. 11 A. & E. 518. In cases ofoffic.es, &c, in 725 ; Reg. v. Great Western Railw. Co., I corporations not municipal, the rule of court D. 6c L. 874. After rule nisi has been limiting six years still applies ; 4 T. R. 248. granted, the court will not receive additional («) It. v. Barzey, 4 iM. & Selw. 253. As affidavits ; R. v. Newling, 3 T. It. 314. to the proper mode of stating acceptance of (c) Keg. v. Great Western Railw. Co., 5 office, vid. Reg. v. Slatter, 11 A. & E. 505; Q. IS. 597. Re<;. v. Quayle, 11 A. >\ K. . r >U8. As to (d ) R. v . Bond, 2 T. R. 767. proper degree of certainty in averments, 2 (e) R. v. Barzey. 4 M. & Selw. 253; R. East, 177 ; 6 13. & C. 240 ; 9 B. & C. 702 ; v. Hughes, 7 B. ix. C. 708. 1 1 A. & E. 505 ; 1 Burr. 405. (/) R, v. Lane, 5 B. St A. 488. 25S ACTS AND PROCEEDINGS. such votes ((/). It is material to take objections in the first instance, as the information will not hi' quashed on motion, and it seems the re- cognizances can only hi' discharged by consent {/i). With respect to pleading to a quo warranto information the defendant may put on the record such several pleas as the court on motion shall allow (*). The practice appears to he left without much illustration, as it leading double to an information at common law for an ■ which is not a corporate office (whether within a corporate borough or not). In one case of that kind the defendant had obtained a rule to plead several matters, and the court, on motion, refused to discharge the rule and strike out all the pleas except one, on the ground that by pleading double the defendant placed himself in this position, that the error, if any, was apparent on the face of the record, and, therefore, the question might be discussed before a court of error, whereas if they had granted the application, calling on them to discharge the rule, &c, he would have been altogether prevented from setting their judgment right by writ of error (k). Probably, in such case, the preferable course for the prosecutor would be to demur to the pleas as being double, if he intends to dispute the right to plead in that manner. Where the defend- ant sets out a defective title in his plea, the court will give judgment on the plea as amounting to a confession of the alleged usurpation (I). A traverse of the usurpation is a wholly immaterial issue (I). Where part of the plea is immaterial, the proper course is to demur to that part and join issues on the material parts (m). Otherwise, although there he many other issues (as there almost always are), and although all of them should have been found for the crown, the whole verdict will be set aside {m). There is this difference between a civil action and an infor- mation of this nature, that, in the former, when it appears on the whole record that the plaintiff has no cause of action he cannot, in any case, have judgment; but here, if the plea does not contain a complete title against the crown, there must be judgment for the crown (n). In other (g) ll.i. Mashiler, 6 A. & E. 153. thereof, Corner, Pract. Crown Sid. Q. B. App. (In K. i. Edgar, 4 Burr. 2297. The in- p. 4 ; and defendant cannot be required lo formation must be certain, at least as much plead sooner, It. v. Radford, 6 T. R. 595, so as an indictment; an argumentative in- note. formation ifl Lad; 2 Hawk. P. C. 261; R. (k) R. r. Hightnore, 5 B. & A. 771. t. Koighl, S.-.lk. (/) R. v. Philips Stra. 394, 397. This < i t It. i . Autridge, 8 T. R. 467. This is was after verdict for the crown ; but the same by force of 32 Cit-o. 3, c. 58, s. 1. The leave result would have followed if the verdict had can only be obtained where the office is within been for the defendant ; Gwynne v. Burr\ell, the latter statute, viz. a corp* in a 7 (la. & 1- . 572 ; Chit. Arcnb. Praci. 1352, citv or corporate borough ; R. O. Richardson, 8th edit. ; 10 Mod. 211, 296; form of dis. 9; I:. v. M'Kay, ', B & C.646; claimer, Corn. Cro. Pract. App. 126. As to vid, Reg. t. Grimshaw, S I). & L. 249; 4 the effect of a plea of disclaimer and judgment marg. The being appointed to thereon, vid. R. v. Clarke, 2 East, 75. There the office by the corporation does not make cannot be a disclaimer in vacuo ; R. v. JNIor- the officer a corporate elfieir . I Grim* ton, 4 Q. B. 146, 148. shaw, 5D. ce,9M.& (m) R. v. Phillips, 1 Burr. 305. In a W. 171'.; 13 Hen. 8, fol 12. \ ill certainty later case, however, the jury have been dis- in informations, 1 Borr. 405. Where an sp- charged from giving a verdict on the imma- pearance has been entered, a rule to plead terial issues ; R. v. Johnson, 5 A. & E. 488; ii.u-t be served on defendant's attorney, which » id. Powell v. Sonnett, 1 Bli. N. S. 545. expires in eighteen days sftei th< service (>/) R. v. Leigh, 4 Burr. 2146. ACTS AND PROCEEDINGS. 259 respects, however, this information is now considered as a civil pro- ceeding, and a new trial may be had as in the case of a common action (o) ; except that where one material issue is found for the relator, he has the costs of all the issues upon judgment of ouster on that issue (p). As to the replication, it must be observed that though the defendant can only plead several pleas, in cases within the statute of Anne, pro- vided the court grant leave to do so ; yet, on the other hand, the relator may always reply by as many replications as he pleases ; because the crown is supposed to be plaintiff, and the crown, in the exercise of its prerogative, has a right to plead severally in all cases (wl. jirfs. to be relator undertaking not to file the information entered by the officer of the court ; for there unless necessary ; K. v. Morton, 4 Q. B. 146. is no precedent of the court ever interfering (i) i. e. by capiat ad satisfaciendum, fieri with the conduct of the proceedings, and the /arias, or elegit; 9 Ann. c. '20. s. 2. As to rule, perhaps, arisen partly from the consider* - levying poundage, 2 Smith, R. 8. tion on which the- court proceeded in the above (oj R. i . I lowell, Cas. Temp. Hardw. 240, case, viz. that a fine is due to the crown upon 249 ; rid. K. r. Mayor, &C, of Hertford, Silk, an usurpation or wrongful holding bi ■; el rid. 13 East, 5 , 2 T. K. 117: It. i. prov.rl j It. ,. Brown, 1 T. R.277. I'm, to Morgan, cited 1 East, 4), 42. t suspicion of collusion, when (M Corporation of London v. Alt. -Gen., I of the case call lor it, they will transfer the II. I-ds. 471. carriage of the information to another relator ; (r) R, i. Ilearle, Stra. 625, affirmed in . Alderson.ll i.eeE. 3. They will Don. Proc. R. v. Clarke, 2 East, 83. not quash an information, even by consent ; (d) U. r. Ponsonby, Saver, 245. but by consent the relator's recognizance may R, p. Pile wood, 2 T. II. 147. Form R. I I Burr. 2297. of inch recognisance, Com. Cro. Pract. Q. 13. And where a rub- him had been granted, and App. 121. f ' ndant appears, hut does not defend his !: o. Ilrbden. Andr. 388— 392 ; R. titlr, the rule was made absolute ; ih«> defend- v. Mayor of York, 6 T. R. 66, recognized 4 ant paying the costs of the application, the B. \ < , :i79. ACTS AND PROCEEDINGS. 261 Also a judgment of ouster does not operate to annul the acts of an officer de facto, at least as far as regards acts which he is compellable as such officer to do {g). The acts of mere usurpers, however, who have come in without election, or with only a pretended election, stand on a different footing, and are wholly void. Where, to an information for an usurpation of an office, the defendant pleads, confessing usurpation of the office from such a time to such a time, the judgment of ouster must be entered accordingly, and not gene- rally for the whole time laid in the information (h). What has been said relates almost entirely to informations under the provisions of the statute of Anne, which, we have observed, refers only to corporate offices in corporate places, and it is to such offices, therefore, that the enactments relative to pleading several pleas, &c, and to relators under that statute, that its regulations giving costs refer. However, at common law, it must be remembered, the court may give leave to file an information of this nature, or the attorney -general, at his discretion, may file one ex officio. Instances of the first kind have been preserved, occurring before the statute. Thus the court entertained a motion for a rule against the Duke of Bedford for claiming to be Governor of the Corporation of the Conservators of the Bedford Level (i). Various other instances are found in the records of the crown office (h) ; so that there is no foundation for supposing, as was once held, that previously to the statute informations, at least in cases of corporations, were always filed ex officio by the attorney-general (/), and that the court had no power to allow of one being filed at the instance of a private relator. An instance of the second is an information filed by Sir Edward Coke, when attorney-general, for claiming a franchise of exemption from the government of the corporation of London for a district within the city, together with power to hold courts leet, appoint coroners, &c, and others against individuals or corporations for holding fairs and markets, taking toll, &c, without authority (m). And since the statute the court still retains its common law power of granting such motions ; thus the rule was made absolute against an (g) R. v. Mayor, &c, of Shrewsbury, Cas. Warburton, R. v. John, R. v. Pole, R. v. Temp. Hardw. 150 , R. v. Slythe, 6B.\C. Lewis, cited 4 Burr. 2260— 2262 ; vid. 1 Salk. 240 The rule has been snid'to be, that on 374; Carth. 50:3; Stra. 299, 621 ; 3 Burr, ouster from a defect in an election, orappoint- 1318, marg. ; Stra. 836, 1 161, 1213. ment, of an officer in a corporation, all acts (I) Where the Att.-Gen. has the power to properly corporate and official done by him file an information ex officio the court will not are void, yet acts done as a justice, or in judi- interfere ; R. v. Philipps, 4 Burr. 2090. cial character, are not invalid; Margate Pier (m) Co. Knir. 527, B., where see judgment, Compiny v. Hannam, 3 B. & Aid. 271 ; pleadings, &c. Where a public corporation O'Brian v. Kniven, Cro.Jac. 554. has been dissolved, and a party who held a (/i) R. v. Taylor, 2 Kelynge, 272. corporate office in it claims to exercise another (i) R. v. Duke of Bedford, 1 Barnard B. office of a public nature, alleged to be de- R. 212, 280 ; oid. S. P., admitted K. v. Wil- pendent on the possession of ihe former, that liams, 1 Burr. 402 ; S. P., per Lord Mans- is a case for the attorney-general, not for a field, C. J., R.b. Gregory, 4 T. R. 241, note ; private relator; R. ». Saunders, 3 East, 119. S. P., recognized R. v. Ilighmore, 5 B. & A. lie may always exhibit the information ex 771. So R. v. Howell, Cas. Temp. Hardw. officio where he has the right to do so, although 248 ; R. v. M'Kay, 9 B. ^ C. 640. leave to file one has been refused to a private (fc) R. v. Mayor, &c, of Hertford, R. v. relator ; R. v. Wardroper, 4 Burr. 1963, 1965. "6:2 ACTS AND PROCEEDINGS. individual claiming to be master of the Patten Makers' Company in the city of London (a), which though an office in an incorporated body, in a corporate place, is not an office, it would seem, within the statute if Anne, which relates to offices belonging to the corporation which has local jurisdiction over the corporate place, not to such as belong to incorporated bodies otherwise connected with the corporate place. Th i on, however, Beems not to be free from doubt (o). Also the court h.i- granted the motion against a person claiming to be a member of the incorporated Company of Tailors of Lichfield (jj). So for the office of r of Petersfield, which is not an incorporated place (fj). So an information lies at common law for a single instance of holding a borough court of record without authority (r). So an information lies at common law for the office of borough coroner, appointed to under the Municipal Corporations Act (*). So for the office of constable (t), of registrar, and clerk of the court of requests («), and so of portreeve of a borough (x). We may repeat here what has been already observed, that in infor- mations of this nature, that is, informations at common law, on the one hand the relator may insert as many counts, and use as many replica- tions, &c, as he pleases, but can recover no costs ; on the other, the defendant has no right to a rule to plead several matters, while a verdict for him only carries costs to the extent of 20/., and not even that, if the judge certify that there was reasonable cause for filing the information (y). But where a rule is granted to show cause why a quo warranto inform- ation should not issue against a person who had exercised a corporate franchise, ex. gra. the right of voting for a corporate officer, and it appears clearly, on showing cause, that the defendant was entitled to vote, the rule will be discharged with costs (z). On error to the Exche- quer Chamber on a fjito warranto information, the party in whose favour the court of error decides is not thereby, or by statute 1 1 Geo. 4 & 1 Will. 4, c. 70, s. 8, entitled to enter up judgment of that court for his costs in error (a). Either party may bring a writ of error (b). The next attribute of corporations of which we shall treat consists of the power of disfranchisement or expulsion from the corporate union of an unworthy member, which involves a total deprivation of f» H. o. Bumstead, 2 I'.. St A.I. 699. («) R. v. Hall, 1 B. & C. 237; semh. an I' \ l, ; I '.. \ 1. 481, where, action for tin; ft ■<■< is the proper mode of trying however, the motion for a mandamus had heen the right ; Staniland v. Hopkins, 9 M. & \V. i of on the giound that quo warranto 178. information was the proper cour-c ; id. 499 ; (x) R. u. Richardson, 9 East, 4G9 ; R. v. i id. 6 \\ entw, Preced. 63. An information, Bleio, 3 T. R. 599. told he granted for the otlice of ( iy ) In/. 4 >\ 6 \V. & M. c. If]; R. v. ac, cororoiwionere ol the chj "t Exe- Howell, < as. T. Hardw. 248. ter, the commianonen being incorporated, and (:) It. r. Carpenter, Stra. 1039. So where nsiderable local juii-diciion ; R. the charge appeared to he groundless ; R. v. ■■ I . 437. Lewis, 2 Burr. 78ft ; R. v. Wnrdroper, 4 k. i. Uakclin. 1 B. .Sc Ad. 50. hurr. }Ui,:i ; U. r. Kemp, 1 East, 46, note; (q) R. v. Jolliffe, 2 B. & C. ->\. vid. 4 Q. B. 646. R, .. Williams 4 Burr. 402. (a | Rowley v. Beg., 6 Q. B. 668. oabaw.SD. & L. 249 ; the (6) Heg. v. Johnson, S A. ,Y E. 488; coroner not hcing a corporate officer. Reg- t'. Humphery, 10 A. 6c E. 335. (0 R. i. Wallis, 5 1. R 37 0. ACTS AND PROCEEDINGS. 263 all privileges, rights, interests, profits, and advantages which the indi- vidual enjoyed whilst a corporator ; but without absolving him from liability to the corporate jurisdiction so long as he remains within the local limits of their authority. Disfranchisement has been frequently confounded with amotion; and in many of the old cases and authori- ties, the terms are treated as convertible; but in fact there is a material distinction between the two(c); for amotion is removal from an office in a corporation ; disfranchisement is the taking away the franchise of being a corporator any longer. This right has been, as far as appears from the cases on the subject which have been recorded, but sparingly exercised; though it is undoubtedly an incident to every corporation, with perhaps some exceptions in cases of trading and monetary bodies, where the exercise of such power would be inconsistent with the con- stitution, and often, indeed, impossible. The decisions which we shall have to examine are almost wholly of a negative character, showing what grounds have been considered insufficient to warrant disfran- chisement, chiefly in municipal corporations; and as there is nothing to show that the legislature intended to deprive such corporations of this power by the Municipal Corporations Act, or any of the subse- quent statutes relative to municipalities, and as the claim, right and title of burgesses to the rights, benefits, advantages, &c, which they enjoyed as corporators are reserved (with the exception of the corpo- rate right of exemption from tolls, which is abolished (tZ)); but with a proviso, "that the same rights, &c, in every case may be brought in question, impeached and set aside in like manner as if this act had not passed" (e); it appears to follow that the power remains, and that all decisions not incompatible with other provisions of the statute, will stand good and govern the exercise of the power of disfranchising at present and in future. Disfranchisement is defined to be the taking a franchise from a man for some reasonable cause (/); and no cause is reasonable unless it be just and legal (g). Therefore no corporator who has a freehold in his franchise, that is, who is elected for life, or upon such terms as are construed to amount to a life interest, can be disfranchised at the mere will and pleasure of the corporation (A); for it is inconsistent with, and repugnant to, the legal nature of a freehold interest, that it should be determinable at will: and, moreover, to entrust corporations with an (r) Vid. R. v. Mayor, &c, of Doncaster, 2 Vanacre's ease (4th point), 5 Mod. 418, 442. Ld. Raym. 1564; Jay's case, 1 Ventr. 302. (/) Symmers v. Reg., Cowp. 502. ( PROCEEDINGS. arbitrary power of this kind would tend greatly to disturb the peace of corporations, which the Court of Queen's Bench has always been soli- citous to preserve, and to defeat many of the objects of the institution of corporations; for it would furnish the ready means to an unscrupu- lous majority, of compassing many private and personal objects of their own by means of the corporate character. The legal causes of disfranchisement are these (i): — I. Offences against the Corporator's duty to the Corporation, as a Member of it. II. ( >:K aces of a heinous, infamous character, affecting the Corpo- rator's Duty as a Subject, being indictable at Common Law. III. Offences compounded of the two. Wo shall proceed to examine the decisions under these heads. I. Offences against k Corporator's Duty. These it has been laid down must be " things done which work to the destruction of the body corporate, or to the destruction of the liber- and privileges thereof " (k) ; though, perhaps, we shall see here- after that some causes have been held good which could not be said to come up to the full extent of that rule. At any rate, another part of what was laid down at the same time remains the law; viz. that a mere personal offence of one member to another is not a ground(7); nor opprobrious language applied to a corporate officer (///); and even a custom to disfranchise for such cause is bad, even in the city of London {/i). Bankruptcy, also, is no ground, in general, for disfran- chisement ; for where there is no pecuniary qualification necessary for being a member of the corporation, to become a bankrupt is not of itself an offence against the corporator's duty(o). But where a certain amount of property is a (jualification for becoming a corporator, the "f such qualification, manifested by insolvency, would be a ground of disfranchisement; and if a long imprisonment were a consequence of a bankruptcy, by which the corporator were detained from the proper performance of his duties, such facts might form a good ground (pj. (i) R. v. Richardson, 1 J'.urr.538; It. v. ; Clark's gaily performed at a duly convened corporate case, I Ventr. 327 ; Lumley p. W tight, cited ■ ly of the body corporate, tin- party Palm. 455, having bad reasonable notice and summons, (o) R. d. Mayor, &c, ol Liverpool, 2 Burr, ami been beard in bis defence; R. v. Cballc, 732. 1 l.l. Raym. 226. Ii tin; membership of < p i Ibid. Having originally wanted a qua- i. in is held on terms, amounting iification is not a cause of disfranchisement; to .i freehold, the act ol disfranchisement must I!, i Ma Mir, Stc, of Lyme ( Mitchell's ■ be und'-r the common seal; K. d, Mayor, Dougl. 79. Poverty, to such an extent as to : \\ ilton, 5 Mod. disable from paying BCOl and lot, is reported to . < srth. 176. A men at- have been said, by Holt, ('..(., not to be a tempt to do such an act, no detriment result- ground of disfranchisement; K. v. .Mayor of the corporation, is not. sufficient ; Andovei, 3 Salk. 229. liagg's case, 1 1 Ri ACTS AND PROCEEDINGS. 265 To burn or rase the charters, or to falsify or rase the books, of the corporation, are breaches of duty which amount to a forfeiture of the corporate character (7); for these are acts which tend in the highest degree to the detriment of the corporation. So it seems to be the better opinion that a refusal to pay sums by custom payable by mem- bers towards the support of the corporation is a good cause (r); for it is an attempt to obtain the benefits without sharing the burdens of in- corporation, and contrary to the duty of the member; so to endeavour to hinder an officer in the corporation from attending a corporate as- sembly, at which it was the officer's duty to be present, and actually hindering other members of the assembly from being present, though only a single instance be alleged, is a sufficient ground (s). To con- tinue after a corporate meeting has been adjourned by the presiding officer, who has withdrawn, and to pass resolutions, and enter them in the corporation books as corporate acts, is a good ground (t) for dis- franchising all concerned in such proceedings. Misconduct of this nature manifestly strikes at the root of corporate jurisdiction ; though, perhaps, it cannot be said to work to the destruction of the corpora- tion, or of the liberties and privileges thereof; but mere misconduct in an office, though it may amount to ground of amotion from the office, is not necessarily ground of disfranchisement (u). This being an act of an odious nature (x), provisions in a charter concerning it must re- ceive a strict interpretation, and it would almost seem as if the court had in general leant against such a result, as the total deprivation of the corporate rights and character, being inflicted in any but very clear and grave cases. Total abandonment of, and even protracted non- residence in, the borough, or corporate district, may be a good ground of disfranchising (?/). II. Offences of an infamous Class indictable at Common Law. For these there must be a previous indictment and conviction before disfranchisement can take place (z). Immediately, therefore, upon judgment being given (for before, it is not certain that the defendant is guilty of the crime of which he has been convicted, for a judgment is the necessary complement of a conviction), a corporation may proceed to disfranchise, and, as it seems, without a previous summons to the corporator, and hearing him in his defence ; for a summons and hearing in such case must be nugatory, though in general those are essential ( Corn. Dig. Franchise, F. 33. (x) R. v. Sutton, 10 Mod. 76. (s) Reg. v. Mayor, kc, of Derby, Cas. (i/) Vaughao v. Lewis, Garth. 229 ; R. v. Temp. Hardw. 156. That it is the duty of Mayor, &c, of Lyme, Dougl. 144. every member of a corporate assembly to be (;) R. v. Richardson, 1 liurr. 538, 539. present, if he has been duly summoned, vid. 266 iCTfl AND PRO< BEDINOS. preliminaries, which must be carefully observed(a). It is not necessary, hi wover,to observe them where the corporator has become permanently inn -resident, and is beyond the limits of the corporate jurisdiction; for in that case also to summon him would be a mere idle form. Though it is said that misapplication of the corporate funds is not a I cause of disfranchisement, because the corporation may have sa- tisfaction for the injury by action (o)j yet in the case of embezzlement of the money of the corporation, mere would, no doubt, be good ground of disfranchisement after judgment; though, perhaps, this case would belong rather to the next class. Perhaps writing a libel may in some case- be a ground of disfranchisement; as where it is written of and concerning one or more of the chief officers of the corporation, and of them as acting in their official capacity, and attributing to them, in Mich capacity, dishonesty, or other improper conduct (c); upon conviction of the offence, upon indictment, and judgment accordingly, the corporation would probably be justified in proceeding to disfran- chisement. III. Offences of a mixed Charactik. In cases of this nature, it seems the corporation need not wait for a conviction and judgment, but may disfranchise at once, having first summoned and heard the corporator in his defence, in cases where such Bteps would not be nugatory or useless. Thus it has been said, that a corporator may be disfranchised for a riot during a corporate assembly in the council chamber (d), without a previous conviction; but whether bribery is a ground of disfranchise- ment, without previous conviction, is left in doubt, from the discrepancy of the reports of cases in which the question arose (e), being such as to render it impossible to rely upon them; but it would seem, that on a clear case of bribery in a corporation election being made out against a member, there would be a sufficient violation of his duty to entitle them lo proceed to disfranchisement at once, without waiting for two years for the conviction, as they might lie obliged to do; at least, it seems improbable that the court would interfere to restore within the two vear-. for if the corporation had acted bona fide in the exercise of their power to disfranchise, it would be contrary to the principles on which the court acts, to call upon them to rescind their act before any- thing had occurred to prove them in the wrong; for omnia rite acta yrasumuntur \- a maxim peculiarly applicable to corporations. The above is nearly all, it will he found, that can he gleaned from the cases which have been decided on this subject. (a) It. .. Chalke, 1 Ld. H^m. 226. Hardw. 154. (/, i Ihui. (e) Vid. R. v. Hutchinson, 8 Mo Vid, R.v. Chalke, 11 Mod. 270. R. v. Mayor, Sec., of Carlisle, 8 Mod. 99— Id) Style, 477, cited 1 Mod. 103 ; S. C. Fortesc. 200. 101 ; rid. per Lord Hardwickr, C. J., I 'a*. I . ACTS AND PROCEEDINGS, 267 The remedy for undue disfranchisement is a mandamus to restore ; or, to speak more correctly, this writ is the proper mode of discussing the question of the legality of the disfranchisement; for the writ is not properly a remedy in the first instance, though a peremptory mandamus may be termed so. Whether for a mere suspension from the franchise of being a corporator the writ will lie, is a point on which the autho- rities are at variance. In one case(/'), Lord Eldon, C, expressed his opinion to be that it would; but on an application arising with refer- ence to the same corporation, the Court of Queen's Bench refused the writ {g), on the ground that an action would lie, there being a right in the corporator to a share in a dividend of profits of a common stock. The writ was also refused in a case of suspension from a corporate office, it appearing, on the party's own showing, that there was good cause for suspending him, although the suspension had been irregularly performed, inasmuch as the defendant was not summoned nor heard in his defence (h). That was also a case in which an action for money had and received for the profits of the office would have lain (//). A writ of this kind appears to have been granted in very early times, viz. temp. Edw. III., to restore a man who was bannitus by the University of Oxford (i) ; and it seems, that a person may be banished from the University of Cambridge by the Vice-Chancellor, assisted by the heads of houses in the Vice-Chancellor's Court, without being banished from his college (k). In general it may be laid down, that mere misconduct, not being criminal, immoral, or grossly fraudulent, in any corporate office, is not ground for disfranchisement, though it may be for amo- tion (I). Where a person has been disfranchised, and restored on per- emptory mandamus, he has no right of action against the corporators who took part in his disfranchisement, at least without proof of malice, although the disfranchisement may have been performed irregularly, in not summoning and hearing the corporator in his defence (m). He cannot recover even the costs of the mandamus (m). A subject has been once or twice incidentally alluded to, which it may be desirable to give a more complete view of in this place. Every corporator may resign either an office in the corporation (w), (f) Adley v. The Whitstable Fishermen, instance of the same punishment of a M. A. 17 Ves. 323. In the City of London v. Est- of Christ Church, a.d. 1713. wick, Styl. 32, 35, 42, a writ of restitution (k) R. v. Chancellor, &c, of University of was granted to a common councilman who Cambridge, 6 T. 11. 89. had been suspended. (/) R. i>. Mayor, &c, of Doncaster, 2 Ld. (g) R. v. The Whitstable Fishermen, 7 Raym. 1564. East, 353 ; vid. R. v. Guildl'oid, 1 Keb. 868, (m) Harman v. Tappenden, 1 East, 555; 880; S. C. T. Raym. 152; 15 Vin. Abr. S. C. 3 Esp. 278 ; Ferguson v. Earl of Kin- 192; 2 T. R. 179; R. v. Chamberlain of noul, 9 Cla. & F. 269 ; Att.-Gen. v. Wilson, Chester, Trem. P. C. 516. There are cases Cra. & Phil. 1. of disfranchisement in which it has been held (n) R. v- Mayor, &c, of Ripon, Salk. that equity will interpose; Att.-Gen. v. Lock, 433 ; Com. Dig. Franchise, F. 30; Taylor's 3Atk. 164. case, Poph. 134; vid. 4 B. & Ad. 26. A (h) R. v. Mayor, &c, of London, 2T. R. due acceptance must be at a meeting of the 177, 182. corporation duly summoned, and held at the (») Vid. per Ld. Mansfield, C. J., 4 Burr. usual place ; Musgrave v. Nevinson, Stra. 2189 ; R. v. Chancellor, &c, of Cambridge, 584 ; vid. 19 Vin. Abr. 151, pi. 3. 6 T. R. 89 ; et vid. 1 Q. B. 964, 965 ; an 2GS ACTS AND PROCEEDINGS. or his character and privileges as a corporator (o), but it rests with the corporation whether they will accept the resignation in either case, and they have an absolute veto on the question. Also the resignation must be tendered and accepted at a corporate meeting duly convened, p), and in vi - 1 be made, it seems, by deed-poll or instrument under Beal, it' it be a resignation of a freehold office, or of a membership which is tenable tor lit'rfy : for a freehold cannot be determined except by an act done, and accordingly the practice appears to be, that these descrip- tion- of resignations >hould be effected in this way (r). \\ hen a resig- nation has been once duly accepted, the corporator cannot claim to be restored (a). It' the resignation be not accepted, and the party still de- sire to quit his franchise, according to some authorities, there is no ob- jection (t) to a friendly information in the nature of quo tcarranto being exhibited, on which he may disclaim. Until acceptance, how- ever, the tender of resignation may always be waived (a). Disfran- chisement and resignation, it has been said, have often been resorted to in order to capacitate a corporator as a witness, where otherwise his evidence would have been objectionable as that of an interested person, and it is added, " that it is sufficient if he release his right to the corporation" (.r), with the explanation that a release of the cor- porator's right or interest in the subject-matter of the suit is not suffi- cient, if he retain an interest in the general funds of the corporation ( y) ; but upon the principles already discussed, it would appear that such a release is invalid, and a late decision confirms that conclusion [z), it being repugnant that a man should release to himself (a). The proper mode of enabling a corporator to give evidence in a suit by or against the corporation in such circumstances, seems to be by getting rid of the corporate character by resignation, and not by disfranchisement ; for if what has been laid down above be correct, a corporation have no power (o) 1 Bla. Com. 484. This kind of resig- and cannot be waived, or the party restored ; n.iiiun cannot be valiiJ without acceptance by II. n. .Mayor, ^c, ol Ripoo, Salk. 433. the corporation ; Pekham's case, 9 Edw. 4, (i) R. v. Warlow, 2 nl. & Selw. 75. In a a. n. 14^9, cited M. & Steph. Hist, lioroughs, return resignation will be intended to mean resignation by deed, where a deed was neces- (/;) Bailiffs of Godmanchestcr v. Phillips, sar\ ; R. t. Ripon, 1 1.7 ; when by dee I. ii is not ne- Mayor, Sec, ol Stafford v. Tooth, 3 V. it J. to • ^i pleading, I Ld. Raym. 19. •Vil. Bailiffs, &c, of Godmanchester v. Godmanchester ». Phillips, Phillips, 4 A. & E.550; vid. 12 Vin.Abr. 17, 4 A i Reg. '. Morton, l (,?. Ii. pi. 16. The proper evidence of disfranchise- 148. However, a parol resignation, it ae- menl is the act of the corporation to that I at a corpo ily, and an entry efleel ; 12 Vin. Abr. 217 ; ('a*e of Corpora- made of it, and an election ol .i mi 01 --or tion of London, 3 Keb. 295. into the place of the paity resigning, is valid, (a) Vid. nip. p. 197 ; 4A. & K. 550. ACTS AND PROCEEDINGS. 269 to disfranchise, except for the offences stated ; and unless therefore the disfranchisement took place upon some breach of corporate duty, or some criminal offence, it would not be valid to divest the party of the corporate character (b) : or the corporator may procure a friendly quo warranto information, and upon disclaimer and judgment of ouster thereon, he would be rendered a competent witness (c) ; but as this would be in all cases a very slow as well as expensive proceeding, the mode of resignation appears to be in all respects preferable. The whole question however is of limited importance, as since the statutory (d) alteration of the law of evidence, it will probably occur but in (ew cases of actions by or against corporations, that a corporator will be ex- cluded ; for it probably can only happen where it can be said that he is " a person in whose immediate and individual behalf the action is brought or defended, either wholly or in part" (e). As has been observed, it is the office and province of the Court of Queen's Bench to exercise a control and supervision over the proceed- ings of corporations, to preserve order in their acts, to enforce attention to the provisions of their constitution, and to repress irregularities both in their acts and proceedings. Therefore, not only in the cases of elections and questions arising out of elections, but on all occasions where there is no other specific legal or equitable remedy, or none that can be made available to prevent the mischief apprehended before it is consummated, the court will interfere by mandamus. Thus where a corporation is constituted for a certain purpose, the preliminary part of which is to be accomplished in a certain time, and the corporation are also invested, with the proper authority and other means for effecting the whole object of their incorporation, if they attempt to leave that pre- liminary part undone or only in part accomplished, the mode of com- pelling them to proceed is by mandamus, and in such circumstances a return, stating in effect that the thing required is impossible, will be bad ( /*). And it would certainly seem to follow, as well from the general principle of corporation law, which looks upon corporations as (b) Reg. v. Mayor, &c, of Gloucester, Therefore, in case of a corporation suing for Holt, R. 450; Anon., Cro. Eliz. 33, pi. 14 ; an assault upon the mayor in the exercise 5 Yin. Abr. 402 ; vid. tarn. Warden, &c..of of his office, he would not be a competent Sadlers' Company v. Jones, G Mod. 165; witness; vid. tarn, infra, Evidence. Reg. v. Lane, 2 Ld. Ray m. 1304 ; Corpoia- (/) Reg. v. Eastern Counties Railway tion of London's case, 3 Keb. 295. Company, 10 A. & E. 531 ; vid. S. C. as to (c) Vid. sup. p. 268; Colchester case, 1 proper form of the writ; R. v. Round, 4 A. P. Wms. 595, note; R. v. Mayor, &c, of E. 139; Reg. v. Payne, 11 A. & E. 955. Winchester, 7 A. & E. 215; per Lord Den- The difficulties ought to have been duly esti- man, C. J., Reg. v. Alderson, 1 1 A. & E. 8. mated by those who obtained the act of in- Tlie proceedings must be regular, and so not corporation ; 10 A. & E. 548 ; 10 M. & W. liable to be set aside ; Brown v. Mayor, &c, 391. Want of funds no answer, R. v. Wells, of London, 11 Mod. 225 ; vid. 12 Vin. Abr. 4 Dowl. 562 ; R. v. Market Street Commis- 18, pi. 26. sioners, Manchester, 4 B. & Ad. 333, note. (d) 6 & 7 Vict. c. 85. Perhaps, however, a return stating that the (e) 6 & 7 Vict. c. 85, s. 1. In case of writ was delivered so late that the corpora- plaintiffs, these words mean '• the party who tion had not time to do the thing required, causes the action to be brought ;" per Cress- might be good ; Stra. 763. well, J., Hill o. Hitching, 3 C. B. 309. 270 ACTS AND PROCEEDINGS. being immortal, as from the general principle of interpretation which has been applied to statutes constituting corporations, viz., that they are to be taken strictly as against the corporation, and beneficially for the public; that no corporation, when once constituted by statute, can be entitled to abandon the whole or any part of the purpose for which it was incorporated. And though there are dicta to the contrary of this proposition in particular eases (g), yet the general current of the interpretations of charter.- is, that when once accepted, the provisions of them are obligatory as well as permissive (A), and there is no reason, but the contrary, why a more relaxed mode of interpretation should be applied to statutes conferring immeasurably greater powers than ever were conferred by the charters of the crown, and there is abundance of authority for their strict interpretation. Accordingly, where a railway company had proceeded to destroy a portion or branch of their line, and thereby to render it impassable for the public, a mandamus issued to compel them to restore the road and replace the rails (i); and there can be no doubt, that if an incorporated company of any description were to suspend, abandon, or shut up their works, then (the public having an interest in the matter) a mandamus would go to compel them to re-open and do all that they were incor- porated to do. But as in equity we have seen that the courts will not interfere to relieve against the proceedings of the governing body, unless it be shown that all the means of compulsion in the power of the cor- poration have been resorted to in vain, as by calling general meetings of the corporators, &c, or that no power remains with the general body by reason of their numbers having been reduced too low, so that the corporation is virtually suspended (k): so before the Court of Queen's Bench will issue a mandamus of the above nature, it must appear that the company had been required, but had refused, to act upon the pro- visions of their constitution in respect to the subject-matter of the writ; that they had actually abandoned the object of their constitution in whole or in part ; and that no other effectual remedy, at law or in equity, (g) Vid. R. i. Proprietors of ISirmingham pany, 7 Hare, 114. Canal, 2 W. lib. 708. (i) R. v. Severn and Wye Railway Com- railway 2 M. v \V. 824, reco ■ <• Eastern from A. through K. to C, abandon the inten- Counties Railway Company, 10 A. & E. 546: tion of carrying tli" hue all the way to C, that the statutory constitutions of companies and determine to take it only so fat as B., incorporated by act of parliament, are obli- . will interfere to restrain the applies gatory as well as permissive, vid. 7 M. & Gra. tpitsl subscribed to this mutilated "J>) It is scarcely necessary to observe, that (ti) 2 Will. 4, c. 39, s. 3 ; 3 C. IS. 7H4. juration ap_i Only appear by Bail not takrn in cases of corporations de- 12; Lush, Pendants, 2 Chit. Archb. Pract. 1037. The Pract. 199; who must he appointed under statutory form and nonce must be observed, l heir common seal, Arnold t>. ■■., of though, in fact, the corporation had no goods Poole, 2 1>"« I. N. S. ">74. to * 1 1 — t r .i i ; » upon ; Ward o. Kirkman, 4 M. & 2 Will. 4, c. 39, M. 21, 22, 23; 2 Gra.35. In • Jones, Skinn. (ml Pilbrow d. Pilbrow's Atmospheric, 27; iiJ. Cowp. 85. mpany, 3 < . B ACTIONS, ETC., AGAINST CORPORATIONS. 275 town clerk, clerk, treasurer, or secretary of such corporation "(o); and this appears to be a general rule extending to all corporations aggregate. Then with respect to joint stock companies incorporated by statute since the 8th clay of May, a.d. 1815, it is enacted, as to the mode of such service of writ of summons, &c, that " any summons, or notice, or any writ, or other proceeding at law or in equity, requiring to be served upon the company, may be served by the same being left at, or trans- mitted through the post directed to, the principal office of the com- pany, or one of their principal offices, where there shall be more than one, or being given personally to the secretary, or, in case there be no secretary, then by being given to any one director of the company " (p). In case of trading companies, incorporated under 7 Will. 4 & 1 Vict. service may be on the clerk, or by leaving at the head office for the time being, or in case the clerk be not found or known, on any agent or officer employed by the company, or by leaving at his usual place of abode {(j). In the first and second cases, therefore, the service must be on some one of the officers of the corporation, and must be personal, and subject to the same requirements with respect to what amounts to personal service as in the case of individual defendants (r). The mode of compelling appearance to an indictment of a corpo- ration, after a removal by a certiorari, is also by distress infinite (s). A corporation, it is held, may be indicted for a breach of duty im- posed on it by law, but not for a felony, or offence attended with vio- lence, as a riot or assault (t). Thus a corporation may be indicted for a nuisance (u). When in a civil action against a corporation, the defendants have appeared by attorney, appointed under their common seal (a;), the action proceeds by the usual steps. The principles have already been stated (y~), according to which actions on simple contracts may be brought against corporations; those brought against them on their bonds, or other specialties, require (o) 2 Will. 4, c. 39, s. 13. The clerk here & W. 664. mentioned must he the clerk to the company, (s) Reg. v. Birmingham, &c, Railway not a clerk to the secretary ; Walton v. The Company, 3 Q. B. 233. The indictment Universal Salvage Company, 4 D. &c L. 558. must be removed by certiorari, after having It is not necessary to name the mayor or other been found at the quarter sessions, because as head officer in the writ, because in their cor- the appearance there must be in person, and porate capacity the body has no other name the corporation can only appear by attorney, than that by which they are incorporated ; the trial cannot be had at the sessions ; id. As Newton v. Travers, 3 Salk. 103. to costs in such case, R. v. Richards. 8 B & (p) 8 Vict. c. 16, s. 135. C. 420; Corner's Pract. Cro. Q. B. 156 ; R. (7) 7 Will. 4 & 1 Vict. c. 73, s. 26. v. Hawdon, 11 A. & E. 143. (r) Pilbrowu. Pilbrow's Atmospheric Com- (t) Reg. v. Birmingham Rail w. Company, pany, 3 C. B. 730. In this as in cases of 3 Q. B. 232; vid. inf. pp 283, 284. individuals, semhle, personal service may be (u) Reg. v. Scott, 3 Q. 15.547. waived, and an appearance entered for the (j) Vid. sup. Common Seal; R. v. City corporation; Jones v. Boxer, C. B. 1849. of Chester, 2 Show. 366 ; Arnold v. Mayor, Banking copartnerships, since 1 & 2 Vict. c. &c, of Poole, 2 Dowl. N. S. 574 ; Fa vie II r. 96, are within tins rule ; for they are in the Eastern Counties Railway Company, 2 Exch. nature of corporations, and not of mere part- 344. nerships, so that notice to any member is not (y) Vid. sup. pp. 61 — 67. notice to the body ; Steward v. Dunn, 12 M. 276 ACTIONS, ETC., AGAINST CORPORATIONS. little illustration. It may be here observed, however, that a promis- note, though impressed with the common seal of a corporation, not being a trading corporation, is not such a specialty, but remains a mere promissory note, which does not bind such a corporation, and on which, therefore, they cannot be Bued(z); and such notes, though bearing the common seal, yet not being delivered as deeds, render such corporations as may by law issue them liable only as other promissory notes render individuals liable; that is, assumpsit or debt may be brought upon them against the corporation, where such actions lie against individuals in like cases. None but a trading corporation, unless expressly empowered by statute, can accept bills of exchange, or issue notes: and where bills may be accepted, or notes made, the same rules apply as in suing individuals in like cases (a). To enter upon the question of what are the descriptions of trading companies, who may accept bills, or issue promissory notes, without express per- mission by statute, is not within the limits of this work (A); it must stiilice to observe, generally, that corporations, from the purposes of whose creation it is foreign to enter into contracts of this kind, will be held not to be bound by such contracts (without express authority, although they may be constituted for purposes affording a profitable investment of capital to the corporators, or shareholders; and that it is only trading bodies, strictly so called, that are so liable, it being in- dispensable to the purposes of their creation that they should be so. It has been seen in what cases, and on what descriptions of bye- laws, debt may be maintained by a corporation; but debt is, perhaps, maintainable at common law against a corporation on a bye-law which reserves or grants pecuniary advantages to a specified class of persons, l/\ any one of such class from whom the corporation, upon demand, withhold his share of the said grant(c); and in general(l Is, Thompson r. Universal Salvage Company, I 11:11 i Mam •■ Waterworks Ezch. 694. iny, 2 B. & Ad. 544. Debt for ape- (c) Hopkins v. Mayor, &c, of Swansea, 4 nalty; Collinson p. Newcastle, See, Com- M. & W. 621, affirmed B M. & W. 901, pany, I ' ir. & K. though chiefly upon another point. As i" (<) Broughion p. Maochestei Waterworks right of a corporation to stop out of stock be- Company, 3 B. & A. 1 ; vid. Wigan v. Fowler, longing in a member debts due from him to L459; p«T Patteson, J . IQ. B.908; the corporation, Gibson v. Hudson's Bay II, rn, .Steele, 19 1 5.) 1 ich. Company, Stra. 645; vid. 8 Vin. Abr. 561, pi. 28. tin As lo the privileges of the corporation (d) In case of a municipal corporation, of the Hank ol England in tin- respect, "r. Successor, B. pi. 4. (o) Vid. mp. p 274; Rector of Chedding- (k) P« Rede, J., 21 Hen. 7, fol.28.pl. Ion's case, 1 Hep. 153; Doe d. Coopers' 5; par Nares, J., DeGrey, C. J., in Scott Company, v. Roe, 8 Dowl. 134. pherd, 2 W. Bla. ordMans- (p) Vid. tup. p. 275; 4 I). & L. 311. field, ('. J., Tarleton 0. I id.er, Dougl. 649; The case of Doe v. Roe, 1 Uowl. 23, can pid. 8M.& W . 788. hardly be considered to be correct since (/) 1'er Lord Mansfield, C. J., Tarleton r. Walton v. The Universal Salvage Company, fisher. Dougl. 649. 4 1). & L. 658, and 8 Vict. c. 16, s. 135. (m) Maund v. Monmouthshire Canal Vid. tarn. 10 M. & W. 21. If the corpora- Company, 2 Dowl. Vs. 113. tion is a trading company, under 7 Will 4 •%: {n ' Hen. . Wills, Bail Court, , M. \ Gnu 736 . and inf. Chubch- 1848. wabdkni am. Ovi n-i i (< ; Reg. v. Justices of Surrey, 3 D. & L. (a) Furnivall v. Coombes, 6 Scott, N. R. 57H. .037; vid. per Patteson, J., in Rew *. Pettitt, (/) Coin. Dig. Detinue. A. l \. .-. E. 200j Wrench t. Lord, l Scott, I Basset p. Trior of St. John of Jem- 3K1. ., Year!,. 2 Hen. <>.l plea to allege that plain- in irual property tur the In n< Gl ol the titi has brought replevin against a corpora- poor, Sec , Alderman p. Neat W. tion, of which defendant is a member, for the 7'M. ( burchwardens, ficc, <, pi. 1; vid. Sketchley, Q. B. Mich. Term, 1847; Allaaon Baa Ai>r. Corporations, E.2,cont. (h) Yeaib. 14 Hen. 7, fol. 1, pi. 2. ACTIONS, ETC., AUAINST CORPORATIONS. 281 work ; here it is only necessary to observe generally, that all pro- ceedings may be taken in equity nearly in the same way as against private persons; and to such a suit it is not an objection, apparently, that the judge in equity is interested as a member of the corporation. Thus, in a case between a corporation and one of its members, it was held not to be an objection that the Lord Chancellor could not enter- tain the cause, as being himself a shareholder and member of the cor- poration (i), the case being such that there would have been an abso- lute failure of justice if he had not. A corporation which is trustee of funds for public purposes, cannot be made accountable in equity to any private individual or other corporation by way of suit, though the circumstances be such as would render it accountable to the crown in an information (k). In any action brought against a corporation, where the attorney, who has appeared, with their privity, in their behalf, has consented to a judge's order referring the plaintiff's claim to arbitration, the submis- sion will be valid after award made, although the attorney was not specially authorized under common seal to defend or refer (7) ; it being a general principle that an attorney authorized to appear in a cause has implied authority to refer (?n). We shall briefly repeat here a most important principle of corpora- tion law, which has before been adverted to, namely, that a corporation is not responsible, as a corporation, for acts which, though colourably corporate acts, are not within the competency of the cox'poration to perform ; in such case, the individuals who take part in the pretended corporate act are personally responsible. Thus, where the majority concurred in placing on the corporation books a resolution libelling a court of justice, the individuals composing the majority were held liable to a criminal information (n) ; and so in cases of contract. So where corporators abstain from doing a corporate act, which it was their duty to have performed by a certain day, the individuals, and not the corporation, are made to pay the costs of the delay (o). Connected with the subject we have last considered, of actions and proceedings against corporations, is the question how to proceed against persons claiming to be and to act as corporations. It has been said, that persons who, without the sanction of the legislature, presume to act as a corporation, are guilty of a contempt of the crown by usurping on its prerogative (p). We shall now inquire, first, what is acting as (i) Grand Junction Canal Co. v. Dimes, (o) Reg. v. Mayor, &c, of Cambridge, 4 M. II., May, 1849 ; Dimes v. Grand June- Q B. 801. tion Canal Co , Lord Chanc, 1849, 18 L. J. ( p) Duvergier o. Fellows, 5 Bing. 26'8 ; (N. S.) Chanc. 424. vid. Maccallum v. Turton, 2 Y. 6c Jerv. 184. (fc) Skinners' Co. v. Irish Society, 12 Cla. In Harrison v. Heathorn, 6 M. & Gra. 107, & F. 487. Tindal, C. J., expressed an opinion, that pre- (i) Faviellu. Eastern Counties Railw. Co., suming to act as a corporation was not an 2 Exch.344 ; Bayley v. Buckland, 1 Exch. 1. offence at common law. In Garrard v. (m) Smith i>. Troup. C. B., East. T., 1849. Hardy, I D. & L. (>0, he treats presuming to (n) R. v. Watson, 2 T. R. 204. usurp a common seal as illegal. That the ACTIONS, ETC., \(.\INST CORPORATIONS. a corporation, and, secondly, what arc the proper means of punishing or stopping it. Now, although it has been forcibly asked what acting as a corporation meant (9), yet it may be safely replied, that either presuming to Bue by a name of incorporation, or to have and use a common seal, <>r to have a perpetual succession by which to hold lands, or to permit shares to be transferable, so that any holder of Bhares should always have the power of forcing his assignee upon the body, so as to make him a shareholder, or to set up the power and right of limiting each shareholder's responsibility to the world by the amount of his share, would be acting as a corporation, and that either of them would suffice to constitute whatever offence there is in acting as a cor- poration (r). When any body of individuals claim to be a corporation of a public character connected with government, not having right to be so, that is a ground for an information in the nature of a quo icarranto by the at- torney-general against the whole body, to show by what authority they claim to be a corporation; and if the franchise claimed is connected with police or public government, the attorney-general can alone prosecute such information (s). "Where the body assuming to be a corporation is of a private nature, that is, constituted professedly for the advancement of its private in- terests, and not laying any claim to franchises connected with police or government, a quo warranto information, either at the instance of the attorney-general or a private relator, is not available ; and the result of the decided cases is, that some doubt appears to exist in what manner to take advantage of the irregularity. The plea of mil tiel corporation is certainly available in bar to an action by a body of persons suing as former was such an offence, rid. Mad. Firm. tence punishable by indictment at common B. 26 ; Mer. & Steph. Hist. Bor. 1660, Quo law. Warr. against mayor and burgesses of New- (s) R. v. Ogden, 10 B. & C. 233; castle for claiming to be a corporation. In R. v. Mayor, &c. of Carmarthen, 2 Burr. 1 India Co. v. Sandys, Skinn. 223, Hoi- 869. It seems that they may be informed loway, J., says none can erect a company against in their incorporate name, and judg- for trade but the kin<_'. ment of capiantur ]>ro fine entered against (9) Per Lord Eldon, C. in Kinder v. them, and so the dissolution of the body I >r, cited in George on Joint Stock Com- follow of course as a legal consequence, panies, 46. The mode of taking advantage 1 'id. the Case of New Malton, cited Quo. of the circumstance that the body Buing has Warr. Case, Att.-Gen. arg., 31 ; 2 T. It. 547, no right to the corporate character, i- by plea where the cases cited seem to show that dI hul tiel corporation', Vin. ribr. Corpora- usurping corporate privileges is an offence at ( ., \. pi. 35. " Presuming or pre- common law. But a private relator may. by ii-rjilmg to act as a corporate body" is spoken leave of the court, bring an information in toe OJ by the ltgi-lature as a known offence in nature of a quo warranto against individuals . 1, c. 18, s. 19. claiming franchises or rights as such pre- fer) In Garrard v. Hardy, 7 M. & Gra. tended corporators, or as officers of the pre- 438, it is said by the court, that raising and tended corporation, Rex t>. Mayor, &c , of transferring Stock cannot be considered to be Carmarthen, 2 Burr. 869 ; provided the pre- of itself an offence at common law, such tended corporation claimed some franchise of property being ahogeiher unknown u public character, and connected wiih police to die law in ancient tunes; bul it is sub- or public government, K. v. Ogden, 10 B. :, that professing to sell transferable <\ C. 233; itd.t> East, 359; Rex (.White, stock, that 1-, to lell the membership in a 6 A..\ I. .618; Ibbotson's case, Cas. Temp. ration, whereby the buyer's responsi- Hardw. 261 . I:. 1 Marsden, 3 Burr. 1812 ; bility becomes limited to the aggregate stock R. D. Lowtlu r, 1 Stra. 637. of the corporation, is a fraud and fa ACTIONS, ETC., AGAINST CORPORATIONS. 283 a corporation, not, in fact, being so ; but it does not appear that their holding themselves out to the world as a corporation, provided they do not usurp a common seal, or attempt to do any other of the acts men- tioned above, is such an illegality as nullifies a contract with them ; at any rate, a bond given by a corporation de facto will bind them, though they cannot take one for their own benefit (t). In many cases indictments may be maintained against corporations for the non- performance of public duties cast upon them by law. Thus, either by prescription (u), or by statute (x), a corporation may be bound to the repair and maintenance of a bridge. But a municipal corporation will not in general be obliged by indictment to repair a bridge situate in a district that has been added to it by the Municipal Corporations Act ( y), without proof that the old borough had been used to maintain such bridge (z), but, on the contrary, it appearing that they had shared with the rest of the county the burden of repairing it. Where, however, the district belonging to a county of a city, or county of a town, has been enlarged by charter, as was often done in former times (a), or by statute, and thereby a bridge placed within the corpo- rate district, which before had been supported by the county at large, the law appears to be different ; and the inhabitants, in such case, would be bound to repair, and might be indicted for neglecting to do so (b); the distinction being, that a county is prima facie liable for the repair of bridges within it, a town or borough only by immemorial usage (c). The course of proceeding derivable from analogy, is to indict the in- habitants, and not the corporation by its corporate name ; but it would seem, and the precedents are so, that to indict the corporation would be the correct course, where, by the original constitution of the corpo- ration, all the inhabitants of the county of the city, or borough, were in- corporated; for as the corporation must by their justices, it is appre- prehended, assess and then levy the rate upon the inhabitants, the (t) Knight v. Mayor, &c, of Wells, 1 suburbs of a city, Jones v. Walker, Cowp. Lutw. 508; vid. 19 L.J. (N.S.)Q.B. 185. 624; et vid. Index. (h) 2 Inst. 700, 701 ; 3 Q. B. 232. So (z) Reg. v. New Sarum, 7 Q. B. 941 ; of a highway, vid. 4 Q. B. 499 ; Bridges v. vid. 2 Inst. 700, 701 ; Skin. R. 254. Nicholls, Godb. 346, 347; 3 Q. B. 232; (a) Vid. 1 Stra. 178; Milton's case, 4 1 1 A. & E. 344 ; 8 A. & E. 65. As to evi- Rep. 33 ; Anon., Poph. 17 ; 5 B. & C. 410. dence, 4 Q. B. 499; as to pleading, 2 Wms. (b) R. v. Norwich, 1 Stra. 177 ; Reg. v. Saund. 158, n. (o), 6th ed. ; 1 B. & A. St. Peter's, York, 2 Ld. Raym. 1249. It is ^48. said, Plowd. Com. 129, 130, that if privileges (x) Vid. 22 Hen. 8, c. 5, s. 3, under which belong to a district, and the district is en- a corporation having local jurisdiction or hold- larged, the new district shall not have the old ing lands only may be liable for the repair of privileges extended to it. bridges then in existence; R. v. West Rid- (c) Reg. v. New Sarum, 7 Q. B. 945, per ing of Yorkshire, 2 East, 342 ; rid. 1 Stra. Lord Denman, C.J., Williams. J.; Hall's 178 ; per Lord Denman, C. J., 7 Q. B. 94f>, case, Aleyne, 51 ; 2 Inst. 700, 701 ; Godb. 954. Indictment of a corporation for non- 346, 347. A general statute relating to repair of a bridge ; 6 M. & Selw. 365, n. ; 8 counties in general does not apply to counties A. & E. 65, where see as to the extent of of cities and counties of towns; R. v. Hay- liability. thorne, 5 B. & C. 410, 429; M. & Steph. (y) Vid. 5 & 6 Will. 4, c. 76, s. 7. As Hist. Bor. 2025. The county of the city to the distinction between the liberties and may extend beyond the city; 21 Vin. Abr. 161, pi. 31, 162, pi. 37. 284 ACTION-, l rC., AGAINST CORPORATIONS. corporation would be the proper party to be called to account, and not the inhabitants, for the neglect of duty, as the inhabitants, it is appre- hended, have no power in such case to take measures for the repairs. Again, a corporation is indictable for refusing to perform duties directly cast upon them by Btatute; ex. gra. for refusing obedience to an order of justices requiring them to execute works pursuant to a statute w/t. So for obstructing a highway (e), that being a nuisance at common law. With respect to indictment or presentment for not repairing sea-banks, &c., there is this difference between individuals and corporations ; that whereas the former are only liable ratione te- vurn, yet a corporation may be liable to perform the duty in conse- quence of their having accepted a charter imposing it, although they have no land by the grant, and therefore an indictment or present- ment charging that the corporation had used time out of memory, Stc., to repair, &c., is good( /'). As a corporation cannot appear in person, and at assizes and quarter iions appearance by attorney is not allowed, an indictment against a corporation must be removed into the Queen's Bench by writ of cer- tiorari, when the appearance will be compelled, if necessary, by distress infinite (g), or by means of an attachment in the nature of a. pone(li). The result of what has been said is, that a corporation may be in- dicted for a nonfeasance in not carrying out the provisions either of their constituting statute, or of their charter, or for a misfeasance con- sisting of an offence at common law, not being treasonable, felonious, or el) Reg. D. Birmingham and Gloucester Railw. Co.. 3 Q. B. '123. From this case and that of R. t. Mayor, fitc, of Stratford, 14 I 181,348. it follows thai indictment lies against any corporation of a public character, and perhaps against any corporation, for an of a public nature, or by possibility airecting the public, if agait.st a statute, but not, it is said, lor a felony or offence attended with violence; et iid. Reg. v. Great North of Kngland Railw. Co , Q. P., .May 6, 1846. 9 Q. B. 315, that indictment lies for a mis- feasance at common law. 4 (ieo. 4, c. 95. s. (.8, recognizes the liability of corporations to indictment. That a corporation cannot commit treason. vid. \' Lfb. 2 I Edw, I, fol. 13, 11.; Yin. Abr. Corporation, /.., pi. 2. i ots of indictments ol corporations, 4 l'i, .-. ! ;,7 ; Cro Circ. ( omp. .v>."> ; 3 (hit. dim. Law, 586, 603. I be corpo- ration may be fined, upon conviction, on an indictment, -i < v >. B. 233, n.(d); the fine • viable, not of the goods which every • hi special has by bimai it. but ol the goodi which tbey have in right ol thecorpo- 1 , irb. 9 Hen 6, fol. ■'.'>, B. ; Hi \ in. Al.r. 619. No indictments but such as are r. t I out ol London are amendable in B. R., ami they an to bt i tuse by their the citj returns only tenortm reeordi ; ,; i . Anon., Lane, . p. 277. ', 3 Q. P. 547 ; or the individuals who commit the offence may be indicted, id., et vid. Reg. v. Great North of England Railw. Co , Q. B., May 6, 1846, 9 Q. 13. 315. As the corporation cannot appear, it cannot enter into recognizances ; Case of Mayor of Lincoln, G. Benl. 121 ; I Mayor, &c , of Norwich, Ycarb. '21 Edw. 1, fol." 79; Burghill v. Abp. of York, 1 Ld. Raym. 79 ; . p. 277. As to averment of special damage in such action on the case, t id. last case, and Hart ». Baasett, T. Jones, 156. J >i-tress for sewers rates on corporation, 12 tt. 13 \ ict. <-. .Vi, s. 7. (g) Hawk. P.C. Bfc 11. c. 27, s. 14 ; 6 A in. Abr. 310 ; » A. fit E. 65 ; Reg o. Bir- mingham, Sec, Railw. Co., 3 Q. 15. 233 ; ( inn. I )i^. I i. mi bisea, F. 1!'. (A) Mayor, 8cc, ol London v. Mayor, filC, Ol Lynn, 111. Ilia. 209. ACTIONS, ETC., AGAINST CORPORATIONS. 285 attended with violence, or for an offence against a statute, or against a prescriptive or chartered duty. In accordance with what has just been laid down as to the general liabilities of corporations, we find that they are liable like individuals, in the character of owners or occupiers of houses and other real pro- perty, to the pecuniary burdens on such property. Thus a corporation, seised in fee of lands for their own profit, are, within the meaning of the poor laws, inhabitants or occupiers of such lands, and therefore liable in respect of them, in their corporate capacity, to be rated to the poor ; and the court, in so deciding, treated as of no weight the objec- tion that the statutory remedy by distress was inadequate, and the re- medy of imprisonment impossible ; and, therefore, that as an action for poor rates will not lie, none being given by the 43 Eliz. c. 2, which creates the charge and points out the above remedies, corporations must be considered as excluded (i) ■ though, as was observed in a sub- sequent case (k), it was thought there was some difficulty in enforcing the remedy. However, the distress may be taken elsewhere than in the particular district in which the lands, &c, lie, and even out of the county (I) ; and the corporation may be indicted for disobedience to the order of quarter sessions (m) imposing the rate ; or perhaps an attach- ment of contempt might issue against the guilty corporators (n). So a corporation are chargeable to the church-rate in respect of lands, &c, held in their corporate capacity (o), and ought to be cited for non-payment in the spiritual court by their corporate name(p). And, generally, wherever a tax or impost is leviable by statute upon inhabitants {(f), or occupiers (r), a corporation is liable to it in respect of lands, &c, held in their own hands as a corporation, or of which they are seised in fee for their own profit. Therefore, a corporation is liable to the land tax in respect of corporate property (s) ; and being liable, by tenure or otherwise, to repair any old turnpike road, is in the same manner liable to repair it when widened, diverted, &c (7). So they are liable to be rated to the poor on navigation tolls of which they are owners, &c, in the district where the tolls become due (u). So for port and other dues (x). (t) R. v. Gardner, Cowp. 79 ; vid. Hos- Vict. c. 48, as to municipal corporations. pitai.s. As to municipal corporations, 4 & 5 (s) Roy. Exch. Assur. Co. v. Vaughan, 1 Yici.c. 48; 9 A. & E. 435; 12 A. & E. 2; Burr. 155. vid. 4T. R.731 ; 19 L. J. (N. S.) M. C. 122. (t) 4 Geo 4, c. 95 ; et vid. Reg. v. Bar- (k) Reg. v. Birmingham, &c, Railvv. Co., ton, 11 A. & E. 344. 3Q.I5.233. (h) R.d. Mayor, &c, of London, 4 T.R. (/ ) 17 Geo. 2, c. 28. 21 ; R. v. Dock Co. of Hull, 1 T. R. 219 ; (m) Reg. v. Birmingham, &c. Railw, Co., vid. 3 M. & W. 423, and next note ; 1 Q. B. 3 Q B. 223. 558. (n) Vid. sup i .p. 281. It is doubtful whether (i) Reg. v. Dock. Co., &c, of Hull, 7 a mandamus will lie ; R. v. Margate Tier Co., Q. B. 2. There must be a beneficial interest 3 13. & A. 220. in the toll, 4 T. R. 730 ; except in the case of (o) Thursfield v. Jones, T. Jones, 187. municipal corporations, 4 & 5 Vict. c. 48 ; or ( p) Per Aslon, J., Cowp. 85. they will not be rateable. Rateability for (9) 2 Inst. 703. right of pasture, 6 A. & E. 419 ; 9 A. & E. (?•) Ironmongers' Co. v. Naylor, T. Jones, 444. Et vid. Reg. v. Bristol Dock Co, 1 85; 1 Ventr. 311; Cowp. 84; vid. 4 ic 5 Q. B. 535; R. v. Oxford Canal Co., 4 B.ot C 286 ACTIONS, ETC., LOA1NS1 ( oRTORATIONS. With respect to suits in equity against corporations, it is to be ob- served, that the mode of bringing the corporation into court, or of com- pelling an appearance, is the following : The Bubpoena having been duly served (y), i. e. f being served on any of the corporators, upon proof of such Bervice, a distringas issues, commanding the sherhT, &c., to dis- train the lands, goods and chattels of the corporation, so that they may not possess them till the court shall make other order to the contrary, and that in the meantime the sherilF, &c., do answer to the court for what he distrains, so that the defendant may be compelled to appear in chancery and answer the contempt On return of this writ, without obedience on the part of the corporation, an alias distringas issues; and, if that is returned without being obeyed, a pluries distringas issues, on return of which a commission of sequestration may be obtained against the corporation to sequestrate the goods, chattels, rents, and profits, and real estate of the corporation, which cannot be discharged until the cor- poration has appeared and paid the costs. However, as the plaintiff" may now enter an appearance himself, it is not likely that this process of contempt, for the purpose of compelling an appearance, will be often found necessary in future (s). Where the bill does not disclose circumstances from which it can be discovered by the court that the body suing is not a corporate body, but only assumes that character, the objection may be taken by way of plea (a) ; but where the bill discloses this defect, the objection is to be taken by demurrer (a); such, at least, seems to be the result of the au- thorities. But whatever be the most proper mode of preventing a body of persons from assuming the corporate character, when it does not be- long to them, in proceedings in equity, it has been fully decided to be " the absolute duty of courts of justice not to permit persons, not incor- porated, to affect to treat themselves as a corporation upon the re- cord"^). The subject of suits by a portion of the corporation against directors of it, for alleged misconduct, has already been incidentally considered (c), and docs not, it is almost needless to observe, fall within the above rule. W e shall proceed to mention the principles which have been laid down 74; R. v. Trent Navigation, 1 B.&C.545; (a) Mitf. Clianc. Plead. 180, compared I London, Btc, Railw. < '"., 1 Q. 15. with Coop. Plead. Eq. 164. light Co., (h) Ver Ld. Eldon, Lloyd v. Loaring, 6 .73; 4 Q.U. 18; 6 Q. B. 179; Ves. 77:<; vid. Head Dan. Eq. Pract. 24. I0Q. B. 208. (r) Vid. tup. p. 72; Fobs p. Harbottle, i u ) 1 He. nil Dan. Eq. Pract. 413. 2 Hare, 4iil ; Parsons v. Spooner, 15 Law .1. I Han .' bane. Pract. 265; I Dan. (N.S.)Cbanc. 155; Preston v. Grand Collier l Pract 443,411; A <■<>!-- Dock Company, 1 1 Bim. 327. As to when poralion, thai has •* head, cannot be sued | in an individual shareholder will be allowed to . of the headship) without thi bead; Gl< a bill complaining of acts of the majority, for the corporation, during thai period, is in- vid. Lord v. Copper Miners' Company, in ! HeadL Dan. Pract. 150. But Law J. (N. S.)Chanc. 65; Bagshaw c. East- it is i corporation with era Counties Railway Company, 114; w le name of the bead, id. 150; pp. 71,72; Salomons v. Eaing, 19 -ilk. 103. L.J. <.\.s.; Chanc. 225. ACTIONS, ETC., AGAINST CORPORATIONS. 287 in some of the leading cases with respect to the proper parties to suits in equity where corporations are concerned. The 32nd Order of August, 1841, declares, that " in all cases in which the plaintiff has a joint and several demand against several persons either as principals or sureties, it shall not be necessary to bring before the court, as parties to the suit concerning such demand, all the persons liable thereto; but the plaintiff may proceed against one or more of the persons severally liable." Hence, in a suit for a breach of trust, it is unnecessary to bring all the parties to the breach of trust before the court ; and where a corpo- ration is party to a breach of trust, the suit may be against the corpo- ration alone [d). Another principle of importance to be considered in suing corpora- tions connected with landed property is this, that a person is not a ne- cessary party merely because one object of the bill is to restrain an act by which he is affected. Therefore, where a vendor files a bill for a specific performance, and to restrain a trespass by the purchaser in the meantime, the tenant, not being a party to the purchase contract, is not a necessary party to the suit (e). Although the general rule is well established, that a plaintiff is not allowed to make any person defendant to the bill against whom no re- lief is prayed ; and, therefore, to a bill for relief, a mere witness cannot be made a defendant (f) ; yet there is an exception in the case of the clerks, secretaries, and other officers and servants of corporations, arising out of the necessity of the case ; for as a corporation cannot answer on oath, the court, unless the rule were thus broken in upon, would be deprived in such case of its usual means of arriving at the truth (g). It is the practice, therefore, to join such parties for this purpose. The engineer of a railway incorporated company has been held to be pro- perly made a party to a bill, praying an account on behalf of a party who had contracted to perform certain works for the corporation, the due execution of which was to be certified by such engineer (A); and such account will always be decreed against a trading corporation, either in favour of a member or a stranger, where there is no remedy, or not a complete remedy, at law (£). So that where improper conduct is imputed (d) Att -Gen. v. Mayor, &c, of Leicester, without theconsent of the corporation ; Chanc. 7 Beav. 176. On the other hand, it is no Rep. 24. objection that a corporation, beyond the ju- (g) VVych v. Meal, 3 P. Wms. 310 ; Glas- risdiction of the court, is not made a party as cott v. Copper Miners' Company, 11 Sim. defeodaat to the suit; Alt. -Gen. v. Baliol 305; Anon., Vera. 117; Gibbons v. Water- College, Mitf.Pl. 32, note (it), loo Bridge Company, 5 Price, 491 ; Bolton (e) Robertson v Great Western Railway v. Mayor, .S:c., of Liverpool, 1 My. & K. 83. Company, 10 Sim. 314. It seems the corporation must pay the costs ( /' ) Fenton v. Hughes, 7 Ves. 287 ; Le of parties so joined ; Taml. 249. Texier v. Margravine of Anspach, 15 Ves. (h) Mackintosh v. Great Western Railway 159; vid. note, 1 Ves. jun. 293. A bill of Company, 18 Law .1. ( N. S.) Chanc. 94. discovery will not lie against the clerk of a (i) Adley v. Whitstable Fishermen, 17 corporation to oblige him to produce books of Ves. 323; 19 Ves. 304. the corporation, which he is sworn not to show 2S8 ACTIONS, ETC., AGAINST CORPORATIONS. to particular members of the corporation in a bill for relief, they may be joined to the corporation so as to obtain an answer upon oath from them (A). In feet, the rule derivable from the decisions is, that officers, servants, and members of the corporation, may be joined with the corpo- ration in a bill against it, whether for discovery or relief (I). Indeed, the only practical difference in this respect between the two descriptions of bills seems to be this, that an answer to a bill for relief necessarily comes before the court, while that to a bill for the discovery of evidence to ■.in an action or rebut other evidence, is not necessarily ever heard of in the court of equity which has enforced it. Nevertheless, the above rule does not apply further than has been stated ; thus, where a bill had been filed for a discovery and an in- junction to stay proceedings, the injunction which had been granted was dissolved upon the coming in of the answer of the corporation, without the answer of the officers who had been joined, notwithstanding it was urged that, to dissolve the injunction in such circumstances, would be making it useless to join officers in order to obtain their oaths (m). A bill of discovery will not lie against a corporation for the purpose of aiding a defence to an action for town dues by making them produce their title deeds to such dues(n). So where a certificate of a corpora- tion is to be used in evidence at a trial at common law, witnesses must be produced to support it on oath, and the appearance of the corporation seal appended will not suffice to establish the truth of the fact it al- leges (o), except in the case of a custom of the city of London ; for that corporation is entitled to certify their customs by the mouth of the re- corder ore tenus in the courts at Westminster (/;), whether of common law or equity (7) ; and, except in the case of a record of a court of the city of London pleaded in one of the superior courts at Westminster, where the same privilege holds (r). But there is no authority that one court can take notice of a custom so certified to a another court, though the practice is for each court to notice in future a custom which has once been certified to it (s). Where a corporation is in contempt in equity, there is no mode of (k) Dummer v. Corporation of Chippen- will be restrained by injunction. Mayor, &c, bam, 14 Yes. 245. of York i. Pilkington, 2 Atk. 302. (/) G I: :i >eolt v. Copper Miners' Company, (o) Burgesse's case, Cro. Car. 365; Yin. Abr. Trial, G., pi. 1, marg. ; Munday v. (m) Ibid. 314. Yaugban. 21 Yin. Abr. 38, pi. 1. Inequity, ( h) Bolton i. Mayor, &c, of Liverpool, 1 however, a plea of privilege of university may My. Ac K. H8. As to bill of discovery to ena- be put in without oath ; Masters v. Bruelt, 2 ble a corporation to defend on action brought Freem. 143. Certificate of a foreign convent ■ them, South-Batten Railway Com- not allowed; Carte r. Ball, 3 Atk. 499. pany r. Martin, 11! L. J.(N.8.)( banc. 103. (/<) Yin. Abr. Trial, G., pi. 1; 3 Burr. The Court of Chancery only interfere* in 1857. As to pleas of such customs.and how ct accounts where there an- mutual to traverse them, 21 Vin. Abr. 26, pi. 7. account-, and win re it has better means of Form and mode of certificate ore tenus, 1 Burr, ascertaining the rights of the partial than 248; 4 M. & Gra. 945. of law have, trf. 104. Where an action (7) Bruin v. Knott, 12 Sim. 436. I a corporate n for monies alleged to be (r) Vin. Abr. Trial, (>., pi. 4, II., pi. 1« .\c,«ill not be restrained (s) Piper v. Cbappell, 14 M. & VV. 649, by injunction, id.. Where an indictment CioO ; vid. 12 Sim. 436. ACTIONS, ETC., AGAINST CORPORATIONS. 289 proceeding against the real offenders personally, but the mode of com- pulsion is by sequestration by taking possession of the personal estate, and the rents and profits of the real estate, of the corporation (t). But it has been doubted whether the commissioners, on a writ of seques- tration, have power to seize the corporation books (u). The ordinary mode of enforcing a decree in equity is by distringas{x), which will issue, as we have seen, against a corporation, just as it does against an individual. In a charity suit, in general, a corporation, whose conduct in the ad- ministration of the funds of the charity has given occasion to the suit, will be made to pay the costs (y). So they will be made liable to costs for suppressing evidence (z). Where the legal remedy against a corporation is inadequate, it is a principle that the courts of equity will interfere. Thus, where it was impossible accurately to measure in damages the loss from a breach of covenant by a corporation, and the plaintiffs could only recover such speculative damages as a jury might give in repeated actions, an in- junction will issue to protect the plaintiffs' right to a specific perform- ance of the covenant (a). So where a corporation have covenanted to do certain things forthwith, on land which they have purchased from the plaintiff, on proof of their refusal, specific performance of the cove- nant will be decreed against them (b). So if a corporation have been established by statute for the purpose of executing certain works, &c, which however were to be completed within a certain period limited by the act of parliament, then the moment the time has elapsed, the Court of Chancery will interfere by injunction to prevent the future exercise of the powers granted to the corporation for the above purpose, on the application of any persons against whom those powers were to be executed (c). The act of parliament, in such cases, is in the nature of a private bargain between the undertakers and the public, and they are invested as a body with the powers contained in it only on the faith of their completing the works according to the intention of parliament. (t) R. v. Windham, Cowp. 377 ; Att.-Gen. pany, 4 Railw. Cas. 175 ; vid. Att.-Gen. v. v. Mayor, &c, of Leicester; Att. Gen. v. Manchester, &c. Railway Company, 1 Railw. Leather Sellers' Company, cited Shelf. Mortm. Cas. 436, 458. So in all cases of trespass, 444. where damages would be an inadequate and (u) Lowten v. Mayor, &c, of Colchester, uncertain remedy ; 3 Railw. Cas. 345. 2 Meriv. 395. (6) Price v. Mayor, &c, of Penzance, 4 (*) Per Wigram, V. C, 1 Hare, 398; 1 Hare, 506. Dan. Chanc. Pract. 190. (c) Lee v. Milner, 2 M. & W.843. Where (v) Att.-Gen. v. Mayor, &c, of Stafford, the application is to restrain the company Barnard. Ch. R. 33; Att.-Gen. v. Haber- from proceeding by an action at law to enforce dashers' Company, 2 Bro. P. C. 72 ; Att.-Gen. their powers, it must be made in proper i. Mayor, 0\c ., of Winchester, Coop. Ch. R. time after the commencement of the action; 502 ; Att.-Gen. v. Mercers' Company, 2 My. Thorpe v. Hughes, 3 My. & C. 742. Where & K.654; Att.-Gen. v. Earl of Mansfield, 2 there is admitted legal right in the corpora- Russ. 501. tion, the injunction will ouly be granted upon (z) Borough of Hertford v. Poor of Hat- the courts seeing clearly, that upon the suit field, 2 Bro. P.C.; Att.-Gen. v. Mayor, &c, coming on for hearing, the relief must be de- of Last Retford, 2 My. & K. 35. creed ; Playfair v. Birmingham, &c, Junc- (a) Rigbyii. Great Western Railway Com- tion Railway Company, 1 Railw. Cas. 640. U .' II u riONSj III.. AGAINST CORPORATIONS. In the well known words of Lord Eldon, C , " I apprehend those who conn parliament do in effect undertake that they shall do and submit to whatever tin- legislature empowers and compels them to do; and thai they shall do nothing else; that they shall do, and shall forbear, all that they are thereby required to do and to forbear, a- well with reference t<> the interests of the public, as with reference t.» the interests of individuals" (a*). The same learned judge also laid down, that where a body of persons assumed to satisfy the legislature that a certain sum is suflicient for the completion of a proposed under- taking, and the event is that that sum is not nearly sufficient; if the owner of an estate, through which the legislature has given the right of carrying the work, can show that the corporation are unable to com- plete the work, and is prompt in his application, the Court of Chancery will not permit the farther prosecution of the undertaking (e) ; that is v, provided the court can see that the undertaking cannot be com- pleted, and therefore that the public cannot derive that benefit which was to be the equivalent for the sacrifice made by individuals, it will protect the individual from being compelled to make the sacrifice, until it appears that the public will derive the proposed benefit from it(/). These principles, it is obvious, must be of great importance, in ascer- taining the powers of corporations established by act of parliament. But there is also a third principle, or rather an extension of the first principle just stated, which is, that not only will the courts of equity interfere where the interests of the public, and where the interests of strangers to the corporation are to be defended from injury, but also the powers of the court may be put in motion at the instance of a single shareholder, if he can show that the corporation are employing their statutory powers, funds, &c, for the accomplishment of purposes not within the scope of their institution, and an injunction will issue accordingly i~ :i " arl °f parha- though the extent of his interest may be '. .) . Earl of Mansfield, 2 Rnss, greater than that of others, he cannot sue in 601. When a corporator, as such, equity for relief in bis own individual right ; l interest in a particular anbject adverse [llingworth v. Manchester, \c, 2 Railway of the corporation, he may file his bill Cases, 209. ACTIONS, ETC., AGAINST CORPORATIONS. !?!)1 But such a corporation are not entitled, without express permission in the incorporating statute, to apply their corporate powers to the sup- port of any undertaking which does not come within the purposes for which they were incorporated ; much less are they empowered to guarantee out of their corporate funds the payment of a certain rate of dividend to parties carrying on such undertaking, and this is the law, although such undertaking may be calculated to increase, and may increase, the proper business of the corporation, and although the vast majority of the corporators may approve of such application of the corporate funds, and although the object of the undertaking be in no respect contrary to the public interests (/*). Here again we recognise the presence of the principle, that the majority, or the whole, of the cor- porators existing at a given moment are not the corporation, which is eternal ; and therefore that neither they, nor any succeeding body of corporators, can, as a corporation, act inconsistently with the purposes of the corporation, or be allowed to do that which would place their successors in a different position from that in which the institution of the corporation intended them to stand. Where the directors of an incorporated railway company proposed to guarantee, with the sanction of the great body of the corporators, the dividends of a steam packet company, which was intended to run steamers to and from one of the termini of the railway, it was held that any one of the corporators was entitled to " sue on behalf of himself and all the other shareholders, except the directors," who were made de- fendants ; notwithstanding that some of those shareholders had taken shares in the steam packet company ; and although in fact he was suing at the instigation, and with the support of a rival steam packet company; and an injunction to prevent the railway company from entering upon such course of proceeding was made perpetual (i). There may be considerable difficulty in ascertaining the line beyond which a trading corporation cannot pass, without being liable to in- terference in this way by an injunction ; each case must be decided upon its own peculiar circumstances ; but we are authorized in con- cluding that the courts of equity are not likely to relax the above general rule, that each corporation will be kept strictly within the limits of the purposes of its institution (k). Any other rule would in fact alter the law of corporations in one of its fundamental and best established parts. It must always, therefore, be borne in mind, that the powers given by a statute of incorporation extend no further than is expressly stated in the act, or is necessarily and properly required for carrying into effect the undertaking and works which the act has expressly (h) Coltnan ». Eastern Counties Railway parliament incorporating railway companies, Company, 10 Beav. 1. and infringements of the common law of cor- (t) Ikid. porations, vid, 5 & 6 Vict. c. 55, and the act (k) Eor the statutory power (vested now for constituting commissioners of railways, 9 in the commissioners of railways) of prevent- & 10 Vict. c. 105; et vid. Walford.Law of ing deviations from the provisions of acts of Railways, 337, 2nd edit. ACTIONS, il«.. AGAINST CORPORATIONS. tioned : and that there is no authority for saying that one of these bodies lias power to pledge without limit the funds of the company for the encouragement of other transactions, however various and extensive, provided the object of that liability is to increase the business to be done by the corporation, and thereby to increase the profits oi' the corporators 7;. Again, where an incorporating statute contemplates every shareholder paying in the same proportion when calls are made upon the shares of the common stock of the corporation, and nevertheless the corporation has made calls upon some share- holders and not upon others, equity will interfere to put all upon an equal footing (ra). So an illegal forfeiture of shares forms a good ground for relief in equity (n). So equity will relieve against a demand tur a call on a shareholder, where the undertaking, owing to subse- quent circumstances, becomes impossible ; or where the corporator was entrapped into entering the corporation by means of its fraud or mis- representation ; or where the particular call was fraudulently made (o). But the mere fact of the appointment of the directors making the call being invalid, or of the party having become a corporator, and taken the shares for the accommodation of the corporation, are neither of them alone grounds of relief in equity (p). Even though it should appear that the concurrence of parliament, in the incorporating statute, had been obtained by false and fraudulent representations as to the number of shares subscribed for, the Court of Chancery will not inter- pose to relieve any corporator from the obligations of the statute, or the consequences of acts duly performed under it by the corporation ; for to give such relief would, in fact, be saying that the statute was vitiated, and rendered null, by reason of the fraud practised upon the legislature, which courts of justice are not competent to do. The legislature can alone grant relief (7); and the act is equally binding on all parties with any other statute, until it be repealed. Again, where a statute erects a corporation for the making and maintenance of particular works, and they enter upon land without arranging as to the price, and paying it to the owner, ho may have relief in equity (r). So equity will prevent such a company from taking land which their statute does not autho- rize them to take (*). So if they interfere, or threaten to interfere, with any road or highway, without setting out a substitute, according to the requirements of their statute, or obstruct a canal, brook, or mill-stream, (/) Col man i.l mits Railway 640. Company, I" Bea». 14, 16. r./) Preston >■. Grand Collier Dock Com- (i-o Preston v. Grand ( oilier Dock Com- pany, II Sim. 328; Playfairv. Birmingham, II Sim. 327. fire., Junction Railway Company, I Kailw. | " - Caa. 640. . Grand Col I om- (r) Hyde v. Great Western Railway Com- pany, 10 S Richardson v. Larpent, pany, 1 Kailw. Caa. 278 ; Robertson ». G 'Z \ . \ < ul. \. ( . 507j Thorpe r. Hugh) -. W . item Railway Company, id. 459; I ■i My. tt ('. 74J. linsori I Manchester, .N.C., Railway Com- . Grand Collier Dot I pany, 2 Rail w. Caa. 104. pany, 10 Sim. 519 j Playfair v. Bristol, Webb v. Manchester, ore, Railway Junction Railway Company, 1 Railw. Cas. Company, 4 My. & C. 120. ACTIONS, ETC., AGAINST CORPORATIONS. 293 to a greater extent than is authorized, or than is necessary, for the pur- poses of their undertaking (£). There arc cases in which the operation of an injunction has a nearly identical effect with a mandamus. Thus, where a railway company had built walls in such a way as to prevent another railway company from crossing their line with carriages, &c, an injunction was granted restraining the company from maintaining such state of things, and so, in effect, compelling them to pull the walls down (u). So where there was a mill belonging to the crown, at which all the inhabitants of a manor were bound by custom to grind their corn, they were decreed to do so (x) ; and, with an operation nearly similar, an injunction has been issued against all the members of a corporation, commanding them to abstain from doing a certain thing, which must, in effect, compel them to do a certain other thing (?/). Courts of equity will, in like manner, restrain other incorporated bodies within the limits of their institution, and the above rules are by no means confined to cases of incorporated trading bodies. Thus, where the corporation of the Attornies and Solicitors' Society had come to a resolution to surrender their charter, with a view to obtain a new one modifying the objects and constitution of the corporation, a court of equity granted an injunction until the hearing, at the prayer of a dissentient minority of the corporators (z), thus adhering to the principle, that a corporation cannot act contrary to the objects of its institution. But if the crown had granted the new constitution, which had been duly accepted by a majority of the cor- poration, the minority would have been too late to impeach the trans- action and must have acquiesced, for, as we have seen, any charter becomes binding on all by a regular acceptance. Nevertheless, the court will not, either in order to restrain within the limits of the charter, or to enforce its provisions, allow a bill of discovery at the suit of some members of the body to oblige the corporation to discover particulars of breaches of the charter alleged to have been committed by the head or directors or wardens («). But where a college refuses a copy of its statutes (which, in some respects, correspond to the charter of an ordi- dinary corporation), relief may be had by a bill in equity (b), and so a (t) Manser v. Northern. &c, Railway way Company, 1 Railw. Cas. 623, 624 ; of Company, 2 Railw. Cas. 380 ; Jllingworth v. nuisance, Semple j>. London and Birmingham Manchester, Sec., Railway Company, 2 Railw. Railway Company, 9 Sim. 209 ; Warburton Cas. 207. v , London and Blackwall Railway Company, ( u) Great North of England, &c, Railway 1 Railw. 558. Company v. Clarence Railway Company, 1 (a) Att.Gen. v. Reynolds, Eti. Cas. Abr. Coll. 507; viil. Spencer u. London and Rir- 131. Bill of discovery to compel clerk of the mingham Railway Company, 1 Railw. Cas. Skinners' Company to show books and docu- 170; Att.-Gen v. Manchester, ic, Railway menls, which he was bound by oath not to Company, id. 451. show without consent of the company, refused ; (x) Currier r. Cryer, Ilardr. 21 ; 2 Com. Chanc. Rep. 24. Dig. 135; White r. Potter, Hardr. 177. (b) R.v. Archbishop of Canterbury, Ridgw. (y) 4 Burr. 2315; Carter. 89. R. 81. No injunction against ibe publication (z) Ward r. Society of Attornies, &c, 1 of college statutes ; Magdalen College, Ox- < oil. 370. As to granting the injunction in ford, v. Ward, Coop. Sel. Cas. a. d. f 846 p. cases of urgency, Bell v. Hull, &c, Rail- 265. g94 ACTIONS, ETC., AGAINSl CORPORATIONS. corporation whose charter was not enrolled would probably be obliged to produce a copy of it under the operation of a similar bill. Iu equity a corporation maj be held to be bound by a contract made on their behalf before they were fully constituted a corporate body, if they have had the benefit of it as a corporation ; thus an agreement made by the projectors of a railway company, on behalf of the projected company, was held to bind the corporation, they having enjoyed the benefit of On the other hand, where a contract has been entered into by an authorized agent of the corporation on their behalf, which they after- wards repudiate, then- never having been any contract in writing sealed witli the common seal, the person contracting with such agent is neither entitled to obtain from them the execution of the contract, nor the reimbursement of expenses incurred by him in preparing for the per- formance of the contract on his part (d). So a contract, not under seal, by a corporation to execute a legal assurance of corporate property will not be executed by equity, so as to compel the corporation to perform it, unless valuable consideration for the contract be expressly proved, or evidence given of acts done, or omitted to be done, by the contracting parties, on the faith of the corporate resolution to enter into the con- tract (e). A corporation sued in equity may have the benefit, in general, of the Statute of Limitations by pleading it, as well as at common law (/). Bui the statute cannot be pleaded in equity by a corporation to a bill of discovery ( they do in a corporate character; the effect of which is, upon its appearing thai their right is defective, to strip them altogether of the power of acting and of being a corporation (m). From what has been said above, it will appear, therefore, that sci. fa. is the remedy where a legal corporation in full possession of its powers abuses them ; an infor- mation in the nature of (juo warranto is applicable where the corporation, from a defect in its constitution, arising mostly from the lapse of time, as by the death of a majority of members of an integral part of the corporation under such circumstances that their places cannot be supplied, becomes an imperfect body, but, nevertheless, continues to act as a corporation by assuming the exercise of the powers and privileges given by its charter or other constitution. It follows, apparently, that there is no mode of removing the corporate character from a corporation not injured in any of its parts by lapse of time, which has a valid claim to be a corporation by prescription ; for neither of the above remedies, as the law is stated, apply in that case, however it may abuse its powers. This is certainly a startling conclusion to arrive at; and would of itself suggest a doubt as to the soundness of the doctrine above stated, which appears, how- ex ( t (looking at the recent decisions only), to be the established doctrine. But the old authorities do not support the distinction stated. Thus, in the reign of Edw. 1 we find a quo warranto brought against the mayor and burgesses of Nottingham to show why they claimed (among other things) to take tronage, within the borough, of merchandizes, consisting of things to be weighed ; to have coroners to themselves; to be free of toll throughout England ; to have return of writs, &c. ; to have a mayor elected annually from among themselves; and to have two fairs every (m) Per Ashhurst, J., 3 T. R. -It ; vid. regard to the corporation of llebton, in the Reg. i. Mayor, Sec., ol Pewdlcy, 1 P. \Yms. case of H. i. Pa-more, 3 T. R. "244, where 207; Mayor, Sec. of Colchester ». Brooke, 7 his remarks occur ; rid. 3 T. R. 210. The Q, Pi. 38o. "The proceeding by quo war- judgment of ouster applies to the case of an I party in actual, though not information against one or more individuals in legal possession, and, therefore, judgment who fail to show title to the offices they exer- ofou- him;" per cise ; Did. (am. Co. Entr. 529, B., 530: a Bayley, J., in Peter v. Kendal, 6 B. & C. judgment of seizure, to the case of acorpora- 71m. Perbapa the 'rue meaning of what is lion who is found, on an information, to have :- to ouo warranto is this, that abused one or more of its liberties or fran- earned judge abovi d (Mr. J. chises; or usurped liberties or franchises; <>r Ashhurst), who tir-t enounced the distinction, both ; unless the franchises, &c, be of such a bad in bis mind the. idea, which he did not nature as cannot exist in the crown, but only . clearly, of several quo warranto in a grantee from the crown, 7 Q. 1$. 384, informations against the several officers and where the judgment of ouster is proper, per meml rporaliou who continued to Holt, C. J., R. v. Mayor, &c, of London, I 1 corporate authority, notwith- Show. 280. That a ouo warranto lies in this ling that the constituent parts of the body last case, >"/■ R. v. Staverton, Yelv. 192. fad with Form, Co. Entr, -027. DISSOLUTION. 297 year, &c, &c They pleaded various charters and grants of different kings by way of answer, &c. But tlie judgment of the court was, " Et quod videtur curia quod pradicti major et burgenses abusi sunt ali- fjuibus liber tatum pradictarum et aliquas libertates sibi usurparunt,Sfc., consideratum est quod libertates villa pradicta capiantur in manum domini Regis, &c." (n). Now, according to the distinction above laid down, tills was a case in which the writof sci. fa. was properly applicable; for there was a corporation dejure in the full possession of its powers, but acting beyond the limit of those powers and usurping fresh powers. The king retained in his hands the liberties of the borough upwards of three years, and then restored them by charter, containing an inspeximus of all the former charters, and granting the liberties challenged in the above quo warranto, all which was notified to all the justices by the king's writ close directed to them, and commanding the justices in eyre in Notting- hamshire to observe the said charter, and to cause the said vill and its liberties to be delivered to the said mayor and burgesses, &c. The entry proceeds, Ideo pradicti major et burgenses habeant libertates pradictas, Sfc, et eis allocantur, Sfc, juxta tenorem carta, et brevis predict., fyc, and so concludes (o): which shows the mode by which a restoration of liberties was effected in those times, by a judgment, namely, abrogating the former judgment of quod capiantur. In like manner we find a quo warranto against the master and brethren of the hospital of St. Bartholomew, of Smithfield, London, to know by what warrant they claimed various privileges and exemptions, &c, therein particularized. The corporation plead charters, &c, and confirmation by Edw. 1, and have judgment of eant sine die, &c. (p), their charters (n) Placita De Quo Warrajito, published debts, Naylor v. Cornish, Vern. 311. So in by the Record Commission, pp. 618—621 ; the case of seizure of the franchise of the vid. other cases where a 9110 warranto was shrievalty of Westmoreland ; Maynard's Edw. brought where liberties had been exceeded 1, Memor. Scacc. fol. 16, 28. and others usurped ; The case of the Mayor, (0) Placita de Quo W. 620, 621. It ap- &c, of Lancaster, id. p. 384 ; of Preston, id. pears that the new charter was granted 10 the p. 385 ; The Weavers' Company of London, same mayor and burgesses who had been de- ed, p. 465 ; The Mayor, &c, of London, id. fendants in the quo warranto ; for no names p. 473 ; R. v. Corporation of Maidenhead, are mentioned in the charter, but the mayor Palm. R. 76; R. v. Corporation of Hertford, and burgesses are spoken of as priedicii ma- Carth. 503 ; R. v. Mayor, &c, of Northamp- jor, &c, all along. This would seem to show ton, 4 Burr. 2260 ; R. v. Hertford, 2 Show. that judgment of seizure, and even actual 678; R. v. I'onsonby, 1 Ves. Jun.8. Upon seizure accordingly, was not held to dissolve the judgment a writ of seizure issued, vid. 3 the corporation. So R. v. Mayor, &c, of Inst. 1 18 ; which was executed by the sheriff; London, 1 Show. 274, 280; S. C. 4 Mod. R. v. Amery, 2 Bro. P. C. 365 ; vid. cases 52. R. v. Amery, 2 T. R. 553, where the cited 2 T. R. 528 ; form of writ, Co. Entr. contrary was held, was reversed in Dom. 540, B. ; Rast. Entr. 494, B. ; vid. case of Proc. 4T. R. 122 ; vid. the distinction, 2 Inst. Bristol, M. 6c Steph. Hist of Boroughs, 587. 222 ; Jenk. Cent. 141, 142. It seems not to Though in one case this was said by Holt, be an objection to a new charter, that it C. J,, to be unnecessary ; 1 Show. 275 ; vid. abridges the old privileges of the corporation ; Ryl. Plac. Parliament, 277, ace. ; Com. Dig. for in the cases of the corporations of Cam- Quo. Warr. C. 7, cent. And a custos was bridge and Oxfoid, the franchises have been appointed, who held the liberties, &c, for the seized on forfeitures respectively; the new crown, and appears to have discharged singly charters respectively granted much restricted the duties of the corporation with regard to powers, the remainder of the old powers the government and police of the jurisdiction, being transferred to the universities in each the administration of justice, levying of tolls, cjse ; 4 Inst. 228 ; rid. Madox, Firm. Burg. &c, making leases, \c, 2 T. R. 543, 544 ; cap. 1, sect. 5, note (1). and to have been suable in ecpuity for the old (/)) Placita de Q. \V. 501, 502. 20b DISSOL1 1 [OK. being held to support their claim to the privileges, &c., in question: which also is a case for wire facias, according to the doctrine before stated. The judgment in the great case of the City of London, temp. Car. .', waa virtually the same as that given in the case of Notting- ham (a), and there also the information was brought for an abuse of some liberties, and for an usurpation of others, and the Court of King's Bench (which had been rc-coustituted at the Revolution) evidently doubted, in a case brought before them in Trin. Term, 3 Will. e\: Ma., whether that judgment was not effectual when given, notwithstanding it had been afterwards reversed by act of parliament (r). It is true, most of the above cases were cases of the original writ of quo warranto, for which the information in the nature of quo warranto has been sub- stituted ; but this does not affect the question we have been endeavour- in- to elucidate; as the principal distinction between the two forms of proceeding appears to be, that in quo warranto the process to bring the defendant into court was summons ; in the information in the nature of quo warranto the appropriate process is venire facias (continued, if necessary, to alias and pluries writs) and distringas (s). There is also a distinction, which it is necessary to bear in mind, because the neglect to do so has in former times led to errors, between an information against an individual for the abuse or usurpation of franchises, and against a corporation. In the first case, if the individual did not ap- pear, on judgment of seizure of the franchises, they were held to be for ever L r <>ne (t). Also, where a man continues in the possession of a liberty by tort, the judgment of ouster is proper ; but when he had once a title, but loses it, the judgment shall be seizure into the hands of the crown ; though where he does not appear, and it is not known to the court whether the alleged liberty or franchise began wrongfully or of right, judgment of seizure is the only one that can be given (u). But there is no instance in a court of law where it has been adjudged that (q) Quo. Warr. Cas. p. 120. Cotuidera- sides the authorities below, the stat. 28 Edw. tan tit, quod liberates, priviUgia et fran- 3, c. 10, is an express authority, as well as Ucta f<"t (!■■ teiptii unum eorptu the Quo. War. Cas. ; Menu, fit Staph. Hist. eorporatum et politicum in re, facto et nomine, Horoughs, 1788, 1791; R. a. Fonaonby, I per nmwen, $c, eapiantnr et teisiantur hi Ves. jun. 8, in Dom. Proc. Pending a rule tumult domini regie, et qnad preefati major et to show cause why the information should not eommunitae, ifc, eapiantnr ml tatirfariendum be granted, a rule to inspect the corporation dicto domino regi de fine mo pro uturpatione books may be had; H. r. Mayor, 8tc, of Ubertatumvrivilet Nottingham, 1 W.Bla.59; Bull. N. P. 210; dictorum. Thai tins judgment did not die- R. v. Hollister, Caa.T. llardw. 215, if the 5 i'earb. IS Edw. -1, fol. 7; per rur. rer, that tbe franchise 3 Bro. P. C. 365; Bro. Abr. Quo. Warr. ol being the corporation may be Kited, be pi. 5 ; Quo. Warr. (as. Alt. -Lien. Big, 17. DISSOLUTION. 299 a corporation is dissolved, or the right of being a corporation lost, on an information in the nature of quo warranto, for default of appear- ance (v) merely. The attorney-general, at his discretion, may file infor- mations of this nature, as well for the protection of the public interests as for the protection of the franchises of the crown ; the court grants the information to a private relator for the protection of the public, as re- gards matters of government and the administration of justice, in re- spect of corporate offices in corporate places (w), though not exclusively for offices in such places (x), provided the offices are of a public nature. Where, however, the corporation appears, but makes default at the day, and does not claim the franchises, &c, judgment of seizure is proper (y). If the corporation relies in pleading on a charter, and claims liberties by colour of it, which in fact are not granted in such charter, both the liberties which are falsely claimed, and those which the corporation have by right, shall be seized (z). If the corporation plead a charter as a grant and as a confirmation, the plea is bad on demurrer, for duplicity (a). If the corporation disclaim a particular franchise (independent of corporate franchises), for the alleged exercise of which (as holding a market, &c,) the information is brought, judgment is of ouster (b). With respect to the issues : if any one material issue be found for the prosecutor, judgment must be given for the crown (c) ; in other words, the corporation must make out a complete title in all respects, or must disclaim. The crown, by its prerogative, may waive a de- murrer at pleasure, but the defendants can only do so by consent (d). The prerogative of the crown is also, that it may plead double in reply- (v) 2 Bro. P. C. 364 ; 3 Salk. 104 ; vid. an office for which the information will be K. v. Chester, 2 Show. 366. The contrary granted, Reg. v. Mousley, 8 Q. B. 946. is stated in a note by the reporter on the case ((/) Maynard's Edw. 2, fol. 530; Brigg's of R. v. Trinity House, 1 Sid. 86. Nnl. pros, case, 2Rol. R. 46; R.v. Mayor, &c.,of Wigg- by crown to part, and judgment for the more, 2 Rol. R. 92 ; Keilw. 152, pi. 3, 139, crown on demurrer, Co. Entr. 543, B. ; con- pi. 5. As to the effect of such judgment, fession of plea, Co. Entr. 531 ; other particu- which is called judgment of seizure quousque, lurs of pleas, Com. Dig. Quo. VVarr. C. 4. vid. Quo. Wair. Cas., Att.-Gen. arg. 16; 2 As to what franchises may be claimed by Bro. P. C. 365. prescription, and what must be claimed by (s) Case of Corporation of Dublin, Palm, charter, 9 Rep. 27 b ; Bull. N. P. 212. In- R. 8; Lib. Ass. 22 Edw. 3, pi. 34 ; vid. tarn. formation for holding market, Bull. N. P. 2 Inst. 222. To an information in the nature 212; court leet, 2 East, 308 ; 4 Leon. 105; of a quo warr. a corporation cannot plead Bull. N. P. 212; court baron, 2 Barnard. double, R. v. Newland, Sayer, R. 96 ; R. v. 221 ; Yelv. 195; Cro. Jac. 259. For form Archbishop of York, Willes, R. 534 ; R. v. of judgment for a defendant in quo warranto, Foley. Parker, R. 10 ; for such an informa- nt. Co. Entr. 549 ; for mayor and common- lion is not within 9 Ann. c. 20 ; R. v. Car- alty of London respecting the conservancy of marthen, 2 Burr. 869 ; vid. 5 B. & A. 771 ; the Thames, on quo warrunto in the Court of Palm. R. 7, 8. Exchequer, Co. Entr. 537 ; other forms, Co. (a) R. v. Trinity House, 1 Sid. 86 ; Anon., Entr, 564. Keilw. R. 142. Pleas claiming various li- (w) 3 Burr. 1815; Cas. Temp. Hardw. berties, Co. Kntr. 444, 541 ; 9 Rep. 24. 261; Co. Entr. 527, 543, B. ; 5 B. & C. 643; (6) Co. Entr. 527, 530. Reg. v. Mousley, 8 Q. B. 946. (c) R. v. Leigh, 4 Burr. 2146; 9 Hep. (O R. o. Highmore, 5 B.& A. 771 ; Bull. 28 b ; Bull. N. P. 211 ; R. v. Herle, Shi. N. P. 21 1 ; R. o. Boyles, Stra. 836 ; vid. 5 582 ; S. C. 2 Ld. Kaym. 1447. B. & C. 642; Darley v. Reg., 12 C. & F. (d) Co. Entr. 528 ; R. w.Tyrer, 2 Barnard. 520. But the mastership of a hospital is not 417. 300 DIS80L1 1 [ON. ing(e), and otherwise; and probably leave would be granted to demur to one part of the plea, and traverse the rest, as in mandamus. Where a body of persons take upon themselves to act as a corpora- tion, aa by using a common seal. Buing or appearing to a suit by a name, exercising franchises or liberties usually belonging to corporate bodies or otherwise, the strictly regular mode of proceeding is by in- formation, in the nature of quo warranto, against some of such body, naming the persons(/ , and a judgment of ouster may be the pro- per judgment (y). Bui the quo warranto may be brought against all the inhabitants of a vill, where the inhabitants claim to be a cor- poration (A), to have right to certain franchises, as a court of record, election of aldermen (who were to be justices of the peace), and clerks of the market, assize of bread, gaol, and holding fairs, and on failing to make out their title, judgment of seizure of the liberties may be given (t); the difference in the two cases apparently being, that in the first, no such liberties existed at all; in the second, the title to liberties, which it sufficiently appeared were in actual existence, was not ade- quately established. But it also appears clear, that the practice has frequently been adopted of bringing the information against the pre- tended corporation by the name which they assume (k), and though ingenious objections have been raised against this mode of proceeding, yel where the pretended corporation consists of many persons, as they cannot appear, as inhabitants may, by some of their number, and as if they could so appear, they could not be designated in the information by a common appellation such as inhabitants, other than the name of the corporation which they assume, it seems impossible to suppose that the court would in all cases insist upon all the pretended corporators being named in the information. From the foregoing remarks, the following principles appear to be deducible : 1. That the proper proceeding, in case it is desired to annul a cor- (e) As to replying, R. v. Blayden, Gilb. judgment. Reg. v. Grimshaw, 5 D. &L.256. R. 14"> ; rid. 6 J. U. 733. Form against a person claiming franchise! i I) Co. Entr. Quo N 1 * . 527 J Wentw, and jurisdiction over a district lying within a 154; nod Pleas, id. 155. corporate jurisdiction, Co. Entr. 529, B., 530. Such mi information must be brought by the (;;) Co. Entr. 527, 15. As to assuming to attorney-general, it will not be granted to a act as a trading corporation, rid. tup. p. 282 ; private relator, R. i. While, 5 A & I . * » I B ; and 3 B. Si C. 646, note. ., 10 B. '■ I .230; vid. 3 Burr. th) Co Entr. 537. Where two of the in- and to it in u-t be by the attoi habitants appeared and pleaded, id. 537. B. ral if the usurpation be of a private franchise, The judgment, id. 539, B. have a fair, Cas. 1 . Hardw, 2<>\ \ (i) Co. Entr. 539, B. ; rid. the distinction, ■ quo warranto wril (and therefore an iofor- Yearb. 15 Edw, 4, fol. 7. ■nation) only lies for claim "I franchises, and (k) Vid. cases cited 2 T. R. 547 — 549; uut i man's trade, or his selling especially the case ol New Mai too, which i , Bradley, Trem. was disincorporated by a judgment on a P. ( M9. A- to form of judgment man quo warranto of this kind, Bull. N. P. 212; information in the nature ol i onto R. v. Mayor, he, ol Brecon, B Mod. 'Jul ; , for presuming to bold a C Dig. Quo Warr. C. 2, C. 3 ; Sayer, R. i corporation, ll. 299, 'J l'» ; Quo Warr. Cas., Pollexfen's Arg. i. Williams, 1 Burr. 404; rid. pleadin -and 69,70,71; 1 Kyd, 44. DISSOLUTION. 301 poration, the members of which have abused their liberties as granted in their charter, is by scire facias to repeal the charter. 2. That for the purpose of punishment short of annihilation, the proper proceeding, where a corporation either abuses its undoubted liberties, franchises, &c, or usurps new liberties, &c, not granted in its charter, or authorized by prescription, is an information by the attorney-general, in the nature of quo warranto, where the judgment for the crown will be judgment of seizure into the hands of the crown, with or without a fine on the corporators who have, under colour of corporate rights, so misconducted themselves, as the case may be (/). This is to be adopted where the object is punishment by deprivation of corporate rights for a time, not the total and final deprivation of those rights, and the information need not be exhibited or filed within six years of the cause of forfeiture, or of the usurpation, &c. &c, charged in the information (m), for it is not within the latest statute on this subject, and the time of limitation appears to be within the discretion of the court, who, however, would probably not allow of a longer period than six years. 3. That the misuse or abuse of only some of the legal attributes of a corporation, or the usurpation of fresh liberties, &c, are either of them, when proved, ground for a judgment of seizure of all the liberties, &c, and, therefore, of the amoval from the corporators, during the pleasure of the crown, of the corporate character in all its parts. 4. That such seizure does not operate to dissolve a corporation, but only to suspend its regular operation during the pleasure of the crown. 5. That judgment of ouster of all the corporators upon informations against them does not dissolve the corporation, but only suspends its operation. 6. That in either of the two last cases the corporation may be re- vived by a new charter, which operates by relation, so as to make the new body in all respects identical with the old one, as regards prescrip- tions, choses in action, rights of common, &c, and also as regards debts, liabilities, &c, and the same of a writ of restitution (n). (0 A quo warranto is a remedy boih in vid. Earl of Carnarvon v. Villebois, 13 M.&c rem and in personam ; 2 Inst. 495. It must W. 313 ; Mayor, &c, of Colchester v. be by the attorney-genera), such informations Brook, 7 Q. B. 339 ; Goodson v. Dufheld, not being within the statute of Anne ; 2 Burr. Cro. Jac 313 ; Mayor, &c, of Colchester v. 869 ; 10 B. & C. 233. Seaber, 3 Burr. 1866; for every prescription (m) 32 Geo. 3, c. 58 ; 9 East, 410. supposes a grant from the crown, and the (») Though the name and the constitution crown cannot derogate from its own grant, of the body politic be altered by the new and therefore, it should seem, that the second charter, still all the prescriptions belonging to grant cannot alter the title; vid. 1 M. & the old corporation attach unbroken to the Scott, 280, 281, 289 ; Dyer, 279, B. pi. 10. new one; for the alteration of the name or As to the nature of prescription generally, quality of all the body in which a prescription vid. Co. Litt. 113; 4 Q. B. 344. That a resides, does not destroy the prescription, R. prescription is not determined by interruption v. Knight, 4 T. R. 425 ; Lutterel's case, 4 of the possession merely for a time, Co. Litt. Rep. 87 b; Hadock's case, 1 Ventr. 355; 114; Dyer, 114, pi. 61 ; R.v. Johns, Lotlt, S. ('., T. Kaym. 435 ; nor is the prescription R. 76. That it is entire, Lovelace v. Rey- destroyed by a grant of the same franchises nolds, Cro. KHz. 563 ; Paddock v. Forester, within the time of memory, though the con- 1 Dowl. N. S. 537 ; Rogers v. Brenton, 10 trary is stated in Com. Dig. Prescription, G. ; Q. B 26. ill.' DISSOLUTION. 7. That the usual practice upon seizure has hern for the crown to ap- point a castas, who appears of himself to have discharged all the func- tions, duties, &C, of the corporation, until the restitution of the liberties, or revival of the corporation. Nothing that has been said is to be taken as implying any power in the crown bv any direct means, or ex mero molu, to dissolve a corpo- ration (0)5 for no prerogative of the crown enables it to do so without the tin' consent of the corporators, expressed by means of a formal surrender under the common seal. This position is in accordance, it will be observed, with the principle, that the crown cannot derogate from its own grant ; and consequently, if it be desired to annul a cor- poration, no other modes are available for the crown than the judicial proceedings above detailed ; for though to call a corporation into ex- istence by charter is in the discretion of the sovereign, a forced extinc- tion of it, when once established, can only be effected in the Court of Queen's lunch, or by act of parliament. The latter mode was more frequently resorted to in former times (p) than of late ; indeed it has fallen nearly into disuse. The previous observations have shown, that the corporate character may be taken, wholly and finally, from a body of individuals, by for- feiture of their charter of incorporation upon a sci.fa.; and also, taken to a certain extent, by judgment of seizure of their franchises by in- formation in the nature of quo warranto. But there is also another mode by which the corporate character may be lost, but this not only partially, but for ever; and the invisible entity, the metaphysical being of the corporation be annihilated, and that happens in this way: every corporation is intended to have perpetual succession ; therefore, every corporation must have the means of preserving that succession : hence, whenever all the members of a corporation die off without successors having been elected, or otherwise appointed or admitted, the corpora- tion is necessarily at an end for want of members to inhere in. Again, whenever a corporation is so far reduced in numbers, by accident or negligence, as to be inadequate to the purposes of its institution, ex. gra. if a corporation consisting of three integral parts loses, without the power of replacing, a majority of the members constituting one of such integral parts, and the concurrence or presence of such integral part is requisite for the due constitution of every corporate meeting, and therefore, lor the performance of corporate acts, it is plain that the business of the corporation cannot go on, and the purposes of its insti- tution must then tore remain unaccomplished. Such a corporation is therefore', in this event, until restoration by a new charter, virtually dissolved and dead; lor it is no longer capable of answering the end of Bro. Abr. Corporations, pi. 78 ; Ex- (p) Vid. besides the statutes for dissolving at, pi. :)■'). Per Wbitlook, J., in the monastic corporations, cbauntries.&c, the Polchi r ' Kayward, Palm. 601 ; vid. 1 run- staL 32 Hen. 8, c 24, dissolving the Knights ,8 Rep. • 47. "I St Jolin of Jerusalem. DISSOLUTION. 003 its institution. Again, if there be a corporation having a head, who by the constitution is to be annually elected on a certain fixed day, and they neglect or omit to elect a head on the proper day, such a corpo- ration is virtually dead, or at least dormant; for in the vacancy of the head, such a corporation, as we have seen, can do no corporate act; and in such a situation, they can only be renovated or restored by a fresh charter, or by an act of parliament. A corporate body, then, may be dissolved in three ways, besides surrender duly accepted and enrolled, and act of parliament. I. By the total loss of all its members. II. By the total loss of one or more of its integral parts, without power of renewal. III. By the loss of a majority of the members of one of the integral parts, where the constitution of the corporation is such that the mino- rity cannot supply the deficiency of such integral part by filling up the vacant places, and the rest of the corporation cannot interfere. In fact, this is but a modification of the second mode ; and whatever is true of the second mode, is true of this also. I. Now the effect of dissolution in the first way is, that the lands and real property of the corporation revert to the donors or their heirs (q), and the franchises become revested in the crown (?•) ; and there is no means of reviving the old corporation by a new charter. The corporation is wholly gone, and with it are also lost and avoided all its claims, debts, and liabilities of all kinds. Nor is any legal proceeding necessary to ascertain the fact, or to effect the complete annihilation of the body politic. Indeed, any such proceeding would be both useless and absurd ; for it is obvious that there is nothing in existence upon which any proceeding could operate, there being no longer an aggregate body either in law or in fact (s). Both the property, choses in action, and other rights of the corporation, as well as its liabilities, ipso facto pass from it, on the event of disso- lution (t). The principle has been broadly stated, that a corporation may be (7) Co. Litt. 13b; vid. Harg. note, (71) ; necessary in case of forfeiture to revest them Chamberlain's case, Ryl. Plac. Pari. 409 ; in the crown, 7 Q. B. 384, whether they Yearb. 11 Edw. 4, fol. 4 ; Marriott v. Mas- can revest without office found, is question- cal, And. 210. Consequently, leases granted able ; semb., they cannot. Things previously by the corporation are avoided, Hob. 12!; granted over by the corporation do not es- Highmore, Mortmain, 144. cheat or revert; Yin. Abr. Escheat, A., pi. ( r) R, v. Pasmore, 3 T. R. 199. On for- 1, 2. feiture there is a distinction between such (s) 3 T. R. 245. franchises as may exist in the crown, and (t) A church appropriated to a corporation therefore be capable of regrant ; and such as becomes, on dissolution of the corporation, cannot exist in the crown, but only in a ipso facto disappropriate ; Grendon v. Bishop grantee from the crown, and therefore become of Lincoln, Flowd. Com. 501 ; vid. Hob. 308. extinct upon forfeiture, 7 Q. B. 384,385; Whitton t>. Weston, J. Bridg.33. Rent-charougl. El. ('is. 59, 'note (D.), 2nd edit.; Com. It. 265; 7 Q. B. 383; Dyer, 279, B. That a new name makes no difference, viri. Bull. U. P. 213. The new charier must of cour- adopted l>v a majority of those to whom it is addressed; 3 T. R. 211, 242; 8 M. fie W. 1. Debts would continue though the new charter incorporall (I hv ;i new' name ; per Bullu\ J., 3 1 . R. 247 ; vid. tarn. Uuti. It. 87. DISSOLUTION. 305 culty in reconciling the doctrine of dormancy, or dissolution for some purposes only, with strict principles of corporation law ; on the other hand, however, the inconvenience of holding that a corporation in such circumstances is wholly dissolved, so that their leases would be dis- turbed, because the lands themselves would revert to the original owners ; lands given for charitable purposes would be lost ; and persons having debts due to them from the corporation could not recover them; the corporators would lose their rights of common, &c. ; is manifestly so groat, that the doctrine, though it has been treated lately with some degree of doubt (b), must probably be considered as almost established; anil that such a revival operates by relation, so as to prevent the de- struction of prescriptive rights vested in the corporation, and not to interfere with the operation of Statutes of Limitation, either for or against them (c). Whether, after a seizure of liberties, a writ of restitution is necessary to replace the corporators in the same position as they were before, is a question respecting which some difficulty arises, as the practice is no- where distinctly laid down (d). But it probably will be found correct to say, that where it is intended to make modifications in the original constitution of the corporation whose franchises have been seized, there a new charter must be granted ; but where it is only intended to restore them to such franchises as they were legally possessed of before the seizure, a writ of restitution is the proper proceeding (e). Whether in the interval between the time at which a corporation falls into this dormant state from any cause, and the time at which the crown grants a new charter of revival, the corporators may exercise rights of common, &c, which they prescribe for through the corporation ; and indeed, most questions respecting the exact condition of the corpo- rate rights and privileges during that interval, are wholly unsettled, never having, as far as appears, come before any of the courts for de- cision. Nor is it decided whether a writ of quo warranto, if the corpo- ration be a prescriptive one, or a sci. fia., if it it be a corporation by charter, ought to be brought, and judgment given for the crown, and executed upon the franchises of the corporation, before the lands, &c, can revert to the donors, &c, but it would seem that such course is the proper one ; and that without some formal proceedings of this nature, the donors, &c, could not enter or bring ejectment upon the tenants of (fc) Fid. 7 Q. B. 383, and the Banbury It. 247. As to other prescriptive rights, vid. case, cited 3 T. R. 22), 222 ; R. v. Mayor, 2 T. R. 543, cases cited showing that they &c, of Tregony, 8 Mod. 129. Perhaps it are not destroyed by seizure provided the li- lnuv be worthy of notice, that in the Colches- berties of the corporation be restored, ter case ( May or, &C, of Colchester v. Seaber, (c) Vid. per Grose, J., 3 T. R. 249; et 3 Burr. 18b'6j, it was not an integral part of vid. 2 T. It. 543; Hayward v. Fulcher, Palm, the corporation, but the magistrates that were 491 ; 18 Law .1, (N.S.) Q. B. 133, 134. lost without the power of restitution. This (d) Vid. 2 T. R. 528 ; case of Bristol, M. appears by comparing thai case with the case & Steph. 587. of R. d. Mayor, &c, of Colchester, Com. K. (e) Wherever there is a transfer of an in- 265 ; Dougl. Klect. Cas. note ( I).), p. 59. As corporeal hereditament, there is a writ to give to rights of common, vid. per Buller, J., 3 T. possession ; Staunf. l'rerog. Regis, 77, B. X DISSOl I THiN. such lands, &c Bat it appears to be intimated, that if a corporation be reduced by any means bo as to be incapable of acting, (juo warranto information is the proper mode of dissolving the corporation (/) ; but this has not been decided, and it may be a qu stion whether after such quo warranto information and judgment of seizure, there ought not to be scl. fa. to repeal the letters-patent, if the corporation is entitled by charter, or whether the proper course may not be to proceed at once by set. fi.-d tntlitur ejfectus, and James 2 ; 2 Chandl. Com. Debs. 316. K. i. Howard, Hutt. 87. The offence of putting the common seal, . | Anon., Djer. 100, pi. 70; Yin. Abr. without consent of the corporation, to a deed Corporations, F. id. 4 ; 2 T. H. 672; ]>er of surrender, publishing it as the deed of the Tanfield, C.B., St. Saviour's case, Lane It. corporation, and causing it to be enrolled in 21; in/. M. fit Stepfa. Hi-.t 15or. lntrod. chancery, is an indictable misdemeanor; xxwii. Trent. I'.C. 228. It has been strongly as- ( /i ) Vid. sup. pp. 21, 46. The proclamation serted that corporations cannot dissolve them- of Jan. i- 2, issued immediately before the selves by surrender of their charters ; but the ution, operates, where it was accepted, law seems to be, that if the crown chooses to • vival ot the old charters, which various accept the surrender, and it is enrolled in n.rpuralions had I to Charles 2, chancery, that amounts to a dissolution of the by whom also new ones had been granted, body politic; vid. I'rotest of several Pi DISSOLUTION. appears to be no mode in which a corporation, solely by prescription, can throw off the corporate character, except by neglecting to fill up vacancies, and so allowing the corporation to die for want of a succes- sion. It is obvious that parliamentary corporations can only be relieved from the responsibilities which they entered into towards the state, in their constituting statute (which, as has been frequently observed, is looked upon as a contract between them and the public), by means of another act, repealing that or former acts in their favour. On the other hand, it may be doubtful if an information in the nature of quo warranto can be brought against such bodies for the usurpation of powers not intrusted to them, or for the abuse of those which they possess; as such usurpation cannot, it is apprehended, be considered to be an usurpation on the crown, which did not and could not grant the powers they possess, or those which they are likely to usurp, which are always analogous to the powers given by their constituting statutes, and mostly extensions of them ; and it follows that there is no means (where a mandamus is, from the nature of the case, inap- plicable) at common law for the coercion of such corporations on their assuming undue powers, and that recourse must be had to the courts of equity. The above is submitted as the present state of the law on this sub- ject, there being, it is apprehended, no authority to be found in the books pointing to a different conclusion. It is true there is a decision of the highest tribunal, determined after lengthened and elaborate ar- guments, to the effect that an information in the nature of quo warranto will lie against an individual for usurping any office, whether created by charter of the crown alone, or by the crown with the consent of parliament, provided the office be of a public nature and a substantive office, and not merely a function or employment of a deputy or servant held at the will and pleasure of another (i). But that decision pro- ceeded entirely on the ground that the preponderance of authority (the cases on the subject being irreconcilable) was in favour of the deter- mination to which the House of Lords came; and with respect to the 23 January, 1689, 2 Torbuck's Debates, 469, as the Bank of England, South Sea Com- 470. 'I he surrender of the charter has been pany, &c, has been said to partake of the considered to effect so complete a dissolution, nature of a public office, but not to be an that although the corporation should be re- office affecting the public government ; Cha- stored by a charter giving it a new name, all ritable Corporation v. Sutton, 2 Atk. 405. the old offices, it is said, are determined; But since the decision in Darley v. Keg., it Howard's case, Uutt. 87. The surrender would seem unquestionable that a quo war- must be the act of the majority of the whole rauto information would lie for such an office corporation, not merely of (he governing although in It. v. Ogden, 10 B. «Sc C. 233, it body; Quo. Warr. Cas., Pollexf. arg., 91, was said, there is no instance of its being 92 ; nit. Ward v. Society of Attornies, &c., granted against persons for usurping a fran- 1 Colly. 370. Form of surrender, J\i. Ac chise of a mere private nature and not con- Steph. Hist. Bor. 1795. nected with public government; vid. R. v (i) Darley v. Reg., 12 C. & Fi. 520. Hanley, 3 A. & E. 463, note. The office of a director of a public company, DISSOL1 TION. view of the law above submitted, there appear to be no decisions what- ever touching the point or question of bringing quo warranto against a parliamentary corporation in either of the cases specified, and it does not appear to be clear that the authority just cited would altogether apply even to the case of a parliamentary corporation invested with an office (as we have seen it is competent to a corporation to be), for the - on which that authority is founded are all cases of individuals filling or pretending to fill offices of the kind specified. But however tliis may be, no principle, it is apprehended, can be deduced from that in -upport of the general proposition, that an information will lie against a corporation created by the crown, with the assent of parlia- ment, for misuser or abuse of their powers, or for the usurpation of new powers. The old law seems still to apply in case of a corporation created by the crown, in consequence of an act of parliament authoriz- ing the crown to grant the charter; for if the crown have the power to grant the particular charter, it does not appear to be material for this purpose whether such power were part of the prerogative at com- mon law, or were conferred by the legislature; and the usurpation would in either case equally be an usurpation upon the crown. Parliamentary corporations cannot surrender; nor can they, it would seem, shrink from the obligations imposed upon them by their consti- tuting statutes, on the faith of the performance of which their rights and privileges were granted to them ; consequently they will not be permitted to let the corporation die out by omitting to provide for the succession (7<), or by ceasing to act upon their powers. Nevertheless a parliamentary corporation may become dissolved in the same manner that a chartered corporation may, by the actual loss of an integral part from any cause (I); at least this appears to be the law from the only case in which the question is reported to have arisen ; and perhaps it may be thought that the possibility of such an occurrence, in many cases of modern parliamentary incorporations, might deserve the attention of the legislature with a view to prevent the inconvenience and loss that must accrue to the creditors of such bodies upon their dissolution. There can be no doubt that the Court <>f Queen '8 Bench would always be ready to interfere by mandamus, upon its being made clear that it was the intention of the corporation to allow themselves to become extinguished as a body politic in this way, and that the constituting statutes would be construed most strictly, if need were, in order to effect the purpose of prevention ; for the esta- blished rule is, that statutes incorporating companies, conferring privi- , and professing to give the public certain advantages in return, (/.) Vid. Thickoe h v. Lancaster Canal Dougl. El. Cas. 59, note D, where the cor- I M. 6c \\ . 472 ; ' "I. tmn. | I poraboo being a poor law corporation had well, J. K B.937. been established under an act or parliament (0 !;• _. 9, Mayor, ^c., of Colchester, 2 DISSOLUTION. 309 are to be construed strictly against the corporation, and literally in favour of the public (m). Joint stock companies registered and incorporated by act of par- liament may be dissolved by means of the Joint Stock Companies Winding-up Act, 1848 (n) ; but the statute does not apply to in- corporated railway companies, which are expressly excluded by a later act (o). (m) Parker v. Great Western Railvv. Co., don, &c, Independent Railw. Co., 18 L. J. 7 M. & Gra. 263. (N. S.) Chanc. 242. («) 11 & 12 Vict. c. 45; vid. Re Tring, (o) 12 & 13 Vict. c. 108; In re Direct &c, Railw. Co., 18 L. J. (N. S.) Chanc. London, &c, Railw. Co., 19 L.J. (N.S.) 242. As to what corporations are within the Chanc. 163. act, vid. per Lord Cottenham, C., In re Lon- .10 ) EVIDENCE. SOME of the principal points in the law of evidence, ill actions ami suits 1>\ and against corporations* may perhaps fitly be stated in this place, after we have gone through the several forms of proceedings respecting corporations. As to evidence of being a corporation, it has been held that a deed of grant to a prescriptive corporation is evidence against those claiming under the grantor that they were, at the time of the grant, a corporate body by the name given them therein (p). It has been held that entries of admissions into trades or separate corporations are evidence to go to the jury of the existence of an aggre- gate corporation, compounded of the various separate corporations, and named the Company of the Carpenters, Painters, &c. (including all the separate corporations), although there was no proof of admissions into the aggregate body, and it had no common seal (q) ; the question whether a body is a corporation, or a voluntary society, being for the jury, as it was said. The style of a borough as given in the schedules to the Municipal Corporations Act and Boundary Act, is not evidence to prove that the borough lies in the county named therein (r) ; but such insertion is prima facie evidence that the place has a municipal corporation (5), though not of the place being a borough before the act. It is no longer accessary to prove a corporation seal, or the signa- ture of an officer of a corporation, but documents bearing such seal, &C., prove themselves (t). With respect to the means of evidence, derivable from corporation documents, other than charters (of which we have spoken already), and other than the burgess rolls, freemen's rolls, &c., in municipal corpora- tions (of which we shall speak immediately), it must be observed, that ( p) Mayor, &c. of Carlisle v. Blamirc, 8 (r) Reg. r. Mitchell, 2 Q. B. 636. I ; ' I courts do not take judicial •> K. o. Greene, 1 Nev. & P. 631 ; 6 , that a body claiming to !><• "r calling A. *\ E 548. themselves a corporation is not one, Couch i>. (0 8 & 9 Vict. c. 113, s. 1. Persons isn, 2 (^ B. 580; but they do take forging such seal or signature guilty of felony ; ..t ;i corporation constituted b) act of id. b. 4 ; uid. 1 A & I.. 695 ; Skin. 11. 2 ; 5 parliament, Church v. Imperial Gas ' >>., 6 It. i\ Ad. 866. Where the records of the A. & E. H4<). The want of ;i common seal Court of Record are destroyed, exemplifica- ne evidence thai a body is not ■> corpo- tion under common teal is admissible; Cora. I Dai ■ . Dyer, 81, L; 6 Dig. Evidence, A. -J; Did. 4 A. fie E. 410. 139. As to prool by a foreign The common seal ol the corporation of Lou- body rains bare as a corporation, 2 l.d. doo was held to prove itself before the passing Hay foreign corporation, 1 ol the itatuto; Doe v. Mason, 1 Esp.53. H '. . i I. 695. it appear that the seal v. is affixed without Company of Carpenters, ficc, s. Hay- authority, the document is invalid; Anon., 12 Mod. 423. EVIDENCE. 311 entries in the books of public corporations, that is to say, bodies incor- porated to serve some public purpose, and not merely companies of traders incorporated for their own purposes of pecuniary emolument, may be inspected for the purposes of evidence by parties sufficiently interested in them, provided the entries relate to public matters, and not merely to the private interests of the corporation and the party, and provided the evidence is required in a civil action. In a criminal pr< - secution the courts will not grant a rule for such inspection (u). But it is usual to grant it in civil actions, where franchises are contested, and in other cases where the corporation can be regarded as a depositary of a trust for the public, and the party applying being directly interested in the entries or other documents which he seeks to inspect, and the matters contained in them having direct reference to the questions at issue in the cause (x). Therefore, on an information in the nature of . Purnell. 1 Wils. 242. The rule (c) R. v. lk-bb, 3 T. R. 580; Foster 1. is absolute in the first instance ; R. r. Shelley, Governor, &c, of Bank of England, 8 Q. B. 3 I. 11.141. 699. 312 EVIDENCE. said that inspection can only be granted to a member of the corporation, and not to a stranger d) to the corporation; but it will be found on examination that the l;i\v i- as stated above; and that the rule to inspect entries in corporation books, papers, and muniments, will be granted to a foreigner (or person not a member of the corporation), provided he is directlv interested in the subject-matter of the inspection, and the entry is of a public nature, and it has immediate reference to the question at issue in the cause. Thus, where the action was brought for breach of a bye-law affecting every one within the corporate jurisdiction, the de- fendant not being a corporator, was allowed a rule to inspect and copy the bye-law in the corporation books (e). The entry of the bye-law was manifestly a public entry, in which the defendant had a direct in- terest. The plaintiff, in a qui turn action against a custom-house ofii- for bribing A. B., freeman of a corporation, at an election for mem- bers of parliament for the corporation, had a rule to inspect and take copies of such part of the corporation books as contained the admissions ol A. and B., although plaintiff was a foreigner, and there was no affi- davit that the right of election was in the freemen (_/*). lie was con- sidered to be sufficiently interested in such entry by having brought this action. In a previous case, where the College of Physicians brought an action against a person for practising as a physician without a license, Lord Hardwicke, C. J., and the Court of King's Bench, refused the rule, on the ground that the defendant was a stranger to the corpora- tion (y). But there, it may be observed, the application seems to have been made " upon an imagination of the defendant that he might find some entry in the books in his favour" (A), and therefore amounted to a fishing claim to inspect all the books of the corporation, and not to in- spect a certain specified entry, which last is all that even a person di- rectly interested can claim, unless he be a corporator. On this ground, therefore, it may be considered that the rule was refused, and so the decision may be distinguished from that of the case of the bye-law. Another decision seems to confirm this distinction. Where an act of parliament incorporated certain persons as surveyors of highways, the defendant, as one of them, was proceeded against for not having taken oaths to qualify, &C., and an application was made on behalf of the (d) Phill. Evid 811 ; 2 Ye*. 620; vid. person, liable to pay tolls, for an inspection Burrell i . Nicholson, 1 My. & K. 680. of a specific entry relative to the question in te ) Harrison v. Williams, 3 11. & <'. 162, issue, would probably lie allowed rince Har- Ttae interest in the entry or document must be rUon v. Williams, although the party were not direct, or the rule will mil he granted to a a corporator. Hut where the applicant would jer. I bos, in an action by corporation not In- entith '1 as .1 stranger, Ins becoming a I strangers for petty customs, application corporator alter the cause "l action am^e will to inspect corporation b ad; 2 Ves. not entitle him; .Mayor, &c, of Bristol v. 620. In action for tolls, application " to in- Visger, B Dowl, & Ry. 434. ■ :ill the corporation hunks, papers, writ- i / ) Richardson v. Patiisoo, Cora. R,555< rders in council touchiog the mat- (g) College of Physicians v. West, cited I ter in question," Mayo tuthampton W. Bla. 41,andl Wils.240. A fishing claim i. Graves, a T. R, 690, which, in fad was ■< will never 1m- allowed , I <,'• B. 287, 288. bill of discovery of the plaintiff's title, and (li ) 1 Wils.240. was rightly refused; bul an application bj ■< EVIDENCE. 313 prosecutor to inspect all the corporation books in order to see whether there was an entry of the defendant's having taken the oaths or not, it was refused;— a decision apparently coinciding with the above distinc- tion, for the prosecutor, though a foreigner, claimed as much in effect as he would have been entitled to if a corporator, and claimed more than the court had the power of granting a rule to inspect for, even in a civil action; the power of the court being confined to an inspection of such parts of the papers, &c, of the corporation, as are shown to them upon affidavit to have direct reference to the subject-matter of the action, &c, depending before them(i). However, the ground which the court is reported to have rested their decision on was that no man shall be bound to accuse himself (/0, and this decision, though often cited as affecting the rule in civil actions, may be laid aside altogether as not being made in a civil action ; for the inspection was rightly refused, accord- ing to the practice that the court will in no case of a criminal prosecu- tion grant such a rule. But nothing that has been laid down extends to entitle a party, not a corporator, when suing a corporation, to a dis- closure of the evidence of the corporation, or a discovery of the like deeds or documents on which they ground their defence ; for a corpo- ration is no more liable than an individual to be compelled to disclose the grounds of the claim or defence (7); the right of inspection is con- fined to an entry in the books concerning the party himself (rn), and being of a public nature (n), and touching the matter in issue. As has been shown, every corporator has a general right to inspect the books, &c, of his corporation, for the purposes of evidence; and upon showing a sufficient ground for requiring the inspection, and a proper demand, and a refusal by the coi'poration, he will have a man- damus, or a rule to inspect, according to the circumstance of whether there is not, or is an action pending ; but it will not be considered that there is sufficient ground for an inspection, if the object, being of a merely private nature, may be equally well attained by giving notice to the corporation to produce the book at the trial, and on its non- production, adducing secondary evidence to prove the things intended to be shown from the books. Therefore, in an action against a corpo- ration by an attorney, a member of the corporation, for the costs of performing certain business for them as an attorney, it was held that he was not entitled to an inspection (o), in order to prove his retainer by the corporation, this being a merely private claim against the Corpo- ral) R. t. Bebb, 3 T. R. 580. Hardw. 130. The motion for rule to in- (k) Reg. v. Mead, 2 Ld. Raym. 927, cited spect cannot in general be made until issue 1 Wils. 241. has been joined; 2 \\ . 151a. 877. It can (/) Mayor, &c, of Southampton v. Graves, never be made before action brought ; 11. v. 8 T. R. 590. Sheriff of Chester, 1 Chit R. 476; vid. (m) Crew v. Saunders, Stra. 1005. Charnock v. Luniley, 5 Scott, 438. And ( ii ) 3 B. & C. 162. if an inspection be required, where there is no (i') Stevens v. Mayor, 6cc, of Berwick, action pending, a mandamus is proper ; li. ». 4 Dowl. '277; vid. R. u. Rridgman, Sum. 'lower, 4 M. & Selw. 162; Ej parte llutt, 1203; R. «. Tower, 4 M. & Selw. 62 ; Cha- 7 Dowl. 690; vid, 1 W. Black. 59 ; R. v. ritablc Corporation v. Woodcraft, Cas. Temp. Justices of Surrey, Suyer, 144. 31 1 l\ [DENCE. ration made by the plaintiff, qua attorney, not qua corporator; and the entry of the retainer being the register of a merely private transaction between the corporation and the individual, and not an entry of a public character, as in the case of a bye-law. The inspection must, in general, be asked fur a specific purpose of evidence (p); not for the furtherance of some object which the party desires to effect by the instrumentality of sueh inspection. Therefore an inspection will not be granted of the l>«>t>ks of a trading corporation, though of a public nature, and though the applicant is a corporator, in order that he may subsequently procure a dividend to be declared ( put it on the record in proper terms in pleading (7-), in an action between the corporation and the applicant; and therefore the rule was refused in an action for railway calls, where the application was to inspect the minute books, &c, " particularly with respect to the calls sued upon;" for the application was regarded as made for the purpose of fishing for a defence in the books, and not to enable the defendant to avail himself of a really good defence (r). So in an action against the Bank of England for refusing to pay dividends on stock, where the defence was, that the stock had been transferred by the plaintiff before the dividends claimed became due, on which the plain- tiff joined issue, an inspection was granted of the entry in the corpo- ration books relating to the stock in question, for the purpose of taking an examined copy, the plaintiff making affidavit of her belief that such entry would substantiate the allegations in her declaration, &c, and stating a due demand and refusal (*). Here again, it will be observed, the entry was of a public nature, having relation to the public stocks of the realm, and the corporation standing in the situation of parlia- mentary book-keepers of those funds on behalf of the nation, and the application was for the purpose of evidence, sworn to be indispensable to the plaintiff's case. So an inspection of the transfer book of the East India Company's stock has been granted (t) in an action between two corporators. The principle is nearly the same as is applied in the case of court rolls of a manor, which are not considered as the evidence of the lord; for if they were so, a party, an adverse party at any rate, (]<) In equity a party has a rij W. 385; fid. Ley p. Barlow, 1 Exch.801, 2 B. & Aid. I 8. P., these documents being necessary to (i) Birmingham, &c. Junction Railway enable the plaintiff to prove hie Company t. White, 1 Q. B. 282. In an (s) Foster v. Bank of England, ii Q. 15. ad oo I j S< cretary v. Proi iatonal < ommitti i - I in. in oi .i projected Kail way Company, an (t) Geerj v. Hopkins, 7 Mod. 129. ordei was granted for plaintin to inspect the EVIDENCE. ol5 could not be permitted to look into them(w); but as public books, for the benefit of the tenant, as well as the lord, they are allowed to be inspected (x). In the case of the Bank, the corporation has a certain interest in the books, which, however, it holds as trustee for the nation on the one hand, and the individual stockholders on the other (y). The rule would undoubtedly have been granted, had the plaintiff been a corporator suing for non-payment of dividends on bank stock, instead of stock in the public national funds ; though the ground of the deci- sion might have been different, for the plaintiff, in the principal case, claimed as a stockholder in a public fund ; in the latter case he would claim as a corporator entitled to have inspection, for just cause, of the corporate books, in respect of matters not private, between himself and the corporation, as in the case of the attorney's retainer, but in which every member of the corporation, the creditors, and all such of the public as fall within the operation of the powers of the corporation, are more or less interested. Where two corporations are at issue in a cause, a rule to inspect will be granted reciprocally as to so much of the corporate books of either as relate to the matters in issue between them (z). With respect to the effect of admissions by corporators and others as against their corporations, the general rule seems to be, that an admis- sion by a corporator does not bind the corporation (a) ; but the ad- mission of an officer, or authorized agent, or servant of the corporation, on a matter within the scope of his authority, agency, or service, does bind them. Thus the admission of the surveyor of a corporation, respecting a house of the corporation, is admissible as evidence against the corporation (b), such admission being made in the ordinary course of his function and duty. In like manner notice to a member of a corporation is not notice to the body politic, as notice to one of a co- partnership is notice to all ; but the notice to be operative as notice to the corporation, must be brought home to some authorized agent, or the head of the corporation, in a formal manner, and ought to be given to him as such ; and, as it seems, at the place where the corporation is locally domiciled, or where it carries on its business (c). The operation of the late act for improving the law of evi- dence^), upon the admissibility of corporators as witnesses, where their (u) May v. Gwynne, 4 B. & Aid. 301; (s) Mayor, &c, of London v. Mayor, &c, R. v. Justices of Bucks, 8 B. & C. 375. of Lynn, 1 H. Bla. 206; Mayor, &c, of Warriner v. Giles, Stra. 954. And Southampton v. Graves, 8 T. K. 592. the same exception holds in cases of criminal (a) Mayor, &.c, of London v. Long, 1 prosecutions as with respect to corporation Campb. 68. books; R. v. Karl of Cardigan, 5 B. & A. (I/) Peyton v. St. Thomas's Hospital, 3 902. C. &P.363. (y) Vid. Sloman v. Bank of England, 14 (c) Vid. Powles v. Page, 3 C. B. 31 ; per Sim. 475. But a corporation, being trustees Parke, B., 12 M. >X W.664; Thompson u. of a charity, will not be obliged to produce Spieres, 14 Law J. (M.S.) Chanc. 453; their books relating to the charity trust, al- Edwards v. Grand Junctiou Railway Coin- though in their answer they submitted to puny, 1 My. & C. 659. produce as the court should direct ; Att.-Gen. (//; 6 & 7 Vict. c. 85. v. City of Coventry, Bunb. 290. 316 EVIDENCE, corporations are parties to the cause, it is submitted, may be thus repre- sented : That where the corporation are lessors of a plaintiff in ejectment, a corporator may now be a witness; although it is expressly provided bv the statute that the evidence o[' a lessor of a plaintiff is not admis- sible («); for the fact is that the corporation, and not the aggregate of the corporators, is lessor. - where the corporation are tenants of premises sought to be rcco- I in ejectment (e). - where a defendant, in replevin, makes cognisance in right of the corporation (e). But where the corporation sues on behalf of a corporator, (ex. gra. in trespass, for assaulting an officer in the execution of his duty), the officer could not be a witness, as it seems, for he would be " a per- son in whose immediate and individual behalf the action would be brought" The statute leaves as they were witnesses who were admissible at common law. On a trial of an information in the nature of quo war- ranto, in which one question was, whether the corporation of London was entitled to a certain port duty, it was held that a freeman of London might be a witness, partly on account of the difficulty of getting other evidence, and partly that the individual interest of each freeman is extremely small and remote in London (/). The same would be held at the present day, as it seems. In a subsequent case, where the same corporation sued for an import due against certain merchants, not members of the corporation, it was held that freemen might be wit- nesses for the defendants (g). Where the question was, whether the corporation of Bridport were entitled to stallage for setting up tubs to sell corn in, a burgess was held not admissible (A). In many cases respecting corporations, the members are admissible ex necessitate; thus, in case of an information in the nature of quo xcarranto, for an act done at a corporate assembly, the corporators there present are the only witnesses that can be had, and therefore admissible (i). The practice of disfranchising by quo warranto information, for the purpose of making corporators admissible witnesses, has been already referred to(k). In an action for acting as assistant (one of the officers of an (e) 6& 7 Vict. c.85. B. 1 ; iii) H.v. Mothersell, Stra. 93 ; 12 Vin. (t) Mortimer v. M'Callan, 6 M.& W. 58: Abr. 90, pi. 16; 2 Burr. 766. vid 7 M. & VV. 106, 107. («) Mercers of Shrewsbury v. Hart, 1 C. («) Vid. the case of writing upon a will, &P. H4. put 6 M. & W. 68. 318 EVIDENCE. ration, whose duty it is to make them ; or if made by another person, in his absence or Bickness, &c, thai must appear (*). Copiesof public books of public corporations are made admissible in evidence on the ground of the impossibility of removing the books themselves, in mai , without causing great and general inconve- nience and lost I "his must obviously be the case as regards the great corporations engaged in business, as the Bank of England, the East India Company, the railway companies, and others. The rule is, therefore, laid down generally that the public books of all public cor- porations, being originals in themselves, may be made available in evi- dence by means of sworn copies of public entries made therein, and that the corporations shall never be compelled to produce their books, except the court sees reason to consider that a rasure has been made or a fresh entry fraudulently inserted, when the book must be produced at the trial for inspection by the jury. We may next proceed to consider to what purposes entries in corpo- ration books are applicable as evidence. Now an entry in the public books of a corporation, in order to be evidence for the corporation, or for a defendant justifying in right of the corporation, must be of a public nature ; and, therefore, the corporation will not be allowed to make evidence for itself by entries in the public books of facts going to support its title, in any case, to any claim or demand, even though the entry be made in a formal style and be signed by the corporate officer whose duty it was to make such entries. Thus, a statement made with great formality, in a public book of the corpo- ration, purporting to be the account of a seizure made by the corpora- tion, nearly 300 years previously to the trial, of certain ships, on account of tolls claimed from the masters and refused to be paid by them, was looked upon as a mere private memorandum of the corporation, which, although entered in a public book and signed by the proper officer, was no more admissible for the corporation than the entry of a trades- man in his books would be evidence for him (z). This seems a strong instance to show with what complete strictness the doctrine of the con- tinuous identity of a corporation is adopted by the courts, for, except in that view, it is scarcely possible to suppose anything less like the case of a man's making evidence for himself to profit by in his lifetime, than that of corporators 300 years ago entering a statement tending to sup- port the interests of the body politic. Even where the constituting statute enacts that the clerk of the corporation is to keep a book, to fn R.i. Motliersell, Slra.93; TheTtaet- Geery t>. Hopkins, 2 Ld. Raym. 851 ; 7 Mod. ford case, 12 Via. Abr. 90, pi. 16. 555. (v) It. i. Smith , Str;i. 126; Lynch v. (t) Marriage ©.Lawrence, 3 B.fic A. 142; Salk. 154; Mortimer d. M*( allan, 2 Phill. Evid. 122, 9th edit. ; An. -(Jen. o. 6M. Marsh v. Collnett, 2 Espin. Mayor, &c, of Warwick, 4 Buss. 222; vid. 7 M. fit W. 106. 107. Formerly Mayor, &c, of London p. Mayor, &c. ol the book* themselves were brought op; ex. Lynn, 1 II. Bla. 214 ; Brettv. Beales, M.& gia. transfer books of Kast India Company, Malk. 29. Hut such evidence might be re- ceived by consent, 1 II. Ula. 214, note(s). EVIDENCE. 319 be provided by the corporation, in which he is to keep an account of acts, proceedings, and transactions of the body, and that all members shall have liberty to inspect and take copies, &c, it was held that entries of the proceedings, in the book so kept by the clerk, were not admis- sible in evidence on behalf of the corporation against one of their own members suing them (a) on a contract ; for that a member entering into a contract with the corporation must be deemed a stranger as far as regards that, and could not be affected by any entry made under orders from the entire body, and that this was not like the case of partnership books, where the entries are evidence against a partner by way of ad- mission. Entries of the transfer of shares, made in the transfer book of a railway company, according to the requirements of an act of par- liament, are not, by themselves, evidence of proprietorship of shares in an action between strangers (b). There appears to be one exception to the rule, that private entries in a corporation book are not admissible for them, namely, where ec- clesiastical corporations aggregate, or parsons or vicars, sue for tithes, when entries in the corporation books are evidence for the corpora- tion (c), and have always been received as such. But the exception is strictly confined to this case; an entry in the public books of a corpo- ration, showing that the appointment of a curate had always been made by the corporation, cannot be received to establish their right against the vicar (d). (a) Hill v. Manchester, &c. Waterworks Railway Company v. Graham, 1 Q. B. 271. Company, 5 B. & Ad. 866. Where a book But where such books are made prima facie is made by statute prima facie evidence of pro- evidence they are not necessarily the only prietorship of shares in the corporation, it is evidence; Miles v. Bou^h, 3 Q. B. 845. admissible as such, though it has been irre- (ft) Hart v. Waring, 3 M. & W. 379. gularly kept ; London Grand Junction Rail- (c) Short v. Lee, 2 Jac. & W. 477 ; per way Company v. Freeman, 2 M. & Gra. Lord Kenyon, C. J., Outram v. Morewood, 5 606; Birmingham, &c. Railway Company v. T. R. 123; vid. 12 Vin. Abr. 255, pi. 3; Locke, 1 Q. B. 267 ; and is evidence for the Anon., Bunb. 46. company in an action for calls, London and (d) Att. -Gen. v. Mayor, &c, of Warwick, Brighton Railway Company v. Fairclough, 3 4 Russ. 222. Scott, N. R. 69 ; London and Grand J unction •0 CUSTOMS AND PRESCRIPTIONS. M wy questions arise, in cases connected with corporations, respeet- ing the proof of customs, to which it is desirable to invite the reader's attention; for although the Municipal Corporations Act has abolished eat variety of customs in municipal corporations, yet many ques- tions of great importance still remain respecting customs both in those and other local corporate bodies. The law is well known to hold, that in general customs and pre- scriptions must be pleaded, and put in issue, and tried by a jury(e). And proof of a regular usage for twenty years, unexplained and un- contradicted, is sufficient to warrant a jury in finding an immemorial custom, provided the custom be not against any known rule or prin- ciple of law; for if it is, then, some decisions say, it cannot stand, however great its antiquity may be(y'). So if it be in contradiction to a charter {g). But a custom may be good though inconsistent with the common law, or though it be of such a character as that it could not have arisen by charter (h). Where a prescription is pleaded, the plea will be supported by proof of a more extensive right than that pleaded, provided it be of such a nature as to include that pleaded(t); but if a prescription be made absolutely, and the evidence show that it was qualified in any way, the party prescribing fails (A). A custom cannot be pleaded by inhabitants of a corporate town to have an interest or profit a prendre out of another's soil(Z); they ought to prescribe in the corporation (m). Nor can the corporation prescribe for common for them and their tenants, belonging to ancient houses in the corporation («). (e) Hodaon o. Atkinson, Comyns, 603. (h) 6 T. R. 760, 764; 3 Burr. 1780, Even in the case of the corporation ot London, 1785; Co. Litt. 113a; Noble v. Durcll, 3 where the corporation is interested, the cus- T. K. 274. Thus, though the law is that a torn must be put in issue and tried by a jury; judicial officer cannot make a deputy, yet Day v. Savadge, Hob. 87. The couits do there maybe a usage to appoint a judicial not take judicial notice of the customs of any officer, with power to exercise the office by ntv or town; Hunt v. Hargill, Fortesc. 347; himself or deputy; Com. Die;. Officer, 1). 2. I. I Salt. 125; :$Salk.69. (i) Bailey v. Appleyard, 8 A. & £. 161. . 1857; ( Car. 516; Stra. («) Gray's case, 5 Rep. 78 b, per 1'op- 1187: 4 Burr. 2032; 6 ttep. B3 b; Cro. ham, ( J. Jac 68. Custom of London, how to be (/) Hardy v Holliday, cited 4 T. It. 719; ■ ■. p. HetheringtoD, 4 M. & Gra. aid. 3 Mod. 246; 10Q.B. 35; 5 I). ^ L. 784. As to alleging the right where the ( / i I!, p. JolirTe, 2 B. Si C. 54. I hree re- boundaries of the borough have been altered ?iuisiies of a good custom; 10 Q. B. 39; 6 I. b] th< Municipal Corporations Act, Bi ;. " I oor, 7 Mod. 198. (») R V, Nippon, 2 Keb. 25. CUSTOMS AND PRESCRIPTIONS. 321 A person who has acted in breach of an alleged custom, is not a competent witness to disprove the existence of the custom (o). A decree in equity may be evidence of a custom per se, as prima facie having relation to the matter in issue; for all matters having a tendency to prove the custom are receivable in evidence for that pur- pose (p). As proof of an usage for twenty years last past may support a ver- dict of immemorial custom, so, on the other hand, a custom proved to have existed in a corporation from time immemorial up to a.d. 1689, must be taken to exist still, if there be no further evidence one way or the other (q); and a verdict that the custom existed till that date is therefore a verdict for the party alleging the custom. This is another instance of the principle of presuming in favour of corporate bodies, on which the courts generally act. A further instance is supplied by the following case : Where the founder of an eleemosynary corpora- tion gave power to the governors to alter his statutes, an alteration long acquiesced in will be presumed to have been made by them, although the precise order by which it was made does not appear (?•). The presumption is, that every thing is regularly done in a corpora- tion. But it will not be presumed that there has been an immemorial usage to pay a fee to an officer for doing a certain act, if it be known that such act was not required by law to be done till within time of legal memory; although it has been proved that the usage has been to pay the fee for sixty-five years last past (s). Nor can a custom be urged for a thing that had its beginning since Richard I., if a record can be shown to the contrary (t). On questions respecting a right claimed by a corporation to take tolls on a public road, in which the public, that is a large number of persons, are concerned (u), common reputation, and the declarations of deceased persons, are admissible in evidence^). So, where the claim is to a farthing a quarter on malt imported, a verdict against others similarly situated with defendant is evidence (y). In prescribing for toll, the particular kind of toll must be stated, for if it be toll-thorough (o) Carpenters' Company v. Hayward, shaw, Styl. 450; vid. Snelling's case, 5 Rep. Dougl. 359; vid. Davis D.Morgan, 1 C. & 82; Percivall v. Crispe, 2 Show. 175; which J. 587. do not in reality oppose the rule. (p) Laybourne v. Crisp, 4 M. & W, 326, (it) Per Bayley, J., 1 M. & Sel. 690; 327 ; vid. 6 M. & W. 244; 2 Bulstr. 206: vid. Crease v. Barrett, 1 C. M. & R. 931. Dav. R. 31, B. 32. (i) Brett v. Beales, 1 M. & Malk. 416 ; (q) Scales v. Key, 1 1 A. & E. 819. Usage vid. per Ld. Kenyon, C. J., 1 Hast, 357. uninterruptedly enjoyed from 1790 to 1837 (y) City of London v. Clerke, Carth. 181; may be sufficient for a jury to find it to be vid. 1 East, 357 ; Cro. Car. 561 ; R. v, immemorial ; 4 M. & VV. 330. But a custom Wheldale, 2 Keb. 222. Evidence of reputa- cannot be pleaded to have existed for any less tion not admissible to prove a custom that than time whereof, &c. ; R. v. Worrall, Skin. the sheriff of a county of a city, being the 108. assize town of the county at large, was exempt (r) Att.-Gen. v. Earl of Clarendon, 17 from executing, or the corporation bound to Ves. 492. execute, criminals from the county at large ; (s) Morgan v. Palmer, 2 B. & C. 733. R. v. Antrobus, 2 A. & E. 793. (t) Per Nolle C. J., in Pilkington v. Bag- I i 8TOMS W D PRESCRIPTIONS. a consideration must be laid ; but if toll-traverse a consideration is im- plied z . Will. to tlu' operation of statutory enactments on customs in municipal and other corporations, the general principle is, that an affirmative statute does not take away a custom (a) ; or perhaps it is more correct to say, that a statute made in the affirmative, without any itive, expressed or implied, does not take away a custom (b). But now, by the Municipal Corporations Act, all such usages as are incon- nt with or contrary to the provisions of the act, are, in municipal corporations under it, annulled (c), and particularly all exclusive rights of trading in shops, &c, in boroughs are abolished (e?). Nevertheless, subject to these restrictions, all usages and customs remain good, pro- vided they are not either expressly or impliedly abrogated by some other statute: and, moreover, such usages or customs being reasonable and beneficial to the subject, shall prevail even against the common law(e). Such a custom as the following is not in restraint of trade, or prohibited by the Municipal Corporations Act, or any other statute, and having been adjudged good before that statute would appear to remain so ; viz. that the town crier shall have the exclusive privilege of proclaiming, by the sound of the bell, the sale of all goods brought into the borough to be sold by auction (/). So the custom of foreign bought and foreign sold, which obtains in the city of York (as well as in London), whereby one foreigner is restrained from selling or buying goods for or of another foreigner within the city, has been held good(^); and if the goods be not sold, &c, in a shop, &c, is not within the Municipal Corporations Act(h), and remains good. The same custom holds at Lynn Regis (i), and at Colchester (k), and Boston {I). A custom to elect by ballot has been held good in an Irish corporation (i/t) ; but such custom is inconsistent with the Mu- nicipal Corporations Act for England, and abolished by the operation of the first section. (-.) James p. Johnson. 2 Mod. 143. What 749; 11 A. & E. 326. kind of consideration must be laid, iiil. sup. (e) Noble i. Durell, 3 T. R. 271 ; Lilt s. p. 16o, and Truman >. Walguam, 2 Wils. 169; Co. Lift. 33, I'.., 113, A.; vid. Rogers Pelham o. Pickeregill, 1 I. R. 660; v. Brenton, Q. B., Mich. Term, 1847; 7 Vin. Bid. 5 Q. B. 782. How to lay it, 4 D. & L. Abr. 179 — 186. 5H2. (J) .Um,- , . Waters, 1 C. M. & R. 713. I!. & 127, A, as to custom that butchers shall sell Adol. 246; Simson v. Moss, J B. .\ Adol. in open market, &c. .013. (0 Harwich v. Twells, 12 Vin. Abr. 19, 5 & 6 Will. 4, c.76, si. pi Ibid. -. 11. Ill' Citv of London is (k) Clearywalk v. Constable, Cro. Lli/. • .1 from tli'- operation of the M;iiut<;. 110. trading l>\ (/">!{. v. Corporation of Boston, VV. Jon. torn there, 1 B. fit A l. 92; 9 B, cC, 52 162. 2 B.& Ad. 465; 7 Dowl. .\ Ryl. 597; 2 (m) Adcock v. Mayor of Dublin, Batty, A. „\ I.. 312; i M. .\ W. 820; 6 Dowl lr. Rep. 62b. CUSTOMS AND PRESCRIPTIONS. ,'];„>,'} Against a statute a custom cannot be prescribed (n), unless the pre- scription or custom be saved by another statute (o). It seems that where a statute is introductory of a new law, it shall take away all contrary customs, though there be only affirmative words(p). . How- ever, a statute merely affirmative of the common law does not take away a custom (. Tippetts, 3 B. & A. 193. was a custom that deeds of grant of (u) Luttrell's case, 4 Rep. 86; Mayor, lands should be enrolled before the recorder, &c, of Colchester v. Brooke. 7 Q. li. :)';}<) '■ lam, or such officer, the statute of via. Bull. N. P. 213; Dyer, 279, B. •' 4 T.' enrolments does not alter the custom, but R. 425; 1 Wms. Saund. 344, note (1) estates pass by the custom, and not by the (*) 7 Q. B. 339; Mayor, ic, of Colches- statute; Dalison, 63, pi. 24. As to London, ter v. Seaber, 3 Burr. 1866. Chibborne's case, Dyer, 229, A.; i id. 4 C. (i/) Noble v. Durell, 3 T. R. 271 • 2 Inst B. 60; Mene'scase, 9 Hep. 133 b. 702 ; 3 Keb. 331. (p) Anon., 1 Freem.203; Mayor, &c, of (z) R. t>. Gordon, 1 B. & A. 524. Y2 .' .'| (1 -TOMS AM) PRESCRIPTIONS. corporation lias a prescriptive right of a greater extent, and accepts a charter as a matter of record to a less extent, the former right is merged; for everj prescription presumes or supposes, if not necessarily mt or charter, at least a legal origin, of the thing prescribed for (a), which charter has been lost at some time, of which no evidence remains ; and if this original charter had been preserved and in existence in the custody of the corporation, and they had subsequently accepted the charter conveying the right to the less extent, that acceptance would have been held to estop them to assert that after it they had the right to the original extent (b). That being the case, in such circumstances their appears to be no valid reason why the acceptance of the second charter should not have the same effect on a liberty which is supposed to originate in a grant, as it has on a liberty which is actually enjoyed under the original grant still being in existence. But if the prescrip- tion related to two descriptions of subjects, ex. gr., copyhold and free- hold lands, then the acceptance of a grant respecting the freehold lands, though it might merge the prescription as to them, would leave it untouched as to the copyholds (c). 2. But a good deal of difference of opinion will be found among the authorities on the question of the effect of a charter purporting to grant precisely the thing which the corporation already prescribed for. "Where a corporation prescribed for an ancient court of record called a Pie Poudres Court, the objection, that having subsequently accepted various grants of the same court, the prescription was thereby deter- mined, was overruled; for the Court of Queen's Bench held that the corporation might use a subsequent charter, either as a grant or as a confirmation (d), and that the prescription remains, unless it be altered and varied by the charter (e) ; and it remains, if the grant makes an addition to the thing prescribed for, for then both may stand toge- ther (/). This is the case especially where the charter recites the («) Dictum per Mallet, J., Langham's (r) Earl of Carnarvon v. Villebois, 13 Mi case, March, 185, 186; wd. ace. 3 T. R. 6tW.340. A charter dated before the time of 248 ; Bailiffs ot Tewkesbury i. Bricknall, 2 legal memory clearly does not destroy a pre- Tau. 138; Com Dig. Franchise, A. 1 ; scription ; Mayor, Sec, of Lyme D.Henley, Anon., 1 of ft, R. 55b. " We do not say that 2 (I. & F. 355. All ancient boroughs are iptioD necessarily implies a grant or said to be of record in the Exchequer; 40 (barter, but it necessarily implies Bome legal A>siz. pi. 27, Abbot ot Westminster's case. origin, and a charter would be a legal origin ;" (v prescription but what cannot prescribe for a court time wh< may have had beginning by grant ; per Coke, &c. ; It. v. Bailiffs of Aldborough, 1 Keb, C.'.F., 2 Browol. 198. But that in -nine 308. A grant of Edw. 4 may be evidence ;i tiling may be good by prescription, ot an Bncienl court ; Cro. Car. 127. winch the crown could not grant at present, (e) Moor. 830; 2 Bulstr. 21, - ,,,/. irb. I Hen. 4, fol. 4, pi. 6; Yearb. 8 Hen. 4, fol. 19 ; Bro. Abr. Preacrip- Lockwood v. Wood, 6 Q. B. 64, cant. tion.pl.35; Dyer, 153, B.j 21 Hen. 7, fol. (b) Peri r., 8 Hen. 4, fol. 19; ■> \ 34 Hen. 6, fol :■)'. ; 13 M. & W. 335, Earl of Carnarvon ». Villebois, 13 M. & W. 336; IWell v. Keg. 2 Bro. P. C. 298. (I) 17 Via. Abr. 278. So of a common of CUSTOMS AND PRESCRIPTIONS. 325 prescription, for then it is plain that the meaning of the king was to confirm it {g), and this would be the case though words of grant or gift only were used ; for dedimus et concessimus have in some cases the same effect as confirmavimus (h) ; and where a charter uses only words of grant and creation, it may be proved by parol testimony that the corporation was a prescriptive one (i). Still less does an ancient grant, without date, necessarily determine a prescription, for it may be either prior to time of memory, or the charter may be in confirmation of the prescriptive right (A); nor a charter dated before time of legal memory (/). The proper mode of putting the question in a course to be tried is not by merely traversing the prescription alleged, but by plead- ing the subsequent charter with a special traverse of the prescription ; for the party cannot take advantage of such charter, though it were produced, without so pleading ; and the same is the case where the subsequent charter is an actual grant of the thing prescribed for by the predecessors of the defendant to the predecessors of the plaintiff, who sets up the prescription, such grant being within time of memory (m). It is the general rule, that in pleading a prescription in a corporation, it must be shown that the corporation is a prescriptive corporation (n). Another fundamental rule of prescription is, that no one shall pre- scribe for that which the law of common right gives him(o); though, on the other hand, that which by the law is common to all may be pre- scribed for as appropriated to an individual or a corporation (p). A prescription cannot stand which is contrary to common right. Thus a corporation cannot prescribe to imprison upon a suggestion of the party's guilt (q). On the other hand, there are authorities expressly declaring that a grant determines a prescription (the subjects of the grant and prescrip- tion being identical), as an obligation determines a contract (r) ; and the only mode of reconciling these with the former authorities is by sup- posing that the grants to which they relate were intended, on the face turbary; Crew v. Vernon, Moor. 818. This Yearb. 34 Hen. 6, fol. 36, pi. 7 ; per Little- is the case of almost all corporations by pre- ton, 33 Hen. 6, fol. 27, 28. Bcription, who have subsequently accepted (n) Pitts- v. Gamce, 1 Ld. Raym. 558; charters ; rid. per Wilmot, J., 3 Burr. 1871 ; vid. Mayor, &c, of Macclesfield v. Pedley, Luttrell's case, 4 Rep. 86. 4 B. & Ad. 403. (g) Finch, Law, 59; Yearb. 21 Hen. 7, (o) Bro. Abr. tit. Prescription, pi. 71 ; fol. 5 ; Haddock's case, T. Raym. 435 ; Earl Pell v. Towers, Noy, R. 20 ; Ward v. Cress- of Carnarvon v. Villebois, 13 M. & W. 323, well, Willes, 265. where observe the form of the charter; Mayor, (p) Carter v. Murcot, 4 Burr. 2162; &c, of Colchester v. Brooke, 7 Q. B. 339; Mayor, &c, of Orford o. Richardson, 4 T. V'm. Abr. Prescription. M. pi. 1. R. 437. (h) Litt. s. 531 ; 1 II. Bla. 212, note(i), ( a proposition that requires proof; because it is a maxim that, what- ever might have had a good beginning by grant may be good by pre- scription = /). But a plea claiming a right of pasturage by immemo- rial usage of the party's ancestors, whose estate he had, is disproved h\ in- a -rant of the same subject-matter eighty-one years before, for a valuable consideration, to the party's ancestor, and the plea is not aided by :-' ^ S Will. 1, c. 71, s. 1 (tt); the consideration being valu- able, excluded the supposition that the grant was one of confirmation. In this condition of the authorities, the question cannot be regarded as bem- settled, especially as in a late case (,r), in which it was dis- cussed at the bar, the Court of Exchequer found it to be unnecessary to pronounce an opinion, remarking, however, that it was clear that the doctrine of the grantee being estopped to prescribe, was not appli- cable to a case where the subject-matter of the grant and the subject- matter of the prescription were different. Every prescription for a thing of a profitable nature must be alleged to be in the owner of the inheritance ( y), that is to say, tenant in fee simple must allege it to be in himself, &c. ; tenant for life, years, or at will, must allege it in the name of him who hath the fee (a) ; to plead a custom to the same effect for inhabitants, &c, of a borough, is not allowed. Therefore, a custom for all the inhabitants of Newcastle to walk or ride over a close of arable land belonging to A., at all season- able times of the year, seems to be bad (a); and therefore a prescrip- tion for common or other profits in ulieno solo cannot be in general alleged to be in the inhabitants of a town or borough, or in the inhabi- tants of the ancient houses thereof by reason of their residence; for the inhabitants are not necessarily seised of the inheritance in their houses (b). Nor can such matter ever be alleged to be by custom in (*) Finch, Law, 22; 6 Rep. 45; Jenk. torn for all inhabitants of Coleshill to hare Cent •'>, case* -1, 31. and enjoy the privilege of playing at any |>oits or games on plaintiff's JIutt. . at :cil Iiiim - of thr yi ( k ; Welcome v. Upton, 5M.&W.398; will Bad pleasure, i- bad foi uncertainty; -.'.7 Dowl. 17.".. vid. -i.i. M. & W. Millechampp. John8on,Willes, 203; vid. tarn. 538. Fitch i Rawlings, 2 11. 151a. 393, contra; arvon <■ \ ill boia, 13 M. Did 2 I . 11. 758. ,s \\ (6) Com. Iii . Praascription, II. Another i i,. I. in. ll.'ib; Com. I' Pi i p- reason against allowing such claim byway H. ; Scoble v. Skelton, 2 Mod. 31 ;S.( ol custom is, that it cannot be releaw d Skin. 36; Doin i Gacbford, Com. El. 44; may be if annexed to the fee ; 1 Wms.8aund. tin, i Show 341, note (3). Another reason is, that they 6 I'., p a r i b. d not have had the common by grant, not Belli Wardell, Willes, 102 kcus- being a corporation, ami therefore cannot CUSTOMS AND PRESCRIPTIONS. 327 the inhabitants generally (c), but the party must either prescribe in the corporation, or else that he and all those whose estate he has in a house in the borough have used to have common, &c. (c), for their beasts, levant and couchant, in the messuage, &c. (d). Whether a custom can be alleged for inhabitants to wash their clothes in a person's close has been left doubtful (e). So a custom cannot be alleged that the inhabitants of a vill should take sand in alieno solo, for that is a profit a prendre (f) ; though perhaps in a borough incorporate it might be different (g), but this is far from certain. It is certain, however, that in London, where the customs have been frequently confirmed by parliament, it is a good custom to elevate old walls to a height that may obstruct a neighbour's lights, so as to injure his inheritance, which is something analogous to a profit in alieno solo. But perhaps inhabi- tants of a borough might claim an exemption (ex. gra. from toll) by a modern grant, and of a private individual even (h) ; and at all events they might prescribe for matter of discharge, ex. gra., to be quit of toll, according to old authorities (i) ; but since the abolition by the Muni- cipal Corporations Act of all chartered exemptions from tolls in boroughs, it seems doubtful whether in that particular instance the plea would be good. And right of way, or other mere easement, in alieno solo, may be claimed by way of custom in a borough that the inhabitants should enjoy, and from time, &c, have used the same (j). So a plea of discharge by freemen generally must, it has been held, be by way of custom, not prescription (h), or they may prescribe in the corporation (I). Prescription and custom, therefore, it is very material to observe, are very different things; for though it has been said that they are all one(m), yet in truth they are so far different, that it is a question whe- ther there can exist contemporaneously, in respect of the same land, a claim by prescription, which supposes a to the inhabitants; S. C. rid. Thompson v. grant; Cro. Eliz. 362. But a prescriptive Roberts, Fortesc. 339 ; vid. 2 Lutw. 1344. corporation may prescribe for common in (g) Vid. Mayor, &c, of Lynn v. Taylor, gross for the cattle of their members, levant 3 Lev. 160; el vid. 10 Q. B. 37 ; Ilinckesv. ami couchant, in the borough, but not for Clarke, 1 Show. 78. common in gross without number; Mellor v. (h) Lock wood v. Wood, 6 Q. B. 63. Spateman, 1 Wms. Saund. 343, overruling (i) Baker v. Biereman, Cro. Car. 418, of Coventry's case, Yearb. 15 Edw. 4, cited 6 Q. B. 63; vid. 8 Hen. 6, fol. 4 ; fol. 29, B.; vid. Anon., March, 83, pi. 137. Wise v. Green, Freem. R. 468 ; 18 Kdw. 4' Prescription for metage,4 M. cv W. 324 ; for pi. 3 ; Paine 0. Partridge, 1 Show. 257 ; vid. estovers, Freem. 134. Cro. Car. 419; R. r. Pugh, Dougl. 180. (c) 1 Wms. Saund. 341, note (3) ; Fowl, r (j) Fowler v. Dale, Cro. Eliz. 363; 1 y. Dale, Cro. Eliz. 362. Vid. an exception Wins. Saund. oil. note (3); Abbott v. in the case of copyholders stated 10Q. B.61 ; Weekly, 1 Lev. 176; Fitch u Rawling, 2 II. and of miners, id. 61, 62; vid. 4 B. & C. Bla. 393; Manning v. Wasdale, 5 A°. ,\ E. 755. Custom to cut rushes in alieno solo to 758; Gooday v. Michell, Cro. Eliz. 441 ; Btrew the church, March, R. 16. Bond's case, March, 17; vid. 6 Q. 1!. t,j, (od, must in general show a quid pro quo, or some profit, advantage or benefit derived by the subject, or some expense, outlay or liability thereto, on the part of the corporation. Thus it has been decided to be a good prescription to claim threepence in the pound on all mer- chandizes brought into a port, in consideration that the corporation are (n) Blewitt r. Tr€gonnin^,3 A*& E 554; torn must not conflict with the prerogative; 3 Coke. C. .'., in Bowles i. ' - Salk. 113. Brownl. 198. Archer t. Bokenham, 11 Mod. K - k.112; Tyson i. Smith, m stt., 161. - . North. 1 Ventr. 383, 386. id. inm. 10 Q. 1>. " The customs of borough-English and ga- stmb. coat. ; Lockwood ». W< 1,6 Q. B. 64, velkind are no reasonable customs ; and rea- annot originate in the king's grant. Case son to be showed of the beginning of them is ofTanistrv, Dav. R. 31 b. 33 take, impossible;'" per Coke, C. J., in Hi\ i C J., Hn i. C.ardiner.2 Bulst.206. Though diner, 2 Bulsu 196. a custom is the law of the place, the infraction (t) Horioni. Beckman,6T. R. 760, 764. of it is not matier for indictment, R. i. As to the questions for the jury, Bastard i. 189; i.e. as against indi\i- Smith, 2 M. ex Rob. IS ■- _ .Kan- duals violating it ; but there may be circum- shaw. Doogl. 17,1 . l.iybourne v. Crisp. 4 M. stances in which a corporation, who are bound & W . 330. A custom which is general, and bv a custom, mav be liable to indictment for may extend lo - also contrary to to observe it ; Griffith ». Williams, the common law, is bad; Sherborn r. Bos- .- to an action on the case at the tock, Fitig. 51. A custom to oblige freemen suit of an inhabitant injured I to swear not to sue any freeman out of the . .\c. of Lyme i. Henley, 3 C. -\ P. boroogfa at common law is bad ; R. i. Mayor 354; Anot; 1 Keb. 690 ; Human v. Cook, I 17 \ in. Abr. 279, pi. 6; Janus t . Keb. 7 . \ - •■< judicial notice of a formerly Trolk • 1 Hen. certified custom ol London, Piper t. Chappell. 4, fol. 4. pi. '■ . 6 Q. 1 14 M, &W.649. Case lies against the Major S , '. . . .\ - \ ;:.tic.i'e by paitj p. Lane, 3 VViU. 302. injured, Hob. 87. Form ofcertiBcale, 7 \ in. .17. I e'sease.9 Rep. 75 b; R.r. Too- commenci- ley. 2 Bulst. 186; Kennycott ■. able, it will be [resumed; BakL 350; Honelow's case, Yearb. 22 Hen. Cockae 1 1 u_-l. 1 14. A cus. 6, FkL 21, pi. 3b. CUSTOMS AND PRESCRIPTIONS. 329 owners of the port, maintain perches in the river to guide vessels en- tering the port, and maintain a quay and crane (x). A corporation may prescribe to take three bushels of barley as for keyage out of everj ship's cargo of barley brought upon their quay to be exported (y) ; for the coming on the quay is an easement, and a damage to the corporation. The ride does not extend to prevent a corporation en- titling themselves by prescription to an annuity ; so a corporation may be bound to pay an annuity by prescription (z) ; so they may entitle themselves by prescription to have a farthing on every quarter of malt brought by certain descriptions of vessels into the port (a); so to have the twentieth part of every bushel of grain sold, or brought to be sold, in the borough by any one (b). In one case, which is singular, a corporation has been allowed to prescribe to have and to distrain for toll of all boats that pass by the river that runs by the vill with any merchandize, without alleging a consideration (c). A corporation may prescribe tenere placita ; but that is not sufficient to support a claim to conusance of all pleas, &c. (d), and a grant of conusance applies only to such forms of action as were in esse at the time of the grant (e). On the other hand, a custom may be good even to seize goods as forfeited, without showing any quid pro quo or advantage to the public given by the corporation in return ; and although a bye-law imposing forfeiture of goods would be bad, and though even the crown has no power to forfeit goods without the intervention of a jury, to do so being directly contrary to Magna Charta, and, as far as aliens were included in it, against 9 Edw. 3, stat. 1, c. 1. Thus the custom of forfeiting goods foreign bought and foreign sold, which prevails in York, Lynn and other places, has been repeatedly held to be good ( /') ; and such custom may, perhaps, be considered still to remain, for it is not touched apparently by the terms used in the Municipal Corporations Act in abolishing customs and bye-laws giving exclusive rights of trading (g). Analogous in some degree to the above customs as regards the point of seizure of goods, is the custom prevailing in London and other places, of foreign attachment; by which, if A. owes B. a debt, and also (i) Anon., 17 Yin. Abr. 264, pi. 5 ; vid. Jerusalem, in England, 22 Edw. 4, fol. 43, Pndeauz v. \\ :irne, 2 Lev. 96; Crisp v. Bel- pi. 6 ; vid. ncc. 11 Hen. 6, fol. 18, pi. 11 ; wood, 3 Lev. 434 ; Viukensierne v. Emden, 34 Hen. 6, fol. 36, pi. 7 ; 39 Men. 6, fol. 13. 1 Ld. Raym. 384; 2 Rol. Abr. 265; Willes, (u) City of London v. Clerke, Carth. 181 ; 111 ; Warrington v. Moseley, 4 Mod. 323; Faushawe v. Cocksedge, Dougl. 114. Com. Dig. Prajscription, E. 4. (6) Thorns. Entr. 386. (y) Serjeant v. Head, 1 Wils. 91 ; S. C. (c) Mayor, &c, of Gloucester's case, 2 Stra. 1228. A custom that all goods landed Yearb. 21 Hen. 7, fol. 16, pi. 25, vid. Smith on an ancient wharf should pay a certain duty, v. Sheppeard, Cro. Eliz. 711 ; vid inf. n.(o). and all goods coming down the river and 54 ; 7 Yin. Abr. 232, pi. 8 ; vid. I M. & (p) \ 'in. Abr. Customs. H. pi. 10. 26; Brown ed 2 Show. 374; (q) Yearb. 37 Hen. 6, fol. 5, 9. A custom Michill v. Hare, I Leon. 132. thai all the houses on the south side of the i /) Temp. Lli/.. 1 Rol. Abr. 554, 1. 35. awav of a will should be devisable is bad ; (m) Harington v. Macmorris, 5 Taunt. 40 Assiz. pi. 27, Abbot of VTestmitu ■ ub i. Schmidt, .Mann. Ni. case. Pri. Dig. 351, cor Lord Eldon, C ; bruce v. (r) Lathbury v. Arnold, 1 Bing. 219. Wait, I M. >v Gra. 1 ; Anon., 2 Show. 374 ; (s) Launder v. Brooks, Cro. Car. 561. A Com. Dig. Attachment, D. Vid. as to plead- custom that all leases granted for more than ine payment under foreign attachment, 2 II. Bixyeare are void ipiofaeto is bad ; Over, 357, 1 M. <\ Gra. 'Ml. I I), fit L. B,8a Horde's case. So that », feme covert should i ' . B. 287 ; A B. & A. 646; 5 I aunt. make a will ; Force >. Hambling, 4 Rep. 60. 234. Replication, 6 Dowl. 749. Prac r) 10 (J. B. 57; Znizan v. Talmasb, 2 g m. ,. \\. 790; 15 l &w J. (N.S.) Q. B. Jo. 1 12 ; B. c. Pollexf. 661 ; 2 Show. 131 ; Preem. 263 ; vid. 3. Bridgm. 50; Turner v. i. Macmorris, 6 Taunt. Hodges, Litt. H. 235 ; Archer v. Bokenham, 228; Mallum v. Hern, cited 2 Show. 507 ; II Mod. 160; King v. Dilliston, 3 Mod. 224 J I,., < omb. 109; Lucas e. Cot- vid. Vehr. I , Leon. 1; Carter, 88. Dyer, 196, B. . gii. tarn. I CUSTOMS AND PRESCRIPTIONS. 331 and gavelkind, as is well known, have always been held good ; and so a custom in Nottingham, that the widow should have dower of the moiety, &c. (u). So a custom in Lichfield, where the corporation have an immemorial market, and ought to repair the way to it, and to appoint a bellman whose duty is to sweep the market-place, and in recompense thereof, that the bellman should have from those that brought grain to sell in the market and untied their sacks, a pint of grain, &c. (x), though generally goods are not liable to toll unless they are sold in the market. So a custom that the lord of the fee of Chipping Sodbury should have one penny for every hundred of cheese pitched for sale in the market-place of the town (y). So customary rights to port dues. Again : although it is well-known law that a sale in market overt passes the property, and the custom of London is, that every shop within the city is a market overt during every day in the week (z), ex- cept Sunday ; yet it must not be concluded that a custom that a person who has goods pledged to him in London should retain them, to whomsoever they belong, until he is satisfied for the sum which is due to him, and for which they are pledged, is good; for such custom can- not be allowed even in London (a), being contrary to reason, and dero- gating from general right, and trenching in prejudice of the realm (b). Moreover, such a custom is bad, because the acknowledged custom of market overt cannot be extended, any more than any other custom, to similar cases ; and, therefore, there is no market overt for pawning (c), and every custom is to be strictly pursued (d). All exclusive customs are not bad; thus a custom that the town crier of a corporate town shall have the exclusive privilege of pro- claiming the sale of all goods brought into the borough to be sold by auction is a good custom (e) ; and where a corporation have an imme- morial right to a port duty on all corn imported by non-freemen, it is a good custom that factors, free of the corporation, shall receive to their own use that part of the duty which arises from corn consigned to them as factors (/). A custom that no artificers or handicraftsmen, or other shopkeepers or traders by retail, being freemen, shall be permittted to employ, hire (u) Yearb. 5 Edw. 4, fol. 8, and how to 1 Wils. 8. plead ; et via. Co. Litt. 175 b. (d) R. v. Tappenden, 3 East, 187 ; Bar- (i) Hill v. Hawker, Moor, 835; 7 Vin. ker i\ Beardwell, 1 Show. 4; Hartopu. Hoare, Abr. 185; 2 Inst. 220; Cock v. Vivian, 1 Stra. 1188; Yearb. 5 Hen. 7, fol. 41, pi. 6. Kelynge, R, 203. (e) Jones v. Waters, 1 CM. & R. 713. (u) Goodwin v. Brookes, T. Jo. 227. A He would be liable to an action for refusing custom to take toll or dues gives a right to to perform the duty; Laybourn o. Crisp, 4 an a< tion of debt to the corporation in general ; M. & VV. 320. Yearb. 20 Hen. 7, fol. I, pi. 2. (/) Fanshawe v. Cocksedge, Dougl. 114; (0 Vid. Lyons v. De Paas, 11 A. & E. City of London i>. Clerke, Carth. 181. Cus- 326. torn as to deputy day meters in London, Lay- (a) R. v. Grimesby,34 Hen. 6, fol. 25, pi. bourn v. Crisp, 4 M. & W. 320, and evi- 33 dence, S. C. Previous verdict against others (6) ^ earb. 7 Hen. 6, fol. 32. in like circumstances good evidence of the (c) Hartop i. Hoare, Stra. 1187; S. C. custom; City of London v. Clerke, Carth. more fully, 3 Atk. 44 ; vid. 4 Vin. Abr. 9 ; 181 ; Hull. N. P. 233. S USD PR] S( RIPTIONS. or set on work in any such handicraft or manual occupation within the city or liberties, any person not being free of the city, or apprentice to a freeman, has been held good(^); but such custom (except in Lon- don) is no longer lawful, being abolished by the Municipal Corporations Act (A). It is to be observed, that it is not an objection to a custom, that it extends beyond the suburbs or liberties of the city or borough (i). Thus it has been held that the custom of London to have mctage of coals within the port of London, extended from Staines bridge to Vantlett creek (ft); though perhaps that case may rest on the peculiar ground that the limits mentioned are those of the port of London itself (l ), and the courts, it is said, take notice of the extent of ports («). S.» the same custom has been held good with respect to porterage (n). Another instance of a custom said to be a good exclusive custom is, that all the inhabitants should grind at the corporation mill; and in declaring in an action on the case for not following the custom, the corporation need not allege that they are bound to repair the mill (o). A custom may be good, that an innkeeper may sell a horse put up without any agreement at his inn, when the horse has eaten his value, and its owner refuses or omits to pay the cost. This is the custom of London and Exeter, though the general law does not give innkeepers any such right (p); but this does not extend to enable an innkeeper to sell any but the same horse who has eaten, &c, for its own keep, and not for the keep of other horses (//) ; nor does it extend to enable the innkeeper to sell the horse of any person but the person who puts it to stand at livery; a stolen horse or a lent one is not within the custom (r). The custom called tanestry, viz., that a corporation should receive from every inhabitant of the borough a duty not exceeding twenty shillings, in consideration of the corporation keeping the bul- warks and prisons of the borough in repair, is good (s) ; and the custom of keeping the bulwarks, &c, and the custom of taxing, are to be considered as two distinct duties or customs, for the breach of either of which the corporation and the inhabitants have mutual re- medies (s). All customs in boroughs, that no person not being free of the muni- cipal corporation or of certain guilds, mysteries or trading companies (<;) Shaw v. Poyntcr, 2 A. & E 312. o. Wieglesworth, Willes, 654 ; and Coryton S. 14, v. Lithebye, 2 Wins. Saund. 1 12, as lo plead- (i) Harris t>. Wakeman, Sayer, 255. ing ; el n't/. Harbin v. Greene, Hob. 189, (fe) City of London v. Mauley, 1 Rol. as lo laying the custom. Abr. 557; Laybourn p. Criap, I M. 8e W. ( p) Warbrooke v. Griffith, 2 Bulst. 254 ; 320 v - C. Moor. 87H; vid, Anon.. 1 Vent. 71 ; (/) 1 Rol. Abr. 557 ■ Calth. 115; Sira. Gilbert ». Berkeley. Skin. 648. (er Parke, B. (/O Fazakerly o. Wiltshire, 8tra. 462 ; vid. • Vin. Abr. Inns, B. pi. 7. Collyi ett, 4 M, & G («) Griffith v. Williams, Sayer, 56. (>') Ketnji r. Gord, Styl. 421 ; vid. Drake CUSTOMS AND PRESCRIPTIONS. within the borough, shall keep any shop or place for putting to show or sale any or certain wares or merchandize by way of retail or other- wise, are abolished by the Municipal Corporations Act (t) ; but that, perhaps, does not affect the stat. 1 & 2 Phil. & M. c. 7, by which persons dwelling out of boroughs (m) within England are prohibited from selling or causing to be sold by retail (not by wholesale) any woollen cloth or linen cloth (unless of their own making), any haber- dashery wares, grocery wares, or mercery wares, in any corporate town, &c, except in open fairs, upon pain to forfeit and lose for every time so offending the sum of six shillings and eightpence, and the whole wares so sold, proffered or offered to be sold, one moiety to be to the use of the crown, the other to him that shall seize and sue for the same in any of the king's courts of record (v). And it may perhaps be doubted whether the above cited words from the Municipal Corpora- tions Act extend to such a custom as the following, which prevails in the city of Oxford, and which has been held good (x), that if a person not being a freeman expose goods for sale in the city, except in fairs or markets, he is liable to the payment of six shillings and eightpence to the two bailiffs of the city by way of penalty ; for such custom does not necessarily mean exposing for sale in any shop or place kept by the party, and does not necessarily therefore fall within the above words. Also the custom has been held good, although it made no exception of the sale of victuals ; and also a custom to distrain for the said penalty was held good, provided the goods distrained were not disproportioned in value to the amount of the penalty (?/). If, however, it had appeared that the power of distraining any amount of goods of various kinds for such penalty had been part of the entire custom with respect to foreigners offering goods for sale, then, as such power of excessive distress is bad (z), the whole custom must have been held to be bad; for it has been decided that where a custom is entire, you cannot make one part of it good, and another part of it ill ; but the whole must stand or fall together (a). So it would seem that a custom to the following effect would still be good, that if any person make and expose for sale ill and unserviceable goods, the chief officers of the company, within whose mystery or craft the making of such goods falls, may have used, &c, to seize them and carry to the guildhall, and empanel a jury, and, if the jury find them ill and unserviceable, to (t) S. 14. superiorcourts at Westminster; Dyer, 236, A.; (u) The statute extends only to country Anon., Moor. 421 ; Wilkinsons. Nethersole, peoole, not to persons dwelling in market Cro. Eliz. 530; vid. Cro. Car. 112; 6 Rep. towns; Davis v. Leving,2 Lev. 89; S. C. 3 19; 4 T. 11.111; 1 B. & A. 285, 287 ; Keb. 139,200. Cowp.369; Willes, 125, note ( 1 ) ; Styl. 340. (t>) It has been held that an indictment on (i) Moir v. Muuday, Sayer, 181. the statute may be brought at the quarter (v) Ibid. sessions of the corporation; R. v. Davis, 3 (s) 41 Edw. 3, fol. 26 ; Godfrey's case, 1 1 Keb. 29, 34, 41. On the other hand, it has Rep. 44; Hargiave v. Wood, 2 Lutw. 1457 ; been laid down that on this statute an indict- JMoir v. Wunday, Sayer, 181. ment does not lie ; Glass's case, 3 Salk. 350. (a) R. v. Corye, Styl. 87; Harbin v. The " King's Courts of Record" mean the Greene, Hob. 189. 33 1 ( i 3TOM8 \n n PRESI RIPI [ONS. break them (b). Where there are two distinct customs, it is not neces- sary for a person, who would avail himself of one, to take notice in pleading of the other, provided the customs are of such a nature that mutual actions will lie upon them(c). As customs derogating from rights of property are bad, so also customs in direct defiance of reason, and infringing the rights of per- sonal liberty, will not be allowed. Thus, to cite the instance put by a very learned lawyer (d), a custom in a borough, that if any stranger came within the limits of the borough, the corporation might cause him to be beaten at their pleasure, would be wholly repugnant to reason, and therefore void. In general also a custom to take away liberty bj imprisonment is not good (e). So a custom in a borough, that the mayor might cause to be arrested any one who was suspected of a felony committed within the borough, to put him into the borough gaol, and confine him there three days, and then to remove him to the nearest king's prison, was decided to be wholly void ; for the corporation, according to the custom, could not admit the prisoner to bail within the three days, although the felony of which he was sus- pected might be bailable ; and because, if they could have a right to imprison for three days, there was equal reason why they should imprison for three weeks or three years; and therefore the custom was adjudged to be wholly contrary to reason, and void (/). Generally a custom to do a wrong is void(^); but it is a good custom that super- visors of victuals duly appointed should seize and burn tainted meat exposed for public sale (h). We have seen that it cannot be considered as a perfectly settled question, whether a grant destroys a prescription for the same thing; but this at least is certain, that where a corporation, or an individual, has a lawful easement or profit by prescription, another custom, which is likewise time out of mind, cannot take away the first; for the one is as ancient as the other (i). Customs in corporate towns may exist, and be enforced as against the corporation (k) ; and there is some, though scanty, authority to show that such customs will be enforced (in the absence of other ade- (l>) M<>lton v. Throgmorton, Skin. 55. 63. A custom to disfranchise for words spoken (e) driy's case, 5 Rep. 78 b; Griffith v. cannot be supported even in London j City of Williams, Bayer, •"> * j . I ondon u. Clerlce, 3 Keb. 811, 812. As to a (ii) I'er Littleton, Yearb. 34 Hen. 6, fol. custom to commit to prison in certain cases 26, B. ; ii./. Paramon <. Verall, 2 Anders. in London, City of London v. Coals, 2 keb. 151 ; Chambers p. Wollaston, Styl 78. 752. («) Wheeler v. Comber, 2 Show. 695, 3rd (/) Yearb. 22 Edw. 4, fol. 43, pi. 4 ; trid. edit; Lan«ham's case, .March, 185 — 189; Johns v. Smith, Cro. Jac. 314. Porter i Bond, :', Keb. 262, 366. Hut the (g) Turner t. Denning, 3 Bulatr. 326. custom of Carlisle, that if any person issued (ft) \ aughan D.Wood, 2 Mod. 56; Yearb. in covenant in the court before the mayor, 11 Edw. 4, fol. 6; I Mod. 202; and any other persons be bail, if the principal (i) Bland p. Moseley, cited 9 Rep. 58; do not pay the damages that are recovered vi. York. Cas. Temp. Hardw. 392; Com. law, and reply a custom, for that is a depar- Dig. Defamation, D. 10. tare; li„ld D . Wallis, 1 Siderf. 142; Co. (u) Hind v. Thompson, Andr. 299; Power ^>tt. 304 a. p.Shaw, 1 Wils. 62. 336 I I BTOMS \NO PRESCRIPTIONS. But customs in opposition to the common law, in order to be good and valid, must be reasonable and beneficial (t) ; and they are stricti juris, and not to be extended («)• Therefore where the custom of a borough was for the bailiffs to have twopence for every hide of cattle killed within the borough, or tu distrain the hide, this does not justify them in tanning the hide distrained, even to preserve it from rotting(a-). And though customs may deviate from the general course of the com- mon law, yet customs repugnant to the first principles of justice will always be held bad. Ex. gra. a custom not to summon or give notice to a defendant in a suit commenced against him, is contrary to the first principles of justice, and cannot be supported (y), although it could be Bhown that such a course had long been the practice of the inferior court of the corporation in which the custom was established (z). Customs in opposition to the common law are not always necessarily on that account void ; though it is a good reason for considering cus- toms void that they are opposed directly to the enactments of a statute ; and customs in borough courts, contrary to the ordinary rules of pleading, are not necessarily bad. Thus, in debt on bond, in a borough court, the defendant confessed it to be his deed, but according to the custom petiit quod inquiratur de vero debito secundum consuetudinem j)er juitriam; and it was held, on error, that the custom was good (a). So debt on a concessit solvere, where it lies by custom, may be brought in general (though not where the plaintiff is executor (&)), without setting out the custom in full. But a custom that an action of covenant may be brought upon a covenant made ore tenus does not bind the executors of the covenantor ; for every custom is to be construed strictly (c), and must be strictly pursued by those who would take the benefit of it (d), it not being competent for them to extend it to similar cases (e). Nor does a custom that a party may declare generally on a concessit solvere extend to relieve from the obligation to prove a consideration arising within the jurisdiction, though it be unnecessary by the custom to plead so (/). Nor does debt in concessit solv. lie against executors or admi- nistrators in general (y). So by custom an action may be maintained (() Per Ld. Kenyon, C. J., Noble v. Da- (b) 7 Yin. Abr. 192, pi. 21 ; vid. Anon., rell, 3T. It. 274; Liu. s. 169; 6 T. K.7b0, Godb. 49; Twigg ». Roberts, Styl. 145; 764. Story v. Atkins, 2 Ld. Raym. 1427 ; vid. (a) Lavie v. Phillips, 3 Hurr. 1780; Sa- Bruce v. Wait, 1 Sc. N. R. 81; Thorn v. vage's case, 2 Leon. 109. Cliinnock, 1 Sc. X. It. 141. (i) Duncombe v. Reeve, (to. Eliz.783. (c) Wader. Uemboe, 2 Leon, pi 3. (w) Fisher v. Lane, 3 WiU. 297, recognized <, 26. Precedent of pleadings in concessit tolvere, (, Cha . I ro. I.h/. B94; and form of a record, 1 .M. & Gra. 6, note (a). , 7 Vin. Abr. 192, pi. 19 -on Pinchon's case, 9 Rep. 87 b; Hodges p. Jacob, Freem. 281. ["he custom prevails c Jane, Styl. 1!<'<; Oreswick v. Armery, in London and Norwich, S. ('. Brigbtmao v. Styl. 228; vid. Vaughan, 97, 100; 1 Wms. I • . 3 Keb. 212 ; and in Bristol, 3 K. b. Saund. 68, note (2) ; Twigg v. Roberts, Styl. 251. 302. I id. W hi alley , Hanson, 2 Show. 145. ird edit.; Cole v. Daniel, 2 Show. 124. CUSTOMS AND PRESCRIPTIONS. 337 in a borough court upon an assumpsit solvere and money lent, given in evidence, and without setting out the custom at large (//). It is a trite rule that every custom must be laid in pleading, whether in inferior or superior courts (in the former it is not in general neces- sary to plead the custom, because they take notice of their own customs), as a positive usage in fact. Quod bene licuit is not sufficiently direct and positive (i) ; the allegation ought to be that the inhabitants, &c, have been used time whereof, &c, to do the thing, &c, relied upon (or as the case may be), and the reason why it must be alleged to have been used is, that there cannot be a valid custom unless from time to time the custom is put in use or practice. Where a court is held by custom time out of mind, &c, that must appear on a judgment of the court, and also that the borough is an ancient borough (k), and every custom must be alleged to be in facto and not in fieri (/). However, there are exceptions to this rule arising out of the nature of the custom alleged. Thus a custom may be alleged that every freeman may take an apprentice, &c. (m). So that every citizen may devise in mortmain (n). So that every person having served a seven years' apprenticeship, and having become a freeman of any trade, may use any other trade within the corporate limits (o). But, probably, it is better to plead a custom of this nature thus, that if any person or persons hath or have a messuage or house in the said city, near, adjacent, or contiguous and adjoining to another messuage or house of another person, and the windows or lights of the messuage first aforesaid look over the said other messuage, &c, although such mes- suage first aforesaid, and the windows thereof, be and were ancient, yet such other person, being the owner of such other ancient messuage, by and according to the custom of the said city, from time whereof, &c, used and approved, well and lawfully may, might, and hath and have used, at his and their will and pleasure, by building, to exalt or erect his or their house, &c, to such height as the said owner or owners shall please, against and opposite to the said lights and windows, &c, unless there be or hath been some writing, instrument, or record of an agreement or restriction to the contrary thereof, &c. ( p). Customs in borough courts, in contradiction to the established rules of practice, seem mostly, though not always, to be bad on that ground. Thus, where in an action in the court of Salop, the defendant was essoigned, and had day per essoign, and the plaintiff' had the same day, (/i) Story v. Atkins, 2 Ld. Raym. 1432; (o) R. v. Bagshaw, Cro. Car.347. Uontier's case, 4 Leon. 105. (;)) The Saltere' Company v. Jay, 3 Q. B. (i) 3 Salk. 113, pi. 10; Clearywalk v. 109. The above is an abbreviated form of Constable, Cro. Eliz. 110; Bi own v. Foster, statingthe custom of Londonrespectingaucient Cro. Eliz. 392. lights, now abrogated, in all cases where the (k) Withers v. Wodden, 1 Keb. 846. access of light lias been enjoyed for twenty (/) Protector v. Kingston, Styl. 480. years without interruption, by 2 & 3 Will. 4» (m) Windhursl v. (Jibbes.T. Raym. 4. c. 71, s. 3 ; S. C. There was a similar cus- ( n) Yearb. 21 Ldw. 4, fol. 28 ; Cro. Car. torn at York ; Bland v. Moseley, cited 9 Hep. 347. 58. 33S ( l STOMS AND PRESCRIPTIONS. on which the defendant, being demanded, did not appear, et kabuit diem per default secundum consuetudinem villa- pntdict* given him by the court to such a day, on which the parties appeared and judgment was given against the defendant per nihil dicit ; it was held that the custom was altogether bad, for the defendant had made discontinuance and was therefore out of court, and after that no day could be given him (y). If, however, the judgment of the borough court had been given an n rentier, the discontinuance would have been aided by the Statute of Jeofails of Hen. 8, which extends to inferior courts, and is to be favourably construed to give a remedy (r). If a court in a borough is held by letters-patent, a custom time out of mind of such a court cannot be alleged is). If it be held by immemorial custom, then in error on a judgment in such court stating the custom, &c.,itis not com- petent to the party to assign for error that there is no such custom ; for such assignment is directly contrary to the record (0- ^ e nia )' observe that a discontinuance is never aided by the appearance of par- ties, though it is otherwise of a miscontinuance (?/). There is one case in which error may be assigned on a record of a judgment in a borough court, contrary to the record, viz. where the judge is only judge de facto, being disabled to sit as judge, strictly speaking, for want of compliance with some statutory requirement (x). Still it was held that a custom to take out capias without summons previously issued might be good ( y). But that could only be the case where the customs of the borough or city are confirmed by parliament (2). Upon writ of error of a judgment in a borough court, it has been said the Court of Queen's Bench is to take notice of the particular laws and customs of the court where the judgment was given ; though it was held that on habeas cor- pus the inferior jurisdiction must, in their return, set forth the particular law or custom whereby they justify the commitment, otherwise the court above is not to take notice of them (a). A custom to bring dower by plaint is bad, except in London and Oxford, where customs to that effect have been confirmed by parliament (b). Except in London, a custom for the mayor to take recognizances would formerly have been held bad (c), but now, as by the Municipal Corporations Act every mayor (. Collin- Smith v. Watson, 7 Vin. Abr. 192. son, 6 Mod. 60, emit. (i) Belbin v. Butt, 2 M. & W. 422; (n) Green v. St. Katharine's Dock Corn- Roche v. Champain, 1 Exch. 11, 12 ; vid. pany, 19 L. J. (N. S.) Q. B. 53. 2 15. & P. 446. (o) Case of the Hamburgh Company, 1 (k) Anon., 1 Ventr. 330 ; Jones v. Shiel, 3 Mod. 212 ; S. C. Freem. 207. In this par- M. & W. 433; Arden v. Connell, 5 B. & A. ticular case of foreign attachment the custom 885; 2 Wms. Saund. 107a, note (ft) ; 7 Yin. would apply, it is conceived, though the cor- Abr. 289, pi. 58 ; Yearb. 42 Edw. 3, fol. 25, poration were not domiciled within the city. 26 ; Cro. Jac. 415 ; 5 Dowl. 403 ; 7 Dowl. (p) Anon., 2 Show. 373. Z2 340 CUSTOMS AND PRESCRIPTIONS. foreign attachment is not a proceeding against the person, but against the goods, of the debtor (n), and, therefore, the objection that a capias does not lie against a corporation seems not admissible, especially as it had been held, as we before observed (r), that trespass might be brought against a corporation, though there capias is part of the process ; and, besides, there is the consideration, that by 1 & :.' Vict. c. 110, arrest on mesne process is abolished in all cases where the plaintiff used to sue out a writ for that express purpose. (q) Daj «. l'aupierre, 18 L. J. (N. S.) (r) Vid. sup. p. 278. Q. B. 272 ; vid. 5 Taunt. 852. ( 341 ) MUNICIPAL CORPORATIONS. We now proceed to the subject of Municipal Corporations, the law relative to which depends very much, though not exclusively, on the provisions of the late acts, and some decisions of the courts, in expla- nation thereof. The rest of the law affecting this description of corpo- rations affects them in common with other corporations, and will be found principally in the foregoing pages, where the general principles of the law of corporations have been discussed. On the 9th of September, a.d. 1835, " An Act to provide for the Regulation of Municipal Corporations in England and Wales" received the royal assent. This important statute, the principal object of which seems to have been to reduce all the municipal corporations in England and W T aIes to an uniform model, having been modified and altered by subsequent enactments, we shall, instead of setting forth the whole of it, including those parts which are no longer applicable, endeavour to present at once a correct view of the law as it stands at present, after all the variations which have been introduced into the scheme and policy of the Municipal Corporations Act by the subsequent statutes. The first section of that act {s) is as follows : — " Whereas divers bodies corporate at sundry times have been constituted within the cities, towns, and boroughs (t) of England and Wales, to the intent that the same might for ever be and remain well and quietly governed ; and it is expedient that the charters by which the said bodies corporate are constituted should be altered in the manner hereinafter mentioned ; be it therefore enacted, by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that so much of all laws, statutes, and usages (u), and so much of all royal and other charters (x), grants, and letters-patent, now in force relating to the several boroughs named in the schedules (A.) and (B.) to this act annexed, or to the inhabitants thereof, or to the several bodies or reputed bodies corporate named in the said schedules, or any of them, as are inconsistent with or contrary to the provisions of this act, shall be and the same are hereby repealed and annulled." The («) 5& 5 Will. 4, c. 76, s. 1. Chester v. Goodwin, Carier, 118. Hamlet, (0 As to the meaning of borough, com- Dyer, 142, B., note. City, county of city, pare Co. Litt. 109 a, wilh Mad. Firm. Burg. suburbs, liberties, &cc, vid. Index, p. 2; Fortesc. De Laud. cap. 24, and the (it) Vid. sup. p. 322. note on this chapter in the English trans- (.r) This is a legislative recognition of the lation, a. n. 1775; etvid. Du Cange, Gloss. principle that corporate privileges might sprint in voce Villa; Coin. Dig. Burrough, A. Mean- from other than royal charters, ing of town, 2 Exch. 725; Mayor of Col- 3 ! - MUNICIPAL CORPORATIONS. result of this enactment is to sweep away so much of all usages, customs, charters, grants, and local and other acts of parliament, as are contrary to or even inconsistent with the enactments we are ahout to survey ; but it also seems to confirm so much of such charters, whether royal or otherwise, and so much of such grants, whether royal or otherwise, as are not in the above predicament as respects the boroughs mentioned in the schedules to the act ( ij). for the purpose of uniformity, the Muni- cipal Corporations Act carefully provides for the name of each muni- cipal corporation under the new system, thus (s. 6): — "And be it enacted, that after the first election of councillors under this act in any borough, the body or reputed body corporate, named in the said sche- dules in connexion with such borough, shall take and bear the name of the mayor, aldermen, and burgesses of such borough, and by that name shall have perpetual succession, and shall be capable in law, by the Council hereinafter mentioned of such borough, to do and suffer all acts which now lawfully they and their successors respectively may do and sutler by any name or title of incorporation; and the mayor of each of the said boroughs shall be capable in law to do and suffer all acts which the chief officer of such borough may now lawfully do and suffer, so far as the same respectively are not altered or annulled by the provi- sions of this act." On this enactment, it is necessary to observe, that the courts have fully settled, that although the name of the corporation be changed, as in many cases it is, by the operation of this section, yet the effect of the statute is not to create a new corporation in any case, but merely to continue the old corporation, so that all the rights, claims, franchises, privileges, prescriptions, and customs, as well as all the debts, liabilities, and duties of the corporation, as it stood on the day the statute passed, remain and inhere in the remodelled corporation, so far as they are not contrary to, or inconsistent with, the provisions of the act (z). There never was for a moment any interruption in the identity of the remodelled corporations with those named in the sche- dules to the act. Now inasmuch as since the above enactment, the corporations mentioned in the schedules can only sue and be sued, accept and grant, by their proper statutory name, it is obviously a most important object to find the true statutory name in every case of a corporation within the statute. The result of the decisions is this : — In all boroughs within the statute, i. e. mentioned in the schedules (A.) and (B.)> the proper style of the corporation is " Mayor, Aldermen, and Burgesses of the Borough of ." In all cities within the statute, the proper style is " Mayor, Aldermen, and Citizens of the City of "(a). (y) Vid. these schedules, Index, in ooc. Hospital v. Norton, 11 M. & W. 928. Hut \u. Gen. ' Wilson, 9 Sim. 3<» , ]>er the new borought are not the same exactly as in, J., in Mayor, i>:c, of J.udlow i. the old ones; iid. inf. p. 346, note (k). Taylor, 7 C. & P. 637; Att.-Gen. v. K provision, the metes and bounds of every such borough and county shall include the whole of the liberties ( f) of Mich borough or county, by land and by water, as the same now are or are taken to be. " The effect of this was to give to the boroughs mentioned in the first sections of the Schedules (A.) and (B.) the parliamentary election boundaries for municipal purposes, and to continue to the boroughs mentioned in the second sections of those schedules the boundaries they had before the act for the same purposes. But the last para- graph of the proviso, by operating to include within the borough the liberties of it, had the effect of annexing certain large tracts of land 1\ ring beyond the limits of the towns, which the legislature had never intended should be brought within the boroughs for municipal pur- poses ; consequently it became necessary to repeal the obnoxious clause, which was done thus (g): — " Whereas by the provisions of an act passed in the last session of parliament, intituled An Act to pro- ride for the Regulation of Municipal Corporations in England and Wales, the boundaries of certain boroughs named in the Schedules (A.) and (B.) to the said act annexed were made to include all the liberties of such boroughs, and large tracts of land beyond the limits of the towns, and which ought not to be included therein ; be it therefore enacted, cS:c., that so much of the said act for regulating corporations as provides that the metes and bounds of every borough and county named in the said act shall include the whole of the liberties of such borough and county by land and by water, is hereby repealed ; and that notwithstanding any thing in the said act contained, no part of any county, or of the liberties of any borough, town or city named in the first sections of the Schedules (A.) and (B.), &c, which before the passing of the said act was not part of such borough, town or city, or within the parliamentary boundary of such borough, town or city, shall be taken to be within the metes and bounds of any such borough, town or city, or within the county of such borough, town or city, or to be within the jurisdiction of the justices of such borough, town or city, Meaning of liberty, Lever v. Iln-ier, cincts locally situated within the limits of the 2 Mod. 47; Mayor. &c, of London v. corporate authority, but exempt from its juris- Gatford, 2 Mod 39,41; linker c. .lolmson, diction, usually originating either in ecclesi- llutt. 106; priwii Jurie the town and liber- .-i-tical privileges, or as having been the site of ire the same, p r Bridgmau, C. J. f Car- the castle of the lord of the borough; 1 ter, 122; > id. Att-Geo. v. Mayor, ic, of Munic. Corpor Commiss. Kep. 31; vid. ester, Finch. R. 19 Ricard, 1 Merew. & St. Hist. Bors [ndex, "Castle;" Keb. 626. ka to distinction between liberties Tbomas*B< Eliz. 137; Madox.Firm. and Buborba, Jones v. Walker, Cowp. 624; Burg. p. 14 ; Co. Entr. 528, A.; Anon., 4 Inst '.255; I Rol. Abr 567; Dyer, 279, B. pi. 10. vid. Carter, 115; 1 B. 4 Ad. 100; 2 K (g) 6 & 7 Will. 4, c. 103, s. 1, ^ Royal H.i. The latter part of the section met the Assent 20th August, 1836,). inconvenience, that frequently there were pre- MUNICIPAL CORPORATIONS. 345 or county of a borough, town or city, and that no part of any county, or of the liberties of any borough, town or city, named in the second sections of the said Schedules (A.) and (B.), and which was not part of such borough, town or city, before the passing of an act passed in the third year of his majesty, intituled An Act to settle and describe the Divisions of Counties, and the Limits of Cities and Boroughs in Eng- land and Wales, in so far as respects the Election of Members to serve in Parliament (h), shall, for the purposes of the said act passed in the last session of parliament, be taken to be within the metes and bounds of any such borough, town or city, or within the county of such borough, town or city, or to be within the jurisdiction of the justices of such borough, town or city, or county of a borough, town or city, but every such part, until parliament shall otherwise direct, shall be taken to be within and to be subject to the same jurisdiction as the county, riding, parts or divisions of a county, other than a county of a borough, town or city wherein such part is situated, or with which it has the longest common boundary ; provided also, that all the provisions of the said act for regulating corporations concerning the liability of the rate- payers of any place or precinct which, under the provisions of this act, shall not be included within any such borough, town or city, or county of a borough, town or city, to any debt to which the rate- payers of such borough, town or city, or county of a borough, town or city, were liable to contribute, before the passing of the said act for regulating corporations, shall be applicable to such place or precinct as if the same had not been included within the metes and bounds of such borough, town or city, under the provisions of the said act for regulating corporations ; provided also, that no election of any mayor, alderman, councillor, auditor, or assessor, heretofore made, or any other proceeding whatsoever in any such borough, town or city, since the 25th day of December last(i), shall be liable to be questioned after the passing of this act, by reason that any such part of any county, or the liberties of any borough, town or city, may or may not have been taken to be part of such borough, town or city, under the provisions of the said act." The result is this therefore : As regards the boroughs, cities, counties (h) 2 & 3 Will. 4, c. 64. Where the purposes; 2 Q. B. 643. style of a borough in Schedule (A) of ihe As to evidence of jurisdiction of a county Municipal Corporations Act was given as of a city, Rogers v. Wood, 2 B. &c Ad. 245 ; mayor, aldermen and burgesses of Stamford, R. v. Antrobus, 2 A. & E. 738. in the county of Lincoln, and in Schedule ( O) Evidence of general reputation is admissible of the stat. 2 6c 3 Will. 4, c. 64, the same as to the boundaries of a town, but not of borough was classed as in the county of Lin- houses having stood in a particular spot ; Ire- coln, it was held not to prove that the whole land v. Powell, Peake, Evid. 13, 5th edit. ; borough was in that county, nor to operate to per Williams, J., 2 A. & E. 795. transfer any part of it from Northamptonshire When compensation jury under a railway ( in which county a part of it lies) to Lincoln- act is to be taken from the county of the city, shire ; Reg. v. Mitchell. 2 Q.B. 636. That In re Cooling, 19 L.J. (N.S.) Q. B 25; 8 act has no effect to alter the jurisdiction over Viet. c. 18, ss. 39, 50. any part of a county added by it to a borough ; (i) i. e. a. d. 1835. its operation is expressly restricted to other 3K> Ml tnCIPAL CORPORATIONS. of boroughs, and counties of cities, mentioned in the first sections of Schedules (A.) and (B.) respectively, no part of any county, or of the liberties of any of these places, which was not, before the passing of the Municipal Corporations Act, either part of such place, or within the parliamentary boundary of it, shall be taken to be within the metes and bound- of any Buch place. As regards the boroughs named in the second sections of the said Schedules (A.) and (B.) respectively, no part of any county, or of the liberties of any of these places which was not part of such place before the passing of the Parliamentary Boundaries Act(/<), shall be taken to be within the metes and bounds of such place, or within the county of such place. Hence the limits of the counties of such places mentioned in these sections as are counties of towns, or counties of cities of them- selves, are identified for municipal purposes with the limits of sucli tow us or cities. Various points in the law of counties of cities and counties of towns will require to be stated at some length, in order fully to comprehend the bearing of the above enactment ; but we shall postpone the discussion of that subject until we have stated a subse- quent enactment relating to detached places, which completes, with the addition of some decisions which appear to be in point to illustrate it, the subject of boundaries of municipal corporations. The Municipal Corporations Act, in section 8, proceeds thus : — " And be it enacted, that every place and precinct which shall be in- cluded within the metes and bounds of any borough as hereinbefore provided, and none others, shall be part of such borough, and in those boroughs which are counties of themselves shall be part of such county, and of none other (I) ; and in every case in which the metes and bounds (k) Passed July, a. d. 1832 Where a cor- the parish of Clifton was included in the poraiion had prescribed to have common for county of the city of Bristol, which is named all their freemen inhabiting within the borough in the first section of Schedule (A) of the anil paying scot and lot, &c, and by the Municipal Corporations Act; held, in 1836, Municipal Corporations Act, s. 7, the ancient that the Gloucestershire justices (wit Inn which borough was enlarged by the addition of a county the parish of Chiton was situate before contiguous parish, they can prescribe in such the passing of the first-mentioned act) had no terms no longer, but the right must be alleged longer power to make an order for diverting a to be in them for all the freemen residing footway in the parish, for that it was become within the limits of the ancient borough, the part of the county of the city of Bristol, and Municipal I Act not having made therefore within the jurisdiction oftneju •.he new boroughs the same as the old ones for of Bristol and not of those of Gloucestershire ; all purposes; Beadswortb i. rTorkington, 1 It. v. Justices of Gloucestershire, 4 A. & E. Q.B.79I. And where a right of common 689. Before the act a parish was wholly alleged in an action on tin- case by a within the jurisdiction of the justices of a in, for disturbance of common, held, on borough which had separate quarter sessions a plea denying the right, that the variance was and four justices, but no non-intromittant fatal, though it was proved that tli<- plaintiff, clause in the charter, though part only of the in fact, inhabited within the ancient municipal parish was within the borough, and pari only hunt-; B.C. 1 Q. B. 791. As to the light of was included within the new boundary of the voting since the Boundaries Act, s. 'M , in borough as settled by the act. The oven detached portions or districts belonging, n. Inhabitants of Bridgwater, 10 A. & E. the venue in an indictment for perjury com- 711, although the borough had seven justices mitted in the hall was well laid in the county (vid. 1 Geo. 4, c. 36,) at the time of the at large; R. v. Gough, Dougl. 760; vid. 3 appeal. B. & A. 87. In that case the charter creat- (m) As to liability of borough increased ing the city a county of itself expressly re- by addition of a district containing a bridge, served power to the king's justices to enter the to the maintenance of the bridge, vid. sup. vill and hold a.-sizes, a* they bad been accus- P- 283. tomed to do previously, and the perjury took (") R. v. Filler, 7 C. & Pa. 337; further place at the trial of a county cause. But any s. 109, inf. p. 352. It had been held, pre- offence committed in the hall during the as- ■ j I s . MINK IP \1. CORPORATIONS. turbing tlic plaintiff in taking the profits of the office of judge in the sheriffs' court in London, which is a county of itself, on a suggestion that the office was grantable by the mayor and aldermen, it was prayed that the venire might issue into the next county; but Hale, C. J., re- fused to award it. because it did not appear by necessary collation from the record that the title of the mayor and aldermen to fill the office would come in question (o). We now proceed to state some points in the law respecting counties of cities and counties of town-, which it will be necessary to be ac- quainted with in order fully to apprehend the law respecting sheriffs of Biich counties, and for other purposes connected with the general subject of corporations. It was early held to be unquestionable that any town or city might be constituted a county of itself by royal charter, and thereby exempted from the jurisdiction of the sherilf of the county within which such city or town was locally situate, provided a sheriff or sheriffs of such county of a city, or county of a town, were constituted at the same time, so that the execution and. administration of justice might be provided for as effectually as before the erection into a separate county of the city or town(/;); and an act of parliament was not thought to be necessary, nor was it doubted that the crown by letters-patent could enlarge the boundaries of a county of a city or town (rj), though, on the other hand, the practice seems to have been to proceed by way of act of parliament, where it was desired to disunite a portion of it from a county of a city or town, and restore it as part of the county at large (r). It was also laid down that the bounds of the city, and the county of a city, are generally the same (s); and subsequent authorities are to the same effect {t), though the city of A. will not be intended, it is said, to be the same thing as A. in an assignment of perjury in an indictment (u). With respect to voting for members of parliament for counties of cities and towns, it may be worth while observing that 3 Geo. 3, c. 24, is now sizes for the county, unconnected with the city of Gloucester, Poph. 17 ; Chester, 4 Inst, execution of the commission for the county, 215; liristol, K.r. Haythorne,5 B. & A. 410; mu-t have been tried in the city, and by a Com. Dig. County, A. ; vid. charter of Edw, jury from thence ; Dougl.764; 20 \ 'in. Abr. 3, making Bristol a county of itself, Vearb. 316,317. 47 Edw. 3, fol. 26, pi. 74 j rep. p. 343, n. (a). (0)Hardr.3ll; trid'.in/ra. Jury, Sheriffs; (tra. Sir.i. 418; Carth. 448. So there is no ob- 177; vid. an instance of this being done by jection to inhabitants ol the county of a city lien. 6, Mad, Firm. Burg. p. 293. being jurymen on the trial of a yim warranto (r) Vid. 1 Timberland's Debates of the information against one who claimed to be House of Lords, p. 52, a bill for disuniting alderman; R. i. Biggins, 3Salk.8l . v . C. 1 certain hundreds from the county of the city Veotr. 366; vid. 38 Geo. 3, c. 52, s. I ; 5 & of Gloucester, and restoring them to be part 6 Will. 4, c. 7. Gough, Dougl. 760. and committed within the borough, 4 & 5 \\ ill. (s) 1 Kol. Abr. 803, pi. 6 ; rid. Mayor, 4, c. 27, s. 1 . which seems to be undisturbed &c, of Coventry i . Lytball, 10 M. -\ W. 77.5. b\ the Municipal Corporations Act, thot (t) Greene. Cubit, 2 Keb. 637; psrTwia- the rest of the statute may perhaps be repealed den, J., 2 Keb. 705. by ss. I, 107, of the Municipal Corporations (u) R. v. Stone, 1 Show. 335 ; J'rem. P.C. Dickens. Q. Se«s. 168, 6ih ed. 143; vid. 1 T. It. 69. ( p) Milton's case, 4 Rep. 33 ; case of the MUNICIPAL CORPORATIONS. 349 repealed (v), and persons personating voters of any description for bo- roughs are made liable as for a misdemeanor (a*). The reader will find most of the law on the subject of voting in such corporations more fully indicated hereafter (y). As to the question whether the courts ought to take judicial notice of a county of a city, or a county of a town : It has been laid down generally, and without qualification, that the courts will take such notice (2) ; but there are authorities to the contrary effect(a); the former opinion seems, however, to be much the weightier; and it is settled that the city of London is judicially noticed as a county of itself (i). If, therefore, in a case where the venue is local, it is laid in any other county, and by the body of the declaration the thing de- clared on appears to have been done, or to have taken place, in the city of London, that discrepancy will be ground of demurrer. The courts also notice the alterations made in the boundaries of coun- ties of this kind by statute (c), but do not notice particular parts within such counties (d) any more than they notice particular towns within counties at large (e). But it seems they will notice that there is no such person as " the mayor of the city of Lincoln, in the county of Lincoln," and will quash a mandamus for being so directed, the proper style being " the mayor of the city of Lincoln, in the county of the city of Lin- coln"(/). With respect to trials in counties of towns, the law stands thus : By a statute of Geo. 3 it was enacted as follows {g) : " Whereas there at present exists in the counties of cities and towns corporate, within this kingdom, an exclusive right that all causes and offences which arise within their particular limits should be tried by a jury of persons re- siding within the limits of the county of such city or town corporate, which ancient privilege, intended for other and good purposes, has in many instances been found by experience not to conduce to the end of justice ; and whereas it will tend to the more effectual administration of justice in certain cases if actions, indictments, and other proceed- ings, the causes of which arise within the counties of cities and towns corporate, were tried in the next adjoining counties: In order, there- to) 6 & 7 Vict. c. 18, s. 72. button, 7 M. & Gra. 13 ; Brune v. Thomp- (1) S. 83. son, 2 Q. 13. 789. (y) Vid. infra. (/) R. v . Mayor, &c, of Lincoln, 12 (s) Per cur., Yearb. 34 Hen. 6, fol.50, B.; Mod. 190; S. C. Ld. Raym. 1238. Rippon v. Dawson, 7 Dowl.247 ; Gibbons v. (g) 38 Geo. 3, c. 52, s. 1. The converse Roberts, Salk. 266; vid. 7 M. & Gra. 13; had also been held in one case, viz., that in- 21 Vin. Abr. 117, pi. 26; 20 Vin. Abr.316; 2 diclments for felonies, done in the county at Show. 286; Mayor, &c, of Berwick v. Shanks, large, might be taken in the county of the cily ; 3 Bing. 461 ; 3 & 4 Will. 4. c. 99, s. 7. vid. Anders. R. 292, pi. 3. The exclusive (u) B. v. Holland, 2 Kelynge, 221. jurisdiction in boroughs was mainly founded (6) 1 \ in Abr. 35, pi. 2. on the old franchise or liberty of retorna bre- (c) Rippon v. Dawson, 5 Bing. N. C. 206. warn, Merew. & S. Hist. Bor. 1724, which it (d) Sheriffs of Gloucester's case, Cro.Eliz. has been expressly decided did not become 264. extinct by coming into the king's hands; Keil. (e) R. v. Creep, Comb. 460 ; Thornedike R. 72, pi. 16, cited 1 Ventr. 402, 407. v. Turpington, March, 125; Gadsby v. War- 350 MUNICIPAL CORPORATIONS. fore, to remedy this mischief for the future, be it enacted by the king's most excellent majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same, that from and after the passing of this act, in every action, whether the same be transitory or local, which shall be prosecuted or depending in any of his majesty's courts of record at Westminster, and in every indictment removed into his majesty's Court of King's Bench by writ of certiorari, and in every information hied by his majesty's attorney or solicitor-general, or by the leave of the Court of Kings Bench, and in all cases where any person or persons shall plead to or traverse any of the facts contained in the return to any writ of mandamus, if the venue in such action, indictment, or information, be laid in any county of any city or town corporate, within that part of Great Britain called England, or if such writ of man- damus be directed to any person or persons, body politic and corporate, that it shall and may be lawful for the court in which such action, indict- ment, information, or other proceeding, shall be depending, at the prayer and instance of any prosecutor or plaintiff, or of any defendant, to direct the issue or issues joined in such action, indictment, information, or pro- ceeding, to be tried by a jury of the county next adjoining to the county of such city or town corporate, and to award proper writs of venire (n) and distringas accordingly, if the said court shall think it fit and proper so to do. And (i) be it further enacted, by the authority aforesaid, that it shall and may be lawful for any prosecutor or prosecutors to prefer his, her, or their bill or bills of indictment (k), for any offence or of- fences committed or charged to be committed within the county of any city or town corporate, to the jury of the county next adjoining to the county of such city or town corporate, sworn and charged to inquire for the king for the body of such adjoining county at any sessions of oyer and terminer or general gaol delivery, and that every such bill of in- dictment found to be a true bill by such jury shall be valid and effectual in law as if the same had been found to be a true bill by any jury sworn (h) N. B. 7 Geo. 4, c. 64, s. 20, cures a being entirely in the county of Northampton, wrong venue, but not a venire into a wrong but part of it being part of the borough of county, Reg. u. Mitchell, 2 Q. 1'.. 636; and Stamford, and the rest of the borough being in roefa ease the judgment must he arre&ted, in the county of Lincoln, and the indictment as the trial will be without jurisdiction, id., being removed by certiorari, a venire was ibid. awarded into the county of Lincoln. The 38 Geo. 3, c. 52, s. 2 ; xid. Anders. offence was committed in that part of the pa- 292, pi. 3. ri-h which is within the borough and within (k) Where an indictment, found at the 500 yards of the county of Lincoln: Held, borough <|uarter sessions, commenced thus: that lor the trial to be good in either county, Borough ol Stamford to wit. The juror-, ficc., the offence must be laid and tried in the same ■ drat I . M., late of the parish of St county ; that the venue as laid was in North- Martin, Stamford Baron, in the county of ampton.shire ; that the trial was without juris- Northatnpton, and within the bonngh of diction, and that the judgment must be ar- Htamford, and J. li., late of the same parish, rested; for that, though 7 Geo. 4, c. 64, ii, etc, with force and atms, in the |>a- s. 20, cures a wrong venue, it does not cure a n-li aforesaid, in and upon one W. ('., fitc., wrong unite; Rtg. v. Mitchell, 2 Q. B. 030. did make an assault, &c. The said parish, MUNICIPAL CORPORATIONS. 3.51 and charged to inquire for the king for the body of the county of such city or town corporate." Then follow other provisions, by which (I) indictments found by a grand jury of the county of a city or town, or inquisitions taken before the coroner, may be ordered before the court of oyer, &c, for the said county, to be filed with the proper officer of the next adjoining county, and the defendants removed to the gaol thereof, &c. ; the judges (m) of the Court of King's Bench, &c, may, on application of the prosecutor, cause persons in custody for offences committed within the county of any city or town corporate to be removed into the custody of the sheriff* of the next ajoining county for trial, and coroners direct to the court of oyer, &c, for such adjoining county, inquisitions, &c. ; recognisances (k) entered into for prosecution of persons for offences committed within the county of any city or town corporate, &c, are to be forfeited, if the par- ties, on notice of intention to prefer indictments in the next adjoining county do not appear, &c, but(o) not to be estreated until the next following sessions for the adjoining count}-. Persons (p), before whom such recognisances shall be entered into, are to return them to the next court of oyer and terminer for the next adjoining county, upon notice of intention to prosecute at such sessions for any offence committed within the county of any city or town, and after such notice bills shall not be preferred, &c, at any sessions for the county of the city or town; justices (rj) of oyer and terminer for the adjoining county may order the expenses of prosecution, &c, to be paid as if the indictment had been tried in the court of the county of the city or town, and(r) for the purposes of the act Yorkshire is next adjoining county to Kingston- upon-Hull, and Northumberland is next to Newcastle-upon-Tyne ; and then by the Municipal Corporations Act (s) it is added, that Northum- berland shall be considered next adjoining county to Berwick-upon- Tweed, Gloucestershire to Bristol, Cheshire to Chester, and Devonshire to Exeter. Then the first mentioned act(t) went on to provide thus : " Provided always, that nothing in this act shall extend, or be construed to ex- tend, to the cities of London and Westminster, or the borough of South- wark, or the city or county of the city of Bristol, or the city or county of the city of Chester, or to the criminal jurisdiction of the city of Exeter and county of the same city, unless in cases of indictment re- moved into his majesty's Court of King's Bench by writ of certiorari from any court of criminal jurisdiction within the said city or county of the said city of Exeter." But this clause, so far as relates to Bristol, (0 S. 3. («,) S. 8. (m) S. 4. (r) S. 9. («) S. 5. (s) 5 & 6 Will. 4, c. 76, s. 109, Scliecl. C. (")S. 6. (() 38 Geo. 3, c. 52, s. 10. (P) S.7. o~)2 MUNICIPAL CORPORATIONS. Chester and Exeter, is repealed (u). And it is further enacted (x\ '• That the town of Berwick-upon-Tweed shall be taken to be a county of a town corporate, and to be within all the provisions of the act of the 3S Geo. 3, and that after the 1st day of May, a. d. 1836, and until his majesty shall be pleased to direct a commission of oyer and ter- miner and gaol delivery to be executed within any county of a city or town corporate, all bills of indictment for offences committed within such county of a city or town corporate shall be preferred, and all pro- Tings upon such indictments shall be had, as in the last-mentioned act is authorized to be done." That is, prosecutors, upon entering into a recognizance in 401. for paying the extra costs attending the prose- cution out of the county of the city, may prefer indictments for offences committed therein to the jury of the county next adjoining, &c. The result therefore is, that the enactments of the 38 Geo. 3 are applicable to every county of city, &c , except London, Westminster and Southwark, and also to the newly constituted county of a town of Berwick-upon-Tweed. Consequently, in actions depending in any of the courts of Westminster, where the venue is laid in the county of a city or town corporate in England, the court, on application of either party, may award the venire, &c, to the sheriff of the county next adjoining, except in the cases of London, Westminster, and Southwark (y), and it seems to be immaterial for this purpose, whether the next adjoining county be a county palatine or not (z). Again, if the venue in any in- dictment removed into the Queen's Bench by certiorari be laid in a county of a town, that court may order the trial to be by a jury of the county next adjoining, and may award writ of venire, Sec, accordingly, without subjecting the prosecutor to the above recognizance (a). With respect to the place in which justices of assize, &c , may hold courts, it is now the law, that such courts may be holden for a county at large, and also for a county of a city or town, in any court house or other building, whether in or belonging to such county at large, or in or belonging to such county of a city or town, indiscriminately ; and also they are empowered to adjourn the court from one to the other as they see fit, provided that they shall not be authorized to hold any such court in any place more than three miles distant from the county, city, or town, for which such court is holden (b). (u) 5 & 6 Will. 4, c. 76, s. 109. The ex- ant inhabiting a county of a city, &c. Rip- ceplion is complete, and extendi as well to pon v. Dawson, 7 Dowl. 247. As to chang- CM il as to criminal proceeding ; (die t. Gane, in? venue in action against sheriffs of 'London, 3D. ,\ L369; md 1 Wils. 77. balk. 670. (;) r, & 6 Will. 4, c. 76, s. 109. Vid. as (l) R. r. St. Mary, 7 T. R. 735. to costs, 38 Geo. 3. c. 52, s. 12; It. v. Not- (a) 38 Geo. 3, c 52, s. 1 ; 4 East, 208 ; tingham, l East, 208. .';. p. Goff, R. fit Kv. C. ('. R. 17!) ; K. .. (y) Col d. Gane, 8 D. fie L. 369 ; Doe d. .M« lion, id. 144, that the offence must be laid '. i\c., ol lirisiol v. , 1 Wilt. 77. to have been committed in the county of the Ai to changing the venue to a county of a city. r town, Hird v. Morse, 7 Taunt. 385. (ft) 2 & 3 Vict. c. 72, s. 1. directing arril of rammoni to a defend- sheriffs. 353 Sheriffs. It will be the most convenient course to proceed immediately to the subject of corporate sheriffs, owing to its immediate connexion with the subject of counties of cities and towns. By the joint operation of the Municipal Corporations Act, and the Municipal Administration of Justice Act (c), it is enacted, that in the city of Oxford, in the town of Berwick-upon-Tweed, and in the coun- ties of the cities of Bristol, Canterbury, Chester (d), Coventry, Exeter, Gloucester, Lichfield, Lincoln, Norwich, Worcester and York ; and in the counties of the towns of Caermarthen, Haverfordwest, Kingston- upon-Hull, Newcastle-upon-Tyne, Nottingham, Poole, and Southamp- ton, the council shall, on the 9th day of November, at the quarterly meeting in every year, appoint a fit person to execute the office of sheriff, with the like duties and powers (e) as the sheriff, or the person filling the office of sheriff, in the said towns and counties respectively would have had if this act (i. e. the Municipal Corporations Act) had not passed ; and every sheriff so appointed shall hold his office until the appointment of his successor. A criminal information will be granted against the party elected, if he refuses to take upon him the office, unless he have paid a fine, which it has been agreed should stand in lieu of service (/). And it is no answer that he was, when elected, in a state of disability, legal or otherwise, to serve the office, if the disability were such as he might himself, and it was his duty to, have removed (g). A subsequent statute enacted (h), that the office of sheriff shall not be deemed an office of profit, disqualifying from being chosen mayor or councillor, or creating any disqualification for any other office named in the Municipal Corporations Act ; and with respect to this, as to all other municipal offices, a person duly elected will not in general be heard to disable himself (i) ; and besides, as regards the office of sheriff (c) 6 & 7 Will. 4, c. 105, s. 5, amending tains the power to execute process of the su- the 61st section of the former act. The stat. perior courts within the city; Grainger v. 1 Rich. 2, c. 2, prohibiting any one, who has Taunton, 3 Bing. N. C. 64 ; S. C. 3 Scott, been sheriff of a county for a year, to be, 393. A corporation having retorna brevium within three years next ensuing, made sheriff may sue the sheriff of the county at large in again, does not apply to sheriffs of counties an action on the case, if he enter and serve of cities and towns ; R. v. Haythorne, 5 B. process ; Vill. of Derby v. Foxley, 1 Rol. R. 6c C. 429, note. 118. Before the passing of the act, the (d) As to the duty of sheriff of county of mayor and bailiffs had the execution of all city of Chester, in executing criminals for process in Berwick-upon-Tweed; rid. 3 Bing. offences committed in the county at large, 461 ; 2 Burr. 847. These corporate sheriffs b &i 6 Will. 4, c. 1. are no longer required to take the declaration (e) Where there was no sheriff before the in 9 Geo. 4, c. 17, since 5 & 6 Will. 4, c. 28 ; passing of the Municipal Corporations Act, but they must take the oaths mentioned 3 which was the case in some of the above Geo. 1, c. 15,3.21; W r ats. Sheriffs, 17,2nd places, ex. gra., Oxford, where the bailiffs edit. had the execution of wiils from the city courts, (/) R. v. Wodrow, 2 T. R. 731; R. v. but the sheriff of Oxfordshire executed the Grosvenor, 1 Wils. 18. process of the superior courts, the effect of (g) Att.-Gen. v. Read, 2 Mod. 299 ; S. C. the above enactments is merely to invest the Trem. P. C. 559. city sheriff with the powers of the bailiffs in (h) 5 & 6 Vict. c. 104, s. 8. this respect ; the sheriff of Oxfordshire re- (i) R. v. Larwood, Carth. 306 ; S. C. A A 354 Ml NICIPAL CORPORATIONS. in particular, it is laid down, that no man can be exempt except by act of parliament or letters-patent (J)] for by ancient prerogative the crown has a natural interest in the person ofe?ery subject for him to serve in such functions as he may be appointed to (A). Tin' office being an annual one, and necessary in these counties of cities ami towns, a mamdamm to proceed to election will issue, if the corporation delay to elect at the proper time(/). An attorney is privi- leged from serving the office (m), because his privilege is that of the court to which he belongs, and not personal to himself. In case the sheriff is interested in the cause, the venire and other writs must be directed to the coroner, and always must whenever the sheriff is an improper person to direct them to («) ; if the coroner be also a party to the suit, then the direction must be to persons appointed by the court, and nominated by the master, called elisors (o). There- fore, where the sheriff and coroner were both members of the corpora- tion, in a suit by the corporation, the court directed the process to two persons as elisors (o). But where in trespass the defendant justified under the custom of foreign bought and foreign sold, within the city of York, and issue was taken on the custom ; upon a suggestion that the sheriff and coroners of York were citizens, and that there were no freeholders within the county of the city except citizens, to try the issue ; if that were admitted, or not denied, a venire facias was to be awarded to the next county (p). So if the coroner is defendant, in a cause in which the sheriff has not returned a writ of ca. sa., and it is sought to attack the latter, the writ of attachment must issue to eli- sors (q). But generally, when the sheriff is in contempt, the writ of attachment issues to the coroner (if he is a proper person), and not to the mayor ; if the offender have gone out of office, the writ is directed to the new sheriff (r). Where there are two sheriffs, but not where two persons, as in Mid- dlesex, make one officer, if one be interested, the venire may be di- rected to the other (s) ; but if one dies after the writ issues, the other 167; rid. turn. Harrison v. Evans, 3 to judgments of the corporation courts, but it Bro. P. C. 465 As to exception in case of an does to judgments of the superior courts exe- attorney, i id. tup. cuted by sheriffs of cities, Sec, and therefore (j) .Moor. R. Ill : Pelham's case, Savil. the latier are entitled in such cases to the 43 ; Karl of Shrewsbury's case, 9 Rep. 46 ; same poundage as sheriffs of counties at K. i. Larwood, Salk. 16b; vid. Garland u. large; Lyster v. Bromley Cro. Car. 287; Carlisle, 2 C.& M. 77 ; 8. C. 40.fi! F. 701. Danes v. Griffiths, 7 Dowl. 204. (k) Knowles v. Luce, Moor. 109; vid. 1 (pj Com. Dig. Action, N. 11 ; Dyer, I !. Raym. 32. 279, 13. pi. 10 ; lienl. 23, cited Waggoner v. /) It. v Warrington, Silk. 152. As to (r) Anon., 2 Ventr. 216. As to effect ol challenging the ;irr;iv I" cause sin riff 1- re- one being interested where the two persons lated to tome one of the jurors, Kynaston v. make one officer, Corrigall 0. London and Mayor, ,\c, of Shrewsbury, Amir. 85, 104; Blackwall Railway Company, 5 M. & Gra. irporator, 1" M. & W . 274. 219. (0) Mayor, \c, of Norwich 1. Gill, 1 (s) Rich «>. Player, 2 Show. 286 ; Letsorn Dowl. 246, where see the form of a writ in v. Buckley, 5 M. fit Selw. 144; 1 id. Thomp- ■ I 1 ni. 4 Dowl. 6. As to pound- son v. Farrcn, 1 Scott, N. R. 275. age, the stat. 29 Ehz. c. 4, does not extend THE COUNCIL. 355 • cannot execute it, his power being suspended till the appointment of the successor (t). The courts took notice how many sheriffs there were in a county of a city or town (?/), and if one died, they could award no process to the other, for his power is suspended (x). But they did not take notice that the sheriff is an officer of the corporation ; and therefore, in an action by the corporation, on a motion to change the venue, there must have been an affidavit of the fact(?/). The sheriff has an exclusive right in general to execute all process within the corporate limits ; but if the sheriff of the county execute a writ within such limits, though it is wrong, for which the corporation might have an action, yet the execution is not illegal or void (z). The Council. In every borough to which it relates, the Municipal Corporations Act establishes a council, who are to transact the business of the cor- poration, by enacting (a), " That in every borough shall be elected, at the time and manner hereinafter mentioned, one fit person, who shall be and be called ' the mayor' of such borough ; and a certain number of fit persons, who shall be and be called ' aldermen' of such borough ; and a certain number of other fit persons, who shall be and be called ' the councillors' of such borough ; and such mayor, aldermen, and councillors, for the time being, shall be and be called ' the council' of such borough ; and the number of persons so to be elected councillors of such borough shall be the number of persons in that behalf men- tioned in conjunction with the name of such borough in the Schedules (A.) and (B.) to this act annexed ; and the number of persons so to be elected aldermen shall be one-third of the number of persons so to be elected councillors ; and on the 9th day of November in this present year, the councillors first to be elected under the provisions of this act, and on the 9th day of November, in the year 1838, and in every third succeeding year, the council for the time being of every borough shall elect from the councillors, or from the persons qualified to be councillors, (O Auditor Curie's case, 11 Rep. 4 b. ought to be directed to the corporation by (u, Per Saunders, C. J., 2 Show. 289; their corporate name, though the thing re- Lamb v. Wiseman, Hob. 70. Where there quired in it to be done is by the statute to be are two sheriffs, and an escape is made, and done by the council ; R. v. Mayor, &c, of one of them dies, vid. Bennion v. Watson, Oxford, 6 A. & E. 349 ; R. 9. Mayor, &c, Cro. Kliz. 625. As to the form of declara- of Gloucester, 3 Bulstr. 190; S. C. 1 Rol. Hon, Jones v. Pope, 1 Saund. 34; venue, R. 409 ; R. v. Mayor, &c, of Abingdon, Salk. Griffith v. Walker, 1 Wils. 336. When the 699 ; R. v. Mayor, &c, of Hertford, Salk. action do^s not lie, 5 & 6 Vict. c. 98, s. 31. 701 ; R. v. Mayor, &c, of Norwich, Andr. (i) R. o. Warrington, 4 Mod. 65. 180; R. v. Mayor, &c, of Hull, 1 Barnard. ( v ) Mayor, &c, of Bristol v. Proctor, K. B. 83 ; Reg. v. Ledgard, 1 Q. B. 620, 1 Wils. 298 ; Lush's Pract. 352. 621 ; Mayor, &c, of Sandwich v. Reg., 10 (») Per Hale, C. B., in Atkyns v. Clare, Q. B. 574, 579 ; vid. 6 Q. B. 441. And it 1 ventr. 406. seems, that, on disobedience to a peremptory (a) 5 & 6 Will. 4, c. 76, s. 25. The cor- mandamus, the attachment ought to be against poration acts by the agency of the council ; such of the council as refuse obedience ; per and therefore the acts of the council are the Lord Denman, C. J., 1 Q. B. 619; Bull, acts of the corporation. Hence a mandamus N. P. 201, 202. A A 9 oo(J MUNICIPAL CORPORATIONS. the aldermen of such borough, or so many as shall be needed to supply the places of those who shall then go out of office, according to the provisions hereinafter contained ; and that upon the 9th day of No- vember, in the year 1838, and in every third succeeding year, one-half of the number appointed as aforesaid to be the whole number of the aldermen of every borough shall go out of office ; and the councillors, immediately after the first election of aldermen, shall appoint who shall be the aldermen who shall go out of office in the year 1838, and there- after those who >hall go out of office shall always be those who have been aldermen for the longest time without re-election: provided always, that any alderman so going out of office may be forthwith re- elected, if then qualified as herein provided: provided also, that the alderman so going out of office shall not be entitled to vote in the election of a new alderman." The meaning of immediately here seems to be merely that the councillors who elected the first aldermen should also appoint who were first to go out of office (b) ; it does not seem to be considered that an omission to appoint for a week or a month would vitiate the appointment, provided the same councillors were in office who elected the first aldermen. "And(c) be it enacted, that the mayor and aldermen shall, during their respective offices, continue to be members of the council of the borough, notwithstand- ing anything hereinafter contained as to councillors going out of office at the end of three years." " And (d) be it enacted, that upon the 1st day of November, 1836, and in every succeeding year, one-third part of the number appointed as aforesaid to be the whole number of the councillors of every borough shall go out of office, and in the said year 1836, those who shall go out of office shall be the council- lors who were elected under the provisions of this act by the smallest numbers of votes in this present year, and in the next year, 1837, who shall go out of office shall be the councillors who were elected under the provisions of this act by the next smallest numbers of votes in this present year; the majority of the whole council always determining, when the votes for any such persons shall have been equal, who shall be the person so to go out of office ; and thereafter those who shall so go out of office shall always be the councillors who have been for the longest time in office without re-election: provided always, that any councillor so going out of office shall be capable of being forthwith re- elected, if then qualified, as herein provided." " And(e) be it enacted, that upon the 1st day of November in every year, the burgesses so en- rolled in every borough shall assemble and elect, from the persons qua- lified to be councillors, the councillors of such borough, or such part of them as shall be needed to supply the places of those who shall then (b) Reg. v. Alderson, 1 Q. B. 883. Fid. (d) Sect. 31. The expenses of showing as to meming of" immediately," 8 M. & W. cause against rule fora mandamus, moved for '281, 287 ; Cas. Temp. HanK 111; 7 .M.& by a disappointed candidate at an election of '■r.i 193, 494 : 12 A. fit B. <>B3 ; 11 A.Sx. councillors, are not payable out of the bo- E. 1 19 ; U Q. B. 688 ; 2 Leon. 77. rough fund ; Reg. v. Leeds, 4 Q. B. 790. (c) Sect. 26. («) Sect. 30. THE COUNCIL. 357 go out of office : provided nevertheless, that whenever any day by this act appointed for any purpose shall in any year happen on a Sunday, in every such case the business so appointed to be done shall take place on the Monday following." Such being the constitution of the council, we shall postpone enter- ing upon questions connected with the election and qualification of councillors until we come to the attributes and liabilities of councillors, when the whole subject may be discussed with greater advantage. At present, we proceed to state the functions of the council. By an enactment already stated( f), it is provided that the corpora- tion, by the council, shall do and suffer all acts which such body cor- porate, and its successors, lawfully might have done and suffered, &c. The effect of this is to make the council the ministers or agents of the corporation; but it is to be remarked that the council are neither the corporation, nor are they in themselves a corporation (g). With respect to the acts of the body, it is enacted (h), " that all acts whatsoever, authorized or required by virtue of this act to be done by the council of such borough, and all questions of adjournment, or others, that may come before such council, may be done and decided by the majority of the members of the council, who shall be present (i) at any meeting held in pursuance of this act, the whole number present at such meeting not being less than one-third part of the number of the whole council ; and at all such meetings the mayor, if present, shall preside; and the mayor, or, in the absence of the mayor, such alderman, or in the ab- sence of all the aldermen, such councillor, as the members of the coun- cil then assembled shall choose to be the chairman of that meeting, shall have a second or casting vote in all cases of equality of votes ; and minutes of the proceedings of all such meetings shall be drawn up and fairly entered into a book to be kept for that purpose, and shall be signed by the mayor, alderman, or councillor presiding at such meet- ing (A), and the said minutes shall be open to the inspection of any burgess (/), at all reasonable times, on payment of a fee of one shilling: provided always, that, previous to any meeting of the council held by virtue of this act, a notice of the time and place of such intended meet- ing shall be given three clear days at least before such meeting, by fix- ing the said notice on or near the door of the town hall of the (/) Vid. sup., p. 342, sect. 6. (k) The minutes ought to be entered at (g) Per Patteson, J., in Reg. v. Paramore, the meeting, and signed by the person pre- 10 A. & E. 286; Keg. v. York, 2 Q. B. 850; siding at the meeting, and not after it sepa- per Coleridge, J., in Mayor, &&, of Lichfield rates; R. v. Mayor, &c, of Evesham, 8 A. & v. Simpson, 8 Q. B. 73 ; per Patteson, J., 5 E. 266. An entry in the minute-book is not Q. B. 963. But in some senses it is the go- evidence of an appointment, or any other act verning body in the corporation, vid. diet, per or thing that ought to be done under the Ld. Denman, C. J., 1 Q. B. 619. common seal; Reg. v. Mayor, &c, of Stam- (h ) Sect. 69. ford, 6 Q. B. 433. (i) By 5 & 6 Vict. c. 104, s. 2, it is made (0 By 7 Will. 4 & 1 Vict. c. 78, s. 22, unlawful for any member of the council of any burgess is at liberty, at all seasonable any borough to vote or to take part in the times, to make any copy of, or take any ex- discussion of any matter be/ore the council, tract from, the book above-mentioned, and in which such member shall, directly or in- also to make any copy or take any extract directly, by himself or his partner or partners, from any order in council of such borough have any pecuniary interest. for the payment of any money. 358 MUNICIPAL CORPORATIONS. borougli ; and such notice shall be signed by the mayor, who shall have power to call a meeting of the council as often as he shall think proper; and in case the mayor shall refuse to call any such meeting, after a requisition for that purpose, signed by five members of the council at the least, shall have been presented to him, it shall be lawful for the said live members to call a meeting of the council, by giving such notice as is hereinbefore required in that behalf, such notice to be signed bj the said members instead of the mayor, and stating therein the business proposed to be transacted at such meeting; and in every case a summons to attend the council, specifying the business proposed to be transacted at such meeting, signed by the town clerk, shall be left at the usual place of abode of every member of the coun- cil, or at the premises in respect of which he is enrolled a burgess, three clear days at least before such meeting; and no business shall be transacted at such meeting other than is specified in the notice: provided always, that there shall be in every borough four quarterly meetings in every year, at which the council shall meet for the trans- action of general business, and no notice shall need to be given of the business to be transacted on such quarterly days; and the said quar- terly meetings shall be holden at noon on the 9th day of November, or if the 9th day of November shall fall on a Sunday, on the day following, and at such hour on such other three days before the 1st day of November then next following, as the council, at the quarterly meeting in November, shall decide; and the first business transacted at the quarterly meeting in November shall be the election of mayor." As will be observed, the power of adjournment is supposed to belong to the council, as is obvious from the mode in which it is spoken of in the above section ; and in fact, as has been before observed, the power of adjournment appears to be at common law incident to every meeting of a corporate body; and though the council is not the cor- poration, yet it represents the corporation, and, as appears, is the only representative of it, and the only mode or channel through which it can act, there being no provision made in the Municipal Corporations Act for aggregate meetings of the whole corporation, and the continu- ing any such aggregate meeting as might in any borough have been customarily held under the old system, would be invalid as a usage or custom inconsistent with the act; and the same of a meeting of such kind held under a charter, for that part of the charter which en- joined or provided for such aggregate meeting would be inconsistent with the act, and therefore abolished. Hence it seems a just conclusion, that the meetings of the council arc the corporate meetings, and there* fore that the power of adjournment is incident (m). With respect to the question of notice of the meetings of the council, it is to be observed that no notice is necessary for a quarterly meeting; (m) Vid. Reg. p. Grimshaw, 10 Q. B. 755. THE COUNCIL. 359 nor for an adjourned quarterly meeting, if the adjourned meeting is to do no other business than was before the quarterly meeting in the first instance (n). But if there be an intention to transact other than the ordinary business of a quarterly meeting at such meeting, there ought to be notice of such intention (o). The council may delegate their functions. " And(^) be it enacted, that it shall be lawful for the council of any borough to appoint out of their own body, from time to time, such and so many committees, cither of a general or special nature, and consisting of such number of persons as they may think fit, for any purposes which in the dis- cretion of such council would be better regulated and managed by means of such committees : provided always, that the acts of every such committee shall be submitted to the council for their approval." "And (r/) everything provided under any local act of parliament to be done exclusively by any particular or limited number, class or descrip- tion of the members of any body corporate, named in the said sche- dules A. and B., the continuance of which is not inconsistent with the provisions of the said act, and also every thing provided in any such local acts to be done by the justices, or by some particular class or description of members of such body corporate, being justices, at some court of general or quarter sessions assembled, and which does not relate to the business of a court of criminal or civil judicature, shall and may be done by the council at some quarterly meeting of the council, or by some committee of the council, or any three or more of such committee, to be appointed at a quarterly meeting of the council : provided also, that every thing herein authorized to be done at a quarterly meeting of the council may be done at a meeting of the council to be specially summoned for that purpose as soon as may be after the passing of this act." As to the question of what is meant by the words " the business of a court of criminal or civil judicature," we find it has been held that the regulation of the fees of a court of requests comes within their meaning, and that the council had no authority to interfere in it(r). This power of appointing committees, however, does not enable the council to throw upon those committees any part of its responsibility to the general body of the corporation, because, as it will have been observed, the acts of these committees must be sanctioned by the council itself before they can be valid. But neither is the council re- sponsible to third parties for acts done under the authority of the Mu- nicipal Corporations Act, and within the competence of the council to (n) Reg. v. Thomas, 8 A. &E. 183; Reg. (q) 6 & 7 Will. 4, c. 105, s. 8. O. Grimshaw, 10 Q. B. 755; R. v. Harris, 1 (r) Palmer v. Powell, 6 M. & W. 627. B. & Ad. 936. Appointment of a borough gaoler does not (o) Per Coleridge, J., in Reg. v. Grim- belong to the council as being matter relating shaw, 10 Q. B. 755. What no longer part of to the business of a court of criminal jurisdic- the business of a quarterly meeting, 5 & 6 tion ; Reg. v. Lancaster, 16 Law J. (N. S.) Vict. c. 98, s. 17. Mag. Gas. 139. (p) Sect. 70. 360 MUNICIPAL CORPORATIONS. perform, as representing the corporation ; for it is the corporation that is acting by and through the medium of the council; and therefore for every act which the council do, provided they are authorized to do it, either by the Municipal Corporations Act, or by the provisions of the charters of the corporations (not being inconsistent or contrary to that act), or by the general rules of law as applicable to corporations; it is the corporation and not the council, who are responsible, and who must be sued, if a remedy is sought by the party injured by such act. And the same is the case of a nonfeasance; and wherever the council have neglected to do anything that it was their duty as representa- tives of the corporation to have done, the corporation is responsible (s). The council, it will be seen, from the mode of its construction, is in fact a very fluctuating body, and it has no attribute of the corporate character belonging to itself as a body (unless the statutory one of being bound by its majority), and therefore it has no perpetual identity; and therefore orders for payment of money made by one council may be brought up to the Court of Queen's Bench by certiorari, and quashed at the instance of a council subsequently elected (t) ; or (as it seems to follow) at the instance of the same council who passed the order. However, this only applies to orders for the payment of money ; which are expressly excepted (u) out of the general enactment of the Municipal Corporations Act, prohibiting orders made in pursuance of it to be removed by certiorari (x) ; and where such an order for payment of money is brought up by certiorari and quashed, the rule absolute must be drawn up naming such party as the court shall decide ought to be charged with costs as prosecutor, otherwise an attachment against such party cannot be obtained (y). By the practice of the crown office, when orders are brought up by certiorari, the parties seeking to enforce the orders are considered as prosecutors, and the parties against whom they will be enforced, if the motion fails, and at whose instance the certiorari issued, as defendants (z). The costs ought to be made the subject of a separate motion (a). Where, however, the council do any act which, either generally or in the particular circumstances of the case, they have no authority as representing the corporation to do, then, such of them as concur in the act (and those who stay away from the meeting at which the act is resolved upon are in strictness to be con- sidered as voting with the majority who decide for such act) are per- sonally responsible to the party injured (b). The council are further to appoint trustees to represent the corpo- ration according to the following enactment; the cases to which it (i ) 1 Q. 15. 623. &c, of Warwick, 8 Q. B. 926. (d i:. .. i . Mayor, &c. of Bridgi wat< r, 10 (i) 5 ,V 6 Will. 4, c 76, s. 132. \ Be E. -• 3, 285 . oid. per Lord Denman, \ E. 433; EL v. l'.enn, 6 T. R. 198 ; vid. I and pay a sum named, vid. what held 7 T. R. '275. ufficient publication of the rate, (0 Municipal Corporations Act, s. 1. : | Q. r. 141. ("O s. 90. (i) 6 & 7 Will. 4, C. 103,8.4. (n> Strictly speaking, this term is incorrect; (/c) 7 Will. 4 ic 1 Vict. c. 78,s. 31. Where for all fines lor offences belong to the crown, the local act empowers justices to issue adis- 3 Sulk. 2G5. Also to every fine, imprison- a lor payment of raise due under mmi is incident, 8 Rep. 59 b J March, It. 186. i re must be a summons to the party be- The technical term is pain to denote the pe- fore they can grant it ; EL 9. Mayor, fltc., of cuniary mulct assessed by a bye-law. ord,3 A. & E. 425; rainier i. Liver- (o) S. 0). THE COUNCIL. 363 Here, therefore, arises one of those occasions of perplexity in the con- struction of this statute, which are not infrequent, and which have been observed upon judicially as follows: — "The court is(p) well aware of the difficulty of putting a construction, on this act of parlia- ment, which is free from doubt and perplexity, arising from an endea- vour to frame by one act of parliament one universal charter for all municipal corporations, and to combine with that object all the prin- ciples of corporation law that are to be found in a long series of judicial decisions." However, the apparent contradiction may be got rid of by construing the act to mean, that the council shall have the whole power of the corporation to make bye-laws affixing pains or penalties of any amount, to be agreed upon amongst themselves, in all cases except bye- laws for the suppression, &c, of nuisances, where the amount must not exceed 5/., and except bye-laws assessing the sums to be paid for re- fusing the above-mentioned offices, where the amount is not to exceed 50/. and 100/. respectively. No judicial decision has as yet occurred to throw any light on the subject. The actual amount of the fine need not be specified in the bye-law ; it will be sufficiently certain if it states the limits between which the sum is to range, subject to the discretion of the mayor or of the council (q). There are other very important provisions to the following effect : — I. " That no such bye-law shall be made unless at least two-thirds of the whole number of the council shall be present" (r). II. " That no such bye-law shall be of any force until the expiration of forty days after the same, or a copy thereof, shall have been sent, sealed with the seal of the said borough, to one of his majesty's princi- pal secretaries of state, and shall have been affixed on the outer door of the town hall, or in some other public place within such borough (s) ; and if at any time within the said period of forty days, his majesty, with the advice of his privy council, shall disallow the same bye-law, or any part thereof, such bye-law, or the part thereof disallowed, shall not come into operation." III. "That it shall and may be lawful for his majesty, if he shall think fit, at any time within the said period of forty days, to enlarge the time within which such bye-law, if disallowed, shall not come into force ; and no such bye-law shall in that case come into force until after the expi- ration of such enlarged time." The first observation arises on the provision regulating the proportion of the council who must be present at a meeting for making a bye-law ; for it is remarkable that two-thirds are only required to be present ; the bye-law may be passed by any majority of these two-thirds ; but it would (p) 9 M. & W. 195. lowance by the secretary of state, will not (q) Piper v. Chappell, 14 M. &W. 624; make good a bye-law originally defective; overruling Wood v. Searl, J. Bridgm. 141. Stationers' Company v. Salisbury, Comb.221 ; (') S. 90. vid. 11 Rep. 54 b ; Quo Warranto Cas. Att.- (s) The fixing on the town hall, and al- Gen., arg. p. 44 3 6 Q. B. 383. 361- MUNICIPAL CORPORATIONS. seem that every one of these must take part in the proceedings, and vote one way or the other, in order to make a valid bye-law; for it would seem impossible to consider that the legislature meant, by requiring the presence of two-thirds, that that proportion should be merely present, ami that it did nut signify whether they all voted or not(t). The object of the act serins to have been to secure for every bye-law the sanction of so large a proportion of the council as would give it unquestionable weight and authority with the community at large, and that object would only be colourably and delusively carried out, if councillors might be present in order to make up the number, but need not take part in the proceedings. A question arises as to the proper mode of enforcing these bye-laws ; for, though it is enacted («), " that all the provisions hereinafter con- tained relative to offences against this act, punishable upon summary conviction, shall be taken to apply to all offences committed in breach of any bye-law or regulation made by virtue of this act ;" yet it is neces- sary to ascertain, if possible, whether these summary remedies are alter- native to the old common law remedy of debt or assumpsit for the amount of the fine or penalty imposed by the bye-law ; and it is submitted, that they are not so, but that the corporation, for the execution of all bye- laws made under this act, can only resort to the remedies given by the act ; for where an act of parliament incorporated a body of persons, and gave them power to make bye-laws, and to punish the breach of them by fine or amerciament, it was held that the corporation were precluded by that enactment from inflicting any other punishment (.r) ; and so it would seem, that, for breaches of bye-laws made by virtue of this act, the proper and peculiar remedies are those which are pointed out by the act as applicable for enforcing them. It appears to be probable that the legislature, in giving these sum- mary remedies, meant to discourage litigation with respect to the statu- tory bye-laws, the penalty in which must needs (by the statute) be in most cases a sum not exceeding 51., and a mode of trying the validity of such bye-laws is equally open upon an action of trespass for the dis- tress or otherwise, as it would be upon the action of debt or assumpsit for the amount of the penalty (y). The above section is remarkable, as implying, apparently, that there may be bye-laws made, not by virtue of this act, i. e., not having refer- ence to any of the objects pointed out in the section giving the council power to make bye-laws ; but as the act does not appear to contemplate meetings of the aggregate body of the corporation as such for any pur- pose, and as the power of making bye-laws is, at common law, incident . Munday, Sayer, 181, 185; made by the council. THE COUNCIL. 365 prima facie to them, they only could make other bye-laws than those which the council are empowered to make, except where the charter vests the power otherwise, and in that case it would probably appear that such provision of the charter was inconsistent with this act. On the whole, therefore, no practicable mode appears by which any bye- laws other than those which the council are empowered to make, could be legally framed, as the council are empowered to do all that the old corporations were legally competent to (z). The old bye-laws, it must be remembered, are to be enforced as they were before the act. The council of any borough is empowered to execute new securities for the repayment and satisfaction of any debt or obligation contracted by or on behalf of the body corporate before the passing of the Muni- cipal Corporations Act, and any money borrowed and applied by the council in or towards the satisfaction and discharge of any such pre- existing debt or obligation, shall be deemed to be a debt contracted before the passing of the said act (a), and the corporate property is made liable to all bond fide debts and contracts entered into or incurred be- fore the passing of the Municipal Corporations Act (Z>). Also the coun- cil is restrained from selling, mortgaging, or alienating the lands, tene- ments, or hereditaments, of the body corporate, or any part thereof, except in pursuance of some contract bond fide entered into by the old corporation on or before the 5th day of June, 1835, or of some resolu- tion duly entered in the corporation books on or before that day (c). But, with the approbation of the Lords of the Treasury, the council may make any disposition whatsoever of the real property of the corpora- tion (d) ; and since this last enactment, it seems that the approbation of the Lords of the Treasury would be necessary to enable municipal cor- porations to sell their real property, even in cases where all corporations are empowered absolutely so to do by former statutes, e. g., to the com- missioners of Greenwich Hospital (7 Geo. 4, c. 35); to justices for building lunatic asylums (9 Geo. 4, c. 40, s. 15); to the Government under fortification acts (43 Geo. 3, c. 55, and 44 Geo. 3, c. 95); for redemption of land-tax (42 Geo. 3, c. 116, s. 69); to trustees of turn- pike roads (7 Geo. 4, c. 76, s. 8); to commissioners of sewers (3 & 4 Will. 4, c. 22, s. 24); to the Commissioners of Woods and Forests (7 Geo. 4, c. 77, s. 9). And this is the more probable, as we find that in future it will not be competent for municipal corporations to sell lands for the purposes of public undertakings, without the consent of the Lords of the Treasury (e). The terms of the enactment of section 94, are as follow : (0 S. 6. &c„ of Gravesend, C. B. T. T. 1850. (a) 6 & 7 Wiil. 4, c. 104, s. 1, and 7 (b) lid. Houldsworth v. iMayor, &c„ of Will. 4 fie 1 Vict. c. 78, s. 28. This latter Dartmouth, 11 A. 6c E. 490. act does not sanction borrowing for any other (c) S. 94. purpose but to pay the debts of the old cor- (d) 6 & 7 Will. 4, c. 104, s. 2 ; inf. p. 367. poration;4Q. B. 893; Did. Pallistero. Mayor, (e) 8 Vict. c. 18, s. 15. oG() MUNICIPAL CORPORATIONS. " And (/) be it enacted, that it shall not be lawful for the council of any body corporate to be elected under this act to sell, mortgage, or alienate, the lands, tenements, or hereditaments, of the said body cor- porate, or any part thereof, except in pursuance of some covenant, con- tract, or agreement, bona fide made or entered into on or before the 5th day of June, ,\.i>. 1 835, by or on behalf of the body corporate of any borough, or of some resolution duly entered in the corporation books ach body corporate on or before the said 5th day of June, or to de- mise or li ept in pursuance of some covenant, contract, or agree- ment, bond fide made or entered into on or before the said 5th day of June, by or on behalf of such body corporate, on or before the said 5th day of June; or except in the cases hereinafter mentioned) any lands, tenements, or hereditaments, of such body corporate, or any part thereof, or to enter into any new covenant, contract, or agreement (except in the cases hereinafter mentioned) for demising or leasing any such lands, tenements, or hereditaments, or any part thereof, for any term exceeding thirty-one years from the time when such lease shall be made, or if made in pursuance of a previous agreement, then from the time when such agreement shall have been entered into ; and in every lease, which the said council is not hereby restrained from making, there shall (except in the cases hereinafter mentioned) (g) be reserved and made payable during the whole of the term thereby granted, such clear yearly rent as to the council shall appear reasonable, without taking any fine for the same : provided nevertheless, that in every case in which such council shall deem it expedient to sell and alienate, or to demise and lease for a longer term than thirty-one years, or upon different terms and con- ditions than those hereinbefore mentioned, any of the said lands, tene- ments, or hereditaments, it shall be lawful for such council to represent the circumstances to the Lords Commissioners of his Majesty's Treasury; and it shall be lawful for such council, with the approbation of the said Lords Commissioners, or any three of them, to sell, alienate, and demise, any of the lands, tenements, and hereditaments, of the said body corpo- rate, in such manner, and on such terms and conditions as shall have been approved by the said Lords Commissioners : provided always, that notice of the intention of the council to make such application as afore- said shall be fixed on the outer door of the town hall, or in some pub- lic and conspicuous place within the borough, one calendar month at least before such application, and a copy of the memorial intended to be sent to the said Lords Commissioners shall be kept in the Town Clerk's Office during such calendar month, and shall be freely open to the inspection of every burgess at all reasonable hours during the same." It has been contended, that the corporation would not be indictable for contravening this branch of the statute ; for to do so, would not be (/) S. 04. Astos. ''7. < Mayor, &C, (g) Ss. 94, 95. S. 96 empowers to de- of Arundel t. Holmes, 8 Dowl. 118. mise for seventy-five years, &c. the council. 3G7 a misdemeanor, or an offence of so public a nature as to be the subject of an indictment (A) ; but this seems questionable, since the decisions that the lands, &c, are held in trust for the benefit of the public of the borough. The power of disposition given above has been since extended thus : " And (i) be it enacted, that the power of disposition, given to the council of any body corporate, in the instances of demises for seventy-five years, authorized by the said act, shall extend to the demise or lease thereof, cither at a reserved rent or fine, or both, as the council shall think fit; ami the power of disposition by the said act over the lands, tenements, and hereditaments, of such body corporate, to be exercised with the approbation of the Lords Commissioners of his Majesty's Treasury, or any three of them, shall extend to the disposition of such lands, tene- ments, and hereditaments, with such approbation as aforesaid, whether by way of absolute sale, or by way of exchange, mortgage, or charge, demise, or lease, and to every other disposition of the same whatsoever, which shall be so approved of as aforesaid." It seems that the allowance of the Lords of the Treasury ought to be obtained before any expendi- ture is incurred by the corporation towards any disposition of the lands, &C. (/<) The council may have a salaried police magistrate, or magistrates, appointed for the borough, if they think fit, by passing a bye-law, fixing the amount of salary, and transmitting it to the secretary of state, who shall, if he think fit, appoint a barrister of not less than five years' standing, the salary to be paid quarterly out of the borough fund(/). The council must make a fresh application to the secretary of state on each vacancy, unless they are of opinion that the vacancy should not be filled up (m). The council of every borough, having a separate commission of the peace, must provide and furnish a suitable police office or offices for the purpose of transacting the business of the justices of the borough (n). The council in every borough must appoint and keep on foot a suffi- cient number of their own body, who, together with the mayor, are to be the watch committee of the borough (o), who are to order payment of salaries, compensations, rewards, &c, for services, ordinary and ex- traordinary, to the police constables of the borough, and other charges relating to the constabulary force, subject to the approbation of the council (/;). The enactment is as follows : " And be it enacted, that the council CO 4 Q- B - 773. &c. ; et vid. 11 & 12 Vict. c. 43, s. 33 ; and (1) 6&7 Will.4,c. 104, s. 2; vid. n.(g). every sitting or acting of his shall be deemed (k) Vid. Att.-Gen. v. Earl of Mansfield, a petty session of the peace. 12 & 13 Vict, c 2 Huss. 501. 18, s. 1. (/) S. 99. He may do alone whatever is (m) S. 99. authorized by 1 1 & 12 Vict. c. 42, to be done (n) S. 100, etvid. 12 & 13 Vict. c. 18. by one or more justices of the peace, vid. s. (o) S. 76. 29 of that act, and as to forms of warrants, (;>) S. 82. MUNICIPAL CORPORATION-. to be elected for any borough shall immediately after their first election, and so from time to time hereafter as they shall deem expedient, appoint, for such time as they may think proper, a sufficient number of their own body, who, together with the mayor of the borough for the time being, shall be and be called the watch committee for such borough, and all the powers hereinafter given to such committee may be executed by the majority of those who -hull be present at any meeting of such com- mittee, the whole number present at such committee being not less than three, and such watch committee shall, within three weeks after their first formation, and so from time to time thereafter as occasion shall require, appoint a sufficient number of fit men(. Goudge, Stra. 1213; per Lord Routledge, Dougl. 573; as to dissenting mi- Mansfield, C. J., 3 Burr. 1821 ; vid. R. i. lusters, 52 Geo. 3, c. 155, -. 9 Othi i i v- Wallis, 5 ft R. 375. Serving the office em prions, Com. Dig. Leet, M. 7 ; Harrison's gained a settlement at common law in the ',3986,3987; 5 Yin. Abr. 431,432. parish where the constable inhabited, Stra. who is a fit man generally, rid. note to 1014; because the tenure of the office was 1 ley's case, 8 Rep. 41 b; Com. Dig. then for a year prima facte ; but under the M. 7. The persons appointed inu>t Municipal Corporations Act, as the duration of have notice ; Com. Dig. Leet, M. 6. the office is discretionary in the watch com- I .. not corporate officers ; R-t. mittee.andnotin its nature annual, theserving Wallis, ', I . H. 375. But a mandamus will it does not gain a settlement, R. r. Middle- lie to the just IT them in if duly ap- witch, 3 A. & E. 156. pointed, Hawk. P. C. c. 10, s. 47 ; also to (u) R. v. Barnard, Salk. 502 ; Com. Dig. or discbarge, Bac. Abr. Mandamus, Leet, M. 6; R. t. Lone, Stra. 920. C. 1 ; Middlecott's case, Latch, It. 123, 2J 1 '. the council. 869 under this section, has all the privileges belonging to the office at com- mon law, and, therefore, when sued for an act done in the exercise of his general duty, on the plaintiff discontinuing, he would have been entitled to double costs (x), previously to a late act(y); but now he is, in such circumstances, entitled to such full and reasonable indemnity, as to all costs, charges and expenses incurred in and about the action, as shall be taxed by the proper officer in that behalf (z), and not merely to costs as between attorney and client under the 133rd section of the Municipal Corporations Act, which would, it seems, be all he would be entitled to if he were sued for anything done in pursuance of the act. By the common law a constable, when appointed, must take an oath (if required) to do his duty; and he may be indicted for refusing; but the indictment must show how he was appointed, and how the corporation has the power to appoint (a) ; and there appears to be no room to doubt that a constable appointed under this act might be indicted upon refusal to take the oath, as for neglecting and refusing to take upon him the office (b), It is material to remark, that a constable is not entitled to notice of action for anything done in pursuance of this act (c), nor to have the venue laid in the proper county, nor to plead the general issue and give the special matter in evidence; for the statute 21 Jac. 1, c. 12, only applies to a constable acting at common law (d). The further provisions respecting constables are as follow : " And(e) be it enacted, that the watch committee for any such borough as afore- said may from time to time frame such regulations as they shall deem expedient for preventing neglect or abuse, and for rendering such con- stables efficient in the discharge of their duties, and the said committee, or any two justices of the peace having jurisdiction within the borough, may at any time suspend or dismiss any constable whom they shall think negligent in the discharge of his duty, or otherwise unfit for the same, and when any man shall be so dismissed, or cease to belong to the said constabulary force, all powers vested in him as a constable by virtue of this act shall immediately cease, and no man so dismissed as aforesaid shall be re-appointed without the consent of two of the jus- tices of the peace having jurisdiction within the borough." The powers which may be exercised by the constable appointed under this act are compounded of the powers of a constable at common law and of the municipal powers given by the act, but the former are wholly dependent on his appointment to the latter (/), and a discharge from (i) 21 Jac. 1, c. 12, s. 5. 348 ; R. v. YVoodrow, 2 T. R. 731. (_y) Maberly i>. Titterton, 7 M.& W. 540. (b) R. v. Brain, 3 B. & Ad. 614 ; Craw- As to notice of action, 5 & 6 Vict.c. 97, s. 4. ley's case, Cro. Car. 567 ; Reg. v. Vincent, (i) 5&6 Vict. c. 97, s. 2. As toentitling 9 Car. & P. 91. to costs, Chit. Archb. Tract. 1117. 8th edit. ; (<•) Shatwell v. Hall, 10 M. & W. 526. 1 Dow). N. S. 212 ; 3 Dowl. 800. (d) 7 M. .\ \V. 542. (a ) Com. Dig. Leet, M. 6, 8 ; vid. R. v. (e) S. 77. A mandamus will lie to restore Rower, 1 B. & ('. 587. Or a criminal infor- or discharge; Bac. Abr. Mandamus, ('. 1. mation may be brought; Keene'scase, Freem. (/; Vid. 7 M. 6c W. 542, 543. B B ,']70 Ml NICIPAL CORPORATIONS. the office of borough constable necessarily, therefore, is a discharge from the powers of constable at common law; so that the man, after such discharge, has no more power or authority as regards the preserva- tion of the peace than any other individual. The punishment of constables for neglect of duty is thus provided for: " And (,7) be it enacted, that if any constable of any borough shall guilty of any neglect of duty, or of any disobedience of any lawful order, every such offender, being convicted thereof before any two jus- tier- of the peace, shall for every such offence be liable to be imprisoned for any time not exceeding ten days, or to be fined in any sum not ex- ling fort] -hillings, or to be dismissed from his office, as such justices shall in their discretion think meet." At common law a constable is subject to an indictment for neglect of duty ; for every officer neglecting a duty incumbent upon him, either by statute or common law, is, for his default, indictable (A), and it seems that the constables appointed under this act are indictable for default of duty, notwithstanding the summary method of punishment pointed out above; for the act does not constitute that to be an offence which was not an offence before, and, therefore, does not confine the remedy to the mode it points out, but merely gives the party the option of having recourse to the statutory remedy, instead of proceeding by way of indictment. At common law the office of constable may be served by deputy (i) ; but it does not appear that the Municipal Corporations Act contemplates any substitution in serving this office ; and, if so, it would seem that the provision of 1 W. <\: M. c. 18, s. 1, enabling dissenters to execute tiie common law office by deputy, does not apply to municipal consta- bles under this act. The power of imprisonment here given must be strictly pursued ; for, but for the statute, municipal corporations have no power to im- prison in any case, although, as has been observed, a great number of charters give the power of imprisonment (/<); and that the corporation had passed a bye-law inflicting imprisonment, to which bye-law the party had expressly assented, would make no difference, for such power of imprisonment is contrary to Magna Charta(/)> and a man cannot assent to his own imprisonment when it is not legally authorized (m). In London, however, a custom to imprison in certain cases has been (g) S. 80. It would seem that a constable (i) R.D.Clarke, 1 T. R. 689 ; Medhurst could nut be imprisoned for refusing to be i. Waite, 3 Burr. 1262 ; or even by a woman, sworn in, notwithstanding litis section, but 2 Hawk. P. C. c. 10, s. 36- tliai the onlv remed) ia by indictmenl ; Craw- (k) Vid. mi/>. pp. 84 — 86; 2 Burr. 847. i ro. Car. 567 ; R. v. Ilewson, 12 (I) Clarke's case. 5 Rep. 64 ; Langham's M,, ( j | case, March, 17!), 189. (/i) Reg.v.Wyat, Salk. 381 ; Croathi (m) Per Patteson, J., in Webb v. Taylor, case, Cro. Kliz- 654 ; Coleman's case, 2 Hoi. 1 Dowl. Ac L. 684 ; so Foster v. Jackson, Hob. I; ; I'l case, Venlr. 305 ; EL p. 61 ; Bull. N. P. 17; 2 East, 244; 8 Rep. ( larke, 5 B. & A. 665. As to form of in- 1 16, 1 17 ; 2 Exch. 656. dictment, H. v. Harper, 5 Mod. 96. THE COUNCIL. ot I held good; the customs there having frequently been confirmed by parliament (n), though elsewhere such custom is clearly bad (o). The duties of constables arc thus pointed out : — " And(;.») be it enacted, that it shall be lawful for any constable, during the time of his being on duty, to apprehend all idle and disorderly persons, whom he shall find disturbing the public peace, or whom he shall have just cause to suspect of intention to commit a felony, and to deliver any person so apprehended into the custody of the constable appointed under this act, who shall be in attendance at the nearest watch-house, in order that such person may be secured until he can be brought before a justice of the peace, to be dealt with according to law, or may give bail for his appearance before a justice of the peace, if the constable shall think fit to take bail, in the manner hereinafter mentioned" (as follows) : — " And (q) be it enacted, that where any person charged with any petty misdemeanor shall be brought, without the warrant of a justice of the peace, into the custody of any constable appointed under this act, during his attendance in the night time at any watch-house within any such borough as aforesaid, it shall be lawful for such constable, if he shall think fit, to take bail by recognisance, without any fee or reward from such person, conditioned that such person shall appear for examination within two days before a justice of the peace within the borough, at some time and place to be specified in the recognisance; and every recognisance so taken shall be of equal obligation on the parties enter- ing into the same, and liable to the same proceedings for the estreating thereof, as if the same had been taken before a justice of the peace ; and the constable shall enter in a book to be kept for that purpose in every watch-house the names, residence, and occupation of the party, and his surety or sureties, if any, entering into such recognisance, together with the condition thereof, and the sums respectively acknow- ledged, and shall lay the same before such justice as shall be present at the time and place when and where the party is required to appear, and if the party does not appear at the time and place required, or within one hour after, the justice shall cause a record of the recog- nisance to be drawn up, to be signed by the constable, and shall return the same to the next general or quarter sessions of the peace for the borough, or for the county in which such borough is situate, in those boroughs for which there shall be no separate general or quarter sessions of the peace, with a certificate at the back thereof, signed by such justice, that the party has not complied with the obligation therein contained, and the clerk of the peace shall make the like estreats and schedules of every such recognisance as of recognisances forfeited in the sessions of the peace ; and if the party not appearing shall apply («) R. v. Clerk, Com. R. 24. man, C. J., 5 Q. B. 870 ; et vid. inf. pp. (<0 Langham's case, March, 179, 189. 372—374. (/>) Sect. 78. As to defraying expenses (g) Sect. 79. arising out of these acts, vid. per Lord Den- B B 2 372 MUNICIPAL CORPORATIONS. by any person on his behalf to postpone the hearing of the charge against him, and the justice shall think tit to consent thereto, the justice shall be at liberty to enlarge the recognisance to such further time as he shall appoint, and when the matter shall be heard ami determined, either by the dismissal of the complaint, or by binding the party over to answer the matter thereof at the sessions or otherwise, the recog- nisance for the appearance of the party before a justice shall be dis- charged without ice or reward." By the Towns Improvement Clauses Act, every constable, authorized by a warrant of distress under it, must give his aid in executing the warrant, under penalty not exceeding 51. (r). The same is the case under the act for the Improvement of the Public Health (s). But there is no such clause in the Nuisances and Contagious Diseases Acts (t). Constables are thus protected in the performance of their duty: — " And (u) be it enacted, that if any person shall assault or resist any constable of any borough appointed under this act, in the execution of his duty, or shall aid or incite any person so to assault or resist, every such offender, being convicted thereof before any two justices of the peace, shall, for every such offence, forfeit and pay such sum, not ex- ceeding 51., as the said justices shall think meet : provided always, that nothing herein contained shall prevent any prosecution by way of indictment against any person so offending, but so as that such person shall not be prosecuted by indictment, and also proceeded against under this act for the same offence." Several important questions have arisen with respect to prosecutions supported or set on foot by corporations, for the protection of their constables acting under this act, it is " enacted (x), that the treasurer of every borough appointed under this act shall pay to the constables of such borough appointed under this act such salaries, wages, and allowances, and at such periods as the watch committee for such borough shall, subject to the approbation of the council, direct, and the council shall order to be paid also any extraordinary expenses (y) which such persons shall appear to have necessarily incurred in appre- hending offenders, and executing the orders of any justice of the peace having jurisdiction within such borough, such expenses having been first examined and approved by such justice; and the said treasurer (r) 10 & 1 1 Vict. c. 34, s. 192. kind are payable out of the borough fund, both (s) 11 & 12 Vict. c. 83, s. I'M. in corporations with separate quarter sessions (r) 9 & 10 Vict. c. 96, revived by 1 1 & and without; per Patteson, J., in Reg. v. 12 Vict. c. 123, amended by 12 & 13 Vict. Mayor, &C, of Gloucester, 13 Law J. (N.S.) 0. 111. Formerly the removal of nuisances Q. II. 236. Vid. sup. p. 371 , n. ( />). .forced by writ of mandamvt or prohi- (y) Semb. a mandumut would lie to com- lution (o the corporation, enjoining them to pel the reimbursement of these expenses to I . . \. 1 1. 185, I). ; the constables ; R. v. Hunt, Stra. 42, 93 j R. neb proceeding has long been obsolete, v. Krle, 2 Burr. 1197. What are not " ex- 15 East, 600, 601. traordinary expenses," per Patteson, J., 5 Q. <„) Sect Bl. n. 867. i^j ; Sect. 82. All legal expenses of this THE COUNCIL. 373 shall also pay such further sums as the watch committee shall, subject to the approbation of the council, award to any of the persons belong- ing to the said constabulary force, as a reward for extraordinary diligence or exertion, or as a compensation for wounds or severe injuries received in the performance of their duty, or as an allowance to such of them as shall be disabled by bodily injury received, or shall be worn out by length of service, and all other charges and expenses which the watch committee shall, subject to the approbation of the council, direct to be paid for the purposes of the constabulary force under this act." The award and direction by the watch committee must be a specific substantive award or direction ; a resolution of the watch committee, recommending to the favourable consideration of the council a memorial of a constable, praying to be allowed certain expenses connected with the execution of his statutory duties, is not an award or direction suffi- cient to justify the council in ordering the payment of such expenses out of the borough fund(z). The expenses here mentioned were incurred by two of the constables in prosecuting a person for an assault upon them in the execution of their duty as constables ; but the prosecution not having been insti- tuted at the instance of the corporation, in pursuance of a previous resolution of the council for that purpose, it seems that such expenses could not be charged upon or paid out of the borough fund (a). But there is little doubt that if the council had passed a previous resolution under the corporate seal ordering such prosecution, a subsequent order by the council for the payment of the expenses of such prosecution out of the borough fund would be valid, on the same grounds as an order for payment of expenses of prosecuting for an assault on the mayor in the execution of his office, such prosecution having been previously duly ordered by the council, is valid (b). At least it would be good if the prosecution had been instituted by the corporation under a proper resolution of the council, founded upon an award or direction of the watch committee ; although, it seems, that this mode would be some- what circuitous, and not called for by the expressions used in the last cited clause (c). But however this be, the general principle seems unquestionably settled, that where a duty is imposed on a body of per- sons, and where costs incidentally and necessarily arise out of proceed- ings instituted to call in question the propriety of acts done to enforce that duty, the body have necessarily a right to defray such expenses out of the public fund of which they have the superintendence and (s) Reg. v. Stamford, 4 Q. B. 900, note. penses of any watchman, constables, patrol or (a) Reg. v. Lichfield, 4 Q. B. 893. All police, for any place situated within such acts named in conjunction with the borough borough, are repealed by s. 84. As to the in schedule (E) to the act annexed, and all new watch rate, vid. infra, Borough Fund, acts made before the passing of this act, so and s. 92. far as relates to the appointment, regulation, (b) Reg. v. Lichfield, 4 Q. B. 893. powers and duties, or to the assessment or (c) Vid. per Coleridge, J., 5 Q. B. 482. collection of any rate to provide for the ex- ..,1 MUNICH \l. I ORPOF WIONS. management (J). And this principle is applicable to all public bodies having public duties to perform : and most of all to those which are entrusted with the duty of preserving order and peace, and of taking measure-; for the prevention of crime. With respect to the expenses incurred by constables in defending an indictment brought against them for acts done in the execution of their duties under the act, it has been held that the council have no power to make an order for the payment of such expenses in the first instance; the award or direction must be made by the watch committee, and, if approved by the council, becomes a valid order for the payment out of tin.' borough fund(e) of such expenses. It is to be observed that all prosecutions to be commenced against any person for any thing done in pursuance of this act shall be laid and tried in the county where the fact was committed (/), and shall be commenced within six calendar months after the fact committed, and not otherwise, and the same of actions (g). Therefore all actions and prosecutions against constables acting in pursuance of this act are subject to this rule; but it is different, as appears, when the act was done by the constable acting as at common law, and not acting merely as he is expressly empowered by this act to do. The fees of clerk to the justices of the borough, for business done in respect of persons apprehended by the police, and brought before the justices, or in respect of informations and other proceedings taken by and at the instance of the police, must be paid out of the borough fund (if they cannot be obtained from the defendants and culprits, who ought to pay them,) as expenses " necessarily incurred in carrying into effect the provisions" of the Municipal Corporations Act; and the court will grant a mandamus to enforce payment, and will make the rule absolute, although it be suggested that a retrospective rate might be necessary, leaving the corporation to state that fact, if it existed, and discuss its effect on a return (A). Besides the borough constables, or policemen, mentioned above, another description of peace officer is provided by the act, under the name of special constables. "And(«) be it enacted, that any two or more justices of the peace having jurisdiction within any borough, are hereby authorized and required, in the month of October in ever) year, to nominate and appoint, by precept in writing under their < '/ ) U. i. Inhabitants of Essex, 4 T. R. and then removed by certiorari, and the !; p. ( iramissionera of Sewers for venire awarded into the second count\ lower Hamlets, 1 B. & Ad. 239 ; ti>l- An - trial had there is without jurisdiction, and the ;. Vfayoi "i Norwich, 2 My. & <'. 4<)>>; judgment must be arrested, for though ~ I Houlds worth o. Mayor, &e., of Dartmouth, 4,0-64,8, 'JO, cures a wrong venue, it does 11 A. ,\ 1.. not cure a wrong venire, where the wi (t) Reg. o. Thompson, 5 Q. B. 477. I Mitchell, 2 Q. B. 636. 133. Where thi laid (g) Sect. 133. county in a part of a borough, thi ( h i Reg. v. Major, &c, of Glow' of which i- in aoother county, and tin: indict- Q. 15. 862. ad at the borough quarter sessions, (i) .Sect. 83. the council. 375 hands, so many as they shall think fit of the inhabitants of such borough (not legally exempt from serving the office of constable (/<),) to act as special constables within the said borough whensoever they shall be required by the warrant of any of the justices of the peace having jurisdiction within such borough so to act, and not otherwise. And every such warrant shall recite, that in the opinion of the justice granting the same, the ordinary police force of the borough is insuffi- cient at that time to maintain the peace of the borough ; and every person so appointed a special constable shall take the oath set forth in the act(/), &c, and shall have the powers and immunities, and be liable to the duties and penalties enacted by the said last-mentioned act, and every person so appointed a special constable shall receive out of the borough fund for every day during which he shall be called out to act as such, the sum of three shillings and sixpence and no more." But where a borough is contributory to the county rate, under sect. 13 of that statute, an order of the borough justices of the borough upon the treasurer of the county in which it is situate, for the payment of such expenses of special constables, may be made and is binding on the treasurer, when the special constables are appointed on an extra- ordinary occasion, under stat. 1 & 2 Will. 4, c. 41 (m). It is only special constables, appointed under the 76th section of the Municipal Corporations Act annually, to whom the borough fund is liable for their payment (»?)• Finally, the watch committee are required to transmit a report on the 1st day of January, 1st of April, 1st of July, and 1st of October, in every year, to one of the Secretaries of State, of the number of men ap- pointed to act as constables or policemen in such borough; and of the description of arms, accoutrements, and clothing, and other necessaries furnished to each man; and of the salaries, wages, and allowances pay- able to such constables or policemen; and of the number and situation of all station houses in such borough ; and also a copy of all rules, orders, and regulations which shall from time to time be made by such watch committee, or by the council of such borough, for the regulation and guidance of such constables or policemen (n). As to the watch rate, it is enacted (after providing (o), that imme- diately upon the appointment of constables, on the coming into opera- tion of the Municipal Corporations Act, the then provisions of local acts respecting watching, and the assessment and collection of watch rates, were to cease, &c), that in every case in which, before the 9th September, 1835, a rate might be levied in any borough for the pur- pose of watching, conjointly with any other purpose, nothing in the Municipal Corporations Act shall be construed to prevent the levying and collecting such rate for such other purpose solely, or to repeal the (k) Vid. sup. p. 368, n. (7). Mag. Cas. 32. (/) 1 & 2 Will. 4, c. 4 1 . ( n) Sect. 86. (m) Keg. 1. Hulton, 19 Luw J. (N. S.) (0) Sect. 84. 376 MUNICIPAL CORPORATION'S. powers given in any act, so far as the same relate to such other pur- pose, &c. (p); and then there is the farther provision (7), " that in every case in which, before the 9th September, 1835, any rate might be levied in any borough, or in any parish or place made part of any borough, under the provisions of the Municipal Corporations Act, for the purpose of watching solely by day or by night, or for the purpose of watching by day or by night conjointly with any other purpose, it shall be lawful for the council to levy a watch rate, sufficient to raise any sum not greater than the average yearly sum which during the last seven years, or where any such rate shall not have been levied during seven years, then during such less number of years as such rate shall have been levied, shall have been expended in the maintenance and establishment of watchmen, constables, patrol, or policemen within the district in which such rate was levied; and for that purpose the council shall have all the powers hereinbefore given to the council in the matter of the borough rate. And where any part of any borough shall not, on the 9th September, 1835, be within the provisions of the act authorizing the levy of such rate for watching as aforesaid, it shall be lawful for the council from time to time to order that such part, or so much thereof as to the council shall seem fit, shall be rated to the watch rate in like manner as other parts of the borough, to be specified in such order, and such watch rate thereupon shall be levied within the part mentioned in such order in like manner as in the other parts of the borough so speci- fied (r), and all such sums levied in pursuance of such watch rate shall be paid over to the account of the borough fund: provided always, that no such order as last aforesaid shall be made for rating to such watch rate any part of any borough in which, on 9th Septem- ber, 183.5, such rate as aforesaid shall not be levied, and which is more than two hundred yards distant from any street or contiguous line of houses which shall be regularly watched within the borough under the provisions of this act." It is farther provided (s), " that in all cases where a watch rate may be made and levied in any borough, the council may order the churchwardens and overseers of every parish or place within which such rate may be levied, or such other persons as by law may make a poor rate for any such parish or place within the limits of such borough, to pay the amount of such part and portion of such rate for which such parish or place respectively shall be liable, out of the poor rate made and collected, or to be made or collected for such parish or place. Or the council, instead of ordering such church- wardens and overseers, or other persons, to pay the same out of the poor rale, niav order them to make and collect a certain pound rate upon and from the occupiers or possessors of all rateable property within such parish or place, for the amount of the rate for which such (p) Fid. •. 84. (>) V«l. Cobb v. Allan, 10 Q. B. 683; (

1 I8 ( to appoint an officer in certain cases, (J. B. 117, 161; 9 Rep. 52. Where the not being the recorder, for the trial of civil common seal is necessary to be attached tn action* in the borough court of record, and an appointment, a mandamut will go to the where there i- the power in hold Midi court, keepers of it, if they refuse to affix it to the there is the obligation, which the Court of appointment; 3 Burr. 1647; 4 T. 11.699; Queen's Bench will enforce) and it will Ik: 1 Q. II. 378. no excuse that the court li u been disused u>r Mayor, &c, of Bridgewater, 10 two hundred years, &c.; H. i. Mayor, i\r., A. „\ E. '21(1 ; l!i^. d. Paramore, 10 A. nl Wells, 4 Dowl. 562. 286; vid B Q. B. (6) This election is do longer annual, but . Lichfield, 4 Q. I'. nf'3 ; vid. to be daring the pleasure of the council ; 6 it )! Q. B. 926. \ ct. c. 89, s. 6. THE COUNCIL. 379 quashed. Elections of such officers, formerly by charter or custom held on Sundays, are now to be held on the Saturday next preceding, or Monday next following (/). The subject of compensation of officers whose offices may be abo- lished, or who may have been removed by the council, is thus treated in the Municipal Corporations Act: — " And (g) be it enacted, that every officer of any borough or county who shall be in any office of profit at the time of the passing of this act, whose office shall be abolished, or who shall be removed from his office under the provisions of this act, or who shall not be reappointed as aforesaid, shall be enti- tled to have an adequate compensation, to be assessed by the council, and paid out of the borough fund, for the salary, fees and emoluments of the office which he shall so cease to hold, regard being had to the manner of his appointment to the said office, and his term or interest therein, and all other circumstances of the case ; and every person entitled to such compensation as aforesaid shall deliver to the town clerk, or in case such person shall himself be town clerk, then to the treasurer of the borough, a statement under the hand of such person setting forth the amount received by him or his predecessors in every year during the period of five years next before the passing of this act on account of the salary, fees, emoluments, profits and perquisites in respect whereof he shall claim such compensation, distinguishing the office, place, situation, employment or appointment in respect whereof the same shall have been received, and containing a declaration that the same is a true statement, according to the best of the knowledge, information and belief of such person, and also setting forth the sum claimed by him as such compensation ; and the town clerk or treasurer, as the case shall be, shall lay such statement before the council, who shall take the same into consideration and determine thereon ; and im- mediately upon such determination being made, the person preferring such claim, if he shall not himself be the town clerk, shall be informed thereof by notice in writing under the hand of the town clerk ; and in case such claim shall be admitted in part and disallowed in part, such notice shall specify the particulars in which the same shall have been admitted and disallowed respectively ; and in case the person preferring such claim shall think himself aggrieved by the determination of the council thereon, or in case one-third of the members of the council shall (/) 3 & 4 Will. 4, c. 31, s. 1. an ad valorem stamp, under 55 Geo. 3, c. 184, ( g) Sect. 66. An officer appointed durante Sched., Part I. ; Reg. v. Welch, 2 C. & Kirw. placiio may be amoved uch protest, to appeal to the Lords Commissioners of his Majesty's Trea- sury, who shall thereupon make such order as to them shall seem just; and such order, signed by three or more of such Lords Commissioners, shall be binding on all parties: provided always, that if the council shall not determine on Buch claim within m\ calendar months after the aforesaid statement Bhall be delivered to the town clerk or treasurer, as the case shall be, such claim Bhall be considered as admitted: provided also, that the person preferring such claim, if any member of the council Bhall so require, upon receiving notice in writing signed by the town clerk, unless such person shall himself be town clerk, in which case no such notice shall be requisite, shall from time to time attend at any meeting or adjourned meeting of the council for the investigation of such claim, and then and there, upon his oath or solemn affirmation, to lie taken or made before the mayor (who is hereby authorized to admi- nister the same), shall answer all such questions as shall be asked by any member of the council touching the matters set forth in the state- ment subscribed by such person as aforesaid, and produce all books, papers and writings in his possession, custody or power relating thereto; provided also, that every such officer who shall be continued in or re- appointed to such office under the provisions of this act, and who shall be subsequently removed from such office for any cause other than such mi-conduct as would warrant removal from any office held during good behaviour, shall be entitled to compensation in like manner as if he had been forthwith removed under the provisions of this act, and had not been continued in or reappointed to such office." It has been thought desirable to state this section, though it, as well as the decisions upon it, relate chiefly to what is past, and could not recur again but for a late act, which incorporates these provisions, and makes them applicable to the cases where grants of charters have been made to towns since the Municipal Corporations Act, in this way : — " And (A) be it enacted, that every officer of any such borough, or of any county, or any division of a county, in which such borough is situated, who was in any office of profit at the time of granting of any such charter of incorporation, or of any grant afterwards made by his late majesty or by her majesty before the passing of this act, whose office shall have been abolished, <>r who shall have been removed from his office, or who shall have been deprived of any part of the fees and (h) 5 & 6 Vict. C. Ill, B. 2. " Office" is scssment is amended by the Lords of tlie , mean " place, sinmtion, employment Treasury ; Mayor, i*c.,of Sandwich v. Reg., or appointment ;*' md. Reg. v. Mayor, &c, 10Q.B.580. Fees, in general, can only he Igewater, »> A. ,\ K. 347 . /"< ( !ole- due to an officer by ancient usage or act of Dowl. 503. By compensation is parliament; Fleetwood v. Finch, 2 H. Bit* meant adequate compensation, either as ori- 221. ginally assessed by the council, or BJ the THE COUNCIL. 381 emoluments of his office in consequence of any such grant, shall be entitled to have an adequate compensation, to be assessed by the council, and paid out of the borough fund, for the salary, fees and emoluments of the office which he shall so cease to hold, or for such part thereof as he shall have been so deprived of, regard being had to the maimer of his appointment to the said office, and his term or in- terest therein, and all other circumstances of the case ; and all the pro- visions of the Municipal Corporations Act relating to the claim of any corporate officer for compensation, and to the manner of determining and securing the amount of such compensation, shall apply severally to the officers hereby indemnified : provided always, that the statements to be delivered to the town clerks of the said several boroughs by the said officers, shall set forth the fees and emoluments, in respect whereof they shall claim compensation, during five years next before the several times when the profits of their several offices were first affected by any of the said grants respectively." The first observation which appears deserving of notice with respect to these provisions is, that compensation cannot be granted for the emoluments of an office which the holder voluntarily resigned; he must have been removed either wholly or in part, or his office must have been abolished (i). With respect to the meaning of the term officer of a division of a county, it has been decided, that a person who, before the grants of a charter of incorporation to Manchester, and separate commission of the peace, and separate court of quarter sessions to that borough, was clerk to such of the justices of the county of Lan- cashire, acting for the division of Manchester, as met at Salford, and clerk to the justices for the time being appointed under an act for the more effectual administration of the office of a justice of the peace within the townships of Manchester and Salford (k), was not such an officer, and therefore not entitled to compensation under the stat. 5 8c 6 Vict. c. 1 1 1, s. 2 (I). There must be, under the Municipal Corporations Act, either a substantial abolition of the office, or removal of the holder from it (w) ; for if the office remains, though its value be much diminished, no compensation is provided by that act (m). It is not material that the office for which the claim is made is not mentioned in the charter (n), but the office must be such as makes the holder an officer of the cor- poration, and must not be merely an office under a local act (o). The council must determine on the claim within six months, or they will be taken to have admitted it (p). \\ ith respect to who are officers within the limits appointed by the (i) K,Vi.Att.-Gen. v.Parr,8 Cla.&F.409. («) Reg. v. Mayor, &c, of Carmarthen, (k) 53 Geo. 3, c. 72. 11 A. & E. 9. (0 Reg. i>. Manchester, 9 Q.H. 458 ; rirf. (o) Reg. v. Poole, 7 A. & E. 730; Ex Reg. v. Mayor, &C, of Bridgewater, 6 A.Sc E. parte Harvey, id. 739 ; 4 M. & W. 613. 339 ; et rid. 5 Q. B. 402. ( p) Sup. p. 380; et vid. Reg. v. Mayor, O) Reg. v. Mayor, &c, of York, 3 Q. B. &c, of Swansea, 11 A. & E. 66. 560. Ml N1CIPAL CORPORATION^. statutes, it seems that an officer ile facto merely may be entitled to compensation (y). The steward of a borough, if the stewardship is an office of profit, is entitled (;•). An attorney of a sheriff's court, where the right of practising was limited before the passing o? the Municipal Corporations Act(«) to a certain number of persons who paid a consideration for the office, was held to be entitled to a mandamus to the council to give a bond for the amount of compensation due(<); the Lords of the Treasury having made their award in favour of the claimant, the court expressly guarded themselves against being supposed to give any opinion on the merits. The appeal to the Treasury is confined wholly to the question of the amount of compensation;//), and their decision Minis to be final as to that (*); but they have no power to decide whether the officer had or had not been properly removed (.r) ; and a mandamus will go to the council to assess compensation, notwithstanding the decision of the Lords of the Treasury that it is not a case for compensation {y). Also the Court of Chancery will interfere to prevent the council from mis- using the power of granting compensation notwithstanding the appeal to the Treasury (.:). By the GTth section of the Municipal Corporations Act, it is pro- vided that the sum payable to any person as such compensation as aforesaid shall be secured by bond under the common seal, to be prepared at the expense of the borough fund. The responsibility of officers appointed under this act is thus pro- vided for: " And (a) be it enacted, that every town clerk, treasurer, or other officer appointed by the council as aforesaid, shall, at such times during the continuance of his office, or within three months after the expiration of his office, and in such manner as the said council shall direct, deliver to the council, or to such person as they shall authorize for that purpose, a true account in writing of all matters committed to (n) R. n. Parry, 14 East, 549; Reg. v. vid. 11 A. & E. 9, Mayor, ,\<\, of Cambridge, 4 P. & D. 294; (:) Alt. -(Jen. v. Poole, 4 My. & C. 30 ; f. Town I'm iik. Att.-Geo. v. Aspinall, 2 My. 6c C. 613. (r) Reg. ». Norwich, 8 A. k E. 633. (u)S.60. Except where it would be in- (j) Vi'.L s. 119. consistent or contrary to the act or the charters, (t) Reg. V. Mayor, &C, of York, 8 Dowl. the corporation may appoint persons not mem- 502. As to this bond, rid. Reg. V. Warwick, ben of the corporation to all ministerial offices, I6L.J.(N.S.) Q. B. 306; 5M.& Gra.219; and in most cases without deed or warrant, 6Q.B.70; 8M.&W. 152; 10 Q B.580; Gary v. Matthews, Salk. 191 ; and such offi- Mumcipal Corporations Act, S.51. rbebond cer, if chosen durante bene plaeito, may be may be sued upon, and the plaintifTmuy have removed ad libitum, Com. Dig. Franchise, jodgn (; Mayor, &c, of Poole v. P. 32. Such an office may be granted for a Whitt, IS M. & W. 571. term of yens, Com. Dig. oilier, B. 2 ; or i. Mayor, Sec, oi Norwich, 8 in reversion, II Rep. 4; Salk. 4(i5; Com. . Lordi oi the Dig. Officer, B. 13. But an attorney to sue - appear for the corporation must be ap- wich, 10 (J. 15. 503. Beg. i. Harwich, 8 pointed under the Common teal; Arnold v. A. Si I.. 633. Mayor, Sec, of Boole, 2 Dowl. IS'. 8. 574 ; (i) Beg. v. Lords of the Treasury, 10 Com. Dig. Franchise, P. 19 ; Rag. ». Cheater, pid. 1Q.B. 386, 751. ' 2 Show. 366. (y) Reg. .. Warwick, 10 A. i E. 386; THE COUNCIL. 383 his charge by virtue of this act, and also of all monies which shall have been by him received by virtue or for the purposes of this act, and how much thereof shall have been paid and disbursed, and for what pur- poses, together with proper vouchers for such payments, and also a list of the names of all such persons as shall not have paid the monies due from them for the purposes of this act, and of the amount due from each of them ; and every such officer shall pay all such monies as shall remain due from him to the treasurer for the time being, or to such person as the said council shall authorize to receive the same ; and if any such officer shall refuse or wilfully neglect to deliver such account, or the vouchers relating to the same, or such list as aforesaid, or to make payment as aforesaid, or shall refuse or wilfully neglect to deliver to the said council, or to such person as they shall authorize, within three days after being thereunto required by notice in writing under the hands of any three or more of the said council, to be given to or left at the last place of abode of such officer, all books, papers, and writings in his custody or power relating to the execution of this act, or to give satisfaction to the said council, or to such other person as aforesaid, respecting the same, then and in every such case, upon com- plaint made on behalf of the said council, by such person as they shall authorize for that purpose, of any such refusal or wilful neglect as aforesaid, to any justice of the peace (b) for the county or other juris- diction wherein such officer so refusing or neglecting shall be or reside, such justice is hereby authorized and required to issue a warrant under his hand and seal for bringing such officer before any two justices of the peace for such county or jurisdiction ; and upon the said officer ap- pearing, or not being found, it shall be lawful for such justices to hear and determine the matter in a summary way ; and if it shall appear to such justices that any monies remain due from such officer, such justices may, and they are hereby authorized and required, upon non-payment thereof, by warrant under their hands and seals, to cause such monies to be levied by distress and sale of the goods of such officer ; and if sufficient goods shall not be found to satisfy the said monies and the charges of the distress, or if it shall appear to such justices that such officer has refused or wilfully neglected to deliver such account, or the vouchers relating thereto, or such list as aforesaid, or that any books, papers, or writings relating to the execution of this act remain in the hands or in the custody or power of such officer, and that he has re- fused or wilfully neglected to deliver the same, or to give satisfaction respecting the same as aforesaid, then and in every such case such justices shall and they are hereby required to commit such offender to the common gaol or house of correction for the county or jurisdiction (6) The magistrates for the county atlarge Gateshead, 6 A. & E. 550. But it does not may determine these complaints, though such appear whether the same would he held if the officers reside within the borough, and there borough had a separate quarter sessions, are justices of the borough; Re Justices of 88 1 Ml NICIPAL CORPOB \ I [OWS. where such offender shall be or reside, there to remain (c) without bail until he shall have paid such monies as aforesaid, or shall have com- pounded with the said council for such monies, and shall have paid BUcb composition in such manner as they shall appoint (which compo- sition the said council are hereby empowered to make and receive), or until he shall have delivered a true account as aforesaid, together with such vouchers and lists as aforesaid, or until he shall have delivered up such books, papers and writings, or have given satisfaction in re- spect thereof to the said council, or to such other person as aforesaid, as the case maybe: provided always that no person so committed shall be detained in prison, for want of sufficient distress only, for a larger space of time than three calendar months: provided also, that nothing in this act contained shall prevent or abridge any remedy by action against any such officer so offending as aforesaid, or against any surety for any such officer ; but such officer shall not be sued by action and also proceeded against in a summary manner by virtue of this act for the same cause." Without this proviso, it would seem that an action must have lain in many cases where the summary remedy before justices would be inade- quate ; as if a debt were due to the corporation, and, in consequence of their officer's neglect to give in the list of debtors, the time of recover- ing the debt within the Statute of Limitations had expired before the corporation were in a situation to be able to sue for it, it is manifest that the summary proceedings would be inadequate, and indeed nuga- tory ; an action also would have been maintainable on the general principle, that where a statute imposes a duty on a public officer, he is responsible for neglect of that duty to any person who sustains damages by the neglect (d); and a fortiori to his immediate employers, who ap- point and pay him, if they are injured by his conduct. Moreover, the corporation might sustain irreparable damage before they could avail themselves of the mode of recovering the documents pointed out in the (c) As to imprisoning, Did. tup. p. 370. A store him ; Baston's case, Poph. 176 ; S. C. mandamus to admit to any ministerial office Dyer, 332, B, in marg. under the corporation, except such as are (d) Harry v. Arnaud, 10 A. & E. 646; held at will, may be had ; and it is no objec- Lacon v. Hooper, 6 T. H. 224. It the in- tion that the office is of a trivial nature, H. jury have arisen from the negleclof thedeputy, i. Barker, 3 Burr. 1267. So a mandamui has the action ought to be brought against the been granted to restore to the office of sea- principal; 5 Q. B. 159. That ministerial venger, 1 Stra. 59; of iword bearer, R. v. officers, not being annual ones, may, if autho- Mayor, of Bristol, 1 Show. 288 ; of clerk of rized by statute or charter, appoint deputies, the works, R. v. Mayor of London, 2 I. K. rid. R.». Mayor, &C, of Gravesend, 2 B. & 182, n.; of yeoman of the wood wharf, Stra. C. 604 ; and it seems that such ministerial 832*; of an under-schoolmastcr, R. i . Mor- officers may in general, at any rate with the peth, Stra. 68 ; rid. Stra. 1023: to swear in allowance of the corporation, appoint depones an ale taster, Stra. 608; Coil ida- to perform particular ministerial acta nn spe> mui, A. Where the office is a freehold office, rial occasions; Did, 2 B. 8c C. 605; Com. it l.;is been thought a mandamus to restore Dig. Officer, I). 1 ; Salk. 96; 19 \ in. Abr. will lie, even for a suspension from the on I . if involves trust and confidence in the per Lord Eldon, C, 17 Yes. 323; rid. 2 holder, he cannot make a deputy, 9 Hep. 48 ; 1. R. 179. When-, under pretence of an Com. Dig. Officer, D, 2; mandamui to re- election to a corporate office, the corporation rtore a deputy, Stra ]!«>; Com. Dig. Man- exclude ■ |" r-nn from a ministerial office damns, A.; Bac. Abr. Mandamus, C. 1 ; H. against his will, a mandamus will go to re- 0. Clapham, 1 Yentr. III. the council. 385 above section (e), and a possibility of damage and injury has frequently been held a sufficient ground for an action on the case. Therefore, the statute in stating the duty, and appointing the remedy for recovery of the books, &c, does not preclude the adoption of an action on the case for the breach of duty, even although there be no circumstances in the case to obstruct the application to the justices for the exercise of their summary powers (/). Perhaps, however, an indictment would not have been maintainable in such case (g), in analogy to the prin- ciple, that where a statute makes that unlawful which was lawful before, and appoints a specific remedy, that remedy must be pursued, and no other (Ji) ; but this is far from being clear ; and the question must turn on whether the non-performance of the acts of surrender of the books, &c, specified in the section, would be misdemeanors at common law ; for if so, they would be indictable as such, though not as being abso- lutely prohibited in a separate clause by the Municipal Corporations Act (i) ; for that they do not appear to be. It will be observed, more- over, that this section only gives the summary remedy with respect to " all books, papers and writings in the custody or power of the officer relating to the execution of this act;" and it appears to be highly questionable whether these words would include charters, title deeds, leases, and other documents relative to the rights and powers possessed by corporations previous to, and wholly independent of, this act. In such cases the corporation are left, it would seem, to the ordinary modes of proceeding afforded by the general law (k). It would seem that the last proviso that both action and summary pro- ceedings are not to be resorted to, is superfluous, as it is only in cases of penal actions that the defendant may also be liable under circum- stances to another proceeding ; ex. gra. to a criminal information (I) ; if indeed in those actions (m). The council in any borough, regulated under the Municipal Corpo- rations Act, may adopt the provisions of the Baths and Washhouses (e) Therefore there may occur cases in (/) Mayor, &c, of Lichfield v. Simpson, which generally a mandamus would be grant- 8 Q. B. 65, where see form of declaration, ed, and such remedy, it seems, remains to the Quo warranto does not lie against a merely corporation, notwithstanding the above enact- ministerial officer; Ft. v. Corporation, &c. of ment. That ministerial officers are bound to Bedford Level, 6 East, 356 ; vid.4 T. R. 381. obey and execute writ, vid. R. v. Simpson, (g) Per Williams, J., 8 Q. B. 74. Stra. 809 ; R. v. White, cited Stra. 894 • R. (h) Castle's case, Cro. Jac. 644 ; 1 Wms. v. Rees, Carth. 393 ; Taylor v. Raymond, Saund. 135, note (4) ; 5 B. & Ad. 560. cited Stra. 895; R. v. Harris, 3 Burr. 1420. (i) R. v. Carlile, 3 B. & A. 161 ; Reg. v. Unless where the facts suggested in the writ Buchanan, 8 Q. B. 887. can be directly impugned, vid. R. v. White, (k) An action will lie against a ministerial 2 Ld. Raym. 1210 ; or the writ has been de- officer for misbehaviour in his office by which livered so late that it could not be executed, the plaintiff is injured; Bull. N. P. 64; vid. Stra. 763. Mandamus to officer in charge Drewe v. Coulton, 1 East, 563, n. ; Pryce v. of the books of the corporation to attend with Belcher, 15 L. J. (N. S.) C. B. 305; S. C. them at the next corporate meeting, Re Calne, 4D. & L. 238. Stra. 948 ; to outgoing officer to deliver re- (I) Vid. Combe v. Pitt, 1 W. Bla. 524. cords concerning the administration of justice (m) R. v. Sparrow, 2 T. R. 198 ; Wakley to the new officer, Com. Dig. Mandamus, A.; v. Cooke, 16 M. & W. 822 ; S. C. 4 Dovvl. 1 Siderf. 31 : Cas. Temp. Hardw. 99 ; 2 Stra. & L. 702 ; R. v. Fielding, 2 Burr. 719. 879. C C 3SG MUNICIPAL CORPORAT1 Act (a), and may levy the expenses with, and as part of, the borough rate, or by a separate rate, and apply the same as if the expense of carrying the act into execution woe an expense necessarily incurred in carrying into efleel tin- provisions of the Municipal Corporations Act (o). The council of every borough containing 10,000 inhabitants may purchase, or take by gift, -rant, or devise, lands, \c, for the purpose of establishing a museum of science and art, and raise a rate in the same manner as a borough rate, for its support and maintenance, provided the rate do not exceed one halfpenny in the pound (p). The council, except where the Public Health Act ISIS is in force, on the receipt, or as soon afterwards as can be, of a notice, signed by two or more inhabitant householders of the borough, stating the filthy condition of any building in the borough, or within the jurisdiction of the corporation, so as to be a nuisance to, or injurious to the health of, any person, or that upon any premises within such jurisdiction there is any foul or offensive ditch, gutter, drain, privy, cesspool or ashpit, or any ditch, gutter, drain, privy, cesspool or ashpit kept or constructed so as to be a nuisance to or injurious as aforesaid, or that upon any such premises swine, or any accumulation of dung, manure, offal, filth, refuse, or other matter or things are or is kept, so as to be a nui- sance to or injurious as aforesaid, or that upon any such premises, being a building used wholly or in part as a dwelling-house, or being premises underneath any such building, any cattle or animal are or is kept so as to be a nuisance to or injurious as aforesaid, by themselves, or by some committee thereof, shall, after twenty-four hours notice in writing given to some person on the premises, or if there be no person, by fixing the same on some part of the premises, or in case of emer- gency, without notice, &c, enter the premises, &c., and may complain to a justice, who may summon the owner or occupier before two jus- tices, who shall order to whitewash, &c, or remove the nuisance (y). With respect to pleading acts done by the council, or rights vested in them, it may be material to notice, that the council established by the Municipal Corporations Act is not a continuation of any former body, but an entirely new one; for the common law knew nothing of such a body as a council, or a common council, or a town council, in munici- pal corporations (r) ; though in several corporations there were such bodies established by usage, or charter, or local act; but all such bodies are now abolished, as being inconsistent with the Municipal Corporations Act; and therefore, where it is necessary to trace the possession of any (h) !i ,v 10 Vict c. 74. owner, &c, as money paid to his use, or be- (n) Ibid. s. 2. fore two justices, who shall issue ;i summons, i ji) , c. 43. ■ and order for payment ; and if the coats, (a) 1 1 „\ 12 Vict. c. 123. If the order ii not with those of the application, &c., be not paid ia ed, the owner, &c, is liable to a penalty ol seven days, then the whole to be recovered |(jj. lor everyday of the continuance ol the nui- by warrant of distress and sale, Sic., t, -. a, and the council may , by their servi Par Boiler, J., in H. p. Knight, 4 T. enter and whitewash, 6cc, or remove the K. 431. uub>atjce, s. 1, and recover the costs troin the THE COUNCIL. 387 right, &c, which was formerly vested in a common council, &c, or in the old corporation, care must be taken as to deriving it in proper terms to the present council, in whom such right vests by the Municipal Cor- porations Act, and subsequent acts (s). Having thus gone through the various functions of the council, and explained its province as representing and acting for the corporation, we shall proceed to state the rules as to the election and liabilities of councillors. We have seen that the number of councillors in every borough to which the act applies are the numbers mentioned opposite the name of such borough in the Schedules (A.) and (B.), that one-third of the number go out of office each year, and that the election is made by the general body of the burgesses of the borough inrolled on the burgess roll (t). Burgesses. In the first place, therefore, it is necessary to understand who are burgesses and what is the burgess list and roll, which will necessarily lead us into a long inquiry. Who are to be burgesses is thus declared : " And(w) be it enacted, that every male person (x) of full age, who on the last day of August in any year shall have occupied any house (y), warehouse, counting-house or shop within any borough during that year, and the whole of each of the two preceding years, and also during the time of such occupation shall have been an inhabitant householder {z) within the said borough, or within seven miles of the said borough (a), shall, if duly inrolled in that year according to the provisions hereinafter contained (b), be a (s) 6&7 Will. 4, c. 105, s. 8. In a return by the occupier of each set of premises being duly the corporation, or by any corporate officer, rated is qualified under this section ; id. 679. acts done by the council ought to be pleaded And, generally, where a house is let out in as done by the corporation; 5B.&C. 427, separate portions to different tenants, and the 428 ; vid. sup. p. 342. owner or landlord does not teside on the pre- (t) Vid. ss. 25, 26, 30, 31 ; sup. pp. 356, mises, though there is but one outer door com- 357 ; et vid. s. 29. mon to all the tenants, each distinct portion is (w) Sect. 9. a house ; per Littledale, J., id. 689. (x) The only corporation, having a muni- (2) The owner, however small a part of the cipal character, of which females have ever house he reserves for his own occupation, is in formed part, appears to have been that of the law the occupier of the whole, though he have Pontenarii of Maidenhead; Palm. 77; vid. ever so many lodgers; per Buller, J., in R.u. slip. p. 6. Eyles, Caldec. Sett. Cas. 414 ; Reg. v. Mayor (y) A person residing in a house, for the of Eye, 9 A. & E. 670. An inhabitant must whole of which he is rated, has a right to be on reside, to be within the meaning of the act, 4 the burgess roll, though he lets a room in the B. & C. 961 ; and the residence must be bond house, at a yearly rent, to a person who does fide, 6 T. R. 560; 5 T. R. 466 ; vid. 7 M. not sleep there ; R. v. Mayor, &c, of Eye, 6c Gra. 1. 9 A. & E. 670. But if the tenant and occu- (a ) The miles are to be reckoned according pier of a house underlets the cellar, having an to the distance along the way of nearest ac- internal communication, the said occupier, not cess. As to the measurement of the distance being rated for the cellar (the undertenant under the Reform Act, as regards the light of using it as a warehouse, and being separately voting for member of parliament for boroughs, rated for it), could not claim to be registered 6 & 7 Vict. c. 18, s. 76, inf. n. ( / ). for the house alone ; for there being an in- (b) The disqualification, disentitling a party ternal communication, the occupier in law to be inrolled, ought to be distinctly proved ; occupied the whole, but was only rated for and, if there be a doubt, the claim of right part; id. 677. Where the premises occupied ought to prevail rather than the refusal, per (described as houses) are under the same roof, Lord Denman, C. J., 2 Q. B. 699; and if he and open on a common passage and staircase, is refused on particular grounds of alleged c c2 388 MUNICIPAL CORPORATION'-. burgess of such borough and member of the body corporate of the mayor, aldermen and burgesses of such borough ; provided always, that no such person shall be >o inrolled in any year, unless he shall have been rated, in respect of such premises so occupied by him within the borough, to all rates made for the relief of the poor of the parish wherein such premises are Bituated, dining the time of his occupation as afore- said, and unless lie(r) shall have paid, on or before the last day of ist aa aforesaid, all such rules (d), including therein all borough rates, if any, directed to be paid under the provisions of this act, as shall have become payable by him iii respect of the said premises, except such as shall become payable within six calendar months next before the -aid last day of August : provided also, that the premises, in respect of the occupation of which any person shall have been so rated, need not be the same premises or in the same parish, but may be different j demises in the same parish or in different parishes : provided also, that no person being an alien shall be so inrolled in any year, and that no person shall be so inrolled in any year who, within twelve calendar months next before the said last day of August, shall have received parochial relief or other alms(e), or any pension or charitable allow- ance from any fund entrusted to the charitable trustees of such borough hereinafter mentioned : provided that in every case provided in this act the distance of seven miles shall be computed by the nearest public disqualification, which are not clearly made out, and he establishes his title to be inrolled in other respects, a mandamus will go to the inavor to insert h * name on the roll, Reg. v. Mayor of Lichfield, 2 Q. B. 693. N.B., the I I i practice seems to be to direct the man- damus in such case to the mayor ami his asses- sors ; vid. R'g. v. Mayor, \c, of New Wind- sor, 7 Q. B. 908. (e) i. e. he himself, and not another for him, acting as a volunteer; Reg. v. Mayor, 6:c, of Bridgnorth, 10 A. & K. 66. Semb. he must be assessed as occupier; a band Jide pay- ment of rates by him without being called upon is not sufficient ; 7 M. fit (>ra. 72 But payment by landlord in consequence of an arrangement between him and the tenant is a good payment by the latter ; 3 T. R. 550 ; 8 East, | - words only relating to poor rate and borough rate ; id. i6id« Jin: words only include the legal amounts of rates made or ordered by the council, &c, not any sums which may be demanded by the Ov< I under colour of such r fore, where the council made a rate of Grf. in the pound, and the overseers demanded ol a party lit. in the pound, in the name ol that rati-, which he 1 to pay, and was in consequena eluded from the bur^c-s li-t and refused in- sertion on the roll, as for not having paid " all such rates," Ac, under the above section, the court granted a mandamus to the mayor and assessors to enrol his name ; Reg. v. Mavor, fitc.of New Windsor, 7 Q. B. 908; vid. 2 Q. LS. 693. It is a good return to a mandamus " to inrol the name of A. B., being duly quali- fied to be inrolled in the buigess roll," to say that " A. B. is not duly qualified," &c, ; I i . Mavor, 8cc, of New \\ indsor, 7 Q. B. 908, 917 ;"R i. Williams, 8 B. fie C. 681; rid. Reg. i'. Mayor of Dover, Exch. Ch. 1847. But if a mandamus to inrol sets out certain facts from winch it deduces, as a conclusion of law, that the prosecutor is qualified and entitled to be restored or placed on the list, the leiurn cannot traverse that conclusion, but m. i-i put in issue some of the facts from which it is derived ; R. v. Williams, 5 T. R. 66. (e) This means parochial alms; Heg. v. M Lyor, &c, of Lichfield, 2 Q.B. 693. Monies distributed annually from the income of a cha- ritable institution established by an individual for the use and benefit ul the poor housekeepers of the borough, not receiving parochial relief from any parish therein, .i rt ■ not such alms ; id. ibid.; Did. K. v. Halesworth, 3 I'. ^v Ad. 717; Mashiter, app., and Town Clerk of Lan- caster, retp.,2 Lutw. Registr. Cas. 112, that being relieved from the pas mint of poor rates ccount of poverty is not receiving paro- chial alms within 30th section of Reform Act. BURGESSES. 389 road or way by land or water (/)." " And(.Hind,9B.&C774; vid. I Ventr.328. of parliament, vid. Cro. Eliz. 212 ; 1 Ventr. As to the measurement of the same distance as 328 ; 2 W. Bla. 968 ; 1 & 2 Vict. c. 106, s. regards voters for members of parliament for 129 ; 9 Q. B. 76. cities and boroughs, vid. 5& 6 Vict. c. 18, (g) Sect. 10. s.76; Johnson's case, Fitz. & F. Rep. 395. (h) Vid. per Fatteson, J., 2 Q. B. 702. As to alleging in pleading residence at such (i) Sect. 11. distance, R. v. Mead, 1 Ventr. 328. As to (A) Sect. 12. 390 MUNICIPAL CORPORATIONS. " And(7) be it enacted, that after the passing of this act no person shall be inrolled a burgess of any borough, for the purpose of enjoying the rights conferred for the first time by this act, in respect of any title other than by occupancy and payment of rates within such borough, according to the meaning and provisions of this act." " And(tn) be it enacted, that on the tilth day of September, in every year, the overseers (n) of the poor of every parish, wholly or in part, within any borough, shall make out an alphabetical list, to be called " The Burgess List," accord- ing to the form number 1, in the Schedule (I).) to this act annexed, of all persons who shall be entitled to be inrolled in the burgess roll of that \ ear, according to the provisions of this act, in respect of property within such parish; and the overseers shall sign such burgess lists (o), and shall deliver the same to the town clerk of the borough on the said fifth day of September in every year, and shall keep a true copy of such lists, to be perused by any person, without payment of any fee, at all reasonable hours, between the fifth and fifteenth days of September in every year ; and the town clerk shall forthwith cause copies to be printed of all overseers' lists delivered to him, and shall deliver a copy of all such lists to any person recpuiring the same, on payment of a reasonable price for each copy ; and shall cause a copy of all such lists to be fixed on or near the outer door of the town hall, or in some public and con- spicuous situation within the borough, on every day during the week next preceding the fifteenth day of September in every year." " Pro- vided (p) always, and be it enacted, that in any borough in which there shall be no town clerk, or in which the town clerk shall be dead or in- capable of acting, all matters by this act required to be done by and with regard to the town clerk, shall be done by and with regard to the person executing duties in such borough similar to those of town clerk; and if there be no such person, or if such person shall be dead or inca- pable of acting, then by and with regard to such fit person as the mayor of >uch borough shall appoint in that behalf: provided always, that every precinct or place, whether extra-parochial or otherwise, which shall have no overseers, shall, for the purpose of making out such lists as aforesaid, be deemed within the parish adjoining thereto, such parish being wholly or in pari Bituate within the same borough as such precinct or place ; and if such precinct or place shall adjoin two or more parishes (/) s< ft. 13, mencement of declaration in del>t for the pc- ( m ) Beet 16. nalty. No notice of action necessary, 12 A. ( a ) i. e., all persons who shall execute the & E. 460, the offence being an omission to do duties of overseen of the poor ; s. 142. something required by the act, a. 133. A Overseers neglecting to make ool an I printed burgi - list, containing the ov< i sign are liable to the penalty io s. 18, aid. name in it as a burgess, although corn infra, that i~. to 1 1 • *- penalty of 60/.; King in his handwriting, is not sufficiently signed ..;]. 12 I. & E. 460. All th< over- by him ; Kin^ i. IJurrell, 12 A. & E. 4(i0. P 00, J., id. ilml. ; (;»; Sect. It.. .. Share, :i C>. B. 31, where ~u cum- BURGESS LISTS. 391 so situate as aforesaid, it shall be deemed to be within the least popu- lous of such parishes according to the last census for the time being; and the overseers of the poor of every such parish shall insert in the list for their parish the names of all persons who would have been en- titled to be inserted in the lists for such precinct or place, if such pre- cinct or place had had overseers, or been rated to the maintenance of the poor." " And (7) be it enacted, that every person, whose name shall have been omitted in any such burgess list, and who shall claim to have his name inserted therein, shall, on or before the fifteenth day of September in every year, give notice thereof to the town clerk in writing, according to the form number 2 in the said Schedule (D.), or to the like effect: " And every person, whose name shall have been inserted in any bur- gess list for any borough, may object (/■) to any other person as not being entitled to have his name retained in the burgess list for the same bo- rough : " And every person so objecting shall, on or before the fifteenth day of September in every year, give to the town clerk of such borough, and also give to the person objected to, or leave at the premises for which he shall appear to be rated in the burgess list, notice thereof (s) in writing, according to the form number 3 in the said Schedule (D.), or to the like effect : " And every town clerk shall include the names of all persons so claim- ing to be inserted on the burgess list, in a list according to the form number 8 in the said Schedule (D.), and shall include the names of all persons so objected to as not entitled to be retained on the burgess list, in a list according to the form number 5 in the said Schedule (D.), and shall cause copies of such several lists to be fixed on or near the outer door of the town hall, or in some public and conspicuous situation within such borough, during the eight days next preceding the first day of Oc- tober in every year ; and the town clerk shall likewise keep a copy of the names of all persons so claiming as aforesaid, and also a copy of the names of all persons so objected to as aforesaid, to be perused by any person, without payment of any fee, at all reasonable hours during the eight days, Sunday excepted, next preceding the first day of October in every year, and shall deliver a copy of each of such lists to any person requiring the same, on payment of a sum not exceeding one shilling for each copy." (q) S. 17. For Sched. (D.), vid. Index. &c, of Harwich, 8 A. & E. 919. A notice, (r) Vid. 2 Q. B. 742, 743. signed" A. B., King's Quay Street, Harwich/ (s) Form 3, Sched. (D.) requires " the is not sufficient. Meaning of " place of abode" place of abode, and also the property for in the Reform and Registration Acts ; 7M.& which the objector is said to be rated in the Gra. 16 — 20. burgess list," to be stated ; vid. Reg. v. Mayor, 392 MUNICIPAL CORPORATIONS. It will be most convenient to place here the rules relating to revision of burgess lists, and making up the roll, which will complete the sub- ject. Revised Burgess Lists. The Burgess Lists are revised thus: — " And (a) be it enacted] that the mayor, and the two assessors hereinafter mentioned (b), to be chosen in every year by the burgesses of every borough, shall hold an open court within such borough, for the purpose of revising the said burgess lists, at some time between the 1st October inclusive and the loth October inclusive, in the year 183G, and every succeeding year, having first given three clear days notice of the holding of such court, to be fixed on or near the outer door of the town hall, or in some public and conspicuous situation within the borough ; and the town clerk of every such borough shall, at the opening of the court, produce the said lists, and a copy of the lists of the persons claiming, and of the persons objected to, so made out as aforesaid; and the overseers, vestry clerks, and collectors of poor's rates of every parish, wholly or in part within every such borough, shall attend the court, and shall answer upon oath all such questions as the court may put to them, or any of them, touch- ing any matter necessary for revising the burgess lists ; and the mayor(c) shall insert in such lists the name of every person who shall be proved to the satisfaction of the court to be entitled to be inserted therein according to the provisions of this act, and shall retain on the list the names of all persons to whom no objection shall have been duly made, and shall also retain on the said lists the name of every person who shall have been objected to by any person, unless the party so objecting shall appear by himself, or by some one in his behalf, in support of such objection ; and where the name of any person inserted in any one of the said lists shall have been duly objected to, and the person objecting -hall appear by himself, or by some one in his behalf, in support of such objection, the court shall require proof of the qualification of the ].( rson so objected to, and in case the qualification of such person shall not be proved to the satisfaction of the court, the mayor shall expunge the name of every such person from the said lists; and he shall also expunge from the said lists the name of every person who shall be proved to the court to be dead: and shall correct any mistake, or -upply any omission, which -hall lie proved to the court to have been made in anv of the said lists in respect of the name or place of abode of any person who shall be included in any such list, or in respect of the local description of hi- property: provided always, that, no person's (a) Sect. 18. &• '-'• P*o •' memdamtu to insert on the bur- (6) Sect :;7. Vid. Assbuobi. Lord Denmao, 1 Q. B. 461,) i r ) Under tin- section the mayor's decision the name of any one who has been expunged »..- final: Inn 7 Will. 4 6: I Vict. c. 78, or omitted. BURGESS ROLL. 393 name shall be inserted by the mayor in any such list, or shall be ex- punged therefrom, except in the case of death, unless notice shall have been given as is hereinbefore required in each of the said cases " (d ). — " And (e) be it enacted, that every mayor, holding any court under this act for the revision of the said lists, shall have power to adjourn the same from time to time, so that no such adjourned court shall be held after the fifteenth day of October in any year, and shall have power to require any overseer or person having the custody of any book con- taining any rate made for the relief of the poor during that or any preceding year, in any parish wholly or in part within the borough, to produce the same, and allow the same to be inspected at any court to be held for revision of the burgess (/) lists, and shall have power to administer an oath to the town clerk and to the overseers, and to all persons claiming to be inserted in (g), or making objection to the omission or insertion of any name in, any of the said lists, and to all persons objected to in any of the said lists, and to all persons claiming to have any mistake in any of such lists corrected, and to all witnesses who may be tendered or examined on either side ; and the mayor and assessors shall, upon the hearing in open court, determine upon the validity of such claims and objections ; and the mayor shall, in open court, write his initial against the names respectively struck out or inserted, and against any part of the said lists, in which any mistakes shall have been corrected, and shall sign his name to every page of the several lists so settled." Having thus seen what are the burgess lists, we now come to the burgess roll : — " And (h) be it enacted, that the burgess lists, so revised and signed as last aforesaid, shall be delivered by the mayor to the town clerk of such borough, who shall keep the same, and shall cause the said burgess lists to be fairly and truly copied into one general alphabetical list in a book to be by him provided for that purpose, with every name therein numbered, beginning the numbers from the (d) Persons whose names may have been &c.,of Lyme (Raymond's case), Dougl. 168; expunged, or claims rejected, may have a R. v. Carter, Cowp. 220; R. v. White, Cas. mandamus to restore their names, &.c, on the Temp. Hardw. 8; vid. 1 Ld. Raym. 337; roll; 7 Will. 4 & 1 Vict. c. 78, s. 24. They Merew. & S. Hist. Bor. 2225, 2226, it is must come to the court prepared to prove not so now, In re Milner, 5 Q. B. 589. their title ; Reg. v. Mayor, &c, of Harwich, However, it seems the new burgessship is a 8 A. & E. 919. franchise of a freehold nature, from which a (e) Sect. 19. man cannot be removed but by some legal (/) It will be found that the term burgess act done, (R. v. Ponsonby, 1 Yes. 1.) unless as used in this statute differs materially from by his own consent. the old usages of the word ; for the statute (g) It seems the mayor has power to in- renders uniform and identical in each bo- sert on the lists, or to make a list of, persons rough, that which previously had different claiming and proving to his satisfaction their significations in different boroughs. The con- title, though the overseers had sent in no list, sequence is, that the character of burgess- or had omitted those persons' names from the ship is wholly new ; that the burgesses in any list they sent in, per Patteson, J., in Reg. given corporation are not now the representa- v. Mayor, &c, of Lichfield, 1 Q. B. 462, tives of the old burgesses ; and that whereas 463. in many boroughs formerly burgessship was (h) Sect. 22 ; vid. inj. p. 397, s. 28 ; et an office, 3 Burr. 1487, 1641 ; R. v. Mayor, vid. 3 Q. B. 481. 'J'J\ MUNICIPAL CORPORATIONS. first name, and continuing them in a regular scries to the last name, and shall cause such books to be completed on or before the ttoenty- second day of October in every year (t)i and shall deliver such books, together with the lists, at the expiration of his office, to the person succeeding him in such office; ami every such book in which the aaid burgeafl Lists shall have been copied shall be the burgess roll (Zr) of the burgesses of such borough entitled to vote, after the passing of this act, in the choice of the councillors, assessors, and auditors of such borough, as hereinafter mentioned, at any election which may take place in such borough, between the first day of November inclusive, in the year wherein such burgess roll shall have been made, and the first day of November in the succeeding year : provided that no stamp duty shall be payable in respect of the admission, registry, or inrolment of any burgess, according to the provisions of this act." A quo warranto information is the proper mode of raising the question of a person's right to remain upon the burgess roll after the objection has been taken and overruled at the Court of Revision ; and the Court of Queen's Bench, though they will exercise great caution, and look narrowly into all the circumstances of the case, as disclosed in the affidavits, will probably, where they see clearly that the information ought to be granted, give facilities for expediting the decision, so that it may be obtained before the revision for another year takes place, provided the relator comes promptly (I). But the party complained against cannot be called upon to show cause in the first instance ; for a burgess is not a corporate officer, so as to be within a late enactment for rendering more expeditious proceedings by way of mandamus and quo warranto, so far as they affect corporate offices in boroughs (/») ; and therefore the rule is to show cause simply. A burgess is liable to a quo warranto on the general ground that he claims and uses a fran- chise ; and where a rule nisi for such information is discharged, and it appears that the party making affidavit as relator is indigent, and unable to pay costs, and was procured to make the application by another person, who is the real relator, the court, on a separate motion, will (i) Although the books are to be com- fused, where no question as to the validity of pleted by 22d October, yet a person whose the election of any corporate officer depends name is id the revised list of that day is not on the right of the party complained against, on the burgess roll until the l>i November, and it appears that the complainant applies and is not qualified to be a councillor between with a viuw of obtaining an indirect decision the 22d October and that day ; Reg* v. Har- upon Ins own claim, Keg. v. Anderson, 2 vey, 3 Q. B. 480, 481, inf. p. 397, n. («■). Q. B. 740 ; he having previously obtained a (k) A mandamus will go to llie major to rule absolute for a mandamus to the mayor to insert on the roll any name unduly omitted ; insert his name on the burgess roll, but taken Keg. v. Major, &C, of Lichfield, 2Q.B. DO farther Heps thereon, and the question pot 693. What is a sufficient compliance with being likely to be decided before tiie revision the rule, Mich. T. '■> Viet. (11 A. it 1.2,) for an bad taken place. that th. intended relator shall make affidavit (/) Vid. Reg. v. Anderson, •-! Q. II. 740, that the motion for the rule foi I quo warranto 744; Reg. 0, II"! on, 7 Q. Ji. 648. information is made at his instance, in moi (m) <> fit 7 Vict, c.89, s. o ; tid. In re for one against a b Milner, h Q. I). 58'J. •J',', r.. 71". Such information will be re- BURGESS ROLL. 395 order that person to pay the costs (n). — " And (o) be it enacted, that every burgess of any borough who shall be inrolled on the burgess roll for the time being of such borough, shall be entitled to vote in the election of councillors, and of the auditors and assessors hereinafter mentioned, for such borough ; and no person who shall not be inrolled in such burgess roll for the time being, shall have any voice or be intitled to vote in any such election." — In boroughs not divided into wards, the burgess roll consists of a general alphabetical list of the names of persons entitled to be burgesses ; in boroughs having wards, the roll consists of lists for each ward arranged in each alphabetically, and copied by the town clerk into the roll (p). («) Reg. v. Greene, 4 Q. B. 646 ; et vid. Rule of Court, 4 Q. B. 653. per Lord Denman, C. J., 5 Q. B. 96.3. How (o) Sect. 29. to draw up the rule for costs in such case, vid. (p) Sects. 22, 45 ; 1 Q. B. 461. ( 39G ) COUNCILLORS. It was necessary, for the full apprehension of the remaining part of the regulations respecting councillors, to give a view of the nature of burgessship as laid clown by the statute. We now return to the former subject, observing that the awkwardness of the admixture of the two subjects arises out of the necessity of the case ; for it would not have been possible to have presented otherwise the matter of these enact- ments, without sacrificing a good deal of the clearness of view, which, it is hoped, the reader will feel is gained by the arrangement that has been adopted. We have already (a) seen that the election of councillors is to be made openly by such burgesses as are on the roll on the 1st of No- vember in each year, out of such persons as are then qualified to be councillors. Now, with respect to qualification for the office of councillors, every one who is entitled to be on the burgess list of the borough, during such time as he shall not hold any office or place of profit, other than that of mayor, in the gift or disposal of the council of such borough, or have directly or indirectly, by himself or his partner, any share or in- terest in any contractor employment with, by, or on behalf of the council, is eligible to be and be elected a councillor; this does not extend to dis- qualify a proprietor or shareholder in any company contracting with the council for the supply of light or water, or for insuring against fire any part of the borough ; but where the only objection to a councillor is, that there is no good burgess list in existence, which applies equally to all the councillors elected at the same time, and also to all the existing burgesses, the court will refuse an information in the nature of quo war- ranto against him, if the result would be the dissolution of the corpo- ration (b). A lease, sale, or purchase, of lands, tenements, or hereditaments. i> not such a contract as disqualifies (c) ; and a lease between the corpo- ration as lessors, of the one part, and A. as lessee, of the other part, sealed with the common seal, though made before the passing of the Municipal Corporations Act, falls within the meaning of a contract with the council, and is therefore within the exemption of the statute of Victoria (rf). The word contract in the above section (s. 28) must be taken to have its ordinary legal meaning, subject to the explanation Vid. 8.30; tup. p. 356. (<■) .-, „\ i, Vin. c 104,8. 1. ) S A. Si E. 810, vid. inf. p. 397. (./> Reg. v. York, 2 Q. B. 847. COUNCILLORS. 397 given by the latter statute (e). Further, the lease, whether granted before or since the passing of the Municipal Corporations Act, must appear to be a lease between the corporation and the lessee, and must be so pleaded in either case ; and so of all other contracts (/) ; for all contracts made with the old corporation must necessarily be so, and all contracts made with the council are virtually, and in the eye of the law, made on behalf and in the name of the corporation, and must be stated according to their legal operation. The clause is as follows, thus : — " And ( g) be it enacted, that no person being in holy orders, or being the regular minister of any dis- senting congregation, shall be qualified to be elected or to be a council- lor of any such borough, or an alderman of any such borough, nor shall any person be qualified to be elected or to be a councillor or alderman of any such borough who shall not be entitled to be on the burgess list of such borough (h), nor unless he shall be seised or pos- sessed of real or personal estate, or both, to the following amount ; that is to say, in all boroughs directed by this act to be divided into four or more wards, to the amount of 1000/. ; or be rated to the relief of the poor of such borough upon the annual value of not less than 30/. ; and in all boroughs directed to be divided into less than four wards, or which shall not be divided into wards, to the amount of 500/., or be rated to the relief of the poor in such borough upon the annual value of not less than 15/.; or during such time as he shall hold any office or place of profit, other than that of mayor, in the gift or disposal of the council of such borough, or during such time as he shall have directly or indirectly, by himself or his partner, any share or interest in any contract or employment with, by or on behalf of such council : pro- vided, that no person shall be disqualified from being a councillor or alderman of any borough as aforesaid by reason of his being a pro- prietor or shareholder of any company, which shall contract with the council of such borough for lighting or supplying with water or in- suring against fire any part of such borough." A contract between A. of the one part, and the mayor, aldermen and burgesses of the borough of of the other part, and sealed with the common seal, is a contract with the council under this section (h). There is still another disqualification, viz. that no burgess shall be (e) Vid. 2 Q. B. 849. the 22nd October, held, that on the 29th Oc- (/ ) Vid. 2 Q. B. 850. tober he was not " entitled to be on the bur- ( g) Sect. 28. The proceedings which take gess list," and therefore was not qualified to place with respect to the burgess lists between be a councillor, Reg. v. Harvey, 3 Q. B. 475, 5th September and 1st November in each his name not being on the burgess roll for the year, are only for the preparation of that which municipal year ending with the 1st November, is to be the rollor list for the year beginning with but merely on a list or roll which was not to 1st November, and until that day the placing be in force until that day, 3 Q. B. 482. a name on the list gives no qualification under (h) Reg. r. York, 2 Q. B. 847. The being the statute, the list or roll of the former year treasurer oftrusteesofa paving act, and banker being the list or roll until 1st November. to them, is a share and interest in an employ- Therefore where a person's name was placed ment by or on behalf of the council ; Reg. v. on the revised burgess list finally made up on Greene, 2 Q. B. 460. 398 MUNICIPAL CORPORATIONS. eligible to be elected a member of the council while holding the office of assessor or elective auditor (i). An uncertificated bankrupt is not disqualified from being elected a councillor, though a person, on being declared bankrupt while holding the office of councillor, is disqualified to retain, and immediately ceases to hold, the office (A). The office of sheriff is not an " office or place of profit" within this section (/) ; but the offices of town clerk, treasurer, registrar of the court of record, are so (w). The word contract in this section does not extend to any lease, sale or purchase of any lands, tenements or hereditaments, or to any agree- ment for any such lease, &c, or for the loan of money, or to any secu- rity for the payment of money only(?i). With respect to the disfranchisement of a burgess, the same prin- ciples appear to apply that have been laid down above with reference to the disfranchisement of corporators generally, notwithstanding the Municipal Corporations Act and the later acts; for there appears to be nothing in them to prevent the corporation from exercising its common law power of disfranchising a person who, from crime or breach of duty to the corporation, becomes unfit to continue a member of it. As to the mode of conducting the election of councillors, it is enacted (o) — " that every election of councillors within any borough according to the provisions of this act, shall be held before the mayor (p) and assessors for the time being of such borough, except as herein is excepted ; and the voting at every such election shall commence at nine o'clock in the forenoon, and shall finally close at four o'clock (rj) in the afternoon of the same day, and shall be con- ducted in manner following ; that is to say, every burgess entitled to vote in the election of councillors, may vote for any number of persons not exceeding the number of councillors then to be chosen, by deliver- (i) 7 Will. 4 & 1 Vict. c. 78, s. 15. As to be given at the time of election, R.n. Iliorns, to giving notice of such disqualification, Reg. 7 A. St E. 9o'0 ; and, as it appears, ought to v. Hiorna, 7 A. & I.. 960; etvnl.inf.n. (p). be given, by posting in conspicuous places at (/c) R. r. Chitty, 5 A. &t E. 609. the booths or polling places, the names of ull (/ ) 5 & 6 Vict. c. 104, s. 8. burgesses who are disqualified, under the hand (m) Vid. ss. 58 and 1 19 Municipal Corpo- of the mayor and assessors. But, semb., this rations Act. is not necessary where the disqualification is (n) 5 6c 6 Vict. c. 104, s. 1. one of which the electors are bound to take (o) Sect. 32. notice, as arising out of their charter, an act I The duty of the returning officer in of parliament, or the judgment of a court of such election is purely ministerial ; he is to law. All votes given to persons whose dis- assume that the persons voted for are duly qualification has been duly notified will he qualified; Reg. v. Ledgard, 8 A. & I-'.. 545 ; thrown away, R. v. Munday, Cowp. 537 ; vid. 6 Q. B. 668. Since 7 Will. 4 & 1 Vict. R. v. Barry, 14 East, 549; It. v. Hawkins, c. 78, ■. 1, no election shall be invalidated for 10 Past, 211; S. C. 2 Dow, 124; vid. 7 want of title in the presiding officer; vid. 9 Q. B. 437, 438 ; and as to cases of notorious A.:. E. 680. The presiding otlicer inu^t stay disqualification, vid. tup. p. '205 — 208. until the election closes, or it is void ; R v. (y) Or at any time before four o'clock, if Buller, 8 East, 37; vid. tarn, II East, 77; one hour shall have elapsed without a vote R. i. Williams, 2 M. & Selw. 141. On the hiving been tendered. 7 Will. 4 & 1 Vict. other hand, however, notice of disqualification c. 78, s. 18, i. e. tendered to the presiding of any burgess to be elected councillor, ought officer. COUNCILLORS. 399 ing to the mayor and assessors, or other presiding officer, as herein- after mentioned, a voting paper containing the christian names (r), and surnames, of the persons for whom lie votes, with their respective places of abode and descriptions, such paper being previously signed with the name of the burgess voting, and with the name of the street, lane or other place in which the property, for which he appears to be rated on the burgess roll, is situated." We may properly repeat here (for the principle is very important in reference to all cases of corporate elections), that where the majority of electors vote for a disqualified person in ignorance of the fact of dis- qualification, the election may be void or voidable, or, in the latter case, may be capable of being made good, according to the nature of the dis- qualification. The objection may require ulterior proceedings to be taken before some competent tribunal in order to be made available, or it may be such as to place the elected candidate on the same footing as if he never had existed, and the votes for him were a nullity ; but in no such case are the electors who vote for him deprived of their votes if the fact becomes known and is declared while the election is still in- complete ; they may instantly proceed to another nomination and vote for another candidate. If it be disclosed afterwards, the party elected may be ousted and the election declared void ; but the candidate in the minority will not be deemed ipso facto elected. But where an elector, before voting, receives due notice that a particular candidate is dis- qualified, and yet will do nothing but tender his vote for him, he must be taken voluntarily to abstain from exercising his franchise, and to violate his duty of assisting at the election (s). The statute proceeds : — " And (t) be it enacted, that at every election in any borough, the mayor, if it shall appear to him expedient for taking the poll at such election, may cause booths to be erected, or rooms to be hired and used as such booths, for different parts of such borough, which may be situated either in one place or in several places, and shall be so divided and allotted into compartments as to the mayor shall seem most con- venient ; and the mayor shall appoint a clerk to take the poll at each compartment, and shall cause to be affixed on the most conspicuous part of each of the said booths the names of the parts for which such booth is respectively allotted ; and no person shall be admitted to vote at any such election except at the booth allotted for the part wherein the house, warehouse, counting-house or shop occupied by him, as (r) Where only one vacancy had been given, Reg. v. Ledgard, 8 A. & E. 535. duly declared, the votes given for two persons What is the proper custody of voting papers jointly were held to be thrown away; the for councillors docs not appear; those for candidate whose voting papers contained the aldermen are to be kept among the records of name of one candidate only was held to be the borough, by 7 Will. 4 & 1 Vict. c. 78, duly elected ; Reg. v. Mayor, &c, of Leeds, s. 14. 7 A. & E. 963; R. v. Withers, Cowp. 537. (s) Gosling v. Veley, 7 Q. 13. 437, 438. What is not sufficient identification of the (£) Sect. 33. voting papers to be evidence of the votes 400 Ml NICIPAL CORPORATION-. described in the burgess roll, may be ; but in case no booth shall happen to be provided for any particular part aa aforesaid, the votes of the persons voting in respect of property situate in any part so omitted may be taken at any of the said booths; and public notice of the situation, division and allotments of the different booths shall be given two days before the commencement of the poll by the mayor; and in case the booths Bhall be situated in different places, the mayor may appoint a deputy to preside at each place: provided also, that no elec- tion shall be holden under this act in any borough in any church, chapel or other place of public worship." " And («) be it enacted, that no inquiry shall be permitted at any election as to the right of any person to vote as a burgess in any borough, except only as follows ; that is to say, that the mayor or other presiding officer shall, if required by any two burgesses entitled to vote in the same borough, put to am voter, at the time of his delivering in his voting paper, and not after- wards, the following questions, or any of them, and no other : — 1. Are you the person whose name is signed as A. B. to the voting paper now delivered in by you? 2. Are you the person whose name appears as A. B. on the bur- gess roll now in force for this borough, being registered therein as rated for property described to be situated in ? [Here specify the street, $"c, as described in the burgess roll.] 3. Have you already voted at the present election ? And no person required to answer any of the said questions shall be permitted or qualified to vote until he shall have answered the same ; and if any person shall wilfully make a false answer to any of the ques- tions aforesaid, he shall be deemed guilty of a misdemeanor, and may be indicted and punished accordingly" (x). In an indictment, a count for fraudulently, deceitfully, and in fraud of the provisions of the act, personating one H., whose name was on the burgess roll, and giving a vote in the name of II., was held to be bad, as not charging any offence either against the statute or at com- mon law (y). If the indictment be for making false answers, they must be alleged to have been made wilfully, or the indictment will be bad(?/). " And(z) be it enacted, that the mayor and assessors shall examine the voting papers so delivered as aforesaid, for the purpose of ascertaining which of the several persons voted for are elected ; and so many of such persons, being equal to the number of persons then to be chosen, as shall have the greatest number of votes, shall be deemed to be elected; and in case of an equality in the number of votes for any two or more persons, the mayor and assessors, or any two of them, shall name from amongst those persons, for whom the number of votes shall be equal, 80 (u) Sect. 34. (v) Reg. v. Bent, 2 Car. 6c K. 179. m) l„l. Reg. e. Dodaworth, 2 M. & Rob. (z) Sect. 35. 72 ; Reg. v. Rent, 2 Car. >x K. 179. COUNCILLORS. 401 many as shall be necessary to complete the requisite number of persons to be chosen; and the mayor shall cause the voting papers to be kept in the office of the town clerk during six calendar months at the least after every such election ; and the town clerk shall permit any burgess to inspect the voting papers of any year, on payment of one shilling for every search ; and the mayor shall publish a list of the names of the persons so elected not later than two of the clock in the afternoon of the day next but one following the day of such election, unless such day be Sunday, and then on the Monday following." In case of a refusal of a person elected to take upon him the office, a mandamus will go to compel him (a) ; at any rate, if there is no bye-law made fixing the fine for non-acceptance (b). In case of any mistake in the list of persons elected, which the mayor publishes under this section, being afterwards discovered, it cannot be corrected after two of the clock on the day but one following the day of election ; and a party, whose name is in the first published list, and who has made and subscribed the declaration required by 9 Geo. 4, c. 17, s. 2, before two justices of the borough, is councillor de facto, and may have a mandamus to the corporation to receive him as such (c) ; and, as it seems, though it does not appear whether he has made the declaration before two or more aldermen, or councillors, required by a later sec- tion (d), without which a councillor is not capable of acting. Where the council have passed a bye-law, ascertaining the amount, or at least the limits, of the fine to be paid for non-acceptance of the office, a councillor elected, by omitting to take the declaration in this act mentioned (e), within five days after notice of his election, becomes liable to pay the fine, and his office is deemed vacant, and shall be filled up by a fresh election (/) ; but " no person, disabled by lunacy or im- becility of mind (/) , or by deafness, blindness, or other permanent infir- mity of body, shall be liable to such fine ; provided also, that every person so elected to any such office, who shall be above the age of sixty-five years, or who shall have already served such office respec- tively, or paid the fine for not accepting such office respectively, within five years from the day in which he shall be so re-elected, shall be ex- empted from accepting or serving the same office, if he shall claim such exemption within five days after notice of his election ; provided always, that nothing in this act contained shall extend to compel the acceptance of any office or duty whatever in any borough, by any military, naval, or marine officer in his majesty's service on full pay, or by any officer or (a) Reg. v. Hungerford, 11 Mod. 142; (e) Sect. 50. The fine seems to be in lieu of vid. Stra. 1193. service; therefore a mandamus to take on ( h) Vid. s. 90, sup. p. 362 ; and as to mode him the office would not lie in any case where of levying, s. 51. the fine was paid; 1 B. & C. 585. (c) Reg.t>. Mayor, &c, of Leeds, 11 A. & (/)Sect.51. To make these express excep- E. 512. tions is ridiculous, according to Holt, C. J.; (d) 5 & 6 Will. 4, c. 76, ss. 50, 51. Carth. 483. D D 402 MUNICIPAL CORPORATIONS. other person employed and residing within any of her majesty's dock- yards, victualling establishments, arsenals, or barracks (g)" The mode of election, where boroughs are divided into wards, is this: " And (h) whereas it is expedient that certain boroughs of largo population should be divided into wards before any election of council- lors for such boroughs should take place: be it therefore enacted, that every borough in the said Schedule (A.) shall be divided into the num- ber of wards mentioned in such schedule, in conjunction with the name of such borough ; and that it shall be lawful for the barrister or bar- risters appointed in pursuance of the provisions hereinbefore contained to revise the burgess and councillors' list of any borough in the present year, and he or they is and are hereby required, within the space of six weeks next after the passing of this act, to determine and set out the extent, limits, and boundary lines, of such wards, and what portions of such borough shall be included therein respectively ; and the copy of the particulars of such division shall be forthwith transmitted to one of his majesty's principal secretaries of state, and, if his majesty, by advice of his privy council, shall approve such determination, shall be published in the London Gazette, and another copy of such particulars shall be delivered to the town clerk of such borough, to be by him safely kept among the public documents of such borough ; and every such borough shall, after such publication as aforesaid, be deemed to be divided into such wards as shall be so determined and set out as aforesaid, and such divisions shall continue and be in force until the same shall be altered by authority of parliament : provided always, that if his majesty, by advice of his privy council, shall not approve such determination, such publication as aforesaid shall nevertheless be made, and such division be in force for the purpose of any election under the provisions of this act, and until such time as his majesty shall, by advice of his privy council, upon further information and report from such barristers, definitively approve the division of such borough into wards in manner hereinbefore mentioned." " And (i) be it enacted, that the said barrister or barristers shall, after the division of the borough into such number of wards as is directed by this act, apportion among the several wards of such borough the number of councillors mentioned in conjunction with the name of such borough in the said Schedule (A.); and in assigning the number of councillors to each ward, the said bar- rister or barristers shall, as far as in his or their judgment he or they in iv deem it to be practicable, have regard as well to the number of persons rated to the relief of the poor in such ward as to the aggregate amount of the sums at which all the said persons shall be so rated : provided always, that the number of councillors assigned to each ward shall be a number divisible by three; and a copy of the particulars of the number of councillors so assigned to the several wards of the borough (g) Sect. 51. (h) Sect. 39. (i) Sect. 40. COUNCILLORS. 403 shall be forthwith transmitted to one of his majesty's principal secretaries of state, and, subject as aforesaid to the approval of his majesty, by the advice of his privy council, shall be published in the London Gazette, and another copy of such particulars shall be delivered to the town clerk of the borough, to be by him safely kept among the public docu- ments of such borough ; and the number of councillors so assigned to each ward of such borough shall, after such publication as aforesaid, be the number to be elected in such ward, and shall so continue until the same shall be altered by authority of parliament : provided always, that if his majesty, by the advice of his privy council, shall not approve the number of councillors so assigned to each ward, such publication shall nevertheless be made, and the number of councillors so assigned to each ward of such borough by such barrister shall be the number to be elected in such ward at any election of councillors under this act, until such time as his majesty shall, by advice of his privy council, upon further infor- mation and report from such barrister, definitively approve such assign- ment in manner hereinbefore mentioned." " And (k) whereas it may be convenient in divers boroughs to adhere in the division of the same into wards, to the ancient division thereof into parishes or into districts under any local act, or to adapt such division to local circumstances, and such division so made might render difficult such apportionment of council- lors as is hereinbefore directed : be it therefore enacted, that in every such case the said barrister or barristers shall be empowered, at his or their discretion, subject as aforesaid to the approval of his majesty, by the advice of his privy council, to divide any borough, in conjunction with the name of which, in the said Schedule (A.), shall be mentioned any number of wards greater than two, into any number of wards more or less by one than the number of wards mentioned in conjunction with the name of such borough in the said schedule." " And (I) be it enacted, that in every case in which there shall be a division into wards of any borough, the burgesses of every such ward, and none others, shall, on the day fixed for the first election of councillors, separately elect from the persons qualified to be councillors the whole number of councillors assigned to such ward respectively ; and on the first day of November, in any subsequent year, shall separately elect from the persons qualified to be councillors one-third part of the whole number of councillors as- signed to such ward ; and on the first day of March next after the first election of councillors in such ward, and in every subsequent year, shall separately elect from the persons qualified to be councillors two asses- sors for such ward ; and every such ward election first after such divi- sion into wards of any such borough shall be held before the mayor, or the person whom the mayor for the time being shall appoint in that behalf, and in every succeeding year shall be held before the alderman, whom the councillors chosen in such ward shall yearly appoint in that (A:) Sect. 41. (0 Sect. 43. DD2 101 MUNICIPAL CORPORATIONS. behalf, and before the two assessors of such ward; and the assessors who shall hold the court for revising the burgess lists with the mayor, shall be the assessors of the mayor's ward; and the votings, and other proceedings in all other respects at such ward elections, shall be con- ducted in the same manner as at elections of councillors or assessors respectively by the burgesses of the whole borough; and the aldermen and assessors of each ward shall have the same powers in regard to elec- tions in their ward as the mayor and assessors for the whole borough, if not divided into wards ; and every person so elected a councillor or assessor in such ward shall hold his office for the same time that he would have held it, if he had been elected by the burgesses of the whole borough, and if the number elected in such ward had been the whole number for the borough." " And (m) be it enacted, that every burgess of any borough shall be entitled to vote in the election of the council- lors and assessors to be chosen within that ward, in which the property of such burgess, for which he appears to be rated on the burgess roll for the time being of such borough, shall appear to be situated, and not otherwise ; and if any burgess shall be rated in respect of distinct pre- mises in two or more wards, then he shall be entitled to be inrolled and to vote in such one of the said wards as he shall select, but not in more than one." " And(n) be it enacted, that, for the purpose of better as- certaining who are the burgesses of any such ward, the burgess roll of every borough so divided into wards shall thenceforward be made out, by or under the direction of the town clerk, in alphabetical lists of the burgesses in each ward, to be called " ward lists." " And be it enacted, that, if at any election of councillors or assessors for any borough, any person shall be elected a councillor or assessor in more than one of the wards of such borough, he shall, within three days after notice thereof, choose, or in his default the mayor shall declare, for which one of the said wards such councillor or assessor shall serve; and such person shall thereupon be held to be elected in that ward only which he shall so choose, or which the mayor shall so declare." As to cases of extraordinary vacancies, it is provided as follows : " And (o) be it enacted, that if any extraordinary vacancy shall be occa- sioned in the office of councillor, auditor, or assessor for any borough, the burgesses entitled to vote shall, on a day to be fixed by the mayor of such borough, or in the case of a councillor or assessor, where the borough shall have been divided into wards, by the alderman of the ward in which the vacancy has happened (such day not to be later than ten days after such vacancy), elect from the persons qualified to be councillors another burgess to supply such vacancy ; and such election shall be held, and the voting and other proceedings, in case of a con- test, shall be conducted in the same manner and subject to the same (m) Sect 44 (o) Sect. 47. The proviso is repealed by 7 ,..,'.45,46. WU1.4& 1 \ict.c. 7b, s. 11. COUNCILLORS. 4()5 provisions as are hereinbefore enacted with respect to the election of councillors as aforesaid ; and every person so elected shall hold such office until the time at which the person in room of whom he was chosen would regularly have gone out of office, and he shall then go out of office, but shall be capable of immediate re-election if then qualified as herein provided : provided always, that after the full number to be regularly elected of the councillors in any year shall have declared their acceptance of office, no new election of councillors shall be made by reason of such extraordinary vacancy, unless the number of councillors remaining after such vacancy shall not exceed two-thirds of the whole number of the council of such borough^ Where a councillor has been put off the burgess roll by the overseers for alleged non-payment of rates, but has nevertheless continued to exercise the office, this is not an extraordinary vacancy, on which the court will issue a mandamus to proceed to a new election ; the vacancy must first be ascertained by a judgment on an information in the nature of quo warranto (p). But the burgesses may elect another to supply his place if they please, the proceedings of removing him from the bur- gess roll being bona fide (q), and the vacancy being established by cer- tificate, under sect. 52 of the Municipal Corporations Act (r). In general, however, where an election of councillor is not made on the day, or within the proper time, a mandamus to proceed to election will issue (s). If a councillor be ousted and another person be elected, but only colour- ably, in his stead, a mandamus to permit the former to exercise his office is proper, but not to restore, for the office is not filled by the other ; but if the ouster and election be bond fide, there must be a quo warranto information to remove the latter before a mandamus can go to restore the former (t). Where there are two or more extraordinary vacancies to be filled at the same election, the person elected by the smallest number of votes shall be taken to be elected in the room of the person who would first have gone out of office, and so on with respect to the others (u). An election taken for ordinary and extraordinary vacancies both together is wholly bad (x), and in that, and all other cases of an actual vacancy and a void election to supply it, the court will grant a mandamus to proceed to an election (?/). " And(z) be it enacted, that if any (p) Reg. v. Phippen, 7 A. & E. 96G ; R. 5 A. & E. 589 ; vid. 1 A. & E. 80, 100. v. Mayor, &c, of Winchester, 7 A. & E. 215. (s) Sect. 48. A mandamus will issue to com- ( as aforesaid, or if any such overseer or town clerk shall refuse to allow any such list to be perused by any person having right thereunto, every such overseer and town clerk respectively for every such offence phaU forfeit and pay the sum of fifty pounds; and the said penalties hereby in such case imposed shall be recovered, with full costs of suit, by any person who will sue for the same within three calendar months after the commission of such offence, by action of debt or on the case in any of his majesty's superior courts of record ; and the money so to be recovered shall, after payment of the costs and expenses attending the recovery thereof, be paid and apportioned as follows (that is to say), one moiety thereof to the person so suing, and the other moiety thereof to the treasurer to be appointed by virtue of this act, to be by him applied in aid of the borough fund hereinafter mentioned." The overseer is liable to the penalty although his neglect be neither wilful nor corrupt (b), and the reasons on which that has been decided appear to apply equally to the town clerk : " Provided (c) always, and be it enacted, that if any person holding the office of mayor, alderman or councillor for any borough shall be declared bankrupt, or shall apply to take the benefit of any act for the relief of insolvent debtors, or shall compound by deed with his creditors, or, being mayor, shall be absent for more than two calendar months, or, being an alderman or councillor, for more than six months, at one and the same time (unless in case of illness), from the borough of which he shall be mayor, alderman or councillor, then and in every such case such person shall thereupon immediately become discpaalified, and shall cease, to hold the office of such mayor, alderman, or councillor as aforesaid, and in the case of such absence shall be liable to the same fine, to be recovered in the same man, C.J., 1 Q. B. 461 ; tid. Reg. v. Harvey, such party may have a mandamus under 7 3 (}. B. 475. Where several persons are to Will. 4 .\ 1 Vict. c. 78, s. 24, to the mayor be inserted on the roll.it is not regular to gTant to insert his name on tin- mil, hil rjualification gle rule nisi for the issuing of several writs having been proved at the revision court; of mandamus ; 10 A. & E. 70. The mandamiu Reg, v. Mayorol Lichfield, 1 Q. B. 453. The is not peremptory in the hr-t instance , Keg. overseers are, besides, liableto the penal action i . Mayor of Eye, 9 A. I I , 670. given by the latter part of the section ; Kin;' (a) Where the overseen of a parish, within v. Burrell, 12 A.& K. 460. a borough, neglected to deliver a list, ami the (/<) King i . Burrell, 12 A. & E. 460. name of any party has in conasqtu nee !>■ i (c) Sect. 52. omitted from the burgess roll by the mayor, COUNCILLORS. 407 manner, as if he had refused to accept the said office, and the council thereupon shall forthwith declare the said office to be void, and shall signify the same by notice in writing under the hands of three or more of them, countersigned by the town clerk, to be affixed in some public place within the borough, and the said office shall thereupon become void ; but every person so becoming disqualified and ceasing to hold such office on account of his being declared a bankrupt, or of his applying to take the benefit of any act for the relief of insolvent debtors, or having compounded with his creditors as aforesaid, shall, on obtaining his certificate, or on payment of his debts in full, be capable (if other- wise qualified) of being re-elected to such office, and every person becoming disqualified to hold such office on account of absence as aforesaid shall, on his return to such borough, be capable of being re~ elected to such office, provided he shall then be otherwise qualified." The mode herein pointed out for giving the notice must be strictly pursued; a notice given by the mayor and all the aldermen and assessors of the wards of the borough, is not a correct notice of a vacancy under this section (d). The office is not void until the vacancy is duly de- clared (d). Every councillor is prohibited from being interested or concerned, or being employed directly or indirectly, as an architect, builder, artist, mechanic, workman, merchant, trader, or otherwise howsoever, in any part of the work to be done or materials to be supplied in building a borough gaol or house of correction, or in any contract whatever relating thereto ; and any one while in office, and becoming interested, con- cerned, or employed in such work or contract, shall thenceforward be disqualified from continuing to hold such office, and also from being thereafter elected or appointed to fill any corporate office within the borough, &c. (e) Every councillor, on being elected, must make, &c, the following declarations : " And (/) be it enacted, that no person elected a mayor, alderman, or councillor, or auditor, or assessor, for any borough, shall be capable of acting as such, except in administering the declaration hereinafter contained, until he shall have made and subscribed before any two or more such aldermen or councillors (who are hereby respec- tively authorized and required to administer the same to each other) a declaration in the words or to the effect following (that is to say) ; " I, A. B., having been elected mayor [or alderman, councillor, audi- tor or assessor,] for the borough of , do hereby declare, that I take the said office upon myself, and will duly and faithfully fulfil the duties thereof according to the best of my judgment and ability ; [and in the case of the parti/ being qualified by estate, say, And I do hereby declare that I am seised [or possessed] of real [or personal] estate [or both, as (d) Reg. v. Mayor, &c, of Leeds, 7 A. & (e) 7 Will. 4 & 1 Vict. c. 78, s. 39. E. 963. (/) Sect. 50. -108 MUNICIPAL CORPORATIONS. the case may be], to the amount of one thousand pounds [or five hundred pounds, as the ease may require,] over and above what will satisfy all my debts." " And that every alderman who shall have made and subscribed the foregoing declaration in respect of estate shall once in every period of three years, if required in writing so to do by any two members of the council, make and subscribe a declaration that he is qualified to the same amount in real or personal estate, or both, as the case may then be, as tin amount mentioned in the declaration originally made and subscribed by him : provided always, that nothing in this act contained shall be construed to dispense with the obligation of any person to make and subscribe the declaration provided and enjoined by an act made in the ninth year of his late majesty, George the Fourth, intituled ' An Act for repealing so much of several Acts as imposes the necessity of receiving the Sacrament of the Lord's Supper as a qualification for cer- tain Offices and Employments.'" This section preserves the necessity of making and subscribing the declaration required by 9 Geo. 4, c. 17, s. 2 (g). But some difficulty appears to arise here, at least with respect to the case of a councillor, for he is not admitted to his office (A). Whereas the statute last men- tioned appoints the declaration in it to be made, &c, " within one calendar month next before or upon his admission, &c.,"andit has been solemnly decided that the statute does not give the elected party a month for deciding whether he will make the declaration or not, but only excuses him from making it at the time of his admission if he has made it within a month before, and that upon means at the time of his admission and not within a reasonable time after (i). The declaration is as follows : — " I, A. B., do solemnly and sincerely, in the presence of God, profess, testify and declare upon the true faith of a Christian, that I will never exercise any power, authority or influence which I may possess by virtue of the office of , to injure or weaken the Protestant church as it is by law established in England, or to disturb the said church, or the bishops and clergy of the said church, in the possession of any rights or privileges to which such church, or the said bishops and clergy, are or may be by law entitled" (/<)• The first mentioned declaration must be made and subscribed within five days after notice of the party's election (/). Where a councillor, after being elected, is excluded from acting as a councillor, the proper way to raise the question of whether he is duly elected, is by mandamus to the corporation to permit him to act as councillor ; and if the council resolve to, and do, show cause against the (g) Per Patteson, .1.. 7 A. & K.221. (k) 9 Geo. 4, c. 17, s. 2 ; vid. 1 & 2 Vict. (h) The declarations must be taken although e. •">, and c. 15 as to the declaration to be tbey are not tendered; R. i. Slatlord, Comb. made by Quakers, Moravians and Separatists. 419. (I) 5 a 6 Will. 4, c. 76, s. 51. tO Reg. D. Hutnphery, 10 A. ,\ I . COUNCILLORS. 409 rule 7tisi, they cannot charge the expense of doing so on the borough fund, nor the expense of counsel's opinion ordered by them to be taken, in accordance with which the councillor was excluded (m). With respect to the removal of councillors from their office, it is to be observed, that except in those cases in which the vacancy is ap- pointed by the statute to be declared in a particular manner, the mode of information in the nature of quo warranto is the proper mode of trying the right to the office, and any one who is subject to the govern- ment of the council as an inhabitant of the district over which the cor- porate jurisdiction extends, has sufficient interest in the matter to be a good relator of such an information (n), and a motion for a rule nisi may be granted, though made on the affidavits of three persons, two of them not being qualified to be relators, and the affidavit of the third (who was so qualified) not showing sufficient ground for granting the in- formation (o); and though leave to file such an information will not be refused merely because it may or will have the effect of dissolving the corporation, yet the court, in the exercise of its discretion, will refuse it where no fraud is imputed, no mischief has been done, and where the prosecution, if successful, would probably dissolve the corporation, and the prosecutors appeared to have that intention (o). The election, if not questioned within twelve months, is to be deemed good to all intents and purposes (p). But as in all cases of corporate offices it must appear that the office is full, before the information will be granted ( seem to be used to designate the freemen of lently, on purpose to qualify him to give his the Municipal Corporations Act only, the vote ; and the 4th seciion of the latter act word burgee not having the sense put upon provides, " that no person shall vote in respect it in the last mentioned act; rir granted to him fraudulently, on pur- il\ Gra. 145, to be registered, Ilutchins v. pose to qualify him to give his vote." Hence, lirown, 2 C. 15.25. Notice of claim may be although by the Reform Act, s. 58, the only no ived on Sunday, if 20th July falls on that questions which can be put to the voter at day ; 2 C. 15. 72. the time of polling do not relate to this point, (m) Jeffrey t. Kitchener, 7 of. &c Gra. 99 ; any more than the oath which by that section rid. 6 & 7 Vict. c. 18, s. 78; et rid. 7 i\ 8 the voter must take if required, and which is Will. 3, c. 25. and 10 Ann. c. 23, against the only oath that can be put to him, yet nccaiional voters; Kast Grinstead case, 1 the enactment just mentioned is not repealed, ■. . I.I. (us. 310 j rid. 2 C. B. 132, and therefore an estate granted " fraudu- 3 Geo. 3, c. 15. lently, on purpose to qualify to give a vote" 22 G()/., such sum to be recovered, with full costs of suit, by any person who will sue for the e within three calendar months after the commission of such offence, by action of debt, or on the case, in any of his majesty's superior courts of record : and every person so sued by reason of not being so qualified in respect of estate -hall prove that he was at the time of so acting qualified as aforesaid, or otherwise shall pay the said penalty, without any further evidence being given <'i) the part of the plaintiff than that such person has acted as the mayor, or as alderman, councillor, auditor or assessor (as the case may be) of such borough: provided always, that it shall be lawful for any defendant, by judge's order, to be obtained within fourteen days after he shall have been served with process in any such action, to require the plaintiff to give security for costs; and in such case all further proceedings in the said cause shall be stayed until the plaintiff shall give security to the satisfaction of the proper officer of the court for the costs of such action in case a verdict shall pass for the defendant, or the plaintiff shall become nonsuit, or discon- tinue such action, or if, upon demurrer or otherwise, judgment shall be given against the plaintiff; and the defendant shall in either of such - recover his full costs as between attorney and client : provided also, that no such action shall be brought except by a burgess of such borough, nor unless the burgess bringing the same shall, within four- teen days after the commission of the offence, have served a notice in writing personally upon the party committing such offence of his inten- tion to bring such action; and in case the plaintiff in any such action shall obtain a verdict, the money so to be recovered shall, after pay- ment of the costs and expenses attending the recovery thereof, be paid and apportioned as follows: (that is to say! one moiety thereof to the person SO suing, and the other moiety thereof to the treasurer to be appointed by virtue of this act, to be by him applied in aid of the bo- rough fund: provided always, that all acts and proceedings of any person in possession of the office of mayor, alderman, councillor, auditor or assessor, and acting as a mayor, alderman, councillor, auditor or assessor, shall, notwithstanding such disqualification or want of quali- fication, be as valid and effectual as if such person had been duly qualified." The declaration must be made within live days after notice of elec- tion, or the party will be deemed to refuse the office (£)• I tn (ill it within ten da day rioos, or acting ;ifter the lime for making them g up Mich notic \.«\ bad elapsed, not having taken the ight be thi subject ol i criminal information; K. ■ -. II , 083. neglect to mutt: ullicr ol the above declare- ALDERMEN. 419 But besides the above declaration, every alderman must also, within one calendar month next before or upon his admission to office, make and subscribe the declaration imposed (9 Geo. 4, c. 17, s. 2) (?/), to the effect that he will never exercise any power, authority or influence de- rived from the office to injure or weaken the Protestant church, or to disturb it in the possessions of its rights and privileges. Omission or neglect to comply with this requisition renders the election void, and invalidates all acts done by such person in the execution of the office (9 Geo. 4, c. 17, s. 3), and that notwithstanding, as it seems, that the above section of the Municipal Corporations Act gives validity to all acts done by an aldeiman without having made the first of the decla- rations therein mentioned (x). Refusal to accept the office renders the party (being eligible and not exempt) liable to such penalty, not exceeding 50/., as the council shall declare by bye-law, and such penalty is leviable by distress warrant under the hand of any justice having jurisdiction within the borough (y). After taking office, neglecting or refusing to perform the duties im- posed by the Municipal Corporations Act, subjects to a fine of 100/. for every offence (z) ; and this is the case whether the omission be wil- ful or not (a). In boroughs divided into wards, the election of council- lors is to be held in each ward before such alderman (with two assessors) as the councillors chosen in the ward shall yearly appoint in that be- half, who with his assessors is to have the same powers in regard to elections in such ward as the mayor and his assessors have for the whole borough where there is no division into wards (Z>); and in case of illness or incapacity to act, the mayor may appoint another alderman (c). In case of the death, absence or incapacity of the mayor at a time when it shall be necessary to execute the powers and duties imposed by the Municipal Corporations Act with respect to elections, the council are to select one of the aldermen to execute all such powers and duties (d). A writ of mandamus to receive his vote and allow him to act as alderman, seems to be the proper mode of raising the question whe- ther he has been duly elected (e) ; a mandamus to restore would fitly raise the question whether the office had been duly declared void by the council in either of the cases mentioned above (/). (it) Vid. sup. p. 408 ; Reg. v. Humphery, bye-law imposing a fine which had been paid, 10 A. & E. 365. strictly an information might be granted, un- (i) Vid. 10 A. & E. 365 ; 14 East, 549 ; less it appeared that the meaning of the bye- 4 Q. B. R01. Refusal to take the declaration law, as shown by usage, was that the fine is equivalent to refusal of the office ; 10 A. should stand in lieu of service, 2 T. R. 7:31. & E. 368 ; 2 Show. 159 ; 3 Lev. 116. (s) Sect. 48. (y) Sect. 51. If there be no such bye- (a) King v. Burrell, 12 A. & E. 460. law, probably the remedy by mandamus call- (6) Sect. 43. inguponhimtotakeonhimtheoffice,lB.&C. (c) 7 Will. 4 & 1 Vict. c. 78, s. 16. 585," or an indictment, Carlh. 480, Salk. (d) Municipal Corporations Act, s. 36. 142; or a criminal information might be had, (e) Vid. sup. pp. 408, 409. 5T. R. 86; R. v. Grosvenor, 1 Wils. 18; (/) Vid. mp. p. 409 ; R.». Mayor of Can- vid. 2 T. R. 731 ; and even if there were a terbury, 1 Lev. 119; recognised R. v. .Mayor, E E 2 MUNICIPAL CORPORATIONS. The Court of Queen's Bench have power to issue a mandamus re- specting the election of an alderman of London, though the Court of Mayor and Aldermen claim cognizance as to the election ( be alderman, who shall he by the said court, ac- cording to another custom of the said city, adjudged on such three re- turns not to be a tit person to support the dignity, and discharge the duties, of the said office, the mayor and aldermen may elect and admit a fit prison, being a freeman, out of the whole body of citizens to be alderman ofsuch ward, is a valid custom in law (A). It has been denied to be a good ground of amotion of an alderman from office that he was above seventy years of age (/), or that he wrote to the secretary of >tate charging the mayor with subornation of per- jury (A); but a conviction as a common drunkard will be a good ground (/). An information in the nature of quo warranto may be granted where it is desired to contest the right of a person to claim and use the ollice, provided the application is made within twelve calendar months after the election, or the time at which he shall have become disqualified (w); and on the trial it will be a good cause of challenge to the array, that it was returned by an alderman or freeman (n), though it has been held not to be a good cause of challenge to jurors that they were not free- holders, in a like trial in case of an alderman of a county of a city, the jurors being corporators (o). The power of resignation, and the other incidents of resignation, are the same as in the case of the mayor (p); and the exemptions from liability to serve are also the same as in the case of mayor, councillor, &c. (y). &c, of Oxford, Palm. -154 ; t>M. Shuttle worth Portsmouth, 3 B. 8t C. 152. I. it, mlii. 2 Bulst. 122; Stamp's (fc) Cartb. 174; or that he refused to pay a case, T. Etaym. 12 a. As to returns to such tax imposed l>y law on the whole of the iu- writs, vid. 15 Vin. Abr. 188, i habitants, I!, v. Rippon, 2 Keb 15, 25 por, &c, of London, 4 Man (0 Com. Dig. Franchise, F. 31. So that .\ K. 36. he has destroyed and torn certain reconls of (li) H. v. Johnson, in Horn. Proc, 6 CI. such a court which was presented at the leet, & F. I: int. U Geo. 1, c. 18, regulating is a good return to mandamtu to restore ; Town elections of aldermen in the city of London ; of Wigan V. Pilkington, 1 Keb. 597. 272. (m) 7 Will. 4 & 1 Vict. c. 78, 8. 23. (i) Com. Dig. Franchise, l. 31. I: Reg. v. Deline, 10 Mod. 199. three miles from the borough not suffi- (j>) R. v. Higg .1 Ventr. dent ground; It. v. Mayor, ficc, of Don- (/>) Vid. inf. p. 427. caster, Sayer, 37 ; vid. K. p. Mayor, &c, of [q) Vid. sup. pp, 401, 402; b. 51. ( 481 ) THE MAYOR. The mayor is to be elected out of the aldermen or councillors, before any other business is gone into, at the quarterly meeting of the council on the 9th of November in each year(c), and an outgoing alderman may be elected (d). In case the election is not made within the time appointed by the Municipal Corporations Act, which enacts (e), " that on the 9th day of November in every year, the council of the borough shall elect, out of the aldermen or councillors of such borough, a fit person to be the mayor of such borough, who shall continue in his office for one whole year (_/"); and in case a vacancy shall be occasioned in the office of mayor of the borough during such year, by reason of any person who shall have been elected to such office not accepting the same, or by reason of his dying or ceasing to hold the said office, the council of the borough shall, within ten days after such vacancy, elect, out of the aldermen or councillors of the said borough, another fit person to be the mayor thereof for the remainder of the then current year;" or in case the election turns out to be void for irregularity, the corporation may proceed to the election, and elect the next day, not being Sunday; if it be Sunday, then on the Monday next following {y). If the in- signia of the office are withheld by the predecessor, a mandamus to deliver them up may be obtained (h). An outgoing mayor may now(i) in all boroughs be re-elected mayor as often as the council please (k). There appears to be no essential change intended by the statute to be made in this office, which remains the same as formerly; for he is made capable in law to do and suffer all acts which the chief officer of such borough might lawfully do, &c, at the passing of this act(Z). (c) Sects. 49, 69. The meeting for the the declaration ; 6 & 7 Will. 4, c. 105. s. 4. election of mayor ought to be the first, and, Therefore he might, if it were absolutely ne- as it seems, the only meeting on that day, cessary, adjourn the meeting for the election lleg. v. M'Gowan, 11 A. & E. 885; and a of his successor, and preside at the adjourned prior election of an alderman is void, Reg. meeting; for the objection that the presiding v. Dudley, 1 1 A. & E. 869, 886; but semb. officer cannot adjourn a meeting to a day on he must be removed by quo warranto, 12 A. which he is no longer in the office that gives & E. 712. Bribery at the election is an him right to preside, does not apply ; 5 A. & offence at common law for which a criminal E. 613; Cas. T. Ilardw. 23. information may be had; Spiuage's case, cited (g) 7 Will. 4 & 1 Vict. c. 78, ss. 25, 26. 3 Burr. 1339 ; vid. R. v. Plympton, 2 Ld. If it be declared by a statute that an election Raym. 1377; 4 Burr. 2501; 8 Mod. 186; shall be void in case the party does not do 1 1 Mod. 387 ; Year Book, 22 Edw. 4, fol. some act, &c, if he has been admitted he can 30. A criminal information will be granted only be removed by quo warranto; Reg. v. for the disturbance of the election; R. v. Mayor, &c, of Cambridge, 12 A. & K. 712. Soley, 11 Mod. 115. (h) Crawford ». Powel, 1 W. Bla. 229; (d) Reg. v. Maddy, 11 A. & E. 869,886. 2 Burr. 1013; Stia. 537; R. v. Owen, 5 (e) Sect. 49. The statutory exemptions, Mod. 314. s. 51, have been given above, p. 401. An (i) 3 & 4 Vict. c. 47, s. 1. attorney is exempt from serving the office; (fc) Sect. 49, and 6& 7 Will. 4, c. 105, vid. cases cited argu. 4 Burr. 2111. s. 4. (/) And until his successor shall have ac- (/) Municipal Corporations Act, s. 6. cepted the office, and made and subscribed Therefore where he was escheator before by Ml NICIPAL CORPO With respecl to the question of what is a sufficient acceptance of the office to satisfy the statute, it has been held that where a person was elected in bis absence (from the borough) on the 9th November, 1842, and he returned on 23rd November, when he had official notice of his election, and within five days alter his return he made the declaration, and took upon him the office, that was a sufficient acceptance of office The refusal to accept office (and refusal to take the declarations amounts to that(n),) subjects a person duly elected mayor to a fine oot exceeding 100/., to be declared by a bye-law (o), and the same remarks apply as to other remedies as were offered under the heads of Alderman and Councillor. Previous to the Municipal Corporations \> . it was not a sufficient excuse that he resided four miles from the borough, having only a banking-house and no residence there, and that he was an acting magistrate for the county (p). The disqualifications for election, common to the mayor with other officers, stated by the statute, have been already pointed out (7); but it may be useful to mention some of the old decisions, as the principles laid down in them may serve for guides hereafter. A retired baker, when the mayor had the correction of the assize of bread, was held not ineligible on that account to the office (r). A spirit dealer, though disabled from concurring in granting licences, under 26 Geo. 3, c. 18, is not disqualified from being mayor (s). The corrupt or malicious refusal of a license is ground for a criminal information; and in one case, two borough justices were committed for a month, and till they paid a line of 50/. each, for such offence(Z). In ancienl times it was held that an infant might be a mayor (/v); but that is no longer the law. We may here state, that, in speaking of committals for contempts of the mayor, sitting judicially, either as judge of a borough court of record of any kind, or as a justice of the peace, the most legal and proper made of committal is intended, viz., first to impose an adequate and proportionate fine, and if it is not paid, to commit until the pay- ment (a;). I or prescription, he may still plead the (t) R. v. rlann, 3 Burr. 1716, IT; - R. 5; and the Ld. Mansfield, C. J., in It. v. Davie, Dougl. same will be tin; case whatever was the title 568. the borough, for (u) 18 Edw. 3, fol. 33; 26 Edw. 3, fol. whether the oilicc was called mayor or 63; March, R. 40; R. v. Weeks, 2 Kel bailiff, and authority was the 290; Cro. Car. 557, ■ > B. & A. Bl; * R. b. I hornton, •) East, ; ,8.51, -»/'• P- *18 i l: '-'-- '• ,l1 " 1 " l,t -i'«'' ' <-<>nttiii]>t us justifu- I ....-, m. B, 9 1. " ol •">'.. I'" rrra Its, I'. Jon. Lev. 118; Mayor ol 229; el rid. K. v. Mayo, 1 Keb. 2 Show. • v. Though do one of a number ol cau >^ he ct. 51. "I him in his place si l:. . i . md, 3M. & 8elw. 184. such a contempt; Moor, R. 247, pi. (,,) Vid.iup.po. I'll. Hi.. Qu. whether debt lies foi •> Bm imposed for , 370. contempt; Bathurst v. Coxe, 1 Keb. 451. |B I M, ir. 5'J7. THE MAYOR. 123 The duties of the mayor are the following: — He is to preside, if jjresent, at all meetings of the council (?/); to call meetings of the council when he sees fit(?/); and if he refuses, when required in writing by five members of the council, they may of themselves convene a meeting (?/): — especially to convene meetings of the council to supply vacancies in the offices of alderman and councillor (z); to make such arrangements as may seem to him to be expedient for taking the poll at all elections within the borough (a); to declare and publish the result of each election (a), and such publication must not be made later than two in the afternoon of the day next but one following the day of the election (b), a publication made after that time being- void (c); he is to preside with two assessors at the election of coun- cillors (d), except where the borough is divided into wards (e); to examine all the claims to be admitted and inrolled on the freemen's Yo\\(f); to revise the burgess lists, with the assistance of two asses- sors, and upon due proof to insert and expunge names and correct mistakes, and finally make them up for the burgess roll (g) ; and when holding such revision court he has power of adjourning and administering an oath (A), and he is to sign the burgess lists in open court (h). The circumstances under which mandamus will go to compel the performance of his duties in these respects, have been stated and ex- plained in treating of the burgess roll. When the lists are signed, he is to deliver them to the town clerk, who from them is to make out the roll (i). The voluntary absence of the mayor on an occasion when his pre- sence is necessary by the constitution of the corporation, or under the Municipal Corporations Act, to make a legal assembly in order to pro- ceed to an election of officers is indictable {k) ; or the mayor in such case may be proceeded against by way of criminal information (7). The election under such circumstances is void; but a presiding officer leaving the assembly before other kinds of business, which has been regularly commenced, are finished, does not vitiate such business; though if he designedly hinders the election of his successor, on con- (y) Sect. 69. The words, " if present." rough ; Resol. of House of Commons, 2nd show that the presence of the mayor at cor- June, 1685; vid. inf. no'e (»). porate meetings is no longer absolutely ne- (b) Sect. 35. cessary as heretofore; R. v. Duffin, 2 Bar- (c) Reg. v. Mayor of Leeds, 11 A. & £. nard. B. R. 370. Mandamus will not lie to 512. compel him to put a question at the meeting ; (d) Sect. 32. Ex parte Garrett, 3 B. & Ad. 252 ; vid. (e) Sect. 43. Merew. & St. 2052. (/) Sect. 5. (s) 7 Will. 4 & 1 Vict. c. 78, s. 13. (g) Sect. 18. (a) Municipal Corporations Act, s. 33. (h) Sect 19. Neglect of duty as to the At parliamentary elections the expense for revision makes him liable to a fine ot 10/., s. booths is not to exceed 251. for any one 48. parish, district, or part of any borough ; Did. (i) Sect. 22. Fuller v. Patrick, 18 Law J. (N. S.) Q. 1'.. (fc) 11 Geo. 1, c. 4, s.6; vid. R.u.Corry, 236, as to contracting for the erection of the 5 East, 378 ; R. v. Buller, 8 Last, 393 ; vid. booths. He is declared incapable of being 11 East, 87. elected member of parliament, or of returning (/) R. v. Mayor of Tiverton, 8 Mod. 186. himself member of parliament for the bo- 1 ?1 MUNICIPAL CORPORATION viction, he is to Buffer >ix months imprisonment, and is disabled from holding any office in that corporation He is to be a justice of the peace for the borough for the period of lii- mayoralty, and one year more; he is also returning officer in elec- tions of members of parliament for the- borough(n). In case of an equality of votes at an election of aldermen, he is to have a casl vote, whether or not he had a vote in the first instance(o). The above are the principal and nearly all the duties of the may< other duties v. ill be mentioned more appropriately when we come to speak of the Borough Fund, the Borough Rates, the Watch Ral & ■. p . Penalties under the Weights and Measures Act(y) arc to be sued for before the mayor, exclusively of the other justices of the borough; and he had the sole power of appointing overseers of the poor in the borough (r). The office of keeper of the borough gaol is not incompatible with that of mayor (s); in many old charters the mayor is constituted keeper of the gaol; it has even been declared to be incident to the office of mayor to be such keeper(H; but in such cases he is keeper, rather as the sheriffs of counties are by law keepers of the county gaols, than as actual gaoler thereof; and it has been held that where he is such keeper, he may discharge the actual personal duties by the agency of inferior officers (m). A writ of mandamus may always be had to compel the mayor to per- form any duty which he has distinctly refused, as mayor, to perform(w). The mayor is to have precedence, during the time of his mayoralty, in all places within the borough (a*); and is to have such salary as the council shall think reasonable (?/); and it has been said that if he dies pending an action by the corporation, the writ abates, for that in the vacancy of the head the corporation is suspended (z); but this i~ no : the law, if it ever was so. (m) 11 Geo. 1, c. 4, s. 6; mandamus to Mag. Cas. 10; and he was liable to a penalty proceed to election of successor, It. v. .Mayor of 5/. if no appointment l>e made, 43 Eliz. C. of Cambridge, 4 Burr. 2008. In a case where 2, s. 10. But ilii- i- now repealed, and the the mayor di-obeyed the writ, the court im- borough justices are given the Bole power ol prisoned him for three mouths, and ordered making such appointments, except in London him to pay all co-n ; K p. Mayor of Truro, and places under local acts; 12 Vict. c. 8. cited 1 II. nil. 209. Al to making mayor («) Gabriel D.Clark, do. Eliz. 7ii; Crane ile facto party to the rule to show cause why v» Holland, Cro. Car. 138; S. C. W. Jones, a mandamus to elect should not i— nc, Et. v. 193; Hammond '. Peacock, 1 I "h. 4'2. Bankes, I W. Bla. 44.',, S.C3Buit. 14 in Smith o. Helliar, Cro. Eliz. 168; M vid. tarn. Reg. p. Phippen, 7 A. v\ E. !I0'», Vin. Abr. 11 ; Dunne V. Palies, 2 Kol. Abr. 806; Did. Charter, 16 Law J. (N S. (m) Municipal Corporations Act, s. 57; Cas. I 10. up. p. 123, note (a); and iherefon , Bishop of Bath and W ligible a- member for the borough, 4 Q. B. 161 ; as to meaning ol Iteepei ol jaol lost. I . act under the Btatuti ol und 15, vid. 5 Q. B. ile Entry, I , as mayor 155; etvid in/". Gaols. and i. of the peace; Reg. v. I (») R. o. Benn, 6T. R. 198. i i | Sect. 57. 7 Will. 4 .\ 1 Vict. C 78, s. 14. (./) 7 Will. 4, c. 104, Vid. Wood v. Mayor, &c, of London, (q ) 6 it 6 Will. 4, c. 63, s. 33. Sab. 17; Co. 1 6 Vin. Abr. 314, (D K. j. p. Preston, 18 I pi. 21. THE MAYOR. ]:!."> The mayor is liable in an action on the case to the party injured by his refusal to grant a poll at the election of a corporate officer (r/.). When sitting in a court of justice, or as a justice of the peace, he may commit a party for a contempt; ex. gra. for calling him a fool (b); but he cannot commit for a contempt out of court, even though there be a custom to support such committal (c); and he may have an action for words said of him when sitting as a justice of the peace, or, as it seems, in the execution of his office generally (d). He is rendered incapable of acting until he has duly made and sub- scribed the declaration of acceptance of office, and of his intention duly and faithfully to fulfil the duties thereof, &c.(e); and the penalty for acting as mayor without having made such declaration, or without being duly qualified at the time of making such declaration, is 50/.; but the acts done by him are good notwithstanding (/). He must also, within one calendar month (g) next before or upon his admission into the office, make the declaration ordered by 9 Geo. 4, c. 17, s. 2(g), or the election will be void by sect. 8 of that statute; and as it seems acts done by him as mayor, without having previously made such declaration, would be invalid (A), at least until the passing of, and his compliance with, the Annual Indemnity Act; for the provi- sions in that statute do not seem to be inconsistent with or contrary to anything in the Municipal Corporations Act; and by that statute it is distinctly enacted, that it shall not be lawful for a mayor who has not taken the declaration imposed by it to do any act in the execution of his office (i). The terms of the declaration to be taken by Quakers, Moravians, and Separatists, are stated in later statutes (A); and there is another modification of it made in favour of Jews who have accepted the office (I). Roman Catholics elected to this or any other corporate office are required, within one calendar month next before or upon their admission, to take the oath appointed, instead of the oath of su- premacy and abjuration, &c.(m) We may observe, that with respect to all but judicial acts done by a mayor de facto, it had been held, before the Municipal Corporations (a) Turner v Starling, 1 Ventr. 206; Hunt qualification, provided he is on the burgess v. Dowman, 2 Rol. 21 ; aid. Herring v. Finch, roll at the time of election ; 6 & 7 Will. 4, c. 2 Lev. 250. 104, s. 7. (/)) Simons v. Sweete, Cro. Eliz. 78 ; vid. (g) R. r.Humphery, 10 A. & E. 365; vid. ace. 11 Rep. 97; Hardr. 182. sttp. p. 408. (c) Dean's case, Cro. Eliz. 689; vid. (h) R. v. Parry, 14 East, 549; Reg v. Prince's case, Hardr. 182. Mayor of Cambridge, 4 P. & Dav. 270; S.C. (d) Stra.617; 3 Wils. 181. 12 A. & E. 702. As to the effect of the (e) Sect. 50; vid. sup. p. 407. Previous Annual Indemnity Acts in rendering the ad- to the act, he was incapable of acting until he mission good ab initio, if the office be not for- was sworn in ; Pindar v. Regem, 3 Bro. P. C. feited by judgment of ouster previous to the 173 ; Mayor of Penryn's case, Stra. 582 ; 2 passing of such act; 10 A. 6: E. 350, 351 ; East, 18, 79. If the parties refuse to admi- 2 B. & C. 34; 14 Last, 549 ; Reg. v. Mayor, Bister the declaration, a mandamus might &c, of Cambridge, 12 A. ,V K. 7U2. have been had; Stephen's case, T. Raym. (O 9 Geo. 4. c. 17, s. 3. 431 (fc) 1 & 2 Vict. c. 5, s. 1, and c. 15. (/) Sect. 53 ; el vid. per Coleridge, J., in (/) 8 & 9 Vict. c. 52, s. 1. Reg. v. Maddy, 11 A. & E. 881. Not being (m) 10 Geo. 4, c. 7, s. 14. In case of rc- entitled to be on the burgess list is not a dis- fusal election void; 9 Geo. 4, c. 17. MUNICIPAL CORPOR \ lli'- Act, that they were good (but that related only to a person who came in by colour of election (»); the acts of an usurper are void); and so ministerial acts affecting strangers, compulsory upon him, or indispen- sable for the interests of the corporation, were held to be valid(o). He is rendered incapable of holding any public office by going to attend public worship in any meeting-house, &c., of Nonconformists to the Established Church in his Formalities (p); and is further made liable to a forfeiture of 100/. for such offence (7). The same prohibition against dealing by way of trade with the council holds good against the mayor as in the other cases already Stated(r); and against being interested in any contract for building, &c., the borough gaol s). But besides these disabilities the mayor, as an integral part of the corporation, cannot take a lease or grant of lands from the corporation; for then he would be both lessor and lessee, which the law does not allow, as before explained ; and although the corporation acts by the council, yet nevertheless everj act of the council is to be considered as the act of the corporation ; and therefore it seems that the above common law doctrine still ap- plies^). Nor can a mayor and corporation make a bond to the may or, for he cannot be obligor and obligee (J). With respect to amotion from office, there is no provision in the .Municipal Corporations Act beyond an enactment to the effect that he is disqualified, and shall cease to hold the office, upon being declared bankrupt, or applying to take the benefit of any insolvent act, or com- pounding by deed with his creditors, or being absent from the borough for more than two calendar months at one and the same time, unless in case of illness, and in case of such absence shall be liable to the same fine as if he had refused to accept the office (c). However, if after bankruptcy or insolvency, or having so compounded with his creditors, he obtains his certificate, or pays his debts in full, he is eligible to be re-elected, and so on return from absence (d), provided he shall be then otherwise qualified ; and the mode of declaring the office vacant in such case is the same as in the cases of alderman and councillor ( mandamut against mayor tie a borough court, a trial, &c before him would \.l-. Lutw. 156. I" coram nonjudice, Ipsley v. Turk, 3 Mr. I. r ) |;. ,. i..|,., Audi. 17:); oid. :i B. .\ 193 ; and the objection may be taken in error A. 271 ; Cm. Bliz. 533, 699; •'; Keb. 721. although contrary to the record which admits (p) 5 Geo. l,c. 4. s. 2. him to hi ■ ' , 3 Salk. 249; (,p io Geo l, . Sm L.J. \.s. Blag. Cas.21 1. 6, 397. (d) Beet. 52. (t) 7 Will. 4 & 1 Vict. c. 78, a. ! (e) Id.', vid. tup. p. 417. [f the council (a i Vid. V\ ood v. Mayor, &c, of London, refused in such case to d< clare, either •> ;//mb. that an ac- (/i) 1 Siderf. 33. tion lies against him for arbitrarily refusing (i) i.e. the judgment of the court pro- the vote of a burgess for the incoming mayor ; nounced upon an indictment ; Burgess v. vid- 2 Lev. 250 ; 1 Com. Dig. 223 ; Ashby Boutflower, 7 M. & Gra. 481 ; vid. 5 Geo. 1, v. White, 2 Ld. Raym. 957. So for destroy- c. 4, s. 2, and 10 Geo. 4, c. 7, s. 25. ing voting papers ; Shaw's case, 2 Mod. 228. (/c) 22 Vin. Abr. 376, pi. 8 ; id. 375, pi. ( p) Sect. 57 ; Prycet). Belcher. 4D.& I.. 6 ; Co. Litt. 128. 238 ; S. C. 3 C. B. 90 ; 6 & 7 Vict. c. 18, (0 6 & 7 Vict. c. 89, s. 1. As to what s. 82. the rule visi must contain, 5 Q.B. 95. (q) Onslow v. Kapley, 8 Lord Somers' {m) R. ». Dawes, 4 Burr. 2277. Tracts, 270— 276 ; S. C. 2 Vent. 37. Decla- (n) 6 & 7 Will. 4, c. 104, s. 8. ration, 14 How. St. Tri. 707. 1> Ml MCIl'AL COUPON \ i IONS. liable to an action where he issues a warrant respecting rate-. &c., with- out jurisdiction. Thus where the council had made an assessment of a borough rate without authority, and the mayor issued his warrant to levy the amount assessed upon a township in the borough by distress on the goods of the overseer, whose goods were seized accordingly, it was held that the overseer had a right of action against the mayor, and that the proper form of action was trespass and not case, because the mayor had no jurisdiction to issue the warrant (/•). All acts of a mayor de facto, not being judicial, are good and valid (s). An action on the case will also lie by the party injured against the mayor for procuring a false return to be made to a mandamus to admit a person to office in the borough / , and an attachment may be granted, as for a contempt upon the court (//'), against a mayor who knowingly transmits to the court such a return. It has even been held that an indictment for perjury might be maintained against a mayor who made a false return, fur breaking his general oath taken upon admission to office (x) ; but it is laid down, on the contrary, that a person shall not be charged in any judicial court for the breach of a general oath which he took when he became officer, minister, citizen, burgess, 8cc(y). However, as no oath is now required with respect to the duties of the office, and there is no provision making the breach of the declaration perjury, these c no longer apply. Refusal to obey a writ of habeas corpus directed to a mayor has been punished as a contempt by the court, and a writ of attachment having issued against him, he was imprisoned and fined and a return to a Imbcas corpus, alleging that the prisoner in his hall, with a spit, insult inn fecit, ct cratus jit'it tutu viilnerarc. was insufficient for not showing the certain cause, the nature and the duration of the imprisonment (a). An acquittance of a debt due to the corporation, signed by the mayor alone, and not sealed with the corporate seal, has been laid void, in law, but (it is added) was allowed in conformity with 100 precedents shown (6); but this is certainly not the law at present c), for acquit- tance of a debt due to the corporation must be under the common seal; but if the mayor were to give a bond for money which was shown to have come to the use of the corporation, the latter might be liable upon (r) Fernley v. Wortbington, 1 M. v\ lira. of Coventry's case. Salic, -t'2n ; u. p. Mayoi 4. de Quo. Warr., p. 620, 621. Appleby had a Summers, 1 Lev. 139; Reg. v. Langley, 3 mayor and commonalty, temp. Edw. 1, Pla- Salk. 190 ; R. v. How, Stra. 699 ; vid. 4 B. citadeQuo. Warr., p. 792; Bristol in Hen. 6, & C. 905 ; 3 Q. B. 183, as to proper cer- 5 B. & C. 417. tainty in the indictment. (g) Pritchard v. Papillion, 1 Lutw. 68. (m) Bagg's case, 11 Rep. 95 ; R. v. Bur- (h) R. v. Symonds, Cas. Temp. Hardw. ford, 1 Ventr. 16. 240. The mayor is conservator of the peace (?i) Simons v. Sweete, Cro. Eliz. 78; vid. in every place where there is a mayor, and Cro. Eliz. 689; Hardr. 182. may keep the peace from being broken as (o) Hollis v. Briscow, Cro. Jac. 58; Aston against himself, Hodges v. Haw kin, 2 Bulst. v. Blagrave, Stra. 617. 140 ; and words said to him in the place and ( ») 5 & 6 Vict. c. 97, s. 2. 430 MUNICIPAL CORPORATIONS, like manner and by the same authority as any other taxation of costs by such officer." But the action must still be laid, when brought either against the mayor for an act done in the execution of his office, [gainst his assistants on the occasion, or for anything done touching or concerning his office, &c., within the county where the trespass or fact shall be done and committed, and not elsewhere (q). To Baj of tlic mayor and aldermen that they are villains, is indict- able, it" applied to them in the execution of their offices (r) ; and an information has been granted for a libel on an alderman of London, contained in a petition presented by the defendant to the common council of London (s). But a custom to disfranchise or amove from a freehold office, for speaking opprobrious words of an alderman, is bad even in London /); for,as has been frequently observed, it is a general rule, founded on the most important statutory enactments ever pas in this country, that a man cannot be removed from his freehold except by due process of law («), which in most cases is by verdict of a jury, and in these cases of freehold offices, by such verdict given at the trial of issues on an information in the nature of warranto If the mayor be desirous of executing a writ of mandamus, but the majority of the corporation are desirous of returning an excuse, a mo- tion on their behalf, that the mayor may be ordered to deliver the writ to the rest of the corporation for that purpose, will not be granted (y). During the vacancy of the mayoralty, whether by death or other accidental cause, or (as it seems) upon the statutory declaration of the vacancy, the corporation, at common law, could not do any other act except electing a successor (;). However, this is now of minor im- portance, both because, in case of a vacancy, the council are to elect a successor within ten days (a) ; and with respect to elections, they may appoint an alderman to fulfil all such powers and duties as are provided in the act, in the place of the mayor (b). But if a bond were made to J. S., the mayor, and the aldermen and burgesses, solve whim to the mayor, aldermen and burgesses, and J.S. were to die, the cor- poration could sue upon it nevertheless (c). (q) 21 Jac. 1, c. 12. s. 5. For acts done v. Wright, Palm. 455; per Glyn, C. J., Styl. by the mayor as a justice of the peace, the 480. action must be in case, and one calendar (») Mag. Chart, c 29; stat. 28 Edw. 3, month's notice must he given; the venue c. 3. Answer of all the judges, 1 An must be as ahove, ami the defendant may 154 — 158. plead and give evidence as ahove also : (i) 5 Bac, Abr. 251. II .\ 12 Vict c. 44; ttvvd. II & 12 Vict. ( y) 11. v. Mayor, &c.,ol Norwich, Salk. cc. 42, 43. The st.ilute* extend only to 432. • done as justice of the peace, nol to the (:) Vearb.21 Edw. 4, fol.58, A. major's acts as mayor; Herring v. Finch, 2 (n-i. 19. . tam. ' (/») Seel. 36. R. v. Cranfield, 5 Mod. 203. (■ Vid. Sidney Sussex College ». Daven- l;...! ill. port, 1 WiU. 184. (i) Clark' icase, 1 \ em. 327 ; vid Lumley ( 431 ) ASSESSORS OF THE BOROUGH. In boroughs, whether divided into wards or not, the burgesses, on the 1st of March in every year, are to elect, from the persons qualified to be councillors, two burgesses, who shall be and be called the as- sessors of such borough, and continue in office till the 1st day of March in the year following (d). The election is to be in the form and manner provided for the election of councillors (e). The town clerk, treasurer, and every burgess who is of the council, is ineligible for the office of assessor of the borough (f)- The assessors, while in office, are ineligible for election as members of the council {g). The assessors of the borough, together with the mayor, constitute the court for the revision of the burgess lists, which is to be held at some time between the 1st and the 15th of October inclusive in each year (//.). Every assessor, as soon as conveniently may be after his election, is required to appoint a deputy to act for him, in case of illness, or inca- pacity to act, at any election or any revision of the burgess lists (i), which he must signify to the council in writing, to be recorded in the minutes. An omission to appoint assessors at the proper time may be reme- died by an election under the Municipal Corporations Act Amendment Act(/e), which election will be valid (k). Therefore, every kind of vacancy in the office of assessor must be filled up in ten days (s. 47), otherwise the Court of Queen's Bench will grant a mandamus to com- pel an election (/)• No person elected an assessor for any borough shall be capable of acting as such, except in administering the declara- tion following, until he shall have made and subscribed, before any two or more aldermen or councillors, a declaration in words or to the effect fellowing : — " I, A. B., having been elected assessor for the borough of , do hereby declare that I take the said office upon myself, and will duly and faithfully fulfil the duties thereof according to the best of my judgment and ability (w?)." It would seem that an assessor is not a " person placed, elected or chosen in or to any office of magistracy, or place, trust, or employment relating to the government of a borough," within the 9 Geo. 4, c. 17, s. 2, so as to make it necessary that he should take the declaration thereby imposed in lieu of the sacramental test. (d ) Sect. 37, and 7 Will. 4 & 1 Vict. Q. B. 54. c. 78, ss.4, 6. (07 Will. 4 & 1 Vict. c. 78, s. 17. (e) Sect. 32 ; vid. sup. p. 398. (fc) Id. s. 26, and s. 3; 7 Q. B. 46. ( / ) Sect. 37. (/ ) 7 Will. 4 & I Vict. c. 78, s 26 ; Reg. ( ?) 7 Will. 4 & 1 Vict. c. 78, s. 15. v. Mayor, &c, of Weymouth, 7 Q. B. 46. (/() Id., s. 18. Tliey are an essential part (_m) Sect 50. of the court; per Lord Benman, C.J., 7 1 •).' MUNICIPAL CORPORATIONS. But however this may be, a person acting as assessor, without having made and subscribed the declaration above cited, or without being duly qualified at the time of making such declaration, or after he shall c< to be qualified according to the act, or after he shall have become dis- qualified to hold any such office, is liable to a penalty of 50/. for every such ofience (ft). But though he acts without such qualification, all acts of a tie facto assessor are good and valid (o). Besides the as- ira of the borough, each ward, in boroughs divided into wards, must elect en the 1>! March each year two assessors of the ward from tin.' persons qualified to be councillors, before whom, together with the alder- man, all ward elections shall be conducted. The alderman and his assessors are to have the same power in the ward elections as the mayor and the assessors of the borough, in boroughs where there is no division into wards (p). A member of the council is disqualified from being assessor of the borough (n). As the assessors are an essential part of the court of revision (r), it would seem that a mandamus to insert a name on the burgess roll ought to be directed to the mayor and assessors, and such is now the practice. (n) Sect. 53, c. 78, s. 4, repenling the provision in sect. 43 (o) Sect. 53; vid. 7 Will. 4 & 1 Vict. respecting assessors of the mayor's ward. c. 78, s. 1. (q) Municipal Corporations Act, s. 37. (/.) Sect. 43; Did. 7 Will. 4 & 1 Vict. (>■) 7 Q. 13. 54. ( 433 ) THE TOWN CLERK. The town clerk is appointed by the council, to hold his office during pleasure, and may be an attorney of one of the superior courts at Westminster, any law, statute, charter, or usage, to the contrary not- withstanding (s); and the appointment ought to be made under the common seal (t). Therefore the entry of it in the minute book of the council, is not sufficient evidence of the appointment having been made («). The council shall take such security for the due execution of his office as they shall think proper (.r), and his salary is to be such as they think fit to order (x), and is payable out of the borough fund (y). Within one calendar month next before or on his admission, he must make and subscribe the declaration under 9 Geo. 4, c. 17, s. 2(z). The office is a new office, and entirely different from the old office of the same name (a), but it is still, as before (b), a merely ministerial office. His duties are the following: — The voting papers at the election of aldermen are to be delivered to the town clerk, to be kept among the records of the borough (c). He is also to have charge of the voting papers in the elections for councillors, and is to keep them for six months after the election (d), and to allow inspection to every burgess on payment of one shilling for every search for the voting papers of each year (d); but it seems he is not obliged to allow two burgesses at once to inspect, or to give more than one of the papers to one person at the same time, but he is bound to allow any burgess who brings a list of his own to compare it with the papers produced by him, and mark it accordingly (e). (s) Sect. 58. An infant not eligible to the proceed to judgment, and sue out elegit, as old office of town clerk; Claridge v. Evelyn, in Doe v. Roe, 1 Q. B. 701 ; vid. n. (m). 5E. & A. 81. (y) Sect. 92. Vid. 8 M. & W. 615. (0 Re?, v. Mayor, &c, of Stamford, 6 (z) Fid. sup. p. 425, Mayor ; and it will Q. B. 433; vid. Arnold v. Mayor, &c, of be no excuse that it was not tendered, R. v. Poole, 2 Dowl. N. S. 574. If it has been Mayor, &c, of Oxon, Salk. 429. lost, &c, the General Annual Indemnity Act (a) Per Coleridge, J., in R. v. Mayor, &c, operates to cure the loss, &c, vid. s. 5 in of Bridgewater, 6 A. & E. 348. each of the stats. 3 Vict. c. 16, 8 & 9 Vict. (b) Com. Dig. Franchise, F. 27. c. 24, 9 Vict. c. 13, 10 Vict. c. 18. (c) 7 Will. 4 & 1 Vict. c. 78, s. 14. Still (it) 6 Q. B. 433. The appointment ought these voting papers are not records ; Reg. 0. to express the amount of salary, so that the Ledgard, 8 A. & E. 535. corporation may be sued, in case the borough (d) Sect. 35. N.B. 12 Geo. 3,c. 21, s. 2, fund prove inadequate; 4 M. & Gra. 860 ; and 32 Geo. 3, c. 58, gave right of inspection 6 Q. B. 443. Vid. tarn, next note. at any time between 9 a. m. and 2 p. m., ex- (x) Sect. 58. He cannot, it seems, sue the cept on Christmas Day, Good Friday, and corporation for his salary, but may have a Sunday. mandamus; vid. per Patteson, J., 6 Q. B. (e) R. v. Arnold, 4 A. & E. 657; vid. 439, citing Jones v. Mayor, &c, of Carmar- 5 A. & E. 376 ; so Reg.t>. Blagge, Bail Court, then, 8 M. & W. 605. Qu. May he not 1846. F F 434 MUNICIPAL CORPORATIONS. To keep a copy of the particulars of the division of the borough into wards among the public documents of the borough (/). All the charters, deeds, muniments, and records of the borough, or relating to the property thereof, shall be kept in such place as the council from time to time shall direct, and the town clerk shall have the charge and custodv of, and be responsible for, the same(^). To deliver at the pleasure and direction of the council during his continuance in office, or within three months after the expiration of it, a true account in writing of all matters committed to his charge by virtue of the act, and also of all monies that have been by him received by virtue, or for the purposes, of the act, and the portion thereof paid and disbursed, and for what purposes, and also a list of debtors to the corporation for purposes of the act, and the sums owing by each respectively, and to pay all that remains due from him to the treasurer for the time being, or to any person authorized by the council to receive the same, and a remedy by distress, under warrant of two justices, &c, is given ; the remedy by action, as an alternative, being reserved (h). If he have not sufficient goods to satisfy the said monies and the charges of the distress, or if it shall appear to the justices that he has refused or wilfully neglected to render such accounts, or the vouchers relating thereto, or such list as aforesaid, or that any books or papers relating to the execution of this act remain in his hands, custody or power, and that he has refused or wilfully neglected to deliver the same, or to give satisfaction respecting the same as aforesaid, then the justices are required to commit him to the common gaol, &c. &c. But in case of want of sufficient distress, he cannot be committed for more than three months (i). An action on the case lies against him for breach of any of the above duties, notwithstanding the summary remedy given above, and trover may also be maintained for documents withheld, &c. (k). But the corporation cannot bring the action, and also avail themselves of the remedy before justices (Z). lie has a lien on papers of the corporation, with respect to which he has done work as a solicitor, for his charges as such, provided the papers be not such as it is incumbent upon him to prepare according to the provisions of any act of parliament (at). He has no lien on such papers of the corporation as he holds merely as town clerk (n). (/ ) Sect. 39. might be done if the writ did not issue ; t id. („) Sect. 65. Crawfordu. Powell, 2 Murr 1013; Stra. 537; (h) Sect. 60. County magistrates may 1 YV. Bla. 50 ; Stra. 948. act ; 6 A. &t E. 550, note. (' ) Sect. 60. (») Sect. 60. As to the recovery of corpo- (m) R. v. Sankey, 5 A. fc K 423 ; Jones ration documents, &c, from officers, vuLtup. v. .Mayor, &c, of Carmarthen, 8 M. 6c W. p. 382—385; R. 0. Round, 4 A. & E. 139 ; 605. He cannot recover for work done for Keg. v. Payne, 2 Jurist, 47. the corporation, unless he have a retainer (fc) Mayor, &C, of Lichfield i. Simpson, under seal; Arnold v. Mayor, &c, of Poole. . s. 60. A muTKlumus to de- 2 Dowl. N. S. 574. livei up documents might probably be had, (a) K. t. Sank«y, 5 A & E. 423. An upon its being shown that the remedy by ac- action of trover would probably lie if he de- tion. and the summary remedy, were both tain papers, &c, of the corporation; Anon., inadequate, and that irreparable mischief 2 Chit. R. 255 ; rid. tup. p. 385. TOWN CLERK. 435 To draw up and enter in a book minutes of the proceedings at all meetings of the council. The entry ought to be made at the meeting, and the minutes are then to be signed by the chairman (o). To admit and inrol freemen on the freemen's roll, and to keep a true copy of such roll, to be perused by any person, without payment of any fee, at all reasonable times, and to deliver a copy thereof to any person requiring the same, on payment of a reasonable price for such copy (p). To cause to be printed the overseers' lists of burgesses delivered to him, and deliver a copy of all such lists to any person requiring them, on payment of a reasonable price for each copy ; and cause a copy of all such lists to be fixed on or near the outer door of the town hall, or in some public and conspicuous situation within the borough, on every day during the week next preceding the 15th of September in every year (7). To cause lists of persons claiming to be burgesses, and of persons objected to, as not being entitled to be retained on the list, to be fixed on or near the outer door of the town hall, or in some public and con- spicuous situation within such borough, during the eight days next preceding the 1st of October in every year, and keep a copy of such several lists, to be perused by any person without payment of any fee, at all reasonable hours during the said eight days, Sunday excepted, and deliver a copy of each list to any person requiring the same, on payment of a sum not exceeding one shilling for each copy (r). To produce the burgess lists, and the lists of persons claiming and objected to, at the Court of Revision (s). To keep the revised lists, and cause the burgess lists, revised and signed by the mayor, to be fairly and truly copied into one general alphabetical list, in a book to be by him kept for that purpose, with every name therein numbered, beginning the numbers from the first name, and continuing them in a regular series to the last name; and to cause such books to be completed on or before the 22nd of October in every year, and to deliver such books, together with the lists, at the expiration of his office, to the person succeeding him in such office (t). To cause to be written or printed copies of the burgess roll in every year, and deliver such copies to all persons applying for the same, on payment of a reasonable price for each copy (u). To cause a sufficient number of forms of precepts, notices, and lists of claimants, and voters for members of parliament in boroughs return- ing members, to be printed under the Registration of Voters Act (x) ; and to issue his precept, with a sufficient number of such printed lists, &c, to the overseers (x). To prepare and publish the lists of freemen (0) Sect. 69. 8 A. & E. 266. 00 S. 23. As to ward lists, sup. p. 404. ( p) Sect. 5. (x) 6 & 7 Vict. c. 18, s. 10 ; vid, interpre- (q) Sect. 15. tation clause, s. 101. Form of precept to (r) Sect. 17. overseers, schedule (B.), No. 1, of the above (s) Sect. 18. statute. (0 Sect. 22. F F 2 4SG MUNICIPAL CORPORATIONS. entitled to vote for members (?/), and also lists of those objected to(z). To publish notice of the time and place of holding the revising bar- rister's court, and of the parishes allotted to each court, if to be held at different times and places (a). To attend the revising barrister's court (b). To cause the revised lists to be copied and printed in a book, which he is to sign, and deliver the same to the returning officer of the borough (c). To account for and pay over proceeds of sales of the register, and of fines imposed by the barrister (d). To prepare an annual statement of receipts and expenditure upon highways under the management of the council, and transmit to the secretary of state, under penalty of from five to ten pounds (e). All fees received by him on account of inspections of burgess rolls, &c. &c, are to be paid over to the treasurer of the borough. Various duties are imposed upon the town clerk in every borough by the Parliamentary Reform Act (/), the Highways Act{g), the Prisons Act (A), and other statutes ; but the town clerk cannot claim any pay- ment for the performance of duties cast upon him by act of parliament. His salary is considered a compensation for all loss of time, &c. ; but he is entitled to be repaid money actually disbursed for the preparation of ward lists, &c. (i). From the principles laid down, it follows that he has no claim for charges in respect of revision of burgess lists, ward lists, election of councillors, assessors, or auditors, returns to secretary of state, drawing, copying, &c, bye-laws (k). However, the town council may resolve to pay him, besides his salary, the usual charges for defend- ing and bringing actions, &c (k). But a resolution to increase his salary, in compensation for the loss of emoluments previous to the passing of the Municipal Corporations Reform Act, is not valid, unless under seal (7). Nevertheless, if money have been paid him by the council in part payment of his general account, and he have appro- priated it in discharge of business done as their attorney, though without a sufficient retainer, and besides have applied it in discharge of extra costs incurred as town clerk ; held that such appropriation might stand good (m). (u) 6 & 7 Vict. c. 18, s. 14. (i ) lid. Jones v. Mayor, &c, of Carmar- (i) Sect. 18. then, 8 M. & W. 605, 612. (a) Sect. 33. (&) Thomas v. Mayor, &c, of Swansea, 2 (6) Sect. 35. May be made respondent Dowl. N. S. 470, where see list of charges in in a consolidated appeal from barrister's deci- respect of revision of burgess lists disallowed. sion, s. 44. His actual disbursements in performing the (c) 6 & 7 Vict. c. 18, s. 48. Notice of duties under the Municipal Corporations Act objections, when to be sent to him, s. 1 Beet. 53. F.xpenses, sect. 55. payable on, Reg. v. Mayor, &c, of Warwick, r charging the corporation with pay- Act, s. 139; 6 & 7 Will. 4, c. 104, s. 3. rnent of sums never laid out, have been held THE TREASURER. 44 j He is to transmit, before the 1st of March in each year, to the secre- tary of state, a statement of all monies received and expended by and on account of the corporation, every such account being made up to the last period of audit (q). He is exempt and disqualified from serving on any jury summoned within such borough, and exempt from serving on any jury summoned to serve m the county wherein such borough is situate (r). The treasurer of a city, or a county of city, holds such an office as quo warranto lies for the usurpation of (s). (9) 6 & 7 Will. 4, c. 104, s. 10: and 7 (V) Sect 122 Will 4 * , Vic, c. 78, s. ,3. y DSejTReg. >2 C., ft F. m I 11.' I THE AUDITORS. On the first day of March in cacli year the burgesses are to elect from the persons qualified to be councillors, by a majority of votes, two burgesses as auditors of such borough, the election to be in the form and manner provided for the election of councillors (/). No burgess is eligible who shall be of the council, or town clerk, or treasurer. In the election no burgess shall vote for more than one person to be an audi- tor (u). There is no provision in the act that auditors may be re-elected at the expiration of their year of office, as there is in the case of aldermen and councillors. An auditor cannot be elected a councillor (a-). No auditor is capable of acting as such until he shall have made and subscribed, before any two or more aldermen or councillors, the following declaration: — " I, A. B., having been elected auditor for the borough of , do hereby declare that I take the said office upon myself, and will duly and faithfully discharge the duties thereof according to the best of my judgment and ability" {y). It does not appear that the auditors fall under the words of the act 9 Geo. 4, c. 17, s. 2, so as to make it necessary for them to make the declaration therein contained previous to acting. Every auditor acting without having made the above cited declaration, or without being duly qualified at the time of making such declaration, or after he shall cease to be qualified, or after he shall have become disqualified to hold any such office, is liable to a penalty of 50/., to be sued for by a burgess only, within three calendar months after the commission of such offence, who shall, within fourteen days after the commission of the offence, have served a notice of his intention to bring such action upon the party (z). But all his acts and proceedings shall be valid, notwithstanding such disqualification or want of qualifi- cation {a) ; and no person inrolled on the burgess roll of the borough for the time being, and acting as auditor, shall be liable to the penalty on the ground that he was not entitled to be on the burgess list (/;). The auditors elected as above, together with a member of the council named by the mayor, on the 1st of March in every year, or in case of extraordinary vacancy, within ten days next after such vacancy, are to audit the accounts of the borough every year in the months of March and September, and, on finding them correct, are to sign them (c). (() Vid. sup. p. 398. Every auditor is to (y) Sect. 50. continue in office until the 1st of March in- (:) Sect. 63. clutiie in each year ; vid. Kerr i. Jcslun, 1 (. p. 259 — 262. to the other sheriff; Letsom v. Bickley, 5 M. (a) Reg. v. Taylor, 11 A. & E. 949. & Selw. 144. (b) R. v. Williams, 1 Burr. 407 ; vid. 10 (0 Anon., 2 Ventr. 216. B. & C. 230. (t) 7 Will. 4 & 1 Vict. c. 78, s. 3. (c) Reg. v. Grimshaw, 10 Q. B. 755. (m) 5 & 6 Will. 4, c. 76, s. 63. (d) Reg. v. Grimshaw, 5 D. & L. 249. (x) R. v. Solyard, Stra. 1097; via. 4 Inst. (e) Rutter v. Chapman, 8 A. & E. 1. 141. (/) Jerv. Coroners, 68; Fitz. N. B. 163, n. (y) 6 Sc 7 Vict. c. 12. Inquisitions not to (g ) Fitz. N. B. 163 k, note (a) ; vid. tarn. be quashed for want of form ; 6 & 7 Vict. c. R. v. Patteson, 4 B. & Ad. 22—26. ( 44G ) THE RECORDER. Every council of every borough which shall be desirous that a sepa- rate court of quarter sessions of the peace shall be, or continue to be, holden in and for such borough, shall (/<) signify the same by petition to his majesty in council, setting forth the grounds of the application, the state of the gaol, and the salary which they are willing to pay the recorder in that behalf. And it shall be lawful for his majesty, if he shall be pleased, thereon to grant that a separate court of quarter ses- sions of the peace shall be thenceforward holden in and for such borough (i), to appoint for such borough, or for any two or more of such boroughs conjointly, a fit person, being a barrister of not less than five vears standing, who shall be and be called the recorder of such borough or boroughs, and shall hold such office during his good beha- viour {It) ; and upon any vacancy in any such office to appoint another fit person, being a barrister of not less than five years standing, to be the recorder, in the place of the person so making such vacancy ; and the recorder for the time being of any borough shall be a justice of the peace of and for such borough, although he may not have such qualifi- cation by estate as is required by law in the case of any other person being a justice of the pe^ce for a county. And such recorder shall have precedence in all places within the borough of which he may be the recorder next after the mayor thereof; and in such case it shall be lawful for his majesty to direct that an annual salary, not exceeding the sum stated in the petition of the council, shall be paid to such recorder by the treasurer of such borough, out of the borough fund. Provided nevertheless, that nothing in this act contained shall be con- strued to disqualify any such recorder from being appointed a barrister to revise any list of voters under the provisions of an act passed in the second year of his majesty, intituled " An Act to amend the Repre- sentation of the People of England and Wales" (/), or from being eli- (h) Sect. 103. How to plead the appli- have no power to amove him, for unless he cation to the crown by petition for the grant, happen to be a burgess, he is altogether a &c, Kutter v. Chapman, 8 M. St W. 1. stranger to the corporation, It. v. Bird, 13 ( i) In counties of towns and cities, the re- East, 367. Being appointed quamdin se bene corder has the power of appointing inspectors getserit, his office is conndcred by the law to of weights and measures, undcr5 & fi Will. 4, be for life, Cruis. I >iy. < Iffices, s. "27 ; Davis C 68, -■ 17 ; Beg. t. Recorder of Hull, 8 A. v. Waddington, 7 1\I. fc (ira. 42 ; ami there- in K. b:i(). fore, having a freehold in the office, the pro- f/O The recorder is a new officer, and as per mode of removing him it by Information it seems not a corporate officer, but an officer in the nature of quo warranto, 7 A. & K. 2 1 5 ; of the crown ; therefore the cases as to what 5 Bac. Abr. 261 ; or for a forfeiture of the is good cause of amotion of the officer called, office, sci.fa. to repeal the letters-patent by previous to the Municipal Corporations Act, which he was appointed might be had; Anon., i<:r, do not apply, Salk. 434 ; 4 Burr. Dyer, 198, A. pi. 50. 2004; 9 Rep. 50 a; and the corporation (/) 2 Will. 4, c. 45. THE RECORDER. 447 gible to serve in parliament, otherwise than is hereinbefore provided. " Provided also, that in every borough in and for which a separate court of general or quarter sessions of the peace is now holden, and of which the present recorder or deputy recorder is a barrister of five years standing, such recorder or deputy recorder, being qualified as aforesaid, shall be continued or appointed recorder under the provisions of this act. Provided also, that in the case of sickness or unavoidable absence, the recorder of any borough shall be empowered, under his hand and seal, with the consent of the council, to appoint a deputy recorder, being a barrister of five years standing, to act for him at the quarter sessions of the peace then next ensuing, and no longer or other- wise." This last proviso has however been since repealed, and instead of it the law now is (m), " That in case of sickness or unavoidable absence, the recorder of any borough shall be and he is hereby empowered, under his hand and seal, to appoint a deputy recorder, being a barrister of five years standing, to act for him at the quarter sessions then next ensuing or then being holden, and not longer or otherwise : provided nevertheless, that such sessions shall not be deemed to have been ille- gally held, nor the acts of any deputy recorder invalidated, by reason of the cause of the absence of the recorder not being deemed to be una- voidable within the meaning of this act." " Provided nevertheless and be it enacted (n), that no recorder or person assigned to keep the peace within any such borough shall be capable of acting as recorder or jus- tice of the peace within such borough, until he shall have taken the oaths (o) provided to be taken by justices of the peace, except the oath as to qualification by estate, and until he shall have made before the mayor, or before any two or more of the aldermen or councillors of such borough (who is and are hereby authorized and required to ad- minister the same), a declaration to the following effect ; that is to say, ' I, A. B., do hereby declare that I will faithfully and impartially exe- cute the office of recorder [or justice of the peace] for the borough of , according to the best of my judgment and ability' (p). The recorder, and in his absence such person, being a barrister of not less than five years standing, as shall be appointed by the recorder under (m) 6 & 7 Vict. c. 89, s. 8. This is only 7 Will. 4, c. 105. As to the declaration of a parol appointment ; a statute which pre- Quakers, Moravians, and Separatists, viU. 1 & scribes that a document should be under 2 Vict. cc. 5, 15. hand and seal, not being interpreted to mean (p) No recorder by virtue of his office a deed, unless it expressly declare that it is to shall have power to allow, apportion, make be a deed ; Feltham v. Cudworth, 2 Ld. or levy, or do anything whatsoever with re- Raym. 760; Clarkson v. Boossey, id. 967; lation to the allowance, apportionment, mak- and therefoie may be revoked by parol ; Reg. ing or levying of any rate whatsoever ; 6 & 7 v. Sutton, 10 Mod. 74. Will. 4, c. 105, s. 8. But he may try ap- («) Municipal Corporations Act, s. 104. peals against the borough rate in the nature (o) These oaths may be taken before the of a county rate, Municipal Corporations Act, mayor or any two aldermen or councillors of s. 92 ; may reserve cases from the quarter the borough, without suing out or obtaining sessions for opinion of the judges, Reg. v. any special dedimus or other commission or Masters, 2 C. Sc K. 930. authority for administering such oaths ; 6 & 448 MUNICIPAL CORPORATIONS. his hand and seal to hold the said court, shall be the judge of the court of record of the borough (if not regulated by local act, or in which on 20th August, 1836, a barrister of five years standing did not act as judge) and shall hold the court at such times as he in his discretion may think tit, or as his majesty shall think fit to direct ; and every recorder or person so appointed shall be entitled to have such salary paid him out of the borough fund as the council shall fix by a bye- law" (y). (q) 6 k 7 Will. 4, c. 105, s. 9. And now his hand and seal ; 7 Will. 4 k 1 Vict. c. 78, in all boroughs in the schedules of the Muni- s. 32 ; »iW. inf. Borough Court of Record ; cipal Corporations Act, every court cf re- and for those purposes the court shall be cord may be holden in his absence, for all holden at least four times in each year, with purposes, except the tiial of issues in law or no greater interval between the holding of any in fact, before any barrister or attorney of five two successive courts than four months, 2 & 3 years practice, appointed by the recorderunder Vict. c. 27, s. 2. ( 419 ) QUARTER SESSIONS. " The recorder of every borough shall (r) hold once in every quarter of a year, or at such other and more frequent times as the said recorder in his discretion may think fit, or as his majesty shall think fit to di- rect, a court of quarter sessions of the peace in and for such borough, of which court the recorder of such borough shall sit as sole judge ; and such court of quarter sessions of the peace shall be a court of record, and shall have cognizance of all crimes, offences, and matters whatsoever cognizable by any court of quarter sessions of the peace for counties in England ; and the said recorder shall have power to do all things necessary for exercising such jurisdiction, notwithstanding his being such sole judge, as fully as any such last-mentioned court. Pro- vided nevertheless, that no recorder, by virtue of his office, shall have power to make or levy any county rate, or rate in the nature of a county rate, or to grant any license (s), or authority, to any person to keep an inn, alehouse, or victualling house, to sell exciseable liquors by retail, or to exercise any of the powers herein specially vested in the council of such borough." The recorder is empowered to appoint a second court as follows : — " whenever (t) it shall appear to the recorder or other person presiding that the quarter sessions are likely to last more than three days, in- cluding the day of assembling, it shall and may be lawful for such recorder or other person presiding, at his discretion, but subject to the provisions hereinafter contained, to order a second court to be formed, and to appoint, by writing under his hand and seal, a barrister at law of not less than five years' standing, to preside and try such felonies and misdemeanors as shall be referred to him therein, whilst the said recorder or other person is sitting in such quarter sessions. And for the effectual execution of the powers of this act, such recorder or other person so presiding shall be empowered in such case to call upon the clerk of the peace, and such clerk of the peace is in such case hereby authorized and required to appoint an assistant, and such recorder or (r) Sect. 105. In the absence of the re- alderman, recorder, or any other corporate corder and deputy recorder, the mayor, at the officer or justice, before the Municipal Cor- proper times for holding the court, is to open porations Act, and all right in corporations the court and adjourn over, and respite all to nominate justices, &c, abolished ; s. 107. recognisances until such further day as he Chartered admiralty jurisdictions abolished ; shall then and there and so from time to time s. 108. cause to be proclaimed, but he is not to do (s) lie cannot try an appeal against a any other act ; s. 106. After 1st May, 1836, refusal of justices of the borough to grant all capilal jurisdictions, and all other criminal such license ; Reg. v. Deane, "2 Q. B. 96. jurisdictions belonging to any mayor, bailiff, (t) 7 Will. 4 6c 1 Vict. c. 19, s. 1. G G l.'.O MUNICIPAL CORPORATION-. other person shall himself appoint an additional crier for such second court: and such barrister shall be styled assistant barrister (u\ and shall exercise for the time being, whilst the said recorder or other per- son is so sitting as aforesaid, the same powers as are exercised by the said recorder or ether person presiding as aforesaid, and subject to the same rules and regulations ; and the proceedings so had by and before such assistant barrister shall be as good and effectual in the case to all intents and purposes as if the same were had before the said recorder or other person so presiding as aforesaid, and shall be inrolled and recorded accordingly. Provided always, that if at any time during the sitting of such second court the recorder or other person shall be of opinion that it is no longer required, he may direct the assistant bar- rister, at a proper opportunity, to adjourn the same." The proper mode of raising the objection that a grant of separate quarter sessions has not been properly made is by scire facias to repeal the letters-patent (x). With respect to the question of what are the matters properly cog- nizable in this court, some points have been decided which we may notice. Appeals against orders of justices of removal from places within the borough are exclusively cognizable here(y), and the deci- sion of the court is now made final, and incapable of being reviewed in any court by means of certiorari, or mandamus, or otherwise (z). But this would not prevent the issuing of a mandamus to compel the court to pronounce judgment in a case ripe for it (a). An appeal from a refusal of justices to grant an ale license is not cognizable here (h). The time for notice of appeal to this court, the statements of grounds of appeal, and various other matters relating to appeals, are now settled by a late statute (c). Appeals against a borough rate, but only in the case of unequal ap- portionments of the rate among the parishes subject to the rate, or the total omission of parishes which ought to be so subjected; no appeal lies on behalf of persons aggrieved as individuals (d). Appeals against orders of justices of the borough to pay the expense of removing a pauper lunatic to an asylum (c) ; but to each borough, when any pauper lunatic, in pursuance of the 8 & 9 Vict. c. 126, shall (u) To have ten guineas a day remunera- 215 ; rid. tarn. 1 1 & 12 Vict. c. 44, s. 5. lion for each day that he shall bo preside, to (h) Heg. v. Deane, 2 Q. B. 96; vid. inf. be paid b) tl" treasurer out of the borough p. 453. on the recorder's certificate, provided that in ic) 12 & 13 Vict. c. 45. nocaseahall the assistant barrister claim re- (d)R< . v. Recorder of Bath ,9 A. & E. 871; stion for more than two days ; s. 2. Municipal Corporations Act. i 92. It tlie I: Boucher, 3 Q. B. 641. appeal be quashed by order of the recorder, (,!, i;,~. , Si. Edmunds, Sarum, 2 Q. B. such order is irremovable by a. 132; R< 72; Reg. V Justices of Suffolk, 2 Q. B. 85 ; Justices ol Ripon, 7 A. & E. 417. As i,, pid. 12& 13 Vict. c. 16, s. 2. appeal from district borough and watch ii -, 12 Vict. c. 31, s. 7. Court may 9 & 10 Vict, c 110. amend order ol removal; s. 6. (e) Reg, v. Ludlow, 11 A. & E, 170. (a) Vid. cases cited (as. Temp. Ilurdw. QUARTER SESSIONS. 451 be confined within a lunatic asylum belonging to the borough, or within any house duly licensed, or any hospital duly registered for the recep- tion of lunatics within the borough, or shall be found wandering within such borough, and his settlement cannot be found out, that act is to apply, as though the borough were a separate county (/). Generally the recorder sitting in quarter sessions has cognizance of all matters whatsoever that are cognizable by any court of quarter ses- sions for a county in England (g), and therefore an action on the case for maliciously conspiring to indict for a misdemeanor before him will lie (h). Notice of trial before him must state the day on which the trial is to take place (i). An action on the case will lie against him if he proceed to judgment after a certiorari delivered (k) ; and such proceeding is void. Borough prisoners may be tried at the quarter sessions, notwith- standing they may have been committed to the county prison under a contract, and although such gaol may be situate more than two miles from the borough (/) ; and where the county justices have committed prisoners to the borough gaol, the prisoners may be tried and sentenced at the borough quarter sessions for all offences of which that court has cognizance (m). The question here arises, what remedy has a party upon an erroneous conviction, and does the Municipal Corporations Act, which takes away certiorari in case of all convictions, orders, warrants, or other matters made or purporting to be made by virtue of that act (ra), apply to con- victions, &c., made at the separate quarter sessions ; and the answer seems to be, that it does not ; for such convictions seem to be made, not wholly by virtue of that act, but partly by virtue of the common law authority vested in courts of quarter sessions to determine misdemeanors, &c. If, however, such convictions be removable by certiorari, it must be borne in mind that the Court of Queen's Bench cannot give judgment upon them; but that the practice is to admit the party to waive the issue below, and plead de novo, and go to trial upon an issue joined in the Court of Queen's Bench (o). But however the law stands with respect to convictions, &c, there is no doubt that indictments, presentments, &c, may still be removed by certiorari obtained on motion in term, or (/) 12 & 13 Vict. c. 82, s. 3. Boroughs has now the power of amending an indictment having or providing a lunatic asylum, not to by 12 & 13 Viet. c. 45, s. 10. be liable to contribute to the county lunatic (w) Sect. 132. That the words do not ex- asylum ; s. 2. tend to indictments, &c, but only to su~ m- (S) R e g- v ' Ludlow, 11 A. &c E. 170. mary proceedings before a justice, &c, vid. (h) 1 Com. Dig. 169 ; Fitz. N. B. 115, B.; R. v. Battams, 1 East, 298 ; nor to cases in J. Bridgm. 130. which the crown has an interest, for there the (i) Farmer v. Mountford, 1 Dowl. N. S. king may demand the writ bv his prerogative, 366. R. v. Tindal, 4 Burr. 2458. (k) 1 Com. Dig. 219 ; per Lord Kenyon, (o) R. v. Baker, Carth. 6 ; R. v. Nichols, C. J., 1 East, 302. 13 East, 412, n.; vid. Reg. v. Dixon, Salk. (/) 6& 7 Will. 4, c. 105, s. 2; vid. infra, 150; 8 T. R.218,n. ; 4 Burr. 2458 ; 2 Burr. Gaols. 749; 1 B. & C. 711,714. (m) 6 & 7 Will. 4, c. 105, s. 1. The court G G 2 452 ICIPAL CORPOR ITIONS. in vacation, on a judge's fiat(p). And wherever the defendant is an officer of the crown, or for any other reason the crown is directly con- cernedj or choose to take up the defence, a certiorari must be granted on the demand of the attornej -general, without laying any special ground private prosecutor or defendant must do, and the writ may be granted in such case more than six months after the conviction, though 5 Geo. 2, c. 1!», expressly directs that the application must be made within that time(o). A subject may have an indictment removed on affidavit that he cannot have a lair trial in the borough (r). Where the court makes an order, which is disobeyed, the Court of Queen's Bench, or any judge of that court, either in term or vacation, upon the application of the per- son entitled to enforce such order, and upon the production of a copy of such order, under the hand of the clerk of the peace, or his deputy, ami upon proof of refusal <>r neglect to obey such order, may direct such order to be removed into the Queen's Bench, when such order has the effect of a rule of that court, and may be enforced in the same man- ner (&')• Boroughs, which have obtained a grant of separate quarter sessions, are exempted from assessment to the county rates by the following- enactment, providing "that(0, within ten days after the grant of a separate court of quarter sessions of the peace to any borough, the council of such borough shall send a copy of such grant, sealed with the seal of the borough, to the clerk of the peace of the county in which such bo- rough, or any part thereof, is situated ; and after the grant of such court to any borough, it shall not be lawful for the justices of the peace of any county, wherein such borough, or part of such borough, is situate, to assess any messuages, lands, tenements, or hereditaments, within such borough, to any county rate thereafter to be made; but every part of every such borough shall thenceforward he wholly free and discharged from contributing, otherwise than is hereinafter provided (//), to any rate or assessment of any kind of and for the county in which any part of such borough is situated: provided nevertheless, that all arrears of such rates theretofore made may be levied and collected as if this act had not been passed." It has been decided that the county justices have no authority to as- sess the borough after a separate court of quarter sessions has been once granted, although there might he objections to the proceedings taken for the purpose of procuring the grant, as amounting to a deception of the crown a.- to certain circumstances which are made by a statute in- (],) 5&6 W.&M.c. 11; 6& 6 Will. 4, &c. ; R. >. Battams, 1 East, 298; i »>. in- c. :;.;. As to recognisance* to plead, and, if stance ol inch removal, Reg. v. Mitchell, 2 joined, to try at next assizes, vid. Reg. Q. B. 636. Gen. K. It., Mich. T., 3 W. & M., lei out (. Mid- vid. 2 Q. B. 91, 95 ; 10 A. & E. 716. dlesex Justices, 3 B. & Ad. 938 ; 9 Geo. 4, (ft) i. e. their jurisdiction exercised out of c. 61, s. 27; 11 A. & E. 139. As to notice quarter sessions, per Patteson, J., 2 Q. B. 96, of appeal, s. 29 ; 11 A..N: E. 141, as to costs. 105, 107. As to the Cinque Ports, 6 & 7 Will. 4, c. 105, (c) Sect. Ill; and such borough is to be s. 11; Municipal Corporations Act, s. 135, wholly free from contributing to any rate of 136. any kind of and for the county, except for («) Morgan v. Palmer, 2 li. & C, 729. certain expenses of prosecutions, ss. 1 1 1 , 1 1 3 ; 1/il MUNICIPAL CORPORATIONS. have been amply sufficient to have supported a verdict of an immemo- rial usage in the borough (/). The meeting of the justices for the granting of such licenses must 1» held in Middlesex and Surrey within the first days of March, elsewhere between the 20th of August and 1 1th of September inclusive in every year(^). It appears that a mandamus will not go to compel them to grant a license in a given case; for the Erantins or withholding the license is a matter of discretion (A), and an appeal, as above stated, is given by statute against the exercise of their discretion by way of refusal (*). The county justices are empowered to act in granting these licenses, whenever there are not present at least two borough justices who are not disqualified (A). With respect to the payment by boroughs of expenses of prosecuting prisoners at the assizes, it has been enacted as follows : " And (I) whereas by an act made in the seventh year of his late majesty George the Fourth, intituled ' An Act for improving the Administration of Criminal Jus- tice in England and Wales' (m), it was enacted, that all sums directed to be paid by virtue of that act in respect of felonies and misdemeanors therein enumerated, committed in liberties, franchises, cities, towns, and places, which do not contribute to the payment of any county rate, should be paid as therein is directed : be it therefore enacted, that all sums di- rected to be paid by virtue of the last recited act in respect of felonies, and such misdemeanors as aforesaid committed, or supposed to have been committed, in any borough, in which a separate court of quarter sessions of the peace shall be holden, shall be paid out of the borough fund of such borough, anything in the said act contained notwithstanding; and the order of court shall in every such case be directed to the trea- surer of such borough, instead of the treasurer of the county." Then a subsequent statute, after enacting (») that the expense of conveyance, safe custody, &c, of prisoners, for offences arising within the borough, sent by the borough quarter sessions to the county gaol, where there is no contract subsisting between such borough and county relative to such prisoners, shall be paid by the council of the borough, proceeds to pro- vide (0) that the expenses of prosecuting such prisoners shall be defrayed by the treasurer of the borough in the manner directed in the above section of the Municipal Corporations Act by a rate to be levied for that (f) R. v. Jolliffe, 2B.& C 54. The ap- (h) Giles's case, Stra. 881. pointment of justices in boroughs under char- (i) 9 Geo. 4, c. 61, s. 27. As to licensing ters isa-old as Kir. 2; 1 Municipal Corpora- alehouses in the two universities, Reg. v. lions Conmianenen' Report, p. 17. Archdall, B A. & E. 281 ; 9 Geo. 4, c. 61, (e) 9 Geo. 4 c.61,s. 1; R. v. Ju-tices a. 36 ; 5 it 6 Vict. c. 44, s. & surrey, 5 D. & Ry. 808. Ae to the meet- (fc) 9 Geo. 4, c 61, s. 7. As to Cinque ing and "notice of meeting to grant license* to Ports, s. 3. pirituou* liquor*, '. c 61, (I) Sect. 113. I; . Down, 3 T. R. 660. As to con- (*») 7 Geo. 4, c 64. victooo for keeping open beerhouse at time* (n) 6 4 6 Vict. c. 98, s. 18; vid. infra, prohibited by the justices in petl rid. Gaols. Wni >t is not such special contract, of EUrdwioke, 8 A. & E. 10 Q. B. 116. „,«. Bendvshe, 10A.&E. 11. (o) 6 & 6 Vict. c. 98, s. 19. As to order I riei o( licenses, 6 K 8 Vict. c. 44, may for their payment, 11 & 12 \ ict. c. 42, Sche- be made at petty sessions. dule, 1 . 2. QUARTER SESSIONS. 455 purpose. The Municipal Corporations Act further provides (p), " that the treasurer of every county in England and Wales shall keep an account of all costs arising out of the prosecution, maintenance, and punishment, conveyance, and transport of all offenders committed for trial to the assizes in such county, from any borough in which a separate court of quarter sessions of the peace shall be holden, and the treasurer of every such county shall, not more than twice in every year, send a copy of the said account to the council of each of the said boroughs, and shall make an order for payment of the same on the council of such borough, and the council of every such borough shall forthwith order the same, with all reasonable charges of making and sending such ac- count, to be paid by the treasurer of such county out of the borough fund ; and in case any difference shall arise concerning the said account, it shall be decided by the arbitration of a barrister, to be named as is provided in the case of differences with respect to the payment of monies under contracts made by authority of an act made in the fifth year of his late majesty George the Fourth (g), intituled ' An Act for amending an Act of the last Session of Parliament relating to the building, repairing, and enlarging of certain Gaols and Houses of Correction, and for pro- curing Information as to the State of all other Gaols and Houses of Correction in England and Wales :' provided that nothing herein con- tained shall be construed to alter or restrain the powers given by the last mentioned act of contracting with the justices of the peace, having au- thority or jurisdiction in and over any gaol or house of correction of the county wherein or where such borough is situated, or whereto it is ad- jacent, for the conveyance, support, or maintenance, in such last men- tioned gaol or house of correction, of prisoners committed thereto from such borough, save only that all such powers shall, after the 1st of May, 1836, be vested in the council of such borough in the name of the body corporate, whose council they are, and in none other ; and for the pur- pose of making such contracts as aforesaid, the council of such borough, and none other, shall have power to make the orders required by the said last mentioned act to be made by the justices of the borough at the bo- rough sessions." The expenses to be charged on a borough, having separate quarter sessions, are to be estimated upon a calculation of the proportion which the expense of each prisoner bears to the total expenses of the gaol, and are not to be limited to the direct expenses incurred in respect of the individual prisoner (r). It seems that this section is applicable only so far as it relates to contracts with county justices for the maintenance, &c, of borough pri- soners, to boroughs which had, at the passing of the Municipal Corpo- rations Act, prisoners of their own to maintain, and a gaol actually in (p) Sect. 114. Where there is no contract, the actual ex- (g) 5 Geo. 4, c. 85. penses must be paid by the borough • Reg v (r) Reg. v. Johnson, 10 A. & E. 740. Mayor, &c, of Birmingham, 10 Q B 129 456 Ml NICIPAL CORPORATIONS. existence is), that act contemplating that no grant of separate quarter sessions would be made until the borough had a gaol of its own t). The council may contract for committing prisoners to the gaol of another borough, if there be sufficient accommodation, 6cc, in it(tt); and the county justices may (x) contract with the council of a borough in which there is a sufficient gaol for the committal of county prisoners thither. Lastly, it is enacted (]/), " that the treasurer of every county in Eng- land and Wales shall keep an account of all sums of money received in aid or on account of the county rate, and of the sums of money expended out of the county rate for other purposes than the costs arising out of the prosecution, maintenance and punishment, convey- ance and transport, of offenders committed for trial in such county, and in the case of boroughs having a separate court of quarter sessions of the peace, other than out of coroner's inquests, and shall not more than twice in every year send a copy of the said account to the council of every borough situate within such county in which a separate court of quarter sessions of the peace shall be holden, and which, before the passing of the said act, intituled " An Act to settle and describe the Divisions of Counties, and the Limits of Cities and Boroughs, in Eng- land and Wales, so far as respects the Election of Members to serve in Parliament"(z), was chargeable with, or liable to contribute in whole or in part to, the county rate of such county, and shall make an order on the council of every such borough for the payment of such propor- tion of such sum as would have been chargeable, after deducting all sums of money received in aid of the county rate as aforesaid, if this act had not passed, upon such borough, as the same shall be bounded, according to the provisions of this act ; and the council of such borough .shall forthwith order the same, with all reasonable charges of making and sending the said account, to be paid to the treasurer of such county out of the borough fund: provided, that in case any difference shall arise concerning the last-mentioned account, it shall be decided by the arbitration of a barrister, to be named as is provided in the case of dif- ferences with respect to the payment of monies under contracts made by authority of the said act (5 Geo. 4, c. 85)" (a). The council may also contract, under 5 8c 6 Vict. c. 53, with the committee of a district prison in the manner pointed out hereafter (b) ; («) Reg. i. Justices of Lancashire! 11 A. dule (A.) of the Municipal Corporations Act, ,-. I. ill, iii/. 6 & 6 Vict. c. 98, a. 18. havii sourl of quarter sessions, (t) Reg. i. Birmingham, 10 Q.B. 1'27; but not being before the Boundary Act (2 & 3 and S.C. in error, 18 L.J. (N.S.) Mag. Will. 4, <• 64) liabli to the county rate, can- ( |76. not be called upon for any contribution to the (») Municipal Corporations Act -. 115. countyrati in consequence of a portion of the 6 i 7 Will. 4, c. l<>. r ), -. I. As to adjoining county being added to the borough , ii'..,,/.l Excb. 41; 10 Q. B by the Boundary Act and by s. 7 of the Mu> , Municipal Corp t,a. 117. nicipal Corporations Act; Pkf.perPatteson.J., , , Will. 1, i- 64 7 Q. B.948. mi A horougli in the first section of.Sclic- (l>) Vid. inf. G QUARTER SESSIONS. 457 and the joint committee having under that act (c) appointed the district to be united to the borough for the purposes of that act, and the agree- ment for that purpose having subscribed, approved, and confirmed as therein directed ; one court (d ) shall be holden for the united district of the borough and the district of the county with which it shall be joined, and the jurisdiction of the court of such borough shall extend over the whole of such united district, and the recorder of that borough shall be the recorder for the united district, and shall hold courts of sessions of the peace for the united district, and the clerk of the peace of such borough shall, for all the purposes of the act, be the clerk of the peace of the united district, and all depositions, recognisances and other documents relating to prisoners committed to such district prison shall be returned to the clerk of the peace acting for the united district. But (e) the recorder of an united district is restrained from trying, at any court holden by him, any person or persons for any treason or felony, which, by 5 & 6 Vict. c. 38, the recorder of any borough is restrained from trying at any session of the peace. By the last-mentioned statute, the recorder of a borough is re- strained (/) from trying, at any session of the peace, or any adjourn- ment thereof, any person or persons for any treason, murder, or capital felony, or for any felony which, when committed by a person not pre- viously convicted of felony, is punishable by transportation beyond the seas for life, or for any of the following offences : — 1. Misprision of treason. 2. Offences against the queen's title, prerogative, person or go- vernment, or against either house of parliament. 3. Offences subject to the penalties of prcemunire. 4. Blasphemy and offences against religion. 5. Administering and taking unlawful oaths. 6. Perjury and subornation of perjury. 7. Making, or suborning any other person to make, a false oath, affirmation or declaration, punishable as perjury or as a mis- demeanor. 8. Forgery. 9. Unlawfully and maliciously setting fire to crops of corn, grain or pulse, or to any part of a wood, coppice or plantation of trees, or to any heath, gorse, furze or fern. 10. Bigamy, and offences against the laws relating to marriage. (c) Sect. 6. mined by the fact of the judges sitting at as- (d) Sect. 36. As to the mode of providing sizes under the usual commissions of assize for the expenses of such court, vid. s. 42. and oyer and terminer, even in the same (e> Sect. 43. borough; Smith v. Regin. 18 L.J. (N. S.) (/ ) 5 &c 6 Vict. c. 38, s. 1. In general Mag. Cas. 207 ; Did. Brokesby v. Lord do qui tarn informations on statutes may be filed Tiptost, Yearb. 21 Hen. 6, fol. 28, pi. 12. and tried at borough quarter sessions; Farren He has power to reserve cases for the opinion v. Williams, Cowp. 369; vid. tarn. 1 Vin. of the judges, under the stat. 1 1 6c 12 Vict. Abr. 201 , pi. 4. The recorder's authority to c. 78, ss. 1 and 2 ; Reg. v. Masters, 2 C. & K. try prisoners at quarter sessions is not deter- 930. 458 MUNICIPAL CORPORATIONS. 11. Abduction of women and girls. 12. Endeavouring to conceal the birth of a child. l.J. Offences against any provision of the laws relating to bank* nipts and insolvents. I 1. ('(imposing, printing or publishing blasphemous, seditious or defamatory Libels. 15. Bribery. 16. Unlawful combinations and conspiracies, except conspiracies or combinations to commit any offence which such recorder has jurisdiction to try when committed by one person. 17. Stealing, or fraudulently taking or injuring or destroying re- cords or documents belonging to any court of law or equity, or relating to any proceeding therein. IS. Stealing or fraudulently destroying or concealing wills or tes- tamentary papers, or any written document or instrument, being or containing evidence of the title to any real estate, or any interest in lands, tenements or hereditaments. ( 459 ) COURTS OF RECORD. With respect to the borough courts of record, it is enacted (g), " that in every borough in which, by charter or custom, there is or ought to be holden a court of record for the trial of civil actions not regulated by the provisions of any local act of parliament, or in which, at the time of the passing of this act, a barrister of five years' standing shall not act as judge or assessor, the recorder, or, in the absence of the recorder, or in case there shall not be a recorder, such officer of the borough, as by the charter constituting such court, or by custom, shall be the judge of such court, shall continue to be and act as such judge ; and the council of such borough in every case, whether such court be regulated by the provisions of a local act of parliament or otherwise, shall have power for that purpose to appoint a necessary officer other than the recorder before whom such court is to be holden ; and every such judge or assessor, other than the mayor, shall hold his office during his good behaviour, and the judge of every such court shall hold the said court (for the trial of issues of fact and of law, four times at the least in each year, and with no greater interval between the holding of any two successive courts than four months (h) ), and at such places, (and with such rules of practice as the judge shall from time to time appoint (i) ), and with the same powers and jurisdiction as belonged to the said court on the 9th September, 1835: provided always, that in every case in which such court had not before that date authority to try such actions as are hereinafter next mentioned, any such court in which a barrister of five years' standing shall act as judge or assessor, shall have authority to try actions of assumpsit, covenant and debt, whether the debt be by specialty or on simple contract, and all actions of trespass or trover for taking goods and chattels, provided the sum or damages sought to be recovered shall not exceed 20L, and all actions of ejectment between landlord and tenant wherein the annual rent of the premises of which possession is sought to be recovered shall not exceed 20/., and upon which no fine shall have been reserved or made payable." The jurisdiction of the court shall be extended so far (g) Municipal Corporations Act, s. 118. what not such evidence, Rogers v. Wood, 2 Wherever there is a jurisdiction erected, with B. & Ad. 245. power to fine and imprison, that is a court of (i) 2 & 3 Vict. c. 27, s. 1. All personal record; Groenvelt v. Burwell, Salk. 200; actions brought in the borough courts of Eng- vid. Calder v. Halket, 3 Moo. P. C. 28. land and Wales shall commence by writ of (h) 2 & 3 Vict. c. 27, s. 2. Evidence of summons, id. s. 3; and every notice of trial reputation, and the declarations of deceased must state the day on which the trial is to persons, are admissible on an issue whether take place; Farmer V. Mountford, 1 Dowl. the jurisdiction is that of a court of record, N. S. 366. Braine v. Dew, 2 Peake, N. P. Cas. 204 ; 460 MUNICIPAL CORPORATIONS. as the metes and bounds of the borough (h), and may be extended, on the joint petition to the crown of the council and the county quarter '!)-, over any adjacent district within the jurisdiction of such quarter • 'n>(/ ): " provided (in) also, that no action shall be tried by any such judge wherein the title to land, whether freehold, copyhold or lease- hold, or other tenure whatsoever, or to any tithe, toll, market, fair or other franchise shall he in question, in any court, which, before the 9th September, 1835, had not authority to try actions in which such titles as last aforesaid were in question ; and in case it shall appear in the course of any action in such court as last aforesaid, that any such title as last aforesaid is in question in such action, that then the jurisdic- tion of such court as last aforesaid in the matter of such action shall cease, and it shall be in the discretion of the court to award costs against the party commencing the same." The recorder sitting in this court is a judge within the meaning of the Law Amendment Act, 3 & 1 Will. 4, c 42, s. 17, so that a writ of trial may be directed to him, and it will be correct if it require him to summon a jury of the borough, duly qualified, &c, to try the cause (//>. These borough courts, however, are not included in the words " all the king's courts of record" used in a statute, for by such phrase the courts at Westminster are meant; and so the words " any court of record" in general mean the superior courts of record (o). Except where the town clerk acts as registrar of this court, the council are to appoint a regis- trar, and they are in all cases to appoint all other officers and servants proper for carrying on the business of the court ; " provided that no registrar or other officer of such court shall, by himself or any partner, or by his or their clerks, practise as an attorney in such court, nor shall any such partner or clerk act as agent for any other attorney in such court : provided also, that unless disqualified as herein provided, every attorney of his majesty's superior courts at Westminster shall have full liberty to practise as an attorney in every such court" {]>). This last proviso, it is to be observed, only gives full liberty to at- tornies of the superior courts to practise; it does not deprive the cor- poration of the right, where they had it, of appointing attornies of the court in future : that would be an interpretation contrary to the words (/.; Munii ipal Corporations Act, s. 118. City of Exon v. Morgan, 1 Keb. 598. (I) 7 Will. 4 & 1 Vict, c 78. s. 35. (n) Farmer v. Mountford. 9 M. ,\ W . am Municipal Cor] Let, s. 118. 100; ouL 10 M. 8c W. 605; II M. .\ Vf. A to declaring in a borough court, Cook u. 826 ; 3 D« in. L. 355. M 'Pherson, 8 Q. B. 1030. ["he fundamental (o) 1 Vin.Abr.201.pl. 4; Dyer, 236, A. ; role is, that every essential hot mutt be alleged 1 Vin. Abr. 202, pi. 7. The bringing a wrii to have arisen within the jurisdiction ; and of error admits the court to be a court of re- such allegation must be specific and not by cord; Bowyer r. Spey, 3 Keb. 512. The implication; Jaman o. Pane, 1 Keb. «i7*t , same is implied in the words Cur. Dom. Reg. v. Beer, I Keb. 528, . . Richardson teut' virtute titterarum patent. ; S. C. v. Musgrave, 1 Keb. Ml ; Price o. Hill, 1 (;n Municipal Corporations Act. - l l 1 '. 760 ; Corbie t. .Merriii, I Keb. 791 Et itrai fi -. -. 124 ; Quo Warranto infor- 837 ; Waddington >. Stones, I Keb. B42j nation lies for the office; 1 is. x C. 237; 5 Mnr • j K. I.. 155; Anon.. Cro. I). n L. 2.7 ; 'i .M. x W. 178. • ' I . I he omission of it is irretrievable ; COURTS or record. 461 and to the spirit of the clause (7). But although formerly the law was (r) that no greater number of attornies should be admitted to prac- tise than by the ancient usage and custom of the court hath been here- tofore allowed, yet this enactment is now expressly repealed s), if it was not before repealed, by the Municipal Corporations Act, and there- fore there is no limit whatever to the liberty of practising in one of these courts by an attorney admitted in one of the superior courts of West- minster and inrolled in this court. " All rules, orders and affidavits, and all other matters and things, except the trial of issues in law or in fact, in any way relating to the business of any borough court of record, not regulated by local act of parliament, of which the recorder or his deputy is or hereafter may become the judge or now (i.e. 17th July, 1835,) acts as assessor, which must now (i. e. 17th July, 1835,) by law be made, sworn or done by or before such recorder, or such deputy or other judge of the said court, may be made, sworn or done, either in court or out of court, in the absence of the said recorder or his deputy, by or before the registrar of such court, or such other person, being a barrister at law or attorney of five years' standing, as the recorder shall appoint under his hand and seal" (t). With respect to the making of rules for regulating the prac- tice of the Borough Court, the result of the several enactments which have been made on the subject is this : that every judge of such court may from time to time make, alter, and revoke such rules for appoint- ing the times of holding such court (provided that it shall be held for the trial of issues of fact and of law four times at least in each year, and with no greater interval between the holding of any two successive courts than four calendar months) for regulating the forms and manner of proceeding, the process, appearance, practice, and pleadings in such court, and for settling the reasonable fees of the attornies of the court for business transacted therein, with a view to conducting the business of the court with most convenience and at the smallest reasonable expense, such rules, or any order revoking or altering such rules, only to be in force upon being allowed and confirmed by three of the judges of the superior courts at Westminster (u). Unless by rules confirmed in this (\ A. 692, note ; per VVilatot, J., :* Burr. ■ ;. l Keb. 796; 2 Keb. 119. 1660; M.& Stepb, Hiat oi Bor. 1865; H. ( «) I'M. rule* oi borough coin:'! Ports* p. Commissioners, Ate., of Manchester, 4 B. mouth, conBrmed by three judges ; Rawlins, fie Ad. 333; R. lilway Munie. Corpor. Act, App., Rule C1L Company, 10 A. at E. 557; 17 Yin. Abr. , I -.:■ - itri 113 ; i id. Say< r, 1 65, pi. 1 4, i < as. Temp. Hardw. '215; 18 1 ( I | H. v. < ommii oners, &c, of Man* 416, n. id. 333, note (a). Blacquiere o. Hawkins, Doug. 363; (g) Par Coke, C J., in I;, i . I );.',. - I ; . i . I rling, Fortese. . 155. ourne.Stra. (h> R, v. Williams, 1 Burr. 407, 406. f» Hull v. Hill, 7 Mod. 84; .S. C. Salt. COURTS OF RECORD. !('>.: Against the judge of the court an attachment may be granted for improper conduct in his judicial proceedings (i), or a criminal informa- tion may be had for misconduct, ex. gra. discharging without due grounds a prisoner out of the borough gaol (k); and the party injured may have an action on the case against him, alleging and proving malice and want of probable cause (/); ex. gra. if he proceed to judgment and execution after the cause is removed into a superior court (m). The Municipal Corporations Act, in providing {><) that no conviction, order, warrant, or other matter made, or purporting to be made, by virtue of this act, shall be quashed for want of form, or be removed by certiorari, or otherwise, into any of the courts at Westminster, appears to abrogate the use of the writ of habeas corpus cum causa, where the defendant was in custody by virtue of any conviction, &c, under this act ; except, perhaps, where the custody was under an attachment out of this court, where the writ would still lie, though not to remove the proceedings, but only to state the cause why the party was in custody (o). The effect of the stat. 1 & 2 Vict. c. 110, since which a defendant cannot be held to bail in an inferior court, seems to be to abrogate the use of the writ of habeas corpus cum causa generally as a means of removing causes from inferior courts (/>). Where a person was alleged to be unlawfully detained in custody by order, &c, of a court held by charter, and vested in a corporation, and a writ of habeas corpus cum causa issued to ascertain the grounds of his detention, to which the corporation made no return, the Court of Queen's Bench fined the corporation, and issued an alias habeas corpus, and then a pluries, returnable immediately ; and it seems that the members of the corpo- ration, or such of them as were guilty of the contempt in not making a return to the writ, might have been attached (q). On one occasion the (i) Reg. v. Hill, Salk. 201 ; vid. Street's has aright to remove his suit into a superior case, 7 Yin. Abr. 24, pi. 10. Ex. gra. not couit, Anon., 1 Ventr.; but the certiorari returning a writ of habeas corpus, Vasper v. must be delivered to the judge before issue or East, 1 Show. 343; for proceeding after demurrer joined in the action, 21 Jac. l,c. certiorari delivered to him, Reg. v. Mayor, 23, s. 2. &c, of Carlisle, 7 Mod. 38 ; Cross v. Smith, (ff) Vid. 2 Chitt. Archb. Prac. 1153, 8th Salk. 149; vid. 21 Jac. 1, c. 23, s.2. edit.; Clapham's case, Cro. Car. 79. Third (fc) Moravia's case, Cas. Temp. Hardw. persons cannot object to the direction of the 135. writ of certiorari, if the judge, &c , have (/) 1 Com. Dig. 219; Ferguson v. Earl waived the objection, and returned the re- of Kinnoul, 9 CI. ex F. 289. It is his duty on cord; Daniel v. Phillips, 4 T. R. 499. Di- writ of error to return the record; Yearb. lecting to Cinque Ports, Municipal Corpora- 1 F.dw. 5, fol. 3 , Jordan v. Tompkins, Styl. tions Act, sects. 134. 135: Cro. Car. 252, 131; Spry v. Mill, Styl. 203; Adams v. 264; R. v. Winchelsea, 3 Keb. 154. Gay, 2 Keb. 746; though in practice only a (p)2 Chitt Arch. Prac. 1153. As to transcript is returned, vid. 1 A. & E. 608. removing by order under 1 6c 2 Yict. c. 110, (m) 3 Leon. 99. After judgment in ge- sects. 11, 18, 28, vid. Lawes's Rules, 115, neral the proceedings will not be removed by 129. certiorari, Kemp v. Balne, 1 D. ) (iwillam v. Hardisty, 3 Salk. 320; Freem. 193; vid. Higginson v. Sheif, Com. R. S. C. Ld. Raym. 216; Com. Dig. Execu- 153. Pleading below, so as to admit the tion, I. 1; Risam t>. Goodwin, Ilutt. 118; jurisdiction, does not, nevertheless, give the vid. Cro. Car. 34. The distinction seems court that jurisdiction, which in fact it does arbitrary, and semb., is not law ; Fits. V B. not pos-<-s; 2 .Mod. 30. 243, B.; . Gaun, 7 D. N: Kyi. 769 ; Fox v. return, 2 Keb. 365, 673 ; Cro. Jac. 254. Veale, 8 M. & \\ . 129. but a conviction («) Jerratt v. Caldwell, Cro. Jac. 184; may be so brought up ; R. v. Baker, Carth. Johnson*. Underwood, Cro. Jac. 493; vid. 6; vid. R D.Nichols, 13 East, 412, n. in \ in. Abr. 56; Cro. Car. 46; Cro. Eliz. (") Vid. Hanmer o. White, 12 M. & W. .; D; rhylem. Boron, 1 Show. 145; Mut- 519; Com. Dig. Dett, A. 2; Kit/.. N. B. ford i. Waleot, 1 1.1. Raym. 575 ; Cowp. 243,15. In error the judgment of the court 20 ; I. nens ,. Donne, Cro. Eliz. 1H5. of record will not be amend) d in the superior (p) Anon., Dyer, 262, B ; T. Raym. court in another term; 1 Keb. 229. And 395; 1 Keb. 388; ielv. 46; 2 Keb. 263. the court of error regards the document aent i7> 1 Keb.529, 631, 839; Cottons. Haw- up to be the record, though in fact only Show. 414. B transcript: 1 A. >\ E. 608, 615; i id. (rj 1 T. It. 151 ; 9 B. • L 605 , Danbery i. Parker, Saver, 59. Dowl. 243; 1 A. .\ E. 501 , 2 Q. U. 636. COURTS OF RECORD. 4G7 judgment of a borough court, and will be entitled to his costs under 43 Geo. o, c. j£>, s. 4, if he produces affidavits showing satisfactory reasons why he proceeded by way of action, instead of removing the judgment, and issuing execution (x). The Municipal Corporations Act does not take away the writ of certiorari, except in cases of summary proceedings instituted under it, as is manifest from the ruling of the Court of King's Bench on a similar enactment (y). Though the point does not seem quite settled, there is good authority to show that parties and witnesses attending these courts are privileged, as in case of the superior courts (z). A mandamus will not lie to enforce the process of the court, except where the judge has not power to compel obedience to its process (a); but a mandamus will issue to hear and determine a cause within the jurisdiction, which the judge refuses to hear (b). Besides this court mentioned in the Municipal Corporations Act, there may be, as it seems, others of various kinds in corporate towns. Thus in various cities and towns an ancient court, called the Pie- Poudres Court (so termed from the speed thereof), may be by custom and prescription, without fair or market, for any causes being transitory and personal (c), and such court is a court of record (d), and it may be prescribed for as being by custom, and by charters from the crown, the charters not determining the prescription where they grant precisely the same thing ; for they may be accepted either as grants or confirma- tions (e), and may be pleaded as either (/) ; for, according to a practice which prevailed for some centuries, corporations were in the habit of obtaining a new confirmation of their liberties at each accession, and therefore if such subsequent grants annihilated the prescription, nothing could have been, in these times, legally prescribed for by any corporation. A court may be prescribed for as being held time out of (x) Hanmerv. White, 12 M. & W. 519, 2 Hawk. P. C. 34, c. 8, s. 10; Yearb. 9 compared with Revell v. Wetherell, 3 C. B. Hen. 7, fol. 11 ; Hob. 63 ; Evans v. Roberts, 321 ; vid. tarn. Hutt. 118 ; 1 Siderf. 213, pi. 6 Mod. 61 ; vid. per Anderson, J., Cro. Eliz. 13. 530. How to prescribe for such court, Cro. (y) R. v. Battams, 1 East, 304 ; vid. inf. Jac.313 ; Cro. Eliz. 256; Cro. Car. 45; 17 p. 473, notes. Vin. Abr. 278; Co. Litt. 113 b; Salk. 265. (s) Com. Dig. Privilege, A. 1. As to the three kinds of inferior jurisdictions, (a) Reg. v. Conyers, 15 Law J. (N. S.) Crosse v. Smith, 3 Salk. 79. Justification to Q. B. 300. trespass under process out of one of them (6) 10 A. & E. 179, 248. Prohibition, 1 must show by what authority it was holden ; Keb. 946; 3 Keb. 17; 2 Keb. 673, 683, Cholmeley v. Morton, 2 Show. 180. 845 ; 3 Keb. 256, 272, 354; Fitz. N. B. 45, (d) 4 Inst. 272; Keilw. 99. May there- F. 21; Clerks. Andrews, 1 Show. 9; Anon., fore commit for a contempt, but all such 1 Ventr. 333. committals must be immediate, and flagrante (c) Goodson v. Duffield, Cro. Jac. 313 ; crimine; Hodges v. Hawkins, 2 Bulstr. 140; S. C. 17 Vin. Abr. 278; in Gloucester, vid. 9 Rep. 119, 120. Sem hie action for White v. Hunt, cited Cro. Jac. 313 ; in Can- slander of wares in the market lies in such terbury, Penred v. Chambers, Cro. Eliz. 256 ; court; Hall v. Jones, Moor. 623; 4 Inst, in Rochester, Cro. Jac. 313; vid. Yearb. 13 272. Edw. 4, fol. 8. B. ; 8 Hen. 7, fol. 4, 5 ; 4 (e) Cro. Jac. 313 ; Co. Litt. 301 b. Inst. 272 ; Hodges v. Moyse, Cro. Car. 45 ; (/) Co. Litt. 301 b. hh2 4(jS MUNICIPAL CORPORATIONS. mind, and also as haying issued process time out of mind, and it is no objection that this is making one immemorial thing to be subsequent to another ; tor customs may be time out of mind, and yet not coeval (g); and so a custom time cut of mind may be alleged for a court to be held from month to month ; and also a custom time out of mind for the latter court to have process of summons, attachment, and dis- tress i/<). A custom in such courts to try issues by six jurors only will not be allowed (t). A eorporation cannot prescrihe to have a court of equity (/<)• The Chancery at Chester and Durham were incidents to a county palatine havingjura regalia ; and London and the Cinque Ports have respec- tively acts of parliament granting such courts to them; and so of the two Universities, which possess courts of this nature. further statements with respect to several points of law relating to these customary and prescriptive courts in boroughs will be found under the head of Customs and Prescription. It has been intimated (0 that the effect of the Borough Courts Act (m) is to abolish the cus- tomary actions on concessit solvere, &c, mentioned above (n); but perhaps this may be doubted, as there are no negative words in the statute, nor do customs in such courts appear to be impliedly abro- gated by it; and, therefore, as we have seen (o), they remain notwith- standing the statute. (g) Lovelace's case, Salk. 203; rid. 2 147; Skin. 67. Keb 721. lietorna breiium may be pre- (O 1 Wms. Saund. 68, n.(i), 6th edit. scribed lor; 17 Yin. Abr. 275, pi. 12. Ac- (»>) 2 & 3 Vict. c. 27, s. 3. tion lies against sheriff of county who enters (») Sup. pp. 336, 337. to execute process in such case; Villa de (") Vid. tup. p. 322, and cases cited there, Derby v. Foxley, 1 Rol. R. 118. notes (a ) and (/,); el vid. Moseley on Inferior (/)) Vearb. 4 Edw. 4. fol. 13, pi. 22. Couris, 427, that summons forms part of the (t) Treddymmock v. Perryrnan, Cro. Car. process in these forms of action, 1 Wins. 259 Saund. 90, n.(l), ace; but not plaint, (k) Martin v. Marshall, Hob. 63 ; S. C. Mosel. 101, 107. Vid. definition of process, 2 Rol. R. 109; Godb. 262. As to London, 8 Rep. 157 b. Andrew v. Webb, 17 Vin. Abr. 266 ; Nov, ( 469 ) THE BOROUGH JUSTICES. The borough justices consist of the mayor during his year of office, and for one year after the mayoralty determines (I) ; the recorder is also ex officio a justice for the borough (»i) ; the rest of the justices are made up of such persons as the crown may commission by virtue of this enactment (w) : — " It shall be lawful for his majesty from time to time to assign to so many persons as he shall think proper, his majesty's commission to act as justices of the peace in and for each borough, and in and for each of the counties of cities and towns respectively named in the said schedule (A.), and in and for such of the boroughs in the said schedule (B.), to which his majesty may be pleased, upon the peti- tion of the council thereof, to grant a commission of the peace. Pro- vided, nevertheless, that every person so to be assigned shall reside within the borough for which he shall be so assigned, or within seven miles of such borough, or of some part thereof, during such time as he shall act as a justice of the peace in and for such borough." Before acting, each of them must make the same declaration as the recorder (o), and take the same oaths mutatis mutandis. Their duties cannot be delegated (p). A sheriff, during his year of office, is disqualified from acting as a justice of the peace (q); nor can a coroner act as a justice; but attor- nies, though disabled from acting as justices for a county whilst prac- tising as attornies, are permitted to act in boroughs and counties of cities and towns (r), and when sued for anything done when so acting, they may avail themselves of their privilege (s). The extent to which county justices are empowered to act within boroughs has been already explained (t) to some extent, and further attempts will be made to elucidate the subject, which is somewhat in- tricate, and involved in a variety of enactments. It is further (//) enacted, "that every person assigned to keep the peace within any borough under the provisions of this act, or any of (/) Municipal Corporations Act, s. 57. M. & Selw. 324. Justices were first created in Boroughs, temp. (t) Vid. sup. p. 453, Quarter Sessions. Car. 1 ; R. v. Johns, Lofft's R. 76. (w) Municipal Corporations Act, s. 101 ; (m) Sect. 103. But his deputy is not so, vid. 11 & 12 Vict.cc. 42, 43, 44 (for facilitating 3 B. & C. 762; Com. Dig. Justice of the the performance of the duties of justices, \c.) Peace, A. 1. as to backing of warrants, and various other (n) Sect. 98. points relative to the jurisdiction of borough (o) Sect 104 ; vid. sup. p. 447. justices. All judicial acts by borough jus- (p) Jones v. Williams, 3 B. & C. 762 ; tices must, on the face of them, purport to be 27 Hen. 8, c. 24, s. 2. done within the locality of their jurisdiction ; (9) 1 Mar. Sess. 2, c. 8, s. 2. Reg. v. Totness, 11 Q. B. 80 ; ministerial (»•) 5 Geo. 2, c. 18, s. 2; rid. 6 & 7 Vict. fCro. Car. 21 1, 213) or personal (11 Q. li. c. 73, s. 34. 66) acts need not. (s) Duffy v. Oakes, 3 Taunt. 166; rid. 5 170 MUNICIPAL CORrORATIONS. them, shall, during the continuance of such assignment, execute the duties of a justice of the peace in and for the borough for which he shall have 1» ssigned, although he may not have such qualifica- tion by estate as is required by law in the case of other persons being justices of the peace for a county ; provided that such persons be not disqualified by law to act as a justice of the peace for any other cause or upon any other account than in respect of estate; and although such person may not be a burgess of the borough in and for which he shall have been assigned to act as a justice of the peace, and that every sum- mons for the appearance of any person, or warrant to compel such appearance, or warrant for the apprehension of any person charged with any offence, or search warrant issued by any justice acting in and for any borough in any matter within his jurisdiction, may be respec- tively served and executed within any county in which the said borough shall be situated, or within any di.-tance not exceeding seven miles from such borough, and within such limits as aforesaid, shall have the same force and effect as if the same had been originally issued, or subse- quently indorsed by a justice of the peace having jurisdiction in the place where the same shall be served or executed, any law, statute, charter or usage to the contrary, notwithstanding; and every such summons and warrant shall and may be lawfully served or executed within such limits as aforesaid, by the constable or special constable to whom the same shall be directed : provided, nevertheless, that no such person, by virtue of such assignment, shall act as a justice of the peace at any court of gaol delivery, or general or quarter sessions, or in making or levying any county rate, or rate in the nature of a county rate." The justices, in acting as such, are not discharging corporate functions, nor are they corporate officers (a-). They may fine for a contempt in court, and commit for the nonpayment of the fine(?/). The justices are exempt and disqualified from serving on any jury sum- moned within the borough, and exempt from serving on any jury sum- moned to serve in the county in which the borough is situate (:). For the procuring of proper evidence, they are distinctly empowered to Bummon witnesses tints : — " It shall be lawful (a) for any justice of the peace acting in and for any borough to issue his summons, requiring any person to appear before any such justices of the peace, for the pur- pose of giving evidence touching any offence against this act ; and if (z) Jones v. W illiatn^, 3 B. & C. 762. Dished, and also in all cases in which a com- (y) It. i. Elliott, Sua. 786. plaint shall have been made to such justice or ' ■. i Municipal Corporation* Ait, >. 122. justices, upon wliich he or they have autho- (a) Sect. 128 ; tt ml. 11 fit 12 Vict. c.42, iity to make any order tor the payment of . l'>, for the proper forms of summons and money, or Otherwise, the justice or justioi warrant, and as to taking of evidence, vid. empowered to summon the person to appear, id. s. 17 — 20. to all cocas where an informa- 8tc, 11 >\ 12 Vict. c. 43; and also wittx hull l>e laid before one or more of the to give evidence, "'■ s. 7. forms of convie- justices that any person bas committed any lion>- > id. s. 17 ; Es part* Kinning, 4 C B. offence or act within the jurisdiction for w vid. 2 Yern. 396; I . IB; liable by law, upon summary conviction, l; . <. Barton, 18 L.J. (N. a.) Mag. Cas. to be iitiprisoued, or fined, or otherwise pu- THE BOROUGH JUSTICES. 171 any person so summoned shall neglect or refuse to appear at any time or place appointed by such summons, and no reasonable excuse for his absence shall be proved before the justices of the peace then and there present, or if any person appearing, in obedience to such summons, shall refuse to be examined on oath touching any such offence, by the justices then and there present, every person so offending shall, on con- viction thereof before the said justices, or any other justices of the peace, forfeit and pay such sum of money, not exceeding 5/., as to the convicting justices shall seem meet; and no person, although liable to the rate, contributing to the borough fund of any borough, shall be deemed an incompetent witness in proof of any offence against this act, by reason of any penalty or forfeiture for such offence being applicable to the use of such borough fund ; and no justice of the peace shall be disabled from acting in the execution of this act by reason of his being liable to the rate contributing to the borough fund of any borough." As to the power of justices of boroughs issuing warrants for the apprehension of persons charged with treason, felony, or indictable misdemeanor, or other indictable offence whatsoever, the late enact- ments to facilitate the performance of the duties of justices out of ses- sions must be looked to (b). " And (c) be it enacted, that the justices of the peace by whom any person shall be summarily convicted and adjudged to pay any sum of money for any offence against this act, may adjudge that such person shall pay the same, either immediately, or within such period as the said justices shall think fit, and in case such sum of money shall not be paid at the time so appointed, the same shall be levied by distress and sale (d) of the goods and chattels of the offender, with the reasonable charges of such distress ; and for want of sufficient dis- tress, such offender shall be imprisoned, with or without hard labour, in the common gaol or house of correction, as to the convicting justices shall seem meet, for any term not exceeding one calendar month, where the sum to be paid shall not exceed 51., and for any term not exceed- ing two calendar months in any other case : the imprisonment to cease in each of the cases aforesaid upon payment of the sum due." The warrant in such case must be in writing ; and the detention of the party without such written warrant cannot be justified for any longer time than is necessary for making it out (e) ; but no warrant of commitment shall be held void by reason of any defect therein, pro- vided that it be therein alleged that it is founded on a conviction, and there be a good and valid conviction to sustain the same (/). (b) 11 & 12 Vict. c. 42. Justice of a bo- (d) The mention of sale was unnecessary, rough may act as such while residing out of for distress in a statute always implies a sale ; the borough in the county or borough next 19 Vin. Abr. 530 ; Arris v. Bradshaw, 1 Keb. adjoining thereto, if he be also a justice of 733. such county or borough, 1 1 & 12 Vict. c. 42, (e) Hutchinson o. Lowndes, 4 B. & Ad. s. 5. 118. (c) Municipal Corporations Act, s. 129. (/) Sect. 132. 17 j MUNICIPAL CORPORATIONS. A conviction, we may observe, is in no respect like a commitment, for the former is only the entering on parchment the proceedings of the court which have already taken place; it is like recording a judgment in a superior court (g). The form of it in cases under the Municipal Corporations Acl i- thus settled (h). The justices of the peace, before whom any one shall be summarily convicted of any offence against this act, may cause the conviction to be drawn up in the following form of words, or in any other words to the like effect, as the case may require, that is to say : — ) " Be it remembered, that on the day of , in the to wit. (year of our Lord , in the borough of , in the county of , A. O. is convicted before us, J. P. and .J.J. P., two of his majesty's justices of the peace for the said county [or borough, or othcr- icise, as the case may be], for that the said A. O. did [here specify the offence, and the tune and place when and where the same was com- mitted, as the case may be], and we do adjudge that the said A. O. shall, for the said offence, forfeit the sum of , and shall pay the same immediately [or shall pay the same on or before the day of ], to , the treasurer for the said borough, to be by him applied according to the directions of the statute in that case made and provided. Given under our hands the day and year first above mentioned." "And(t) be it enacted, that any person who shall think himself ag- grieved by any summary conviction in pursuance of this act, may appeal to the next court of general or quarter sessions of the peace, to be holden not less than twelve days after such conviction, for the county or for the borough wherein the cause of complaint shall have arisen, provided that such person shall give to the complainant a notice in writing of such appeal, and of the cause and matter thereof, within three days after such conviction, and seven clear days, at the least, before such sessions, and shall also either remain in custody until the sessions, or enter into a recognisance with a sufficient surety before a justice of the peace within such three days, or at any time during his custody, on giving to the complainant three days' notice in writing of his intention so to do, and of the name, description, and place of abode of his pro- posed surety, conditioned personally to appear at the said sessions and to try such appeal, and to abide the judgment of the court thereupon, and to pay such costs as shall be by the court awarded ; and upon such notice being given, and such recognisance entered into, the justice be- fore whom the same shall be entered into shall liberate such person it in custody, and the court at such sessions shall hear and determine tin matter of the appeal, and shall make such order therein, with or with- ) Per Parke, J., 1 15. & Ad. 121, 122. S. C. 11 Mod. 46; 8 Hen. 6, c. 9. s. f>. (it) Seel 130; ■< i id. as to warrants, or- set 131. As to appeal Bgainrt sum- den, and conrietions generally , 1 1 & 12 Vict mary convictions where the offence is not c 43, and there see the proper forma. As to against the Vfunicipal Corporations Act, vid. tion by mayor under Statutes of Forci- 1 I & 12 Vict. <■. 43, s. 27 ; and as to costs of ble Entry, Reg. v. Layton, .-alk. a.5.j, 106; appeal, Stc, 12 & 13 Vict, c 45, a. 5. THE BOROUGH JUSTICES. 473 out costs, to either party, as to the court shall seem meet, and in case of the dismissal of the appeal, or the affirmance of the conviction, shall order and adjudge the offender to be dealt with and punished according to the conviction, and to pay such costs as shall be awarded, and shall, if necessary, issue process for enforcing such judgment. And (A) no con- viction, order, warrant or other matter made, or purporting to be made, by virtue of this act shall be quashed for want of form, or be removed by certiorari or otherwise." An order of county justices for a contract with the council of a borough for the maintenance of borough prisoners in the gaol, &c, is an order made under 5 Geo. 4, c. 85, s. 1, and not under the Muni- cipal Corporations Act, and therefore may be removed (/). So an order of removal of a pauper may be brought up by certiorari granted in the first instance, and without a rule to show cause, upon a judge's jiatljn). The justices are empowered to appoint a clerk thus : — " And (ft) be it enacted, that it shall be lawful for the justices of every borough, to which a separate commission of the peace shall be granted as aforesaid, at their first or any other meeting, and they are hereby respectively required, to appoint a fit person to be the clerk to the justices of such borough, to be removable at their pleasure, and so as often as there shall be a vacancy in the said office of clerk to the justices, by death, resignation, removal or otherwise : provided that it shall not be lawful for the said justices to appoint or continue as such clerk to the justices any alderman or councillor of such borough, or clerk of the peace of such borough, or the partner of such clerk of the peace, or any clerk or person in the employ of such clerk of the peace : provided also, that it shall not be lawful for the said clerk to the justices, by himself or his partner, to be directly or indirectly interested or employed in the pro- secution of any offender committed for trial by the justices of whom he shall be such clerk as aforesaid, or any of them, at any court of gaol delivery, or general or quarter sessions; and any person being an alderman, or councillor, or clerk of the peace of any borough, or the partner or clerk, or in the employ of such clerk of the peace, who shall act as clerk to the justices of such borough, or shall otherwise offend in the premises, shall for every such offence forfeit and pay the sum of 100A, one moiety thereof to the treasurer of such borough, to be paid over to the credit and account of the borough fund of such borough, and the other moiety thereof, with full costs of suit, to any person who (k) Sect. 132. This does not extend to 9 Q. B. 32. The order was quashed for not cases where the crown is interested, 4 Burr. sufficiently showing that it was made within 2458 ; 1 East, 303, note (d) ; nor to any but the jurisdiction of the borough justices making summary proceedings, R. v. Battams, 1 East. it. The omission or mistake must now be 298. specified in the rule for issuing the certiorai i ; (/) Reg. v. Justices of Lancashire, 11 A.& 12 & 13 Vict, c 45, s. 7. E. 144. As to the form of the certiorari, 12 (n) Sect. 102. As to his fees, vid. inf. p. & 13 Vict. c. 45, s. T. 474. (m) Reg. v. Inhabitants of Newton Ferrers, 171 MUNICIPAL CORPORATIONS. will sue for the same in any of his majesty's courts of record at West- min-u r." The word office is not used in this section in its strict legal sense; a party could not have brought an assize for it ; and the Court of Queen's Bench cannot inquire into the title of any person holding or dismissed from it; because the justices have absolute power of appointment and removal (o); and of course a criminal information will not lie for his dismissal | p), A communication from an inhabitant inculpating the conduct of this officer, and addressed and sent to the Home Secretary, if in itself libel- lous, is not privileged ;i~> being an application to a competent tribunal for redress, where the Secretary of State has no direct authority in respect of the matter complained of, and was not a competent tribunal to receive the application (//). The fee^ of this functionary for business done in respect of persons apprehended by the police and brought before the justices, or in respect of informations and other proceedings taken by and at the instance of the police, must be paid out of the borough fund (if they cannot be obtained from the individuals who ought to pay them) as expenses necessarily incurred in carrying into effect the provisions of the Muni- cipal Corporations Act, and a mandamus will go to enforce payment; a suggestion that a retrospective rate might be necessary being disre- garded by the court (r), who left the defendant to allege that fact in his return. The table of fees to be so taken must be made by the council, and confirmed and allowed by the Home Secretary (s) ; or until it is made, the fees taken by the clerk to the justices for the county within or adjoining to which the borough is situated, may be taken (t). A- to petty sessions, it is enacted as follows : — " Every sitting and acting of justices of the peace in and for any city, borough or town corporate, having a separate commission of the peace, or any part thereof, within England and Wales, at any police court or other place appointed in that behalf, shall be deemed a petty sessions of the peace, and the district for which the same shall be holden shall be deemed a petty sessional division within the meaning of acts of parliament having relation to any such petty sessions or to any business to be transacted thereat (t), and a copy of the accounts of monies paid and received by the clerk to the justices and the gaoler (n) R. v. Mayor, &c, of Bridgewater, 6 A. signed by the mnyor, &c. 843. (0 12 & 13 Vict. c. 18. s. 1. The coun- (/') ' lj . t B. & Ad. 863. i il may, if ihey think fit, from lime to time Blagg o. Sturt, 10 Q. B. direct that proper places be hired or other- I . . Mayor, && of Gloucester, 6 wise provided for holding each petty sessions, Q.B. the expenses t" be paid out of the borough '. 124. But tee now 11 ,\ 12 fund; s. 2. As to fees to clerk of the petty . 43, s. 30, that the table mu-l be sessions, i id. 11 Sc 12 Vict, c 43, s. 30. THE BOROUGH JUSTICES. 475 respectively, is to be rendered to the justices in petty sessions held on or next after the first of every month (n). These justices, at their quarterly gaol sessions, have the right of appointing the surgeon to the borough gaol (o). An information in the nature of quo warranto is the proper mode of trying the right of a justice to his office ( p) ; and it seems that in the case of justices of boroughs an indictment might be sustained for act- ing without qualification, &c. (a). They can only resign (if at all) to the crown, who commissioned them ; a resignation of their place or office to the corporation would be bad; for every resignation must be made to a superior (r); and for a voluntary absence from their duties, whereby the judicial or other business of the corporation was impeded, or the preservation of the peace endangered, they ma}' be proceeded against by criminal infor- mation (s). All powers and authorities which by the Poor Relief Act of the 43rd of Elizabeth may be exercised, out of the general or quarter ses- sions, by two or more justices of any county, may be exercised within any city or borough by any two or more justices of the peace having jurisdiction within such city or borough respectively, as fully in all respects as by the justices of the county in or for any parish of such county (£)• An order for removal of a pauper by borough justices must show distinctly that it was made within their jurisdiction, or it will be quashed on certiorari (u). They are entitled to have actions against them for anything done in pursuance of the Municipal Corporations Act laid and tried in the county where the facts were committed, to be commenced within six calendar months after the fact committed, and to notice in writing of such actions and the causes thereof, given one calendar month at least before the commencement of them, and to plead the general issue and give the special matter in evidence ; but for an omission or neglect to do something required by the act they are not so entitled (x). The Court of Queen's Bench may now rule them to do the act which they have omitted (y). With respect to the extent of the jurisdiction of the borough jus- tices, it is to be borne in mind, that(z) all matters cognizable by (n) 11 & 12 Vict. c. 43, s. 31. (i) Sect. 133 ; King v. Burrell, 12 A. & (o) Hammond v. Peacock, 1 Exch. 41 ; E. 460 ; et vid. 1 1 & 12 Vict. c. 44. vid. 9 Geo. 1, c. 7, s. 3. ( v) 11 & 12 Vict. c. 44, s. 5 ; Ex parte ( p) El. v. Mashiter, 6 A. & E. 153. Loader, Q. B. 1849 ; vid. 3 Keb. 572. (q) Castle's case, Cro. Jac. 643. (z) 7 Will. 4 & 1 Vict. c. 78, s. 30. All (r) Vin. Abr. Resignation, B. pi. 1. prosecutions for offences against the Muni- (s) R. v. Fox, Stra. 21. cipal Corporations Act, and thereby made (t) 12 & 13 Vict. c. 64, s. 1 ; vid. 11 & punishable on summary conviction, must be 12 Vict. c. 42; 4 T. R. 778. commenced within three months; Municipal (m) Reg. v. Newton Ferrers, 9 Q. B. 32. Corporations Act, s. 127. 47G MUNICIPAL CORPORATIONS. virtue of any local act of parliament or otherwise, by any justice of the peace, or by the general or quarter sessions of the peace having juris- diction within any place which since the passing of the Municipal Cor- porations Act, or of an act intituled " An Act to make temporary Pro- vision for the Boundaries of certain Boroughs," (a) has ceased, or which under any future act may cease, to be within and to be part of any borough or the liberties thereof, shall be cognizable by the justices of the peace, or the general or quarter sessions, of the county, riding or division, liberty or jurisdiction within which such place is situate, in the same manner and subject to the same provisions as the same were within the jurisdiction of the justices of the peace for that borough or place, or of the general or quarter sessions of the same. Many nice and important questions have arisen as to whether orders, convictions, &c., sufficiently showed jurisdiction, but we cannot do more here than make a general reference to the cases, some of which will be found noticed at more length on convenient opportunities (o). Another matter of importance with reference to the question of juris- diction is this : " that (c) all offences committed within any borough, or the precincts thereof, against the provisions of any local act of parlia- ment, shall be cognizable by the justices of such borough, and such justices shall possess all the powers and jurisdiction with respect to such offences which were heretofore possessed by the justices of any county, riding, division, liberty or jurisdiction, by virtue of any such local act: provided always, that in every case in which imprisonment might be awarded for any such offence, or to enforce payment of any penalty imposed by any such act, such imprisonment may be awarded to take place in any gaol to which the justices of that borough have power to commit offenders." Also, " that (d ) in all boroughs and places where the general or quarter sessions of the peace have under and by virtue of the Municipal Corporations Act ceased or been dis- continued to be holden, all such business, matters and things, which, under or by virtue of any general or local act of parliament, or any usage or custom, ought or were usually heard, decided or transacted at such general or quarter sessions by the justices of the peace, with (a) 6 & 7 Will. 4, c. 103. with the customs of the Cinque Porls. That a (b) Reg. v. Stockton, 7 (}■ B. 520 ; Reg. writ of error on a judgment given in a court v. .Milm r, 3 I). v\ I.. 128 ; Reg. I ■ Casterton, of record there does not lie in IV 11., but -hall 6 (J. B. 507 ; Reg. v. Newton, 9 Q. B. 32. be examined before the lord warden at the (c> 7 Will. 4 & 1 Vict. c. 78, s. 31. Court of Shepway, Anon„ Dyer, 376, A. ; | 7 Will. 4 8c 1 Vict. >■. 78, i. 50. 2 Inst 557; 1 [est. 224. As to the extent 1 1n jurisdiction of justices ol the Cinque I'nru of the jurisdiction, 4 [nst. 224. However, it is preserved to them by ihe Municipal Cor- it said error I" from the Court of Shepway poratioos Act, ss. 135, 136. As lo their to B.R. ; 3 151a. Com. 79. gu. tarn. Debl granting licenses to victuallers, 6 & 7 Will. 4, for an escape against a gaoler of the Cinque c. 105, s. 11. The courts at Westminster Ports, Yearb. 30 Hen. 6, fol.fi. pi. 5; el vid. do not take judicial notice to what towns ihe Comyns's Rep. 153,574; Hull. Ni.Pri.83; privilegesof the Cinijiic Ports extend ; 2 In-t. 1 Ld. Uavin. 229, as to liability of officers of 557. It is doubtful whether anything enacted borough courts for escapes. in the .Municipal Corporations Act interferes THE BOROUCxII JUSTICES. 477 the assistance of any juries there assembled, shall and may hereafter be heard, decided and transacted by the general or quarter sessions of the peace for the counties, ridings or divisions, liberties or jurisdic- tions, in which such boroughs are situate, and by the justices of the peace and juries there assembled respectively." With respect to exemption from the jurisdiction of county justices, it is now lawful (e) " for any justice or justices of the peace acting for any county at large, or for any riding or division of such county, to act as such at any place within any city, town or other precinct, being a county of itself, or otherwise having exclusive jurisdiction, and situated within, surrounded by, or adjoining to, any such county, riding or divi- sion respectively, and that all and every such act and acts, matters and things to be so done by such justice or justices within such city, town or precinct as justice or justices for such county, riding or division re- spectively, shall be as valid and effectual in law as if the same had been done within such county, riding or division respectively, to all intents and purposes whatsoever : provided, always, that nothing in this act contained shall extend to give power to the justices of the peace for any county, riding or division, not being also justices for such city, town or other precinct, or not having authority as justices of the peace therein, or any constable or other officer acting under them, to act or intermeddle in any matters or things arising within any such city, town or precinct in any manner whatsoever." A fundamental rule, grounded equally in law and in convenience, with respect to the mode by which a precinct could be exempted from the jurisdiction of county justices, was, that it must be done by express words (/); and words merely giving a jurisdiction to borough justices did not annul that of the county justices where it had previously ex- isted^); and it had always been held, that by apt words the crown can grant to any city or borough to have justices of their own, and exclude the county justices from intermeddling (A) ; and the acts of the county justices in such cases were not merely a breach of the franchise, but were wholly void (i). On the other hand, if the justices of an exempt jurisdiction refused to act in any case where it was their duty to act, a mandamus would have formerly issued to compel them (k) ; but the proper mode of proceeding is now by a rule of the Court of Queen's Bench ordering them to do what they have omitted to do(/). (e) 11 & 12 Vict. c. 42, s. 6; vid. 9 (/*) Talbot v. Hubble, Stra. 1154 ; 2Inst. Geo. 1, c. 7, s. 3 ; vid. 5 B. & Aid. 665; 4 71 ; vid. Yearb. 20 Hen. 7, fol. 6, 7. T. R. 778 ; 10 A. & E. 711 ; 9 Dowl. & R. (») Talbot v. Hubble, Stra. 1154 ; Vin. 172, as to these precincts. Abr. Justices of Peace, D., pi. 1. (/') Per Lord Kenyon, C. J., in Blankley (/<) Caly v. Hardy, 6 Mod. 164; vid. v. Winstanley, 3 T. R. 279. The principle Sayer, 160; 1 Wils.21 ; and the motion was seems to be that the king cannot grant his of course, 1 Wils. 125. prerogative implicitly ; it must be by express (/ ) 1 1 & 12 Vict. c. 44, s. 5; Mr. gra. to words ; Yearb. 2 Hen. 7, fol. 13 ; Melvin v. sign a poor rate ; vid. 3 Keb. 572. A poor Reeve, Litt. R. 116. rate not being so allowed, &c, by two jus- ( g) Bales v. Winstanlev, 4 M. & Selw. tices is wholly void; Foxd. Davies, 6 C. B. 429; R. v. Sainsbury, 4 T.R.451,456. 11. 478 MUNICIPAL CORPORATIONS. There is one class of cases in which the legislature has lately given a concurrent jurisdiction to the county justices with those of the borough, vie. where offences against the Smuggling Prevention Act, or any act relating to the customs, are committed in any city, borough, Sec. (m). Where the justices ought to do an act which they refuse to do, the Court of Queen's Bench may now rule them to do it(rc). (m) 8 4c 9 Vict. c. 87, s. 96. Loader, Q. B. 1849, 18 L. J. (N.S.) Q. B. (n) II & 12 Vict c 44, s. 5 ; Ea parte 94 ; pit*. 10 A. & E. 179, 248, 374. ( 479 ) JURORS. As regards the persons who are to be jurors in corporate towns, &c, it is enacted (o), " that every person, being a burgess of any borough wherein there shall be a separate court of (quarter) sessions of the peace, or a court of record for the trial of civil actions (unless he shall 'ji exempt or disqualified, otherwise than in respect of property, from « erving on juries, by virtue of an act passed in the sixth year of the reign of King George the Fourth (p), intituled ' An Act for consoli- dating and amending the Laws relative to Jurors and Juries'), shall be qualified and liable to serve on grand juries in such borough, and also upon juries for the trial or all issues joined in any court of quarter sessions of the peace, and in any court of record for the trial of civil actions triable within the borough of which such person shall be a burgess, and the clerk of the peace of every such borough shall give public notice of the time and place of holding every such quarter ses- sions of the peace ten days at the least before the holding thereof, and shall, seven days at the least before the holding thereof, cause to be summoned a sufficient number of persons, being qualified and liable as aforesaid, to serve as grand jurors at such sessions, and the clerk of the peace and registrar of the court of record respectively shall also cause to be summoned not less than thirty-six nor more than sixty persons, so qualified and liable as aforesaid, to serve as jurors at every such sessions ; and at the holding of every such court of record for the trial of causes, in case there shall be any cause then to be tried, and such summons shall be made by showing to the person to be summoned, or, in case he shall be absent from the usual place of his abode, by leaving with some person therein inhabiting, notice, under the hand of such clerk of the peace or registrar respectively, containing the substance of such summons, and such clerk of the peace shall make out a list of the names of such persons so summoned as grand jurors, and the clerk of the peace and registrar respectively shall also make out a panel of such persons so summoned other than grand jurors, and such lists and panels shall respectively contain therein the christian names and surnames, places (o) Municipal Corporations Act, s. 121. as to the jurors' book in such case, vid. s. 39. Semb. in an action by the corporation it is They are exempt from attending county ses- good cause of challenge to the array that the sions by s. 40. The crown might grant to a sheriff who returned the jury panel is a rnem- corporation that its members shall be exempt ber of the corporation ; Mayor, &c, of Car- from serving on juries out of their borough, marthen v. Evans, 10 M. & W. 274; vid. Yearb. 21 Edw. 4, fol. 55, pi. 28 ; but now Andrews' R. 85, 104. no person is to be exempt from serving on ( p) 6 Geo. 4, c. 50. As to jurors, where juries in any of the king's courts whatever, there is a district united to a borough under by reason of any writ, grant, charter, pre- the District Courts and Prisons Act, 5 & 6 scription or otherwise, Municipal Corpora- Vict. c. 53, vid. ss. 37, 38 of that act ; and tions Act, s. 123. 1>0 MUNICIPAL CORPORATIONS. of abode and descriptions of the several persons therein named ; and if any person, having been duly summoned to attend on any jury, shall not attend pursuant to such summons, or, being thrice called, shall not answer to his name, or after bis appearance wilfully withdraw himself from the presence of the court, the court shall impose such fine upon every person so making default (unless some reasonable excuse shall be proved to the satisfaction of the court) as the court shall think meet; and if any person on whom such fine shall be imposed shall refuse to pay the same to the person who shall be authorized by the court to receive the same, it shall be lawful for the court then, or at its next sitting, by order of the court, signed by the clerk of the peace or regis- trar respectively, to cause to be levied by distress and sale of the goods of the person on whom such fine shall have been imposed, every such fine, and the reasonable charges of such distress and sale; and every fine so received shall be paid to the treasurer of the borough, to be by him carried to the account of the borough fund" (7). Councillors, during the continuance of their offices, the borough jus- tices, the treasurer and the town clerk for the time being, are exempt and disqualified from serving on any jury within the borough, and exempt from serving on any jury of the county in which the borough is situate; and all burgesses of a borough, where there is a separate court of quarter sessions, are exempt from serving on any jury sum- moned for the trial of issues joined in any court of general or quarter sessions in the county wherein the borough is situate (r). In counties of cities, See, the courts may order actions, &c, pend- ing in them to be tried by juries of the adjoining counties (s). With respect to questions of qualification of jurors, it appear-, that in counties of cities and counties of towns, the stat. 33 Hen. 8, c. 13, is still applicable, notwithstanding the abolition, by the Mu- nicipal Corporations Act, of all capital and criminal jurisdictions in boroughs, and therefore that personal property to the amount of 10/. qualifies for a juror on the trial of felonies (0, & freehold qualification not being requisite (u). Although the sheriff, in counties of cities and towns, is not now of necessity a member of the corporation, yet where lie is so, it seems still to be a good ground of challenge to the array that the sheriff' who returned the panel of the jury is such member in an action brought by the corporation (.r) ; but the preferable course, it (7) 7 Will. 4 ,v 1 Vict. c. 78, s. 36, pro- 10 M. & W. 277. If the panel were quashed rides that persons maybe summoned a se« for unindifference in the sheriff, the proper cond time in one vear, if all the persons liable course is to award a venire facial to the co- to serve shall have been summoned once du- roner ; 11. v. Dolby, 2 11. & C. 104; Co. ring that year. I-itt. 157b. Form of challenge to array (r) Sect. 122. on grounds of anindifferency in sheriff, Cro. 3, c 52, s. 1; vid. tup. Cire. Comp. 105 ; practice, Eire v. Bannis- 19 -352. ter.Hutt.24; vid.2 Dowl. N. S. 296; mg- (t> Finch, Law, 405. gestion to try issue by men of the county and (») R. v. Mayor, &c, of Worcester, Skin. not of the city, C. C. A. 239, 241 ; that one 91, 106; I. H m. 184; R, v. Lord Rua- of the coroners may return venire facias, ■el, 2 Show, 310. C.C. A. 241 , oid. 3'Burr. 1848. (i) Mayor, &c, of Carmarthen r. Evans, JURORS. 481 was said, for the defendant in such case, is to move to change the venue (x). In other cases, however, which do not appear from the report to have been brought to the notice of the court in the case alluded to, it has been stated that " the books are full that challenges are allowed where the issue concerns a city or corporation, and they are to make the panel, or where any of their body be to go on the jury, or any of kin unto them, though the body corporate be not directly party to the suit"(?/). It had before been repeatedly laid down, that where a corporation are parties to a suit, and immediately interested in the very issue in question, no freeman can be a juror (z) ; and so if a juror be of kindred to any member of the corporation (a) ; and the above (b) is the first case, apparently, in which the course of proceeding by way of motion or application to change the venue has been intimated to be that which the courts would prefer to see adopted instead of the old challenge, but the decision does not apply to chal- lenges of jurors for relationship, &c, which can of course only be taken when the juror comes to be sworn (c). As to the principle there is no doubt ; on the contrary, " there is no principle in the law more settled than this, that any degree, even the smallest degree of interest in the question depending, is a decisive objection to a juror, or to the officer by whom the jury is returned" (d). The minuteness of the in- terest does not mitigate the objection ; but the defendant, by not taking the objection, will be considered to acquiesce, and in that case the trial will be good(e). But where the question is one which only affects the members of the corporation, and the parties on either side are equally interested in the result, it is not material that the jurors, or sheriff who impanels them, are corporators (/). When it is desired to have a special jury in a cause arising in a county of a city or town (except London), the rule must command the sheriff to produce the list of persons qualified to serve on juries within the same county of city, &c. ; and the jury are to be taken and struck as theretofore was used {g). 0) See preceding note. (c) Vid. Yearb. 21 Edw. 4, fol. 11, pi. 3, (y) Day v. Savadge, Hob. 87; Chit. fol. 20, pi. 29, fol. 63, pi. 33. Arch. Pract. 425, 8th. edit.; 3 Bla. Com. (d ) Hesketh v. Braddock, 3 Burr. 1856 ; 363; R. v. Pilkington, Skin. 118; Yearb. vid. 12 Mod. 687. 28 Hen. 6, fol. 10. As to challenging the (e) Bodwick v. Fennell, 1 Wils. 234, ex- polls, 3 Burr. 1849. plained 3 Burr. 1858. (s) Co. Lilt. 157 a; 3 Keb. 12, 295; (/) City of London v. Vanacker, Carth. 3 Burr. 1855. 480, explained 3 Burr. 1857 ; Mayor, &c, (a) Co. Litt. 157 a; 1 Saund. 344; 28 of London v. Markwith, 9 Vin. Abr. 486. Hen. 6, fol. 10. (g) 6 Geo. 4, c. 50, s. 36 ; Lush, Pract. (b) Mayor, &c, of Carmarthen v. Evans, 477 ; vid. 3 Exch. 660. 10M.& W. 277. I I ( 482 ) GAOLS. With respect to the subject of gaols, it has been already noticed, that in boroughs, having, at the passing of the Municipal Corporations Act, a separate court of quarter sessions and a gaol of their own, the powers of contracting for the conveyance, support, and maintenance, in the county gaols, of borough prisoners, which were vested in the justices of the borough, by 5 Geo. 4, c. 85, ss. 1, 2, are now vested in the coun- cils of such boroughs, who are to make all contracts and orders under that act (g) ; and, as has been already shown, the council of one borough may contract with another; and, on the other hand, the county justices may contract with a borough for the maintenance of the prisoners of each in the gaol of the other respectively. But newly-chartered bo- roughs, though having a grant of separate quarter sessions, could not have contracted under this enactment, because they never had a gaol of their own (h). But now it is enacted (i), that in every borough to which a separate court of sessions of the peace hath been or shall hereafter be granted there shall be one common gaol, and at least one house of cor- rection, excepting those boroughs in which the mayor, aldermen, and bur- gesses, by their council, shall have contracted with the justices of the peace having authority or jurisdiction in or over any gaol or house of correction of the county, riding, or division, wherein such borough is situated, or whereunto it is adjacent, or with the mayor, aldermen, and burgesses of some other borough, in which there is a gaol or house of correction, or with the committee of a district prison (/<), for the support and maintenance, in such last mentioned gaol or house of correction or district prison respectively, of any prisoners committed thereunto from such borough, and during the continuance of any such contract, but no longer, the first mentioned mayor, aldermen, and burgesses shall not be bound to maintain any other gaol or house of correction for their borough (/). And it shall be lawful for the mayor, aldermen, and bur- gesses of any such borough, by their council, to enter into such con- (g) Sect. 1 14 ; m'rf. snp. p. 454 — 456; et By 7 & 8 Vict. c. 50, s. 1, these agreements \ i) Viet. c. 98, s. 14. may be made by councils of borough*, which (h) Heg. f. Justices of Lancashire, 11 A. have not grants of quarter sessions, contingent fit I.. 144. As to the mode in which these on BUCb grants being eventually mude; vid. expenses of main tei lo be calculated II A. & E. 144, and charged on boroughs, vui. Reg. v. John- (/; No borough, having commenced, &c, son, 10 A. & I-. 7 10, and p. 155, tupra. the construction of a sufficient gaol and house (i) 5 > 6 \ ict c. 98, s. 14; tis. 13 of correction, shall be liable to contribute to \ - ,-. B2. A new gaol can only be erected thi eo Is, See, incurred by the county iu which by authority of parliament ; 2 Inst 705; Com. it is wholly or in part situate, about any new ii Imprisonment, A. lorboust "I correction for the county j 12 (k) ' 6 Vict. c. 53, inf. p. 483. .\ 13 \ ict. c. 82, s. 1. gaols. 483 tracts as aforesaid, although at the time of entering into such contract there may be no gaol or house of correction belonging to such borough ; and all enactments with respect to such contracts shall apply as well to those contracts where, at the time of entering into the same, there was or is a gaol or house of correction belonging to the borough, as to those contracts where there was or is no gaol or house of correction belonging to the borough at the time of entering into the same. By another enactment (hi), the mayor, aldermen, and burgesses of any bo- rough which is within the provisions of the Municipal Corporations Act, or of any charter granted in pursuance of that act, or of any act passed for the amendment thereof, are empowered to agree by their council, jointly or severally, with the justices of the peace of any one or more counties, or with the mayor, aldermen, and burgesses of any one or more such boroughs, by their council respectively, for the contribution and payment of any sum of money by either or any of the parties to any such agreement, towards altering, enlarging, building, rebuilding, re- pairing, or improving any prison to be used as a district prison, and towards the expenses of the maintenance, safe custody, and punishment of the offenders committed thereunto, including their committal, prose- cution, and conveyance to and from prison, and towards the expenses of providing and maintaining a court house and necessary buildings, and defraying the other charges of the court at which they shall be tried ; and any justice of the peace acting within his jurisdiction for any bo- rough, which is one of the parties to the agreement, is empowered to commit to such prison all persons who shall by law be liable to be com- mitted to prison for any act or omission done or omitted, or charged to be done or omitted, within any borough specified in the agreement ; and every person committed to any such prison may be tried as if such prison were a gaol belonging to the borough from which such person was com- mitted, and all the provisions of 5 Geo. 4, c. 85, and 6 & 7 Will. 4, c. 105, shall extend as nearly as may be to such agreements, and to the trial and punishment of such offenders, and to all acts necessary for such trial, or consequent thereon, subject to the provisions of 5 & 6 Vict. c. 53. And(rc) in the case of every prison built, rebuilt, or enlarged, in (m) 5 & 6 Vict. c. 53, An Act to encou- other parts of the act, the council, at the quar- rage the Establishment of District Courts and terly meeting on that day, shall appoint fit per- Prisons, sect. 1. By sect. 2, all enactments, sons to perform the duty of such committee, requiring such agreements to be made at a any member of the old committee being capable quarterly meeting of the council, are repealed. of reappointment, if then duly qualified. This By sect. 3, monies to be paid under such committee is to unite with the other commit- agreements are to be raised as other monies tees of the parties to the agreement, and to for like purposes. By sect. 5, the council, at form one joint committee, which is to hold gaol a special meeting to be called for that pur- sessions from time to time, and to have power pose, may appoint not less than three, nor to purchase lands, make contracts, appoint more than five, justices of the borough, to be the prison officers, and at least one visiting a committee for treating with any committee justice for the borough at least once every appointed by any other of the parties aforesaid quarter of a year, and also to appoint a trea- for the purposes aforesaid ; and from time to surer, make reports to the Secretary of Slate, time, at a quarterly meeting, to fill up any va- &c. cancyin thecommittee, which, bysect. 34, isto (n) Sect. 18. go out of office every 9th of November, and by i i2 Js) MUNICIPAL CORPORATIONS. pursuance of any such agreement, such prison and place, in which the court of gaol sessions shall be holden, shall, for all purposes relative to the jurisdiction of such gaol sessions, and of the justices of the peace empowered t<> act in the gorernment of the said prison, be deemed to be within the county and borough to which the ordinary powers of such justices respectively extend; and (V) the council are empowered to bor- row money on estimate for building or rebuilding, repairing or enlarging the prison, court house, and other necessary buildings to be used with the prison, and for the purchase of land, so that the principal and in- terest be repaid in thirty years, for securing repayment of which the council may {p) grant bonds under the common seal, or, instead, may mortgage, with consent of three or more Lords of the Treasury, any part of the real property of the corporation, the rents of which are or may be by any law in force applicable towards erecting or maintaining a gaol or house of correction, and to repay the money borrowed, and the interest accruing, out of the borough fund, or borough rate, but with- out prejudice to any prior claim upon the borough fund ; or instead or in aid thereof, the council may make gaol rates, and secure the repay- ment of the loan with interest by mortgage of the borough rates or gaol rates, so that all the principal, with the interest, shall be repaid within thirty years, or, in case the money shall have been advanced by the com- missioners of exchequer bills, within twenty years. Then (q) the gaol rate is to be made, levied, and raised in like manner as the borough rate ; and for the purpose of providing a prison, the council may (r) purchase and hold so much land as the Secretary of State shall deem necessary. Then follow several important regulations respecting contracts for the maintenance, &c, of borough prisoners in county gaols (s), and espe- cially that where there is no special contract between the borough and county, the actual expenses of persons committed to the county gaol from the borough, whether by county or borough justices, must be paid by the borough (t), and how the expense of prosecutions is to be de- frayed (//), and also of conveyance and maintenance (a:), such borough being exempted from the payment of any county rate in respect of such conveyance, &c. (?/)• (o) 5 & 6 Vict. c. 98, s. 3 ; and by sect. 4, limits of the borough, and the land taken for the exchequer bills loan commissioners may this purpose, and thai of building town house, grant loans. After commencing to construct council house, and police office, is not to ex- such gaol and house of correction, the borough ceed five acres in the whole; 7 Will. 4 & 1 is exempt from contributing to costs of any Vict. c. 78, s. 40. new county gaol or house of correction; 12 (>) Sect. 18; vid. sup. p. 482; and 12 & & 13 Vict. c. 82, I. I. 13 Vict. c. 82, s. 1. (p) Set. ',. Bnt they cannot apply the (O Reg. V. Mayor, &c, of Birmingham, surplus ni tbe borough fund, after * fraying 10 Q. 15. 1 16 ; vid. 12 & 13 Vict. c. 82, s. 1. th.- ordina nnder met. 92, tu the (u) Sect. 19. repair ol the gaol, or the mainti nance of pri- (x) Sect 20. Mayor, Btc, of Lxeter, (y) Sect. 22 ; vid. as to the power of the ,i County Court, under 9 & 10 Vict. c. 95, to . , i. i,. I.- tbe borough prison as a house of correc- (r) Sect. 13. The borough gaol and house Don in crtain cases, sect. 49; vid. 12 & 13 of correction may be wiilnn ol without the Vict. c. 101, s. 2. GAOLS. 485 It will be seen, from what has been already stated (2), that the legis- lature contemplates every borough having a gaol, and at least one house of correction ; and it has been further enacted, that (a), in every bo- rough gaol, and house of correction, a clergyman of the Church of Eng- land shall be appointed to be chaplain thereof by the same authority by which theheeper(b) is appointed; but no such chaplain shall officiate in any prison until he shall have obtained a license from the bishop of the diocese, or for any longer time than while such license shall continue in force ; and notice of every such appointment shall, within one month after it shall take place, be transmitted to the bishop by the town clerk. Therefore, where the corporation had by charter the power of appoint- ing the keeper of the borough gaol, the council may now appoint the chaplain (c). With respect to the regulation of the borough gaol, &c, it is enacted (d), that all the powers which, before the 9th of September, 1835, were pos- sessed by the justices having the government or ordering of any gaol or house of correction, and all things by any act of parliament to be done at any general or quarter sessions of the peace in relation to the regu- lation of any such gaol or house of correction, shall, subject to any such alteration as aforesaid (i. e., as introduced by statute 5 8c 6 Will. 4, c. 3S), be exercised or done by the justices of the borough to which such gaol or house of correction shall belong ; and for that purpose the jus- tices shall hold a quarterly session at the usual times of holding quar- terly sessions of the peace : provided, that no order made by the justices, in pursuance of these powers, which shall require the expenditure or payment of any money, shall be of force until confirmed by the council. These powers of regulation include in general, it seems, the power of appointing gaolers ; for such appointment is a matter relating to the business of a court of criminal jurisdiction, and therefore, as we have seen, taken away from corporations by the Municipal Corporations Act (e) ; but this power only belongs to the justices, where there is no power in the corporation, by charter or otherwise, of appointing the keeper of the gaol of their franchise, which in some boroughs is vested in the corporation by charter ; for there the corporation by the council continue to appoint the keeper of the gaol, who may, if the usage autho- (z) Vid. sup. p. 482; 12 & 13 Vict. c. 82, ties have respecting building:, repairing, &c., 9- i # gaols of counties is transferred to the council ('a) 2 & 3 Vict. c. 56, s. 15. with respect to the borough gaol and houses (b) This officer is not necessarily the actual of correction by sect. 37. A corporation may gaoler; 5 Q. B. 161. As to the appointment be indicted for neglecting to repair the gaol ; of governor of prison, vid. 2 & 3 Vict. c. 56, vid. Reg. v. Mayor, &c, of Gloucester, Cro. g- 24. Circ. Companion, 355. Hut the recorder (e) Reg. v. Bishop of Bath and Wells, 5 must first have certified the expediency of Q B 147°; vid. 2 & 3 Vict. c. 56. such repairs, sect. 37 ; vid. 11 A. & E. 156; (d) 7 Will. 4 & 1 Vict. c. 78, s. 38. For 1 Exch. 41, 56; 1 A. & E. 863. these powers, vid. 4 Geo. 4, c. 64, and 5 Geo. (e) Reg. v. Lancaster, 16 Law J . ( A . b.) 4, c. 85. The powers that justices of coun- Mag. Cas. 139. 4S6 MUNICIPAL CORPORATIONS. rize him, or the charter permit it, appoint a person as the actual gaoler, who, however, is under the supervision and control of the justices (f). The borough justices are to appoint the surgeon of the borough 9)' A county gaol, though within the borough, is under the exclusive jurisdiction of the county justices (h). (/) Vid. 5 Q. B. 162. Municipal Corporations Act, sect. 8 ; and 9 & u') Hammond 1. Peacock, 1 Exch. 41. 10 Vict. c. 95, s> 49. 7 \\ ill. 4 >\ 1 Vict. c. 78, s. 41; vid. ( 487 ) THE BOROUGH FUND AND BOROUGH RATES. The rents and profits (i) of all hereditaments, and the interest, divi- dends, and annual proceeds of all monies, dues, chattels, and valuable securities belonging or payable to any body corporate named in con- junction with the said borough in the said schedules (A) and (B), or to any member or officer thereof, in his corporate capacity, and every fine or penalty (/*) for every offence against this act, (the application of which has not been already provided for), shall be paid to the treasurer of such borough ; and all the monies which he shall so receive shall be carried by him to the account of a fund to be called " The Borough Fund," and such fund, subject to the payment of any lawful debt due from such body corporate to any person, which shall have been con- tracted before 9th September, 1835, and unredeemed, or of so much thereof as the council from time to time shall be required, or shall deem it expedient to redeem, and to the payment from time to time of the interest of so much thereof as shall remain unredeemed, and saving all rights, interests, claims, or demands of all persons or bodies corporate, in or upon the real or personal estate of any body corporate, by virtue of any proceedings either at law or in equity, which have been already instituted, or which may be hereafter instituted, or by virtue of any mortgage or otherwise, shall be applied towards the payment of the salary of the mayor, and of the recorder, and of the police magistrate, when there is a recorder or police magistrate, and of the respective salaries of the town clerk and treasurer, and of every other officer whom the council shall appoint ; and also towards the payment of the expenses incurred from time to time in preparing and printing burgess lists, (i) Municipal Corporations Act, s. 92. penalties levied under bye-laws formerly Stocks, funds, or public securities, standing passed, and still operative (not being incon- in the books of the Bank of England, or any sistent with the provisions of this act), by other public company, in the name of the cor- virtue of powers granted by charter, (as in poration, and all dividends and interest due R. v. Headley, 7 B. & C. 499,) must like- thereon, and all bonuses and accretions, are wise be paid into and form part of the borough to be paid to the borough fund ; 7 Will. 4 6c fund ; and sucli would be the case with re- 1 Vict. c. 78, ss. 45, 48. The council have sped to the proceeds of any tax which might no power under this section to expend the be laid upon the inhabitants by virtue ot the principal of any monies, dividends. &c, be- powers commonly given in charters ( 1 Mum- lon«j':ng to the corporation, Ex parte Hythe, cipal Corporations Commissioners Report, p. 4 Y. fie Coll. 55; for the borough fund con- 22) of taxing for municipal purposes ; which sists only of annual and casual proceeds or powers, except where thej are superseded as income. Money arising from the sale of real inconsistent with the Municipal Corporations property is not to be brought into it, but in- Act, still exist, it is conceived, and may be vested, and the dividends only in each year acted upon, if money be required for muni- go into the borough fund ; 4Q. B. 906 ; 2 cipal purposes, other than those of carrying My. & C. 619; 9 A. 6c E. 443. into execution the Municipal Corporations (k) There can be no doubt that fines or Act. 4SS MUNICIPAL CORPORATION-. ward lists, and notices, and other matters attending such elections as are herein mentioned, and in boroughs which shall have a separate court of sessions of the peace, as already explained (/), towards the expense of maintaining the borough gaol, house of correction, and cor- porate buildings (mX and towards the payment of the constables, and of all other expenses not herein otherwise provided for, which shall be necessarily incurred in carrying into effect the provisions of this act(?i). Now, as the corporate property is thus made liable to all expenses necessarily incurred in carrying into effect the provisions of the Muni- cipal Corporations Act, including such expenses as necessarily arose out of the duties imposed on parties by the act, but subject in the first instance to the latter particular class of payments, two cases arise; first, where there is a surplus in the borough fund, after all the ordi- nary payments of salaries and other fixed burdens upon the fund have been defrayed and discharged ; and, secondly, where the amount of the borough fund, as described above, is not adequate to the claims upon it. In the first place it is provided, that in case the borough fund shall be more than sufficient for the purposes aforesaid, the surplus thereof shall be applied, under the direction of the council, for the public benefit of the inhabitants, and improvement of the borough (o). Ex- planatory of these words is a very important decision (p), that the council may devote this surplus to the defence of proceedings on infor- mations in the nature of quo warranto, having for their object to destroy the corporation, though they may be nominally directed against indivi- duals. But it must clearly appear to the court that the money has been applied for public purposes ; therefore the surplus cannot be so applied to defend a quo warranto information against an individual whose own interests only were concerned, and whose case embodied no public interest ; otherwise the borough fund must be applied to defending all proceedings of the kind, whether against friends or enemies (q). Hence, in no case can the surplus be properly applied to defending a criminal information against a person for misdemeanors in his office of alder- man ; for it can never be for the interest of the borough that a person who has committed a delinquency should not be punished (r). Nor will one party in a corporation be permitted to fight the other by means (// Vid. tup. p. 455, s. 111. no means of obtaining payment from the (in) The council may order the expenses parties liable for them in the first instance, necessarily connect! d with the repair ol the are within these words; Reg o. Mayor, &c, corporation pew in the parish church to be of Gloucester, 5 Q. B. 862. defrayed from the borough fund; H (o) ^.'Jl; b\ inntraets under the common 15] rJ.(N.B.) seal, 6 M. fit W. 815: expenses of act for im- (,?. B. :i'iii. Bui they cannot order payment proving navigation of the river not such, 16 <>t the interest on a compensation bond, under Sim. 225. to be made outof that fund ; id. ibid. ; (p) Att.-Gen. v. Mayor, &c, of Norwich, 2 My, & ('. 425; vid. R, v. Inhabitants of (a) lees payable to clerk of the boroi i I. K. 591, etvid. 4 Q. 15.904. • where there i> no specific (q) Reg. '. Paramore, 10 A. & K. 287. provision a~ to t he mode in which they are to (r) I'er Littledale, J., 10 A. &c E. 288. be. paid, as well as in cases where there are THE BOROUGH FUND AND BOROUGH RATES. 489 of legal proceedings defrayed with the corporation money. Therefore where a person claiming to have been duly elected councillor obtained a rule nisi for a mandamus to the corporation to receive his vote, and permit him to act as councillor, and the council resolved that cause should be shown against the rule, it was held that the costs of such opposition, as well as the costs of counsel's opinion taken by the mayor under a general authority from the council, on which he had acted in refusing the excluded councillor's vote, could not be charged on the borough fund, though it was sworn that the proceedings were taken bona fide (s). It does not distinctly appear that the council may apply this surplus to pay a fine set upon the corporation on a conviction upon an indictment, or how the fine is to be raised in case there is no surplus of the borough fund. The public purposes are those of the borough, not the general benefit of the public at large. Thus the expenses relating to a petition to the Lord Chancellor, for leave to attend before the Master, to present a list of persons as trustees for the estates held by the corporation for charit- able uses, though ordered by the council, are not payable out of the borough fund (t). Accordingly it would seem to be strictly legal, within the above words, for the council to apply such surplus to buying of rents charged on the corporate lands under 10 Geo. 4, c. 50, s. 39. Also the expense of prosecuting a person for an assault or interruption of one of the officers of the corporation in the exercise of his duty, may properly be paid out of the borough fund, but it is the duty of the council in the first instance to consider whether the prosecution is a proper one to be instituted at the expense of the corporation ; and it is only, it must be remembered, when there is a surplus in the borough fund that the council have a right to enter upon such expenses («). The effect of these words is to give the Court of Chancery jurisdiction over the property of corporations in boroughs, who, since the Municipal Corporations Act, are considered to hold their property as trust pro- perty for charitable uses, and the trusts are applicable as well to the personal as to the real estate (x). But semble, a corporation cannot exempt their lands from execution, by alleging that they are held only for the purposes of the borough (y). As has been stated, the borough fund consists only of income arising out of annual proceeds as well as casualties, such as fines, penalties, &c. Money, the produce of sales of real property, under the provisions of acts of parliament, does not (s) Reg. v. Mayor, &c, of Leeds, 4 Q. B. (it) Reg. v. Mayor, &c, of Lichfield, 4 796. It seems that the councillors consti- Q. B. 907,909. tuting the majority, who were for incurring (x) Ex parte Ilythe, 4 Y. & Coll. 55 ; such expenses, would be personally liable; Att.-Gen. v. Corporation of Liverpool, 1 i\ly. vid.sup. p. 360 ; S.C.and Keg. v. Mayor. &c, & C. 199 ; Att.-Gen. v. Corporation of Poole, of Cambridge, 4 Q. B. 801 ; Reg. v. Dunn, 8 Beav. 75 ; Parr v. Att.-Gen., 8 Cla. & F. 13 Law J. (N. S.) Q. B. 238. 409 ; vid. Att.-Gen. v. Aspinall.2 My. & C. (0 Reg. v. Mayor, &c, of Warwick, 15 623 ; vid. 9 A. & E. 443 ; 11 A. & E. 502, Law J. (N. S.) Q. B.306; vid. Att.-Gen. v. 12 A. & E. 13, ace. ; 16 Sim. 225. Mayor, &c, of Norwich, 16 Sim. 225. (v) Doe d. Parr v. Roe, 1 Q. B. 700. 490 MUNICIPAL COKrOKATION*- form part of it, such sums being to be invested, and the annual divi- dends only go into the borough fund, and we therefore see that it may fall short of the claims upon it; and thus we come to the second question: — If the borough fund shall not be sufficient for the purposes aforesaid, the council are authorized (t/) and required from time to time to esti- mate as correctly as maybe what amount, in addition to such fund, will be sufficient for the payment of the expenses to be incurred in carrying into effect the provisions of the Municipal Corporations Act; and in order to raise the amount so estimated, the council is authorized and required from time to time to authorize a borough rate in the nature of a county rate to be made (z) within their borough. For which purpose the council are invested with all the powers, so far as is applicable, eiven to justices at general or quarter sessions by 55 Geo. 3, c. 51, with respect to the county rate; all warrants required by that act to be issued under the hands and seals of two or more justices being in the like case to be signed by the mayor, and sealed with the common seal, and an appeal being given against such rate, not to the council, but the recorder sitting in quarter sessions (a) ; and all such sums levied in pursuance of such borough rate shall be paid over to the account of the borough fund, and, subject to the previous provisions, shall be applied to all purposes to which, before the passing of this act, a borough rate or county rate was by law applicable in such borough or county (b). The council being thus authorized when necessary to have an esti- mate made, and a borough rate levied, to meet the deficiency of the borough fund to defray necessary expenses, it is no excuse for the non- payment of a debt justly chargeable on the borough fund, that it will not suffice to defray the amount without a borough rate (c). But in (y) As to the mode of making it, rid. 53 The mode of trying the validity of a borough .;, .-. 01. >-. 1, 12, and 7 Will. 4 M I rate by an individual aggrieved, is by an ac- \ Lc. 81,86. 1,3; Cobb v. Allan. 10 Q B. lion of trespass against the mayor for issuing 689. Mandamut to make a distress in order tin; distress warrant to levy the rate, vid. 10 to raise ;i rate, 1 Will 133. M. &. YV. 773 ; or agaiust any two borough (:) Municipal Corporations Act, s. 92. justices who sign the distress warrant, 10 Q. As to liability of added districts to municipal J'.. (j83, 688, according as the distress is for taxation, vid. Mayor, See., of Coventry p. a borough rale or a district rate. Lythall, 10 M. 8( \\ 7 B0. Al to the mode (6) Sect 92. Form of order by council of levying the rate ; Cobb v. Allan, 10 Q. B. of a borough for the levy of a borough rate, fi83, 689. For purposes other than those of 10 ( t >. B. 6 carrying into effect the .Municipal Corpora- (< I Holdsworth i. Mayor, &C, of Dart- emhle, corporation^ having, as is mouth, II A. & E. 504. The power of often the case, (1 Municipal Corporations rating is not wholly new. In some instances . - Rep.22, I , weroftaxing tl i old charters gave the power of taxing the t!..; inhabitants given by charter, may still inhabitants for municipal purposes; 1 Mun. ich power. Corp. Com. Rep, 22 ; Madox, linn. Burg. ( a ) Sect. 92. 1 1.' ;; J mustbetothe c. II, s. 5. A custom to tax and rate was quarter sessions -i 1 1< r tin- rata made ; l" Id good ; Smethesden v. Ashton, Hoi. A.br. and if there be no recorder, then to the next Distres.G.pl. 1 ; and perhaps the levy of such ( , Ui , r i i,,r the county within which a rate by the customary means might be good, toe borough is situate, or whereunto it is edja- notwithstanding that the Municipal Corpo- cent, s. 92. As to notice of appeal in the first rations Ait appoints distress as the means; j \ E. 756; 12 oc 13 Vict. c. 45. Green v. St. Catherine's Dock Company, 19 THE BOROUGH FUND AND BOROUGH RATES. 491 general a borough rate will be bad if it is retrospective ; for it is unjust to make the present inhabitants of the borough pay expenses incurred several years ago (d) ; for so it might happen that succeeding inhabit- ants would have to pay for services, &c., of which their predecessors had enjoyed the whole benefit. But on a motion for a mandamus to pay money due on account of the borough fund, it is not an objection that a retro- spective rate might be necessary ; the rule notwithstanding will be made absolute ; it being open to the defendants to allege that fact, and discuss its effect on the return to the writ (e). Whether a borough rate is in general bad for excess, in not being levied for the precise proportion or poundage mentioned in the previous estimate, remains as yet an unsettled question (/). Where the rate is to be levied from an entire parish, being part of the corporate juris- diction, the quota payable by the parish may be satisfied either out of the poor rate, or by means of a special rate laid for that purpose, and therefore the order of the council for the raising of a rate in such case ought to specify which alternative is to be adopted {g). With respect to parts of parishes there is no alternative ; the amount required can be collected only by a special rate, and an order on a person specially appointed to make and collect borough rates to collect a given amount, orders him to do so by the one method expressed in his appoint- ment (h). The great inconvenience of retrospective rates had long been felt and acted upon by the courts of law, especially with respect to county rates ; and therefore when the councils of boroughs were empowered to levy borough rates in the nature of county rates, the decisions on county rates under 55 Geo. 3, c. 81, necessarily becoming applicable to the borough rates (i), were fully recognized with respect to them ; but the principle is not merely applicable to borough rates ; for where a corporation were empowered by statute to levy water rates, and raise money on the credit of the water rates, for the purpose of im- proving the supply of water, it was held that rates levied under the act were not to be applied by resolution or bye-law of the corporation to the discharge of debts, or expenditure incurred for improvements of the watercourses made before the passing of the act (k). Law J. (N". S.) Q. B. 53. Therefore the to district rates, 8 & 9 Vict. c. 110, s. 4 j inf. assumption made by some of the judges in p. 493. Rutter v. Chapman, 8 M. & W. 63, 74, that (g) 7 Will. 4 & 1 Vict. c. 81, s. 1 ; Cobb the crown could not have conferred the right v. Allan, 10 Q. B. 683, 690 ; 8 ■ Bond, 6 A. & E. 905. (/') Cobb v. Allan, 10 Q. B. 683, where (k) Dublin Corporation v. Att.-Gen. of the estimate was for Is. in the pound, and the Ireland, 9 Bli. N. S. 395 ; vid. 7 B. ,i C. rate actually attempted to be levied and de- 315; 2 II. Lds. 108. mandedwas Is. 2d. in the pound. Vid. now as 492 MUNICIPAL CORPORATIONS. Another resource of a corporation is in the sale of its church patronage, which is now made legal, and regulated by various statutes : — In every case(/) in which any body corporate, or any particular class, number, or description of members, or the governing body of any body corpo- rate, now is or arc in their corporate capacity, and not as charitable trustees, according to the meaning and provisions of this act, seised or possessed of any manors, lands, tenements, or hereditaments, whereunto any advowson, or right of nomination or presentation to any benefice or ecclesiastical preferment is appendant or appurtenant, or of any advow- son in gross, or hath or have any right or title to nominate or present to any benefice or ecclesiastical preferment, every such advowson and every such right of presentation sliall be sold at such times as the Ecclesiastical Commissioners for England (m) may direct, so that the best price may be obtained for the same. These the council are em- powered, with the consent of the commissioners, to convey under the common seal, the proceeds to be paid to the treasurer of the borough (whose receipt is to be a sufficient discharge), to be by him invested in government securities for the use of the body corporate, the annual interest payable thereon to be carried to the account of the borough fund (n) ; or, under the direction of the council, the proceeds may be applied in whole or in part towards the liquidation of any debt con- tracted before 9th September, 1835, by the corporation (n). Provided (o) that in any case of a vacancy arising before any such sale shall have taken place and been completed, such vacancy shall be supplied by the presentation or nomination of the bishop or ordinary of the diocese. Where the rectory and vicarage of a parish, with the tithes and all rights and patronage thereunto belonging, were vested in the corporation, who appointed a lecturer and curate, but without having made any endow- ment or giving any fixed stipend to either, it was held that the office of curate having become vacant before the completion of a sale of the advowson, &c, the right of presentation was in the bishop (/>). Doubts having arisen whether the above enactments authorized rights of nomi- nation to be sold, it is expressly made lawful (rj) for corporations to sell them. But (r) notwithstanding such sale every such corporation, and the property belonging thereto, shall continue liable to the same obligations, if any, of providing for and maintaining, or contributing to the maintenance, of any such priest, curate, preacher or minister, to which such corporation and property would have been liable if no such Bale hail taken place, and such liability is to be enforced by the same means as if the right of nomination had remained vested in such corpo- ration. (/) Municipal Corporations Act, s. 139. (r) Sect. 2. Any corporation seised of 7 Will. 4, c. 77, s 26. lands, Sec, subject to an obligation to noroi- (b) Ii\7 Will. 4, c. 104, s. :j. nateand provide any priest, &c, may augment (o) Municipal Corporations Act, a. 139. and endow and) prieatship, &c, either with ! p. Reynolds, 2 Scott, N.R. 394j lands, or by charging an annual stipend tliere- 71. on, with the consent of the Lords of the Trea- (9) li'2\ ict C. 31, s. 1. sury ; sect. 3. THE BOROUGH FUND AND BOROUGH RATES. 493 The effect of the statute seems to be practically to repeal so much of the statutes of dissolution of monasteries as gave license to all bodies corporate to enjoy the churches, tithes, &c, belonging to the dissolved bodies by letters-patent (s), but only so far as relates to the municipal corporations named in the schedules of the Municipal Corporations Act. It does not appear to interfere with the operation of the statutes pro- hibiting the union of two churches in corporate towns, &c, unless with the assent of the corporation under the common seal (t). With respect to the management of municipal corporation property generally, as has been observed, the Court of Chancery has now juris- diction over the property of corporations, and the principle extends to give that court jurisdiction to see to the application of a sum of money which has been raised as a rate by the council, and which equity treats as a trust fund ; but, in the case in which that was held, it was left a question whether the court had also jurisdiction over the means by which the fund is proposed to be raised ; and though the court fully recognized the principle, that in municipal corporations the expenses of each year ought to be defrayed out of the income of the year, yet it was laid down that the rule would not be so strictly applied in equity as, under all circumstances, to prevent the payment of a prior debt out of the monies raised by a subsequent rate (u) ; and an injunction was refused which was intended to restrain the corporation from raising money to pay their debts by means of a rate. In fact, funds supplied from the gift of the crown, or the gift of the legislature, or from private gift for any legal, public, or general purposes, are charitable funds to be administered by the courts of equity (x) ; and, therefore, it would seem (though the contrary has been held) that funds which a corporation are given by parliament the means and power of raising, and applying in paving, lighting, &c, for the public benefit of the borough, are such funds, and to be administered, if need be, accordingly. So a duty on coal imported into a town, to be applied to protect the inhabitants from encroachments of the sea, the grant of such duty being by parliament, was held to be a fund under the jurisdiction of equity (y). The powers given by the Municipal Corporations Act, and by other acts, for the raising, &c, of municipal rates, having been found insuffi- cient, it was enacted (z), " that in every case in which any parish or place liable to support its own poor, or any extra-parochial place, shall lie partly within and partly without any borough, and the council of the borough hath appointed, or hereafter shall appoint, one or more persons (s) 27 Hen. 8, c. 28, and 31 Hen. 8, c. 13; (u) Att.-Gen. v. Mayor, &c, of Lichfield, Jon. 2. Grant of advovvson must have con- 17 L. J. (N. S.) Ch. 472; vid.2 H. L. 108. tained license to hold in mortmain ; 2 Vin. (x) Att-Gen. v. Heelis. 2 Sim. & S. 76 ; Abr. 128 ; Hob. 304. vid. 1 Bli. N. S. 335, per Ld. Eldon, C. (t) 37 Hen. 8, c. 21 ; and 17 Car. 2, c. 3 ; (y) Att.-Gen. v. Brown, 1 Svvanst. 265 ; 4 & 5 W. & M. c. 12. Effect of such union ; vid.' 1 Bli. N. S. 335. Fellstown v. Beale, Carth. 238; 1 Com. Dig. (s) 8 & 9 Vict. c. 110, s. 1. 310; Finch, Law. 91. 494 Ml MC HAL CORPORATIONS. to act as overseer or overseers [a) within that part of such parish or place, or those parts of such parishes or places, which is or are within the same borough, for making, levying, and collecting borough rates or watch rates made or thereafter to be made therein, the person or persons so appointed shall be empowered to levy and raise, by an equal rate or assessment upon all the property within each of the parts of parishes or places respectively for which he or they shall be so appointed, which, if such part were a parish maintaining its own poor would be rateable to the relief of the poor, such sums of money as shall be required, in order to raise the several sums assessed upon such parts of parishes or places respectively, or to reimburse (b) such person or persons any such sums of money as he or they shall have paid for any borough rate or watch rate made, or hereafter to be made, by the council of the borough wherein such part of a parish or place, or parts of parishes or places respectively, shall be situated, such rate or assessment, or respective rates or assessments, to be paid by the occupier or occupiers for the time being of such rateable property as aforesaid, and that the person or persons so appointed, or to be appointed, to act as such overseer or overseers for the purposes aforesaid, shall have and exercise, in and for the purpose of making, levying, and collecting every such rate or assessment as aforesaid, all the powers which, by the laws now or here- after to be in force, overseers of the poor have or may have for making, assessing, collecting, and recovering rates for the relief of the poor within their several parishes : and every such rate or assessment made, or to be made, by any person or persons appointed, or to be appointed, to act as overseer or overseers of the part of any parish or place within any such borough, shall, for the purposes of this act, be called a district rate." No such district rate (c), nor any separate rate made by over- seers of the poor for raising a watch rate, shall be demanded, collected, or payable, until the same shall have been allowed by two or more jus- tices of the peace usually acting in and for such borough, and shall also have been published in like manner as rates for relief of the poor are bylaw required to be allowed and published. In every case (r/) in which a part only of any parish or place liable to maintain its own poor, and situated within any borough, shall be liable to watch rate, the over- seers of the poor of such parish or place shall not pay the amount of any watch rate charged by the council upon such parish or place out of the money collected from any rate or rates lor the relief of the poor, but shall make a separate rate or assessment upon the part or parts only of such parish or place liable to watch rates for raising and paying the same watch rate, which rate shall be made in like manner, and under '<;) Oho or two overseers may be appointed admissible; old. tup. p. 491 ■ 7 B. & C. 315. to act t'.r two «r more places or parli of (c) 8& 9 Vict. c. 110,9.2. What not a parishes; s. 8; 2 T. U. 396; Stra. 1004, sufficient publication under 7 Will. 4 .\ I 1071. \ ict o. 15, s. 2, oid. Heg. o. W bipp. 4 Q. B. (>■> This is the only case io which a retro- 141; Reg. i Marriott, 12 A. & K. 779. specii.e rate, in the nature of borough rate, (d) Sect. 6. THE BOROUGH FUND AND BOROUGH RATES. 495 like regulations, and with like means and remedies for the recovery thereof, as are herein contained in relation to district rates. Every such district rate (c;i Waterworks Company, 5 1!. i\ .i Hawk. P. C. Book "2, c. 27, s. 14; 6 Ad. 156. But though a corporation may hava Yin. Abr. 310 ; I) Q. li. 233. by Mutute the legal estate and interest in real THE BOROUGH FUND AND POOR RATES. l!)7 tain lands, of which they retained the exclusive right of possession in their corporate capacity, and annually made regulations respecting the mode of enjoyment of the subordinate right of common upon the lands which belonged to the burgesses of the corporation, and the sums to be paid by them for the agistment of their cattle thereon, which money, after deducting the expenses of the management of the lands, &c, was distributed among the burgesses who did not turn on cattle, it was held that the corporation were liable to be rated to the poor as the beneficial occupier of the pastures (o) ; and it was said that the circumstances clearly showed the right of occupation to be in the corporation, although the right of turning on was in different members of it (p). So where land was held by the corporation in trust for the freemen of the bo- rough, or for a portion of them, the corporation was held to be liable to be rated to the poor (q), though it was explained that where there was a mere naked trust uncoupled with any beneficial interest in the rents or profits, either in the trustees or any other particular person, the profits, &c, being diverted by the provisions of an act of parlia- ment or otherwise from the control and management of the corporation or trustees, and applied to specific purposes, there the corporation would not be rateable (r). These principles had been applied to all corporations holding land, and among them to municipal corporations, up to the time of the pass- ing of the Municipal Corporations Act (9th September, 1835). The decisions upon the 92nd section of that act, however, having, as above noticed, settled that all the property of municipal corporations, whether personal or real, was held in trust since that act for the benefit of the borough, &c, in each case, the real property of municipal cor- porations was no longer held to be rateable to the poor, the statute being construed to have operated to relieve them from rateability on the above ground (s). Therefore, it became necessary to pass an act which, after reciting the expediency of such corporations being never- theless rated to the poor in respect of such property, enacted (t), that property, ex. gra. a navigation, and though of common was vested in the corporation for they may have a right to occupy, and an oc- the benefit of its members, and the corporation cupation, yet if the occupation be not such as was held not rateable. Vid. 1 A. & E. 465. to exclude other parties, the corporation is not (p) Per Best, J., 1 B. & C. 397. The " occupier of lands" within 43 Eliz. c. 2, and corporation will be rateable as beneficial oc- therefore is not rateable; R. v. Aire, &c, cupier, if, though not in fact profitable, the Company, 9 B. & C. 820. property may by possibility become a source (o) R. v. Mayor, &c, of Sudbury, 1 B. & of profit ; Keg. v. Blackfriars Bridge Com- C. 389. That case came on upon a special pany, 9 A. & E. 828. case reserved by the court of quarter sessions (<{) R. v. Mayor, &c, of York, 6 A. &. E. on an appeal by the corporation ; vid. 13 East, 419. 155; 6 A. & E. 419. Wheie the interest of (?•) Vid. R. v. Commissioners of Load the members was that of commoners merely, Sluice, &c, 4 T. R. 730, as explained 6 A. it was held that the corporation was not rate- & E. 434, 435; et vid. 6 A. ^ E. 645 ; 7 B, able, the right to the soil not being vested in & C. 61 , 70, note (r). the corporation ; Reg. v. The Chamberlains, (s) Reg. v. Mayor, ice, of Liverpool, 9 A. &c, of Alnwick, 9 A. & E. 444. N. B. This & E. 435 ; Reg. v. Inhabitants of Exminster, corporation is not named in the schedules to 12 A. & E. 2. the Municipal Corporations Act ; et vid. R. (t) 4 & 5 Vict. c. 48. s. 1. v. Churchill, 4 B. & C. 750, where a right K K I 3 Ml NICIPAL CORPOR ITIONS. the municipal corporations named in the schedules to the Municipal 'rations Act should be rateable and rated in respect of lands, tenements and hereditaments, being the property and in the occupation of such corporations, as if such lands, &c., were not corporate property ■ provided always, that where such property in any parish which u situate wholly within the boundaries and limits of a city or borough named in the said schedules, and in which city or borough the poot arc relieved by one entire poor-rate, or in which city or borough the poor within the limits or boundaries thereof as existing for municipal purposes on the 9th September, 1885, were then relieved by one entire poor-rate, the exemption of such property from rateability shall con- tinue as if this act had not passed («). And (x) any of the said muni- cipal corporations being in the occupation of such lands, &c., are to be deemed and taken to be the beneficial occupiers thereof for all the purposes of rating, as if such occupation was for their own pri- vate advantage, and not for any public purposes or purpose, and are to be liable to be rated as such occupiers by their corporate style and title. Thus a corporation would be rateable for the tolls of their market (y). A custom in a borough, which was included within the boundaries of a single parish, but not co-extensive with it, for the mayor and alder- men to appoint overseers of that part of the parish which lay within the limits of the borough, who had always made separate rates for that part of the parish which coincided with the area of the municipal jurisdic- tion, was held to be invalid, as contrary to the meaning of the statute \.l Eliz. c 2, although the custom was alleged to have existed ever since the passing of the statute (z), and though a contrary decision in a former case (a) was pressed on the attention of the court. Formerly, in all cases it rested with the corporation, when it was once shown that they were in possession of rateable property, to make out that they held it as trustees for the public; for whenever that was not shown, it was concluded that their occupation was beneficial, and they were rated accordingly. When a corporation arc beneficially interested in land, houses, &c, from the use of which they derive tolls, the rating is t<. take place in the district or parish where the tolls become due; it i^ immaterial where they are received (b). But the tolls of a navigation in general are considered to become due where the voyage is ended (c). Now, however, all municipal corporations to whom the Municipal Cor- porations Act extends are rateable for property in their possession, whether held for public purposes or not ((/). di ) 4 & 5 Vict. c. 48, s. 1 ,$up. p. 346. 26 ; R. v. Sailer's Load Navigation. 4 T. R. 730; vid. 4 B. & C. 74 ; 8 A. i E. 73 ; 4 Vid. 16 Vin. Abr. 426, pi. 9. Q. B. 18; 10 Q. B. 208 ; 9 Q. B, 179 j 1 (-) U. v. Gordon, 1 B. 8c Aid. r,2\ ■ vid. Q. B. 658 ; vid. nip. p. 285. ... c 2. s. 9. (c) K- D. Page, i T. It. 043; Reg. v. (a) It p.Polly. 1 Bott, 78. Hull Dock Company, 7 Q. B. 2. ,(,) l i jot, Bee., Oi London, 4 T. R (d) 4 & 5 Vict. c. 48; vid. 3 Keb. 540. THE BOROUGH FUND AND POOR RATES. 499 We have already stated that pauper lunatics confined within lunatic asylums belonging to boroughs, &c, or found wandering within any borough, are in effect made chargeable to the borough fund, where it cannot be ascertained in what parish they are settled (e); but, on the other hand, where boroughs shall possess or provide, or shall have commenced, and shall be bond fide proceeding with, the construction of a sufficient asylum, to the satisfaction of one of her Majesty's prin- cipal Secretaries of State, for the reception or care of the pauper lunatics of the borough, they no longer shall be liable to pay or contribute to the erection, fitting up, or maintenance of any new county asylum, or to the payment of any costs of maintenance in such new asylum of any pauper lunatics chargeable to the county (f). Before proceeding to some points, respecting liability of municipal bodies to certain miscellaneous rates, which seem fitly to follow here, it may be well to state a late important decision respecting the manage- ment of the borough fund. It has been stated to be incident to trading corporations to apply to parliament for an act to alter their constitution (g) ; a charitable cor- poration, however, which, without previous leave from the Court of Chancery, obtains an act altering its constitution, although confessedly for the better, will not be allowed to defray the expenses out of the funds (Ji) ; and so a municipal corporation, although holding its pro- perty in trust for the improvement of the borough (i), will not be allowed, out of the corporate property, the expenses of soliciting an act of parliament for improving the navigation of a river flowing through the town (k). (e) Vid.sup. p. 450; R. v. St. Nicholas, Leicester, 3 A. & E. 79 ; 12 & 13 Vict. c. 82, s. 3. (/) 12 & 13 Vict. c. 82, s. 2. (g) Sup. pp. 159, 290. When equity re- strains a corporation from petitioning against a bill pending in parliament, Stockton, &c, Railway Company v. Leeds and Thirsk Rail- way Company, 2 Phill. 666. (h) Att.-Gen. v. Earl of Mansfield, 2 Russ. 501. (0 Sup. p. 488. (/c) Att.-Gen.i;. Mayor, &c. of Norwich, 16 Sim. 225. K K 2 ( 500 ) RATES. With respect to the rateability of corporations to the repair of bridges, it has been laid down (y) that every corporation residing in any county, riding, city or town corporate, or having lands or tenements in any shire, riding, city or town corporate qua propriis manibus et sumptibtu possident et habent, are said to be inhabitants therein within purview of the Statute of Bridges (//). If a bridge be within a franchise, those of the franchise are to repair it (i); but the statute as to bridges in towns and cities corporate applies only to bridges then existing ; it created no new liabilities^), and it has been construed to show only that corpo- rate towns may be liable : thus a corporation may be liable by pre- scription to the repair of a bridge within its limits (/), and is com- pellable by indictment to perform such duty (m) ; but no indictment can be sustained which charges any city or town corporate, not a county, with liability to repair simply ; though that is sufficient in case of a county, because upon a county the common law casts a prima facie liability to repair (n). The words of the statute, therefore, " if the bridge be within any city or town corporate," then the repairs are to be made " by the inhabitants of every such city or town corporate," must be understood with the qualification that there is an immemorial usage fixing such liability upon them (o) ; and therefore a borough will be exempt from the charge where it can be shown that the repairs have always been done by the county. Hence a borough which has been enlarged under 2 8c 3 Will. 4, c. 64, s. 35, and 5 8c G Will. 4, c. 7G, (») 2 Inst. 703; Cowp. 80. What is a c.77, s. 2 ; Magna Charta, c. 15 ; 2 Inst. 29 ; bridge, 2 Q. B. 7-15. None can be com- 5 Burr. 2598 ; Salk. 359. If the character pelled to muke new bridges where none were of the bridge is altered, as by subs'itutin;,' a before, but by act of parliament ; 2 Inst. 701 ; carriage bridge for a footbridge, the preset ip- 4 B. ,\ C. 670 ; vid. 5 Burr. 2598 ; 2 13. & tion is gone ; 5 Burr. 2597. Ad. 147. But a corporation may be indicted (in) It. i. .Mayor, &cc, of Liverpool, 3 for not building a bridge when they are bound East, 86 ; Did. 4 B. & Ad. 628 ; Reg. v. Bir- to do so; per Bayley, J., in It. v. Kerridon, mingham and Gloucester Railway Company, 3 M. & Selw. 532 ; and they may levy a rate 3Q. B. 232; R. v. .Mayor, &C, of Stratford. for repairs of a new bridge, 1 Keb. 57. upon-Avon, 14 Kast, 3-18; 1 II. Bla. 356; (It) 22 Hen. 8, c. 5. Godb. 346, 347; or criminal information, (i) 2 In-,t.701 ; H. v. Mayor of Tenterden, K. v. Norwich, Stra. 177, 180, I. 114. In pleading, "Hull Bridge" (n) Reg. v. Inhabitants of New Sam m, 7 will be intended a biid^e within the corporate Q. B. 951 ; rid. 1 Ventr. 256 ; 2 Inst. 701 ; jurisdiction, after verdict ; Barnard V. Bar- 5 Burr. 2597 ; Yearb. 10 Kdw. 3, fol. 28 ; nard. 2 Keb. 635, 646, 650. R. v. Mayor, 8tc , of Warwick, 2 Show. 201 ; a.) K. v. Wi • ! il Yorkshire, 2 R,». Bocks, 12 East, 192. I 1*1,842,348, 351; Reg. v. Inhabitants of (o) Reg. v. New Sarum. 7 Q. B. 955. On New Sarum, 7 Q. B. 954 ; vid. Stra. 178 ; being convicted on the indictment, the corpo- 6 I ;iunt. 290. Rates may be laid and raised ration will be lined ; and, it necessary, a dit- on inhabitants for repair of new bridges ; tringat mi infinitum will issue until the court i of (Word's case, 1 Keb. 57. is certified that the repairs are done ; Keg. v. (O Yearb. 21 Edw. 4, fol. 38, pi. 3 ; Csllis, Cluwonh, Salk. 358 j 4 B. it A. 469. Sewers, 116; Hawk. P. C. Bk. I, c. 76,s. 8, RATES. 501 s. 7, by the addition of a parish in the same county containing a bridge which until that time the county had repaired, is not liable exclusively, but only as before, viz. as part of the county, to the repair of such bridge (p); or they may be liable ratione tenurte(n). If, however, the corporate place to which the district containing the bridge had been added by a statute or charter, having the sole object in view of en- larging the municipal limits, and not passed alio intuitu, had been a county of itself, then the new municipal district would have been liable as such county, to the repairs (r). A corporation liable to repair a bridge will not only be indictable for non-repair, but will also be liable to an action at the suit of any party who may be injured in consequence of its being out of repair (s) ; for it is clear and undoubted law, that wherever an indictment lies for non-repair, an action lies at the suit of the individual who is injured thereby (t). A custom to tax and rate the inhabitants of the borough for the re- pair of a bridge within the borough is good; and the corporation may distrain for the rated amount, but cannot have an action of debt (a)- and in pleading in such case, the custom to distrain need not be alleged, for there is no other remedy (x). The conclusion from what has been said is, that municipal corpora- tions are contributory to repair county bridges as inhabitants of the county, unless they have a bridge within the borough, for then they must repair that, and cannot in general be doubly charged ( y). A corporation may be liable to repair highways within their limits by immemorial usage and custom (2), though they cannot be made so by virtue of a modern agreement with the owners of houses alongside such highway; for the parish, who are prima facie bound to repair, cannot be discharged by any agreement (a) ; or a corporation may be liable ratione tenurce ; and the indictment will therefore be bad which does (p) 7 Q. B. 941, 956; 2 B. & C. 166 ; (s) Per Lord Kenyon, C.J..2T. R. 672; vid. 8 Mod. 1 14. Mayor, &c, of Lyme v. Henley, 2 Cla. & F. (q) 2 Inst. 700 ; 4 Mod. 48 ; 6 M. & W. 354. 254 ; 2 Wms. Saund. 158, note (9) ; 1 B. & (t) Per all the judges. 2 C. & F. 354. So A. 358 ; 3 Q. B. 162; 2 Show. 201. This Yearb. 11 Hen. 4, fol. 83 ; Rol. Abridg. Ac- implies immemoriality ; R. v. Hayman, M.& tions sur Case, fol. 104, 1. 2 ; Vaugh. 340. Malk.401. (m) Smethesden v. Ashton, Rol. Abr. Dis- (r) Reg. v. Justices of St. Peter's, York, 2 tres, G. pi. 1. The distress must be made by Ld. Raym. 1249; R. v. Norwich, Stra. 177; warrant under the common seal ; S. C. Brom- vid. 7 Q. B. 945 ; 2 Inst. 702. So a corpo- field v. Tiege, 3 Keb. 163. ration are liable to church rates in respect of (i) Brumfield v. Tea, Freem. 103. their corporate lands and tenements; Thusfield (y) Borough of Shaftesbury's case, 1 Keb. v. Jones, T. Jones, 187 ; S. C. Skin. 27 ; and 687. In case of dissolution of the corporation, may be cited in the spiritual court in their the liability devolves upon the inhabitants, 2 politic capacity; Skin. 27. A corporation Keb. 43. may also be liable ratione tenure or other- (o) Precedent, Dickins. Qu. Sess. 411 ; 14 wise to sewers' rates ; Yearb. 12 Hen. 4, fol. East, 348. 7 ; vid Mayor, &c.,of Lyme t'. Henley, 2 Cla. (a) R. o. Mayor, &c, of Liverpool, 3 East, & F. 331, 338, 339 ; or by custom, 21 Edw. 86 ; R. v. Inhabitants of Shoreditch, March, 4, fol. 38, pi. 3 ; Callis, Sewers, 1 16 ; 3 East, R. 26 ; 5 & 6 Will. 4, c. 50, ss. 23, 58, 62, 86; 12 & 13 Vict. c. 50, s. 7. 93; 3 Salk. 253, pi. 1. 502 MUNICIPAL CORPORATIONS. not state how they are liable (b), the defect being want of certainty and a substantial imperfection, not mere matter of form (c). The indictment must also state affirmatively that the road is within the corporate and municipal boundaries (d). A corporation may be liable to cleanse a watercourse by usage and immemorial custom, and may be indicted for neglecting to do so (e). (b) R. i. Mayor, 6;c, of Warwick, 2 Show. 201; nd. 2 T. K. 513. As to pleading, 1 B. & A. 348. The corporators might be wit- nesses both at common law, 2 Show. 47 ; 15 174; 1 B. & A. 66 ; and bv statutes 6 ,\ 6 Will. 4, c. 50, s. 100 ; 3 Geo. 4, c. 1 37 ; 3 s. 4 Vict, c 26, for the prose- cution, or 6 6c 7 Vict c. 85, for the defence, us they would not be " individually named on the record ;" i i I. 5 Q. B. 187. Costs of pro- secution, Dickins. Qu. Sess. 406, 6th edit. ^e) R. v. Pendyrren, 2 T. R. 513; form of indictment, 1 II. Bla. 356; Dickins. Qu. Sees. 401; Gth edit. 402 ; 2 13. & C. 190. (d) R. i. I'pton, 6 Car. 6c P. 133 ; EL v. Auckland, 1 A. .V E. 744 ; Vearb. 9 Hen. 6, fol. 62 ; 34 Hen. 6, fol. 43. As to pleading, R. i. St. Giles, 5 M. 6c Selw. 260; R. v. \\ . -t Riding of Yorkshire, 4 B, & A. 623; rid. 5 A. & E. 765; 7 C. & P. 208; Dickius. Qu. Sess. 402, 6th edit. ; Stra. 181. (e) Dickins. Qu. Sess. 418,6th edit.; 6 M. 6c Selw. 365, note. ( 503 ) PROTECTION. We may here add, that all persons acting in execution of the Munici- pal Corporations Act are protected in the following manner (/') : all actions and prosecutions to be commenced against any person for any- thing done in pursuance of this act shall be laid and tried in the county where the fact was committed (g), and shall be commenced (h) within six calendar months after the fact committed, and not otherwise ; and notice in writing of such action, and of the cause thereof (£), shall be given to the defendant one calendar month at least before the com- mencement of the action ; and in any such action the defendant may plead the general issue, and give this act and the special matter in evi- dence at any trial to be had thereupon ; and no plaintiff shall recover in any such action, if tender of sufficient amends shall have been made before such action brought, or if a sufficient sum of money shall have been paid into court after such action brought, by or on behalf of the defendant, and if a verdict shall pass for the defendant, or the plaintiff shall become nonsuit, or discontinue any such action after issue joined; or if upon demurrer or otherwise judgment shall be given against the plaintiff, the defendant shall recover his full costs as between attorney and client, and have the like remedy for the same as any defendant hath by law in other cases. (/) Municipal Corporations Act, s. 133. (i) This notice is only necessavy where (g) How to lay the venue in indictment, the action is for a thing clone in pursuance of Reg. v. Mitchell, 2 Q. B. 636 ; for the trial the act, not for an omission ; King v. Burrell, to be good under 7 Geo. 4, c. 64, s. 12, the 12 A. & E. 460. offence must be laid and Iried in the same As to meaning of " in pursuance of an county, S. C. ; or perhaps, under s. 12 of that act," vid. 1 1 Rep. 63 ; 10 B. & C. 284 ; !» M act, in the county, within 500 yards of the & VV. 743. 745; 10 M. & VV. 523 ; 15 M boundary of which it was committed, S. C; & W. 250; 1 Exch. 843; 2 Dow, 519 per Lord Denman, C. J., 2 Q. B. 643. Cowp. 26 ; 1 C. B. 18 ; 5 Scott, N. R. 498 (h) It will suffice, if the information and 7 Q. B. 824 ; 8 Q. B. 286 ; 9 B. & C. 806 ; proceedings before magistrates are taken with- 2 Dowl. N. S. 567 ; 4 Dowl. & L. 481. in that time ; R. v. Stokes, 2 M. & Selw. 72. ( 501- ) FREEMEN. The case of freemen remaining in boroughs, under the old system, is thus provided for by the Municipal Corporations Act. " And (k) whereas in divers cities, towns, and boroughs, the common lands and public stock of such cities, towns, and boroughs, and the rents and profits thereof, have been held and applied for the particular benefit of the citizens, freemen, and burgesses of the said cities, towns, and bo- roughs respectively, or of certain of them, or of the widows or kindred of them, or certain of them, and have not been applied to public pur- poses ; be it therefore enacted, that every person who now is or here- after may be an inhabitant of any borough, and also every person who has been admitted, or who might hereafter have been admitted (I), a free- man or burgess of any borough, if this act had not been passed, or who now is, or hereafter may be, the wife or widow, or son or daughter, of any freeman or burgess, or who may have espoused, or may hereafter espouse, the daughter or widow of any freeman or burgess, or who has been or may hereafter be bound an apprentice (m), shall have and enjoy, and be entitled to acquire and enjoy, the same share and benefit of the lands, tenements, and hereditaments, and of the rents and profits thereof, and of the common lands and public stock of any borough or body corporate, and of any lands, tenements, and hereditaments, and any sum or sums of money, chattels, securities for money, or other personal estate, of which any person or any body corporate may be seised or possessed, in whole or in part, for any charitable uses or trusts, as fully and effectually, and for such time and in such manner, as he or she by any statute, charter, (k) Municipal Corporations Act, s. 2. by the charter, and that for the appointed (/) It had been disputed in respect of some period of years; R. v. Ionian, 4 H & Aid. of the old corporations, whether admitting to 5? ; R. v. Rowe, 4 Burr. 2287 ; 2 T. R. 2 ; the fre [i. e. non-residents) or Filz. & 1.658. An information in the un- persons otherwise disqualified, were a breach turc ol quo warranto is the proper mode of try- of the charter- for which the corporate Iran- ingthe(|uestionof freemanor Dot ; K.<. Rowe, - were forfeited or not; K. n Mayor, 4 liurr. 2287 ; i id. Reg. v. Pepper, 7 A. & I'.. &C, of Hereford, 2 Show. 678 (3rd edit.); 745 ; hi re Milner, 5 Q. B. 589 ; H... Whit- R. v Mayor, See, ol Hertford, Salk. 374; well, 5 T. R. 85 ; and this seems to be the It. . Union, 4 I'urr. 2260. 'I he mode ol only mode of removing a freeman's name trying the question is by information in the from the roll. A freeman cannot be disfran- nature of quo warranto; R. i. Breton, 4 cbi-cd ;>t the pleasure of the corporation, Burr. 2260, The offence of admitting ron- Warren's case, Cro. Jac. 540; for he has a trary to the provision- of tins act would pro- freehold in the franchise, S. C. fid. 11 K< p. bably lender the corporation liable to an in- 98 b ; on the other hand, a person cannot diciment as for ■ misdemeanor, as well as to be made a freeman against his will, Dr. As- ling, and they might be lia- Lew's case, l I'urr. 2200 ; nd. Brownl. 100; ble to both proceedings conset utively 1 Rol. R..226. A mandamut will he granted To entitle to freedom by servitude, to admit to the freedom of a borough; Ro- ll, ere must be not only a continuance of the ger's case, 18 Car. 1, cited 1 Keb. 881; binding, but i tinuance ol the service un- Townsend's case, I Keb, 470, 659; R. v. der the indentures (or deed, 31 Geo. 2, c.1 1), Belbye, 2 show 154; (>reen v. Mayor of to a member of the claM or body appointed Durham, 1 llurr. 127; 12 Geo. 3, c. 21. FREEMEN. ,505 bye-law, or custom in force at the time of passing this act might or could have had, acquired, or enjoyed, in case this act had not been passed : provided always, that the total amount to be divided amongst the persons whose rights are herein reserved in this behalf, shall not exceed the surplus which shall remain after payment of the interest of all lawful debts chargeable upon the real or personal estate out of which the sums so to be divided have arisen, together with the salaries of mu- nicipal officers, and all other lawful expenses which, on the 5th day of June, were defrayed out of or chargeable upon the same : provided also, that nothing hereinbefore contained shall be construed to apply to any claim, right, or title of any burgess or freeman, or of any person, to any discharge or exemption from any tolls or dues levied wholly or in part by or to the use or benefit of any borough or body corporate ; and that after the passing of this act no person shall have or be entitled to claim thenceforward any discharge or exemption from any tolls or dues lawfully levied, in whole or in part, by or to the use of any body corporate, except as hereinafter is excepted : provided nevertheless, that every person who, on the 5th day of June in this present year, was an inhabitant, or was entitled to be a freeman or burgess of any bo- rough, or who, on the said 5th day of June, was the wife or widow, son or daughter of any freeman or burgess of any borough, or who on the said 5th day of June was bound an apprentice, shall be entitled to have or acquire, and enjoy the same discharge or exemption from any tolls or dues lawfully levied, in whole or in part, by or to the use of any borough or body corporate, as fully, and for such time and in such sort, as he or she, by any statute, charter, bye-law, or custom in force on the said 5th day of June, might or would have had, acquired, and enjoyed the same, if this act had not been passed, and no further or otherwise : provided also, that where, by any statute, charter, bye-law, or custom in force within any borough at the time of passing this act, any person whose rights in this behalf are herein reserved would have been liable, in case this act had not been passed, to pay any fine, fee, or sum of money to any body corporate, or to any member, officer, or servant of any body corporate, in consideration of his freedom, or of his or her title to such rights as as are herein reserved, no such person shall be entitled to have or claim any share or benefit in respect of the rights herein reserved as aforesaid, until he or she shall have paid the full amount of such fine, fee, or sum of money, to the treasurer of such borough, appointed under the provisions of this act, on account of the borough fund hereinafter mentioned : provided also, that nothing in this act contained shall be construed to entitle any person to any share or benefit of the rights herein reserved, who shall not have first fulfilled every condition which, if this act had not passed, would have been a condition precedent to his or her being entitled to the benefit of such rights, so fir as the same is capable of being fulfilled according to the provisions of this act, or to strengthen, confirm, or affect any claim, 506 MI Mi. HAL CORPORATIONS. right, or title of any burgess or freeman of any borough or body cor- porate, or of any person, to the benefit of any such rights as are here- inbefore reserved, but the same in every case may be brought in ques- tion, impeached, and set aside, in like manner as if this act had not been passed."' To this enactment is added the very important proviso, that, from and after 9th September, 1835, no person shall be elected, made, or admitted a burgess or freeman of any borough by gift or pur- chase (»). The effect of the whole is, that freemen can only be consti- tuted through the medium of birth, servitude, or marriage, and that to be capable of enjoying the municipal benefits of their freedom, they must remain resident in the borough. The effect of the former part of section 2 is to make it obligatory on corporations to continue to indi- viduals who, before the 9th September, 1835, were entitled to munici- pal benefits of any kind, the full enjoyment of those benefits, and to prevent corporations from defeating the claims of the corporators or freemen, who might be entitled to these advantages, by a voluntary pre- ference of other claimants on the corporate funds or resources ; and in some cases an action may be maintained against the corporation on this section by a freeman, for the purpose of enforcing his claims (o), or perhaps such action might be maintained independently of the sta- tute (p), but this is doubtful (p). We now come to the reservation to freemen of the right of voting for members of parliament. " And (7) whereas the right of voting in the election of members to serve in par- liament was, by an act passed in the second year of the reign of his present majesty, intituled ' An Act to amend the Representation of the People of England and Wales,' preserved (r) to all persons who then were or thereafter might become freemen or burgesses of any city or borough, subject to the conditions and provisions in that act contained ; be it therefore enacted, that every person who, if this act had not been passed, would have enjoyed, as a burgess or freeman, or might here- after have acquired, in respect of birth or servitude, as a burgess or freeman, the right of voting in the election of a member or members to serve in parliament for any city or borough, shall be entitled to enjoy or acquire such right of voting as fully as if this act had not been passed : and the town clerk of every city or borough returning a mem- ber or members to parliament shall, at all times hereafter, do and per- form all things appertaining to the due registration of the freemen or burgesses of such city or borough according to the provisions of the said act." Those provisions are: "That (a) any freeman duly regis- (».) Sect. 3. («/) Sect. 4. (o) Hopkins «. Mayor, &c, of Swansea, (r) 2 Will. 4. c. 45, s. 32 ; vid. 7 A. 8c 4 M.& W. 621 ; vid. s. 92. A freeman baa E. 745 ; and 5 (,>. B. 589. !„,!.! in his franchise ; Warren's cast , (s) 2 Will. 4, c. 45, s. 32. But see now C... Jae. 540, Bracton, c. 24 ; Bagg's case, 6 Sc 7 Vict. c. 18, 8. 79, inf. p. 608. What 11 Itep. 93 b. is not a residence lor BU months previous to ( ;.) Vid. per Parke, B., 4 M. & W. 643 ; the last day of July, Whithorn v. Thomas, el ^d. S. C. in error, 8 BI. fit W. 901. As 7 M. ,\ Gra. 1. A freeman is not disquali- to freeman's evidence in such case, vid. 4 A. fled from being on the register hy the fact of and 6 3c 7 Vict. c. 85, s. 1. having been excused from paying a poor-rate, FREEMEN. 507 tered is entitled to vote, provided he shall have resided for six calendar months next previous to the last day of July in each year within the city or borough, or within seven statute miles [t) from the place where the poll for such city or borough shall have been taken previous to the passing of the 2 Will. 4, c. 45 (The Reform Act), that is, previous to 7th June, 1832, and provided that where he shall be a freeman of any place sharing in the election for any city or borough, he shall have resided for six calendar months next previous to the last day of July in such year within such respective place so sharing as aforesaid, or within seven statute miles (t) of the place mentioned in conjunction with such respective place so sharing as aforesaid, and named in sche- dule (E.) of that act. But no one elected, made, or admitted a freeman since the 1st day of March, 1831, or hereafter to be so, except in respect of birth or servitude, shall be entitled to vote, or to be regis- tered" (m). As to the freemen's roll, it is enacted (a*), " that the town clerk of every borough shall, on or before the 1st day of December next, make out a list, to be called ' The Freemen's Roll,' of all persons who at the time of passing of this act shall have been admitted as bur- gesses or freemen of such borough ; and that whenever any person shall hereafter become entitled to be admitted a burgess or freeman for the purposes aforesaid of such borough in respect of birth, servitude, or marriage {y), and shall claim to be admitted accordingly, the mayor of such borough shall examine into such claim, and upon such claim being established, every such person shall thereupon be admitted and inrolled by the town clerk of such borough upon the freemen's roll ; and the town clerk shall keep a true copy of such roll, to be perused by any person, without payment of any fee, at all reasonable times, and shall deliver a copy thereof to any person requiring the same, on pay- ment of a reasonable price for such copy." Besides this, the town clerk is every year, on or before the last day of July, to prepare an alphabetical list of all the freemen who may be entitled to vote for members, together with their respective places of abode, &c, and shall publish the same on or before the first day of on the ground of poverty, that not being a stamp duty payable on inrolment as a free- receipt of parochial alms, within 2 Will. 4, man ; 1 & 2 Vict. c. 35. This section re- c. 45, s. 36 ; Mashiter v. Dunn, 6 C. B. 30 ; peals 12 Geo. 3, c. 21, s. 2, which had be- S. C. 2 Lutw. Reg. Cas. 112. come amended by 32 Geo. 3, c. 58, s. 4. (t) How to be measured, 6 & 7 Vict. (y) Freemen by marriage not entitled to c. 18, s. 76. vote for members of parliament; 2 Will. 4, (w) 2 Will. 4, c. 45, s. 32. A custom to c. 45, s. 32. Right of voting in certain bo- take the oath of admission on the New Testa- roughs in virtue of other titles than as being ment is good, and will bind all persons not a burgess or freeman how retained ; 6 & 7 within the exemptions made in favour of Jews, Vict. c. 18, s. 78. Vid. Jeffrey v. Kitchener, Moravians, Separatists and Quakers, by the 7 M. & Gra. 99, that a qualification to vote late acts; vid. sup. pp. 207, 403 ; R. v. Bos- for a borough as an inhabitant householder worth, Stra. 1112. The duty of the return- was not retained, under 2 Will. 4, c. 45, s.33, ing officer to read the stat. 3 Geo. 3, c. 15, unless (he inhabitancy as a householder had at the time of the election, where the right of subsisted continuously since the passing of election is wholly or in part in freemen, still that act. What is a house ; Daniel v. Coul- remains as settled by s. 7 of that act. sting, 7 M. & Gra. 66, 122 ; vid. 5 C. B. (t) Municipal Corporations Act, s. 5. No 79; 2 Leon. 184. 50S MUNICIPAL CORPORATIONS. August in such year, and keep a copy thereof, and deliver copies on payment of a price fixed (2). He is also to publish a list of persons objected to on the freemen's list on or before 1st September in such year, and keep a copy, and deliver copies, &c, on any and every day, except Sunday, o\' the first fourteen days of September, at a price fixed (a). Then follows the very important limitation on the right of voting, viz., that no person shall be entitled to vote unless, ever since the -Jl-t July in the year in which his name was inserted in the regis- ter then in force, he shall have resided, and at the time of voting shall continue to reside, within the city, or borough, or place sharing in the election for the city or borough, or within the distance (b) thereof re- quired by the Reform Act to entitle such person to be registered in any year (c). Antedating the admission of a freeman made liable, in any one wilfully and fraudulently doing it, or causing it to be done, to the penalty of 500/., payable to any one who should inform and sue within one year (d) ; but such offence seems nearly impracticable since the above regulations, and the penalty for voting contrary to the statute last referred to appears to be abrogated by the above regulations. A useful provision respecting admission to freedom remains to be noticed, inasmuch as it does not appear to be inconsistent with or con- trarv to anything contained in the Municipal Corporations Act, and therefore is still the law ; that when any person shall be entitled to be admitted a freeman of any city, town corporate, borough, Cinque Port or place, and shall apply for that purpose to the mayor, or other officer therein having authority to admit freemen, &c, and shall give notice, specifying the nature of his claim, to such mayor, &c, and that if he shall not so admit such person a freeman, &c, within one month from the time of such notice, the Court of Queen's Bench will be applied to for a mandamus to compel such admission ; and if such mayor, &c, shall, after such notice, refuse to admit such person, and a mandamus shall afterwards issue to compel such admission, and in obedience thereto such person is admitted, then he shall, unless the court see cause to the contrary, receive from the said mayor, &c, all the costs of the rule for enforcing the same, which, if not obeyed, shall be en- forced in like manner as other rules of the court (\ Gra. Bla.39. 16—2(7; 2 C. 13. 226; 4 C. B. 100; 5 C. B. (r) 6 ,\ 7 Vict. C. 18, s. 79. The rest- j .} 71, dence must be continuous , 7 M. iv Gra. 105, '(„) 6 & 7 Vict. c. 18, s. 18. A<= to free- 108 ; vid. 7 & 8 Will. 3, c. 25, and 10 Aim. I London, s. 20. Notice of objection, c. 23 ; 3 Geo. 3, <:. 1"). v v. Perkins, 7 M. & Gra. 130. As to (d) 3 Geo. 3, c. 15, ss. 3, 6; vid. 1 Taunt. e 0! objection in boroughs, s. 100 ; 128. The acl does not extend to London or What not Norwich, aduplu 5C.B.45. (e) 12 Geo. 3, c. 21,s. 1. As to applying i'm Vid. tap. p. 507. In an action by a for costs, I Will. 4, c. 21 , s. 6 ; Reg. v. rail, stranger, the court will not grant a rule to in- 1 Q. Li. 636; Reg. D. Kelk, 1 Q. B. 660. FREEMEN. 509 The application must now be made, and the notice addressed, to the mayor and assessors ; and the mandamus ought also to be directed to the same persons. The above provision is the more suitable to be taken advantage of by a person claiming his freedom, because it has been decided that a cor- poration making a return to a mandamus to admit to the freedom, and having on the trial succeeded on a portion of the case, the prosecutor succeeding on the remaining issues, were not liable for costs of the issues on which the prosecutor had got the verdict, either under the stat. 4 Ann. c. 16, s. 5, inasmuch as they had not pleaded, (the return not being a pleading within the meaning of that statute, nor a pleading within Reg. Gen. Hil. T., 4 Will. 4, reg. 7, so as to be liable under that rule,) or under 9 Ann. c 20, s. 5, as the plaintiff had not suc- ceeded on the whole, and that there was no practice of the court to warrant the imposition of such costs on them(/). Now, though it is true the issue on which the defendants succeeded was of such a nature as to entitle them to the general costs in the case just referred to, the applicant or plaintiff would not have been within the statute, for the mandamus was not obeyed, yet still the decision may be serviceable to show the points that a plaintiff ought to take into consideration before applying for a mandamus, and also to prove that had the notice under 12 Geo. 3, c. 21, s. 1, been given, and the mandamus issued under it, and the plaintiff been admitted accordingly, he would have been en- titled to his costs independently of the statutes cited in the case, and also of the rules and practice of the court, with this difference, that at present the costs would be payable by the mayor and assessors, who are now " the officers therein having authority to admit," according to the terms of the statute, whereas, in the case just mentioned, the corpo- ration not being within the Municipal Corporations Act, were the proper authority to admit, and were therefore properly made defend- ants to the mandamus, and would have been liable to the costs had the plaintiff succeeded on the whole and been admitted accordingly under a peremptory mandamus; and it is submitted that the freeman would be entitled to the whole costs in such case. Where the freemen of a borough are entitled, during their residence in the borough, to common of pasture on a neighbouring moor for their own cattle, if they have any, that is merely a personal privilege, and not an estate or interest in the land, conferring a settlement under the poor laws, unless it can be shown that the pauper had ever exci- (/) Emery v. Mayor, &c, of Malmes- 280. If a return be made to such mandamus, bury, 3 Q. B.577. The statute had not been and the plaintiff' traverse the return, but do acted upon by Emery. Malmesbury does not not proceed to trial in due time, the defend- appear to be within the Municipal Corpora- ants may have judgment as in case of nonsuit ; tions Act, not being named in the schedules; R. v. Mayor, &c, of Stafford, 4 T. K. 6R9. vid. Gale v. Chubb, 4 C. B. 41. Mandamus Mnndamus to restore a freeman ; Protector r. to admit to freedom of a trading company in- Mayor, &c, of Kingston, Styl. 480; vid. R. corporated ; R. v. Turkey Company, 2 Burr. v. Dean of Exeter, 2 Show. 217. 999; R.d. Gunmakers' Company, 2 Kelynge, ,510 MUNICIPAL CORPORATIONS. ciscd the right ( g). So where a freeman, as such, has a privilege of taking a portion of the profits of certain lands at the will of the corpo- ration, he does not thereby gain a settlement (//), for he has not even a right to enter upon the lands, which are vested in the corporation ; and though in the first mentioned case, according to some authorities, he mi"ht avow that every freeman in inhabiting a house hath by custom a right of common (/), &e. ; yet, in a plea in bar of an avowry, he must prescribe in the corporation, because the same distinction holds, it has been said, as between a declaration and a plea; viz., that in the former you may rely possession generally, in the latter you must set forth a strictly legal right (A). Other authorities, however, have established the present rule, that an avowry must show a good title in omnibus (/), which would not support the above avowry, because in general a cus- tom to take a profit in alieno solo is bad, but an easement or matter of discharge to the freemen may in general be pleaded by way of custom ; but if it be in the city of London, where the custom, if not already cer- tified, is to be tried by the mouth of the recorder, they ought to pre- scribe so as to try by a jury (m). (g) R. t . Warkworth, 1 M. & Selw. 473. Gri i stead v. Marlowe, 4 T. R. 717. It will (h) R. v. Belford, 10 B. & C. 54. be observed, that in Hinkes v. Clarke, the (i) Hinkes v. Clarke, 2 Show. 78 ; S. C. freemen being a limited body, one objection 2 Lev. 252. The freemen, so called, in this against prescribing in inhabitants, viz., that case were twelve capital burgesses, and the such a prescription would become nugatory case proceeded on the distinction that the cus- as the town increased, is inapplicable, torn was not laid in the inhabitants, which (/) Goodman p. Ayling, Yelv. 148; per would have been bad, but in the continuing Holt, C. J., Carth. 74; Butt's case, 7 Rep. body, called the freemen ; vid. case of Stal- 25 a ; vid. 2 B. & P. 360 ; 12 A. & E. 353 ; lingers of Sunderland, cited 2 Q. B. 593 ; et 2 Wms. Saund. 284, note (3); 1 WmB. vid. 6 A. & E. 551 ; 10 B. & C 230; from Saund. 341, note (3); per Lee, J., Rogers which cases taken together it seems that there v. Birkmire, Cas. T. Hardw. 245. were originally two corporate bodies, one con- (m) Day v. Savadge, Hob. 85; i fl. 1 sisting of freemen, or twelve capital burgesses, Ventr. 390; 2 H. Bla. 393; Willes, 203; the other of stallingers. Cro. Eliz. 363. (k) Hardy i. Hollyday, cited 4 T. R. 718; ( 511 ) CHARITABLE TRUSTS. Many municipal corporations were seised of real property in trust for charitable purposes, the administration of which the legislature have thought proper to regulate in the following enactments : — " And («) whereas divers bodies corporate now stand seised or pos- sessed of sundry hereditaments and personal estate, in trust, in whole or in part, for certain charitable trusts, and it is expedient that the ad- ministration thereof be kept distinct from that of the public stock and borough fund ; be it enacted, that in every borough in which the body corporate, or any one or more of the members of such body corporate, in his or their corporate capacity, now stands or stand solely, or toge- ther with any person or persons elected solely by such body corporate, or solely by any particular number, class, or description of members of such body corporate, seised or possessed for any estate or interest whatsoever of any hereditaments or any sums of money, chattels, secu- rities for money, or any other personal estate whatsoever, in whole or in part in trust or for the benefit of any charitable uses or trusts what- soever, all the estate, right, interest and title (o), and all the powers of such body corporate, or of such member or members of such body cor- porate, in respect of the said uses and trusts, shall continue in the per- sons who at the time of the passing of this act are such trustees as aforesaid (o), notwithstanding that they may have ceased to hold any office by virtue of which, before the passing of this act, they were sucli trustees, until the first day of August (p), one thousand eight hundred and thirty-six, or until parliament shall otherwise order, and shall im- (n) Municipal Corporations Act, s. 71. nated ; Bignold v. Springfield, 7 Cla. & F. This section applies to all cases where pro- 71 ; vid. 11 M. & W, 930; 2 Cla. &. F. 295. perty has been granted to a corporation, sub- It is to be observed, that it was not necessary ject to a payment for charitable purposes, in Bignold v. Springfield to determine in whom prescribed by the grantor; R. v. Sankey, 5 the legal estate vested after the 1st of August, A. & E. 423. 1836; per Parke, B., 11 M. 8c W. 924; and (o) i. e. the estate and interest in respect of it has been decided that the legal estate re- the uses and trusts only, and not the legal mains in the corporation in each case, not- estate, continues, &c. ; Doe?;. Norton, 11 M. withstanding the above enactment of s. 71, & W. 913; Christ's Hospital i>. Grainger, Doe v. Norton, 11 M. & W. 928, which dis- co?-. Sir L. Shadwell, V. C. E., 12 Jur. 276. poses of a doubt that has been expressed, I Semb. this enactment does not apply to the Piatt, Leases, 366, as to who, since this enact- case where the land is vested, not in the mu- ment, are the parties to grant a lease of cha- nicipal corporation, as such, but in a different rity lands vested in corporations. But Lord corporation with a different name and seal, Cottenham, C, has expressed an opinion that though constituted of the same members as the trustees have all the power which the cor- the former ; 11 M. & W. 913. So Attorney- poration before had, and that there is no General v. Principal, &c, of Brazennose ground for dividing the trust by vesting the Coll. Oxford, 2 C. & F. 313. legal property in one party, and the discre- (p) On this day the administration of the tionary powers in another; Attorney-General charity estates given by this clause ceased and v. Mayor, etc., of Ludlow, 2 Phil], 687. passed away from the individuals here desig- 512 MUNICIPAL CORPORATIONS. mediately thereupon utterly cease and determine : provided always, that if any vacancy shall be occasioned among the charitable trustees for any borough before the said first day of August, it shall be lawful for the Lord High Chancellor, or Lords Commissioners of the Great Seal for the time being, upon petition, in a summary way, to appoint another trustee to supply such vacancy; and every person so appointed a trus- tee as last aforesaid -hall be a trustee until the time at which the person in the room of whom lie was chosen would regularly have ceased to be a trustee, and he shall then cease to be a trustee : provided also, that if parliament shall not otherwise direct, on or before the said first day of August, one thousand eight hundred and thirty-six, the Lord High Chancellor, or Lords Commissioners of the Great Seal, shall make such orders as he or they shall see fit for the administration, subject to such charitable uses or trusts as aforesaid, of such trust estates." It must be borne in mind that, according to the Court of Exchequer, the object of this enactment was not to affect the ownership of charity estates, but only to keep the administration of them distinct from that of the borough fund ; that the estate and interest in the trusts only, and not in the legal estate, was to continue in the individuals constituting the corporation on the 9th Sept. 1835, until 1st August, 183G; all that was meant being merely to transfer the right and duty of administering the funds. The effect of any other construction that could have been adopted would probably be to revest the legal property in the heirs of the original donors of the lands, &c. But as thus construed, the effect of the clause is to leave the legal estate just where it was on the 9th Sept. 1835; which, however, is disputed. With respect to the choice of trustees, it has been decided that mem- bers of the newly named corporation are not ineligible, although the old corporation have formerly set up a claim to the property as against the charity (Vy), and notwithstanding that the new corporation is but a con- tinuation of the former, the two being completely identified, except in name, and mode of supporting the succession (r). The courts of equity refuse to fill up vacancies in the body of trustees, unless they are satis- fied that the number is practically insufficient, and that inconveniences arise from not having more (s). Orders of the Lord Chancellor made under this section, and the stat. 52 Geo. 3, c. 101, jointly, are subject to appeal to the House of Lords, by the express terms of the second (q) Re Ludlow Charities, .'3 My. & C. 262. the court, when the only ciuestion is in what Petitions for rilling up vacancies require the manner a trust shall be executed, and how An.,! (i |'i fiat, U being presented trustees are to be appointed ; when, however, undei Sir s. Roroilly'a Act, 5*2 Geo. 3, c. 101, there Lb a question as to the nature of the trust, as well as the .Municipal Corporations Act, and who are the parties to manage it (i.e. but nerd not be served on him ; In re War- which of twoor moie given persons or bodies) wick Charities, 1 Phill. 559. <''«< W not the subject of a petition, but an in- ""» obstante;" Chancellor, held before the Vice-Chancellor, vid. 1 Dyer, Privil. I n. Camb. 125. is not a reasonable cause; Stra. 566, per For Oxford there is an express provision, 6 Eyre, .'. (•"i. 4, c. 97, s. 3, sanctioning the appre- (&) 1 Bla. Com. 480. hension in the streets of streetwalkers and THE UNIVERSITIES. 517 inquire how the Universities are kept within the limits prescribed to them by the law. Now, generally, the founder and his heirs, and, in default of heirs, the crown, is the visitor of all corporations which have been established with an endowment for any purpose which the law calls eleemosynary, which includes schemes for promoting education, by holding out to all future generations certain advantages, facilities, and privileges, upon repairing to these institutions, towards which the proceeds of the endow- ment are appropriated more or less exclusively. In general, the first gift' of such endowment is the foundation of the institution, and he who gives the lands is the founder. But here the king had his prerogative, for if the king and a private person jointly contributed to the first en- dowment, the crown was alone reckoned to have been the founder (Z). Now it is the rule that, in all cases, except where the founder himself has otherwise provided, the visitatorial power attaches to, and is inse- parable from, the foundership, that is to say, the founder and his heirs are always visitors of his foundation, their province and duty being to see that the institution conforms to the rules and regulations that the founder has laid down, called in this case statutes, and to maintain order generally, but not to take cognizance of offences which are such by act of parliament, or the common law, independently of the statutes of the institution (»?). In former times there seem to have been considerable doubts as to the question how the Universities were visitable (n) ; but the practice seems to be now settled that a mandamus lies to the Universities as to other (0 1 Bla. Com. 481 ; 2 Inst. 68; Com. cause was heard before the king in council; Dig. Visitor, A. 1. If the king augmented and it was declared to be granted on all hands, an endowment, originally granted by a sub- that the king had an undoubted right to visit ject, though the augmentation bore ever so the Universities, but the king in council ad- great a proportion to the original endowment, judged the right to belong also to the arch- still the subject remained the founder; 2 Inst. bishop by himself or his commissary, as often 68. as any great emergent cause should move him ; (m) R. v. St. John's College, Cambridge, the Chancellor of either University being al- 4 Mod. 233; S. C. Skin. 368. lowed to appear by proxy in the Visitatorial (n) Edw. 3, in the 8th, 14th, 50th, and Court; Rushw. Collect. 324; Com. Dig. 51st years of his reign, visited Oxford by com- Visitor, A. 1, A. 5 ; 4 T. R. 241, note ( per missions; Prynne's Animadversions on 4th Ld. Mansfield, C. J.); Cockman v. Mather, Inst. pp. 346, 355, 358, 360, 361, 363 ; vid. 1 Barnard. 14. what seems to be a recognition by parliament Oxford seems to have been visited by the of the power of the crown to regulate and crown temp. Ric. 2 and Edw. 6. determine disputes between the Universities So was Cambridge in the reign of the latter, and strangers, 50 Edw. 3, in Cotton's Tower 2 T. R. 290; 4T. R. 237 ; so in 5 Mary, by Records, 102, 103. commission to Cardinal Pole; so temp. Hen. The Archbishop of Canterbury was declared 8, by Cromwel ; and 37th Hen. 8, by Dr. to be visitor of the University of Oxford by Parker, the Vice-Chancellor, and others, 1 letters-patent of Richard 2, a.d. 1568, after Dyer, Priv. Un. Camb. 471 ; so 12 Eliz., by solemn argument before the king himself in commissioners, when the crown gave new parliament, and it was decided, and the de- statutes by which the University are at pre- cision inrolled in parliament, and afterwards sent chiefly governed ; 3 Jac. 1, some further established by act of parliament, 13 Hen. 4, statutes were granted, vid. 3 Burr. 1650; that the archbishop was visitor of that Univer- Burn's Eccles. Law, tit. Colleges; Brief His- sity ; 1 Burn's Eccles. Law, 478, edit. torical Notices of the Interference of the Phillim. ; Rot. Pari. p. 3, Memb. 9; Prynne's Crown, by G. E. )Corrie, Cambridge, 1839 ; Animadversions on 4th Inst. pp. 367, 368. Origin of Lniversities, by H. Maiden, Lon- In 12 Car. I. Archbishop Laud asserted the don, 1835 ; Ayl. Hist. Oxford ; 1 Dyer, Privil. right with respect to both Universities, and the Un. Camb. 154, pp. 10,11, 12. 51S Tin: UNIVERSITIES. corporations of a civil kind; (i. e., that they are visited by the Queen's Bench;) or at least, to the University of Cambridge (o); and it has been denied that the crown is founder of that University (p). So a mandamus will issue to the keepers <■>( the common seal of the University of Cam- bridge to compel the affixing it to an instrument of appointment of an University officer pursuant to a grace of the senate (7); such matters, although apparently objects of visitatorial jurisdiction, being held to belong to the jurisdiction of the Queen's Bench. It may well be doubted whether, at the present day, the crown would be advised to exercise the powers which former sovereigns, especially the Stuarts, were in the habit of enforcing over the Universities without question ; the only ground for such interference being apparently its great convenience, if not utility: thus, Charles 2, by warrant, dated October 30, 1679, dispenses in one respect with the statutes of the foundation of Lady Margaret's preacher in the University of Cambridge, and even orders the University to alter the form of oath imposed upon the preachers accordingly ; he also, by another warrant, dated April 8, 1681, dispenses with the statutes so as to excuse bachelors of physic keeping one of their acts(r). But probably it would be difficult to sup- port the position, that the crown has not the right to visit in extraor- dinary cases; ex. gra., in questions respecting alterations of the scheme of education. It ought not to pass unobserved, however, that the statutes of Cambridge contain express provisions that the explication and deter- mination of all ambiguities and doubts, which may at any time arise on the statutes, should appertain to the chancellor of the University and the major part of the heads of colleges (s); and if it were to be con- sidered as unquestionable that such power of interpretation implied a power of visitation, then it would follow that the visitatorial power over the University resided in the chancellor, assisted by the heads of houses. Now it has been distinctly held that a power to interpret implies a power to visit, and that such words constitute the person to whom they are applied a visitor (0 ; and this position of Lord Iiardwicke, C, was afterwards fully adopted by Lord Mansfield, C. J., who added, that a power to interpret, determine, and explain statutes, was as large an au- (o) It. 1 . Chancellor of University of Cam- 342, where many instances are given in winch bridge, lStra.657; S. C. Ld. Raym. 1334 ; such explications and determinations have B Mod 148' Fort : ■ i • Vice-Chan- been so made and published for the guidance oellor of Cambridge, 3 Bnrr. 1655—1663. of the University by the Vice-Chancellor and I J ( ,,, |;. , . Parn< II, I w. majority of head-, under statute 60 of Queen BU. 44; vid.Z Burr. 1660 1652. Elizabeth's statutes. ( ) |. , vice-Chaneellorol University of A person maybe banished from the I bi- Cainbridge, 3 Burr. 1647 . 8. I . IW, Bla. reraitj of Cambridge by the Vice-Chancellor, 547, where sec form of the direction of the as-isttd by the heads of bouses in the Chan- • * cellor's Court, without also banishing him Such mandamm will be enforced by at- from bis college, though the statutes seem to tacbment if necessary; B.C. I rV.Bla.550j require that both shall be done; R. v. Chan- tepheni l*. Jones, 177. ceftor, &c. of Cambridge, 6 T. R. 89. (i) Att-Gen. p. Talbot, 3 Atk. G62. (r) I Dyer, Priril. In. (and). 372 , Dyer, Priril. In. Camb. 278- THE UNIVERSITIES. 519 thority as a visitor could have (u) ; and Lord Eldon, C, also laid down that a power to interfere and determine doubts in the statutes, given in clear words, may itself constitute visitatorial power (v). But this doctrine has not been received with general acquiescence (x). The practice seems now to be nearly settled (y) that the coercive and controlling power over the Universities resides in the crown, to be ex- ercised by and through the Court of Queen's Bench in ordinary cases of common law rights. The practice as to the crown visiting has not been very consistent ; in fact, the question has not arisen for a great many years. Offences against University statutes are not cognizable as such by the courts of law, or justices of the peace ; nor are they offences against the crown so as to be pardoned by an act of grace (z). The statute 13 Eliz. c. 29, as before observed, ratified and confirmed to both Universities all the franchises, liberties, privileges, immunities, &c, that had ever been granted to either of them by the crown. The principal of these is the franchise, immunity, or privilege, which these learned bodies possess of the sole jurisdiction, in exclusion of the king's courts, over all civil actions and suits whatsoever (a), and of all injuries and trespasses against the peace (treason, mayhem, and felony alone excepted) (b), where a scholar or privileged person is one of the parties ; provided that these courts shall entertain no case where the right of freehold is concerned. They have the further privilege by their char- ters of being at liberty to try and determine all causes within their juris- diction as just described, either according to the common law, or accord- ing to their own local customs, at their discretion, which has generally led them to carry on their process in a course much conformed to the («) R. v. Bishop of Ely, 1 W. Bla. 85. (s)Bentley v. Bishop of Ely, Stra.912,917. The Chancellor of Oxford is empowered by (a) 3 Bla. Com. 83, 84; vid. grant of 17 statutes, (tit. xvii. s. 1, De Officio, Potestate.et Edw. 3, Prynne's Animadversions, 374; 1 Auctoritate Cancellarii,) ordinationes etiam et Dyer, Hist. Univ. Camb. 88, charter 3 Eliz. statuta ( poscente sic usa) cum consensu Uni- to Cambridge. In case of Oxford, vid. char- versitatis sancire vel sancita abrogare. ter of 1st Edw. 4, cited 1 Q. B. 955; and The Chancellor of Cambridge has besides that of 14 Hen. 8. 1 Q. B. 955 ; 2 Ayliffe's this power by the statute 42 of Queen Eliza- Oxford, App. p. 178; Cripp's case, Litt. R. beth, De Cancellario, viz. " Eidem Cancella- 252. rio, cum consensu toiius acndemue , licebit nova Semb. the jurisdiction does not extend to statuta ad eruditionisamplificationem, et decori actions given for the first time by statute sub- atuue honesti conservutionem inter scholnsticos sequent to the 13 Eliz. c. 29; vid. Yearb. 14 habendam sancire sic ut ea his decretis nostris Hen. 4, fol. 20, A. ; Dyer, 85, A., pi. 88 ; nihil detrahant aut officiant ; vid. Queen Eli- Cox v. Barnsley, Hob. 48 ; Yearb. 22 Edw. 4, zabeth's statutes, 1 Dyer, Privil. Un. Camb. fol. 23, B.; 1 Roll. Abr. 490. 157 — 210; charter of 3d Eliz. id. 113 — 131; (b) These are triable in either University of 31st Eliz. id. 133— 135 ; of Jac. 1, id. 135 by the Lord High Steward or his deputy ; 4 — 137. Bla. Com. 277; Bac. Abr. University, B. ; (v) Ex parte Kirkby Ravensworth Hos- but the power has not been exercised in either pital, 15 Ves. 317. University for a great length of time. The (x) Re Queen's College, Cambridge, 5 Russ. indictment is found as usual by the grand 71, where the statutes (stat. 37) give the jury, the Chancellor of the University claims president and major part of the fellows power conuzance, and the cause is taken before the to interpret; vid. 1 Jac. 20. High Steward, and a jury, half of freeholders (y) R. v. Vice-Chancellor of Cambridge, of the county and half of lay members of the 3 Burr. 1647, S. C. 1 W. Bla. 547. University. 520 Tin: i m\ i ctsi i ies. civil law(c), for which they have the express sanction of the above sta- tute (I). These courts, called the Chancellor's Courts (or, in common lan- guage, the Vice-Chancellor's Courts, from being practically held before him and his assessor), are courts of record (e). In the University of Oxford an appeal lies from the sentence of the Vice-Chancellor to delegates appointed by the congregation; and from thence to other delegates of the House of Convocation; if these all agree, their sentence is final, as it seems(/); otherwise, there was a further appeal to the crown in Chancery (g), who named delegates to hear the appeal, now the Judicial Committee of Council. With respect to the Chancellor's Court of the University of Cam- bridge, its proceedings are examinable in the Court of Queen's Bench (though there is some appearance of an appeal lying immediately to the senate (//)) ; and upon its appearing to the Court of Queen's Bench that the court below has exceeded its jurisdiction, or acted erroneously within the limits of such jurisdiction, a mandamus will issue to compel them to do justice to the injured party (£), or a prohibition, according to circumstances, and so of the Chancellor's Court of Oxford; the rule is, that prohibition always may be had where the court usurps jurisdiction. The courts in the two Universities have somewhat different powers: the jurisdiction of the Chancellor's Court at Oxford extending to personal actions throughout England, in which any of its members are sued (/<); that of the Chancellor of Cambridge only to such personal actions as arise within the town and suburbs. In the case of Oxford, however, the privileged person must be resident within the University (Z); and the only mode in which that court can assert its privilege, where a plaintiff, not a member, sues in one of the king's courts a resident member of the University, is by discommoning such person ; i. e. by (O 3 Bla. Com. 84; Bac. Abr. Univer- of Queen's Bench even then prohibited the I:., \ in. Abr. University, A., pi. 1, Chancellor's Court of Oxford when it usurped mar?.; charier of 3 Kliz. 1 Dyer, Hist. Univ. jurisdiction. Camb. 88. (#) Bac. Abr. Universities, B. ; 2Ld. Kaym. A citation before the Chancellor's Court 1346; 1 Q. B. 961. must not be served within the doors of West- (h) 1 Stra. 558, 566. Otherwise stated to minster Hall, that being a privileged place be to delegates appointed by the senate ; Bac, whilst the courts are sitting; 3 Inst. 141. Abr. University, B. : vid. the question dis- i B. 956. 957; ptr Holt, this, appears and enu rs into the merits, and C. J., Rush v. Chancellor, -\<-., of Oxford, jadgment « !n1 bun, it is not too Salk. 343. I , bim to remove the cause mto the (I) 2 Wils. 311, i'e case, cited i»s Bench; 3 A. 8c E. 405. 1 - B»c. Abr. Aa t<> Bwearing them before Chancellor's Couri-, D. '■>. attorn, y's partni r, id. (u) Cro. Car. 88. (e) >'' Lord Ellenborough. C. J., 15 I mcellor, fiie., of Cambridge >• East, 638,639; White o. Powgher, Gary's Hinton ». Hern, Salk.671. R. 79; vid. Hell. 28; Pitt. R. 41. THE UNIVERSITIES. 5Q3 to the court that the party had procured himself to be registered as a servant merely for the purpose of claiming the privilege in the action, it will not be allowed (/"). With respect to the privilege of servants in Cambridge, but little is to be found in the books, and that is unsatisfactory, from the brief manner in which it is stated. The effect of one case is, that a defendant in an action on a bond, purporting to be made at C, in the county of Surrey, pleads the privilege of the University, granted by Queen Elizabeth for scholars, &c, and their servants, upon contracts made within the University, and shows that the bond was made in Cam- bridge, and that he was a servant of the scholars, to wit, bailiff of King's College in that University ; " and upon reading the record" (says the report), " it seemed that the defendant, being a bailiff of the college, is not capable of the said privilege" (g). It seems, however, that where a servant or other privileged person claims his privilege by way of plea to an action for a trespass, alleged to be committed out of the jurisdiction of the University Court, he ought to conclude with the special traverse, without this, that he was culpable in any place with- out the University of Cambridge (ft). The jurisdiction of these courts does not extend to cases where the Chancellor or Vice-Chancellor is himself sued, though along with others of the University; for no one but the king (it is said) shall be judge in his own cause, and the king only through his judges (i); nor to cases where the officers of the courts at Westminster are plain- tiffs (7i); and therefore not to actions by attornies of the courts at Westminster(Z); but the Chancellor in former times appears to have claimed conuzance of an indictment against his Commissary for striking one of the marshals of the king coming to execute his office within the University (m). These being exempt jurisdictions, the privilege may either be pleaded by the defendant, or claimed by the Chancellor or Vice-Chan- cellor (n). (f) City of Oxford's case, 2 Venlr. 106; (w) Prynne's Animadv. on 4th Instit. 368. 3 Salk. 383 ; vid. stat. 6 Geo. 4, c. 97, as to (n) Crosse v. Smith, 3 Salk. 79, 80; 4 constables appointed by the Universities. Inst. 224; Chapman v. Maddison, 2 Stra. (g) Carrell v. Parke, Brownl. & G. 74; 1089; S. C. Andr. 198; Bac. Abr. Courts, 22 Vin. Abr. 10. D. 3; Pern v. Manners, Fortesc. 157; S. C. (h) Payne v. Worth, 3 Bulstr. 282; vid. 4 5 Vin. Abr. 589, pi. 22 (recognized Wells v. Inst. 213. Trahern, Willes, R. 238, 239); 3 Bla. Com. (i) Chase's case, Yearb. 8 Hen. 6, fol. 18, 298; Skinner v. Crouch, Comberb. 171. pi. 7, per Babington, C. J., and Cottesmore, Privilege of Chancellor of Cambridge to J., Martin, J.; Brookes v. Earl of Rivers, hold pleas was claimed and allowed in B. R. Hardr. 503 ; el vid. Hunston v. Mayor, uc, in 1 Hen. 5, Prynne, Animadv. 376. of Boston, Benl. 88, pi. 134. It has been said that privilege of Univer- (k) Anderson's case, 3 Leon. 149 ; Butts sity of Oxford is never pleaded, Dormer v. v. Clerke, Uyer, 287, A. Howard, 9 Jurist, 737; but this seems to be (/) Case of University of Oxford, Litt. R. incorrect. The plea there was bad for not 304 ; vid. 1 Rol. 11. 489 ; Wells v. Trahern, stating enough of the charter, 14 Henry 8, to 5 Vin. Abr. 592; Willes, R. 240; 1 Rol. show the exempt jurisdiction; vid. Prat v. Abr. 489, pi. 40; Jolliffe v. Laneston, 1 Ld. Taylor, Chanc. Cas. 237 ; Masters v. Bruett, Ravm. 134; vid. tarn. Whoper v. Harewood, 2 Freem. 143 ; Yearb. Chase's case, 8 Hen. Benl. 233, 234. 6, fol. 18, pi. 7; Wilkins v. Shalcroft, Hardr, 534 tiii: l DIVERSITIES. If the defendant plead- the privilege, the following requisites must be observed; he must plead in propria person&, and not by attorney; for the attorney being the officer of the court, if he puts in a plea it will be intended to be done by leave of the court, and by obtaining such leave defendant is taken to admit the jurisdiction of the court (o). However, this doea not hold in the case of an attorney pleading in the court below his privilege to be sued in his own court; for that is a plea of privilege, strictly so called, and not a plea to the jurisdiction (p), and therefore an attorney may in such case plead by attorney of the court below. Next, the defendant must plead, as in all other cases of pleas to the jurisdiction, within four days (the first exclusive, the last inclusive) after declaration (7) ; the plea must be accompanied by affidavit of the truth of the facts contained in it(r), and, as we have seen, of the de- fendant's residence within the jurisdiction at the commencement of the action; the body of it must show satisfactorily that the Chancellor's Court has power to do effectual justice in the particular action (s); and it should, it seems, in general conclude with si curia cognoscere velit(t); or if the declaration lay the cause of action to have arisen out of the jurisdiction of the Chancellor's Court, there ought also to be a special traverse, without this, that the defendant is culpable in any place extra jurisdictionem(u). The plea also ought to be verified(j), and signed by counsel. The defendant cannot take advantage of the fact by demurrer (y), nor in arrest of judgment, even though the declaration should disclose that the cause of action arose within the jurisdiction of the Chancel- lor's Court, for unless it were shown, on the face of the declaration, that the court above never had jurisdiction, the objection would not be good in arrest of judgment; and such declaration would not show that, unless it showed also that the defendant was resident within the pre- cincts of the University at the time of the commencement of the suit(z). 188; from which case it appears that the plea (r) 4 Anne, c. 1G, s. 1 1. is not good to a proceeding in the Exchequer I he affidavit may be sworn by the defend- er a debt due to the crown, ant or another person; Lumley t;. Foster, As to pleas of privilege of an University liarnes, 344; Pract l\eg. 6. pleaded in equity, vid. Temple D. Foster, Cowp. 172; Davis v. Stringer, Carth. < ary's EL 65; Cotton 1. Mannering, id. 73; 355; 4 Inst. 213. 1. 2 Ventr. 362; 1 Venn. 212 ; vid. Mit- As to prohibiting the Chancellor's Court, 1 ford, Head. 224. as to the requisites of such Q. H. 952. pleas. May be put in without oath, Mas- 1 <>f rule for writ of prohibition, 1 Q. ters p. liruelt, 2 Fretm. 143 Oth< r points, B. 965, note. Busby p. Cross, Finch, R. 162; Powell v. (0 1 Chit Plead. 461, 7th edit; vid. 2 Hioe,U.S Wins. Saund. 210, note (1); Rast Ent Bac Al.r. Courts. 1). 3. 434, 1'.. 435; Thumps. F.ntr. 5, 9. (/-) Hunter i. Neck, 3 Sc. V H. M («0 Payn o. Worth, 3 Bulstr. 282, I . 3M. &Gra. 181; Groom v. Wortham, (*) Vid. form 1 Wils. 193, 194; Robins. - 657. ,\ pi,;! to the jurisdic- Entr. 1; Brown, 473; Jones v. Jont . I lion of the l I oort must be put Wentw. Prec.45; 1 Wils. 206. in in proprid pertond, 1 Chit. Plead. 460, 7th t > Davis v. Stringer, Carth, 351, edit.; Bod be must make oath of its truth, id. <:> Jennings ». Hankyn, Carth. 11. ( ? ) 1 Chit. Plead. 460, 7th edit Semb. tin courts take judicial notice of THE UNIVERSITIES. 525 Nearly the same principles regulate pleas of privilege of an Uni- versity pleaded to the jurisdiction of courts of equity. Such pleas must allege that the court in which they are pleaded has no jurisdic- tion in the case, and show by what means it is deprived of jurisdic- tion, and also what court has jurisdiction, otherwise such pleas are bad for want of form (a). In point of substance, it is necessary to en- title the Chancellor's Court to exclusive conuzance of the suit that it should be able to give complete remedy (b). If the suit is instituted against different persons, some of whom have privilege and some not, or if one defendant is not amenable to the Chancellor's Court, the plea fails (c). If conuzance be claimed, the claim must be made after the defendant has made appearance (d); and it may be before declaration (e), but it must be before plea(/). It is made in the first instance by a letter- missive and significatory from the Vice-Chancellor to the court in which the action is pending, making the claim with a brief statement of the facts, and an allegation of the defendant's membership and resi- dence in the University; and that the cause of action arose within the University in the case of Cambridge (g) ; and in Cambridge, such letter-missive and significatory is under the seal of office of the Chan- cellor of the University (g). The claim in court is made for Oxford by the Chancellor of the University, or during a vacancy of the office by the Vice-Chancel- lor (k) ; in either case the claim is made in writing under seal of the office of the Chancellor (i), expressed to be by him as deputy for and on behalf of the University. The reason for this is, that in all cases of conuzance, the claim must be made by the lord of the fran- chise (which the University is in this case), or his deputy (k). For these jurisdictions, 2 T. R. 10 ; Mayor, &c, the date of the letter-missive and significatory, of Berwick v. Shanks, 3 Bing. 461 ; Greene S. C. v. Simpson, 1 Keb. 946, 948 ; 2 Keb. 5. If the claim is made in vacation, vid. 10 (a) Mitf. Chanc. Plead. 224. Q. B. 292, and as to affidavits. (6) Ibid. It need not appear (hat the defendant was (c) Id. 225 ; Grigg's case, Hutt. 59 ; 4 resident in Oxford when the cause of action Inst. 213; Cowp. 172. accrued, if it appear that he was resident (d) Browne v. Renouard, 12 East, 12; when the action was commenced; Castle v. Bac. Abr. Courts, D. 3 ; semb. that claim of Lichfield, Hardr. 509. This is said to be the conuzance cannot be allowed as to one party first case in which the University of Oxford, when disallowed for others, his co-defend- ever claimed conuzance; 2 Wils. 412; vid. ants in trespass, Turner v. Bates, 10 Q. B. LiberPlacit.5 ; inf.n.(k). If an entire cause 292 ; vid. tarn, per Lord Ellenborough, C. J., of action arise partly within and partly without 15 East, 638, 639. the jurisdiction, conuzance must be allowed, As to time of making the claim in a cri- it is said, 1 Rol. Abr. 494; Yearb. Falk v. minal prosecution, R. v. Agar, 5 Burr. Burley, 8 Hen. 6, fol. 31, B. 2820. (h) Williams?;. Brickenden, 11 East, 543; (> Vid. 1 Mod. Ifi4, note(fc); 3 Salk. 45b. 383, pi. 4; 8 A. & B. 287. (r) Reg. Gen. Ilil. 4 Will. 4, I. Plead. (y) 11 & 12 Will. M M. c. 11,6.9; Wood, s. 4. Who may be such attorney, 10 Q. B. lu^t. 65U. THE UNIVERSITIES. 527 bread confirmed to it by statute(z); and by immemorial usage recognised in stat. 9 Ann. c. 23, s. 50, the franchise of licensing alehouses within the jurisdiction of the University, i. e., in the town and suburbs (a), exercised by the Vice-Chancellor as a justice of the peace virtute officii. Each University has a Court Leet, and, as incident to such court, the power of appointing constables (b) ; but that power now rests, it seems, on stat. 6 Geo. 4, c. 97, for the better preservation of the peace and good order in the Universities of England. The jurisdiction over ale and beer measures is exercised in the Chancellor's Court (6) at Oxford; but at Cambridge by the Deputy High Steward (c). The latter University might seem to have had the assize of ale and bread in virtue of its court leet (d). No person shall retail wine in either University without license from the Chancellor or Vice-Chancellor of Oxford, and the Chancellor, Masters and Scholars (I. e. the University) of Cambridge, on pain of 51. (e). The charter of 14 Henry 8 makes the Vice-Chancellor and Pro- Vice-Chancellor of Oxford justices of the peace virtute officii for the vill of Oxford, and the counties of Oxford and Berks. In an informa- tion by the Attorney- General against the Vice-Chancellor of Oxford, for misbehaviour in his office, both as Vice-Chancellor and as a justice of peace of the University, the court refused to allow an inspection of the statutes and archives of the University, which it was alleged would show what was the duty of the Vice-Chancellor (/). It is remarkable that the rule was moved for on a suggestion that the king, being visitor, had a right to inspect their books whenever he thought proper. The court to some extent relied upon the ground that there was no in- stance of an information ex officio against an officer of a corporation for breach of bye-laws, and a rule granted to inspect the bye-laws (g); and that the motion tended to make defendant accuse himself (g). This case is distinguishable, it will be observed, from that of an infor- mation in the nature of quo warranto, because that always is con- cerning a franchise, of which the corporation books are the proper and only evidence, and they concern the crown and defendant equally, and that is the reason why an inspection of them is granted in such infor- mations^). It has been said that the Universities may accept in part CO 31 Geo. 2, c. 29, and 3 Geo. 3, c. 11 ; 4, c. 97. vid. grant in parliament of the same, 5 Ric. (c) Per Wilmot, J., 3 Burr. 1660. 2, Cotton's Tower Records, 200, 304. (ri) Count of Shrewsbury's case, 17 Yin. (a) Reg. u.Archdall, 8 A. & E. 281, where Abr. 263, 264; vid. Co, Entr. 527 b ; 4 see form of licence. Inst. 262 ; Merew. & St. Hist. Bor. 1318 ; 6 (6) 13 Eliz. c. 29; per Holt, C. J., in Rep. 78; 4 Leon. 104,216; Berrington v. Rush v. Chancellor, &c, of University of Brooks, T. Jones, 229. Oxford, Salk. 343; per Lord Mansfield, C. J., (e) Stat. 17 Geo. 2, c. 40, s. 11; Stat, in R. v. Chancellor, &c, of University of Univ. Oxon. tit. xvii, s. 1 ; Salk. 671. Cambridge, 3 Burr. 1659; Merew. & St. (/) R. v. Purnell, 1 Wils. 239; S. C. 1 Hist. Bor. 1319, 1340; Com. Dig. Supplemt. W. Bla. 37, q. v. 566. As to constables and proctor's men, (g) Per Lee, C. J., 1 W. Bla. 44, 45. vid. Turner v. Bates, 10 Q. B. 292 ; 6 Geo. (h) Vid. R. v. Babb, 3 T. II. 579. 528 THE UNIVERSITIES. or reject part of the statutes given them by the crown; but this is con- trary to principle, and would not now be upheld by the courts (i). The Universities have the power of presenting to the livings of Papists (ft); and of conferring degrees in arts and sciences; and upon refusing to admit to the latter, they are liable to be compelled by man- damns (I); and so, on illegally removing or suspending from degrees, they may be compelled to restore by mandamus (m). They may now substitute declarations for the oaths formerly re- quired to be taken by members in certain cases. This important power is given by statute 5 & 6 Will. 4, c. 62, s. 8. They have each the franchise of returning two members to parlia- ment. (.) Per Lord Mansfield, C. J., 1 W. Bla. (/) Baketon's case, cited T. Raym. 109; 550; mi. Harg. note (104) on Co. Litt.94a; et vid. tup. p. 515, note (e). R. v. Westwood, 7 Bing. 1. (»') K. v. Chancellor, &C, of Cambridge, (k) 10 Geo. 4, c. 7, s. 16; Bac. Abr. Uni- Stra. 557. versities; 22 Yin. Abr. 4. ( 529 ) COLLEGES. The colleges in the two Universities are lay eleemosynary founda- tions (w), being corporations by the name, in general, of " The Master, Fellows and Scholars of College" (o). Sometimes the head is called president, sometimes principal, or provost, or rector, but most commonly master. All ecclesiastical foundations have visitors ( p), and many of the colleges in the Universities having originally partaken at least of an ecclesiastical character, retain many points of similarity to spiritual foundations ; and in this respect all the colleges resemble them, that they all have visitors (. Dean and Chapter of Rochester, cor. Wi- gram, V. C, August, 1849. If the founder reserve to himself and his heirs only a part of the visitatorial power, the remainder of it vests at once in the crown ; It. v. .Master, inc., of Catherine Hall. Cambridge, 4 T. R. 233. So if he gives all the power, but exempts a par- ticular case, the crown is visitor when that case occurs; R. v. Bp. of Ely, 1 W. Bla. 85, 86. («) 1 W. Bla. 83, 84 ; Phillips o. Bury, Skin. 513 ; vid. tarn. Walker's case, Rep. Temp, llardw. 212 ; It. v. Bishop of Ely, 2 T. It. 290 ; el vid. 4 T. It. 233. It has been doubted whether a founder can restrain that part of a visitor's authority which arises by nn plication of law, 2 T. It. 310; 1 Ld.Raym. 9 • and at any rate there must be negative words io effect that; 4 .Mod. 109; I Rol. Abr. Corporations, G. 2; 2T. R. 313. Aor can a visitor (without power to do so reserved in the statutes) impose fresh laws upon the colle"c ; 1 W. Bla. 84. As to publication of college statutes, Coop. Chanc. Cas. 265, (1846;. (») It. v. Bp. of Ely, I W. Bla. 83 (sit vuilator held a sufficient appointment, S.C.) ; nid. Att. G< n. i. I albot, 3 atk. 862. Jac. I, by Ins charter of 1604, ordered that inch ol 'lit.- college* in Cambridge as bad not vi-iiur- of their own should be visited by the ( bancellor ol the University, or, in bii ab- i,v the Vic< -( bancellor ; 1 Dyer, Privil. On. Camb. 471. A visitor will be presumed to be a general visitor, i. e. endued with all the power that belongs to the office, unless there are express words in the statutes to abridge his autho- rity; It. v. Bp. of Worcester, 4 M. 6c Selw. 421 ; St. John's Coll. v. Todington, 1 Burr. 200. ( y) Vid. Heydon's case, 2 Rep. 8 ; Mag- dalen College case, 11 Rep. 73; et vid. Broom's Max. 51, that the king, though not named, is bound by the general words of acts of parliament which tend to perforin the will of a founder. It is no argument for con- trolling acts of a visitor done in pursuance and execution of power given by founder, that such power is unreasonable ; 2 T. R. 350. (z) Per Lord Eldon, C, 1 Jac. 20, 34, in a case where an usage of election in the teeth of one of the statutes having been proved to have subsisted for a considerable time, a grant of a standing dispensation to depart from the statutes in that particular was presumed ; S. C. So Att.-Gen. v. Middleton, 2 Ves. sen. 330; el lid. 17 Ves. 497. Offences against college statutes are not pardoned by an act of grace and pardon, though the crown be founder, Bentley t;. Bp. ol Ely, Stra. 912 ; nor cognisable as such by courts of law, S. C. ; nor can offenders against them be committed till they give security to observe them ; S. ('. (a) Case of Queen's Coll. Camb., 1 Jac. 35 ; R. v. St. Catherine's Hall, Cambridge, 4 T. R. 233. in which last case the crown is visitor, as alliums hkin. 368 ; Com. Dig. Visitor, I). Where a visitor has proceeded to amove or deprive a corporator whose place is a free* bold, -uch person may try the legality of the act, in some cases, in ejectment against his ■ •:•; It. v. Bp. of Chester, 1 Wils 209. \ . -itor cannot compel the execution of a common law trust vested in the college, ex. giu. to present their senior fellow to a parti- cular living ; Green v. Rutherford, 1 Ves. 4?1 ; K. i. ! I W. Bla. 35. 86. His jurisdiction aforum domeitteum, of which the common law does not take notice; Cas. T. Hardw.218 ; 2Q.B.36.37; vid. inf.n. (q). (I ) Att (-en. i. Black, II Vts. 193. As to majority in elections in colleges, vid. 33 Hen. 8, c. 27, set out, rap. p. 74. Abuses in elections of scholais, fellows, &C, 31 Eliz. C 6. (Jases bearing on the former st.it. un : D\cr, 247, A. | ' >- ol N( ■■ ( oil., Oxford ; (• ase ,, t I oil., Cambridge, Jac. R. 47; 5 Russ 65; >'< Clare Hall, •') Ruse- -.; /:, Cains Coll , 5 Ruse. 76 \ /.v Cathe- rine Hall, 5 R ■■'• ' B. & P. 229 ; •J Aik. 2 1 2 ; 3 I . R. 69 '■ Butt, ,. R.78. Ut-Gen. i ■ Black II Ves. I'»3; It. ! _ l . It. 338. The founder ought t<> I)..- carefnl to mould bii to give the visitor the power of carrj into effect. The courts will not interfere for . Atu-Gen.i Middleton, 2 Ves. sen. 3 (h) Case of Queen's Coll., Cambridge, 1 Jac. 32. Nor where the course of election is to nominate and return to the visitor two per- sons, of whom the visitor is to elect one, does it follow that he has power, in case of a void return, to appoint to the vacant office, R. v. Bp. of Ely, 2 T. It. 338, 3-13 ; and a manda- mus will issue to compel him to appoint one of two persons properly returned to him, S.C; and though both persons were unqualified, it seems he must name one of them ; and could not appoint a person de novo ; even though it might be his duty to deprive such person im- mediately as being unqualified ; Att. -Gen. v. Clare Hall, 3 Atk. 662 ; 2 T. R. 316. (<>) Green v. Rutherford, 1 Ves. sen. 462. The college is compellable in chancery, like a private person, to execute a trust, S.C; vid. Mut. Cbanc. Plead. 225,226. (p) R. i . Windham, Cowp. 378. So not within jurisdiction of a visitor to compel the corporation to affix the common seal to an instrument at the instance of a stranger ; S I . Reg. i. Kendall, 1 Q. I'.. 377, 378; nor to compel the head to set the seal to an answer in rhancery, Cowp. 377 ; nor to a , 3 Burr. 1663. (9) H.v. lip. of Lincoln, 2 T. R. 338, n.; R. d. Bp. of Ely, 5 T R. 475 ; Sherlock's case, cited 1 W ils. 208 ; i id. 5 Mod. 404 ; 4 M. & Selw. 415. Sometimes, when it did not appear whether there was a visitor or not, the court has granted a rule to show cause why a mandamus should not go; 1 Wils. 209; COLLEGES. 53g ciple that the Court of Chancery will not interfere with the exercise of a visitor's power over matters properly within his jurisdiction and cog- nizance (r). But if the visitor abuses his authority, the Court of Chan- cery, in the case of a charitable foundation, will either interfere upon an information, or will issue a commission (it is said) (s). The latter power, however, is now hardly ever exercised ; and, generally, where the governors or visitors of a charitable foundation are trustees for the charity, and are found to be making a fraudulent use of their powers, the Court of Chancery interferes on information, and there are cases which seem to extend the stat. 13 Eliz. c. 4, to this point (t) ; so that though the founder have left directions in his will vesting the sole government and management of the charity in the visitors, nevertheless the Court of Chancery will exercise jurisdiction and control, where such visitors are also trustees of the charity estates (u) ; for that court is not necessarily disabled from interfering by the fact that the case is not one for a commission (x), the jurisdiction of the court, in cases of charities, being independent of the statute of Elizabeth (y). But the case of the interference of chancery with visitors in the way just men- tioned, is said to be only where both the legal estate and the receipt of the rents, &c, are vested in the visitors (z). ■ It is a general rule, that when a complaint is made to the visitor in respect of a matter within his jurisdiction by a party having the right to put in motion the visitatorial functions (i. e. in general a member of the corporation, for generally visitors cannot entertain complaints by strangers), he is bound to receive and entertain the investigation of it, and to adjudicate in some way either on the subject itself, or on the evidence adduced before him (a), provided it be not in his judgment wholly frivolous and idle. The rule that a stranger to the corporation cannot appeal to the visitor extends to persons who {ex. gra. fellow- commoners) are not admitted members of the foundation, but merely boarders, having their names on the college books for the purposes of vid. tarn. 1 Wils. 266. The courts at West- principle that giving the governors the legal minster do not take notice that a college has estate, together with receipt of the rents and a visitor; the fact must be returned to a man- profits, does not make them visitors of itself damns or pleaded, Cas. Temp. Haruw. 218 ; and that in such case the Great Seal visits, and that whether the crown or a subject be (t) Per Lord Eldon, C, 15 Ves. 314- visitor, S. C. vid. 1 Stra. 566 ; R. v. St. vid. cases cited note. Coop. Chanc. R. 34 • John's Coll. Oxon, Comber. 238. 2 Ves. 551 ; 3 Atk. 108. (r) Att.-Gen. y. Smythies, 2 My. & C. (it) Att.-Gen. v. Lubbock, Coop. Chanc. 142. Therefore, it is a good plea in equity R. 15. to an information charging an undue election (i) Att.-Gen. v. Dixie, 13 Ves. 519, 533, to a fellowship, that by the statutes all con- 539. troversies on elections are to be decided by (i/) Coop. Chanc. R. 35, n. ; per Sir E. the visitor averring the extent of his autho- Sugden, Chanc. Irel. 1 Dru. & War. 258 rity, and that he has power to do justice in 307, 331. the premises ; Mitf. Chanc. Plead. 225 ; 3 (s) Att.-Gen. v. Middleton, 2 Ves sen Atk. 662. 328. (s) Hynshaw v. Mayor, &c, of Morpeth, (a) Com. Dig. Visitor, C. ; Litt. s. 136; Duke, Charit. Uses, 69; confirmed, Eden Co. Litt. 96 a; R. v. Bp. of Lincoln 2 v. Foster, 2 P. Wms. 325, as regards the T. R. 338, n. ; vid. sup. p. 532. 534 Tlir. DHIYBRSITIBS. study, &c. {It), though subject to the discipline of the body. In all cases the complaint must be made in writing (c); and where the crown is visitor, the complaint is to be preferred, by way of petition, to the Great Seal. The principle is clearly settled, that the same person cannot in general be the visitor and the visited. A visitor cannot visit himself without express words in the statutes (d). If the visitor proceed without any jurisdiction at all, or transgress the bounds laid down in the college statutes to restrain his power, he ia liable, it is laid down, to an action at the suit of an injured party (e) ; and he will be prohibited by the courts at Westminster (e). If there be a doubt whether the visitatorial power resides in A. B. or the crown, the proper mode of trying the question appears to be for A. B. to pro- ceed to visit, when the attorney-general may move for a prohibition, on which the matter may be fully gone into and tried by a jury (/); but where the dispute was which of two subjects was visitor in right of office, and it appeared that the predecessors of the one had exercised the jurisdiction, but the predecessors of the other were not shown to have done so, a prohibition was denied, the court saying, that though long usage will not give a right, it is strong evidence of right (g). Such are the restrictions within which only a visitor can act ; but, on the other hand, the decision of a founder's visitor on a matter within the scope of his jurisdiction is perfectly final and irreversable by any other judicature or body in the realm, unless it be by parliament (A). From the sentence of one who visits, not as representing the founder, but qua ordinary, there is an appeal to the(0 king in chancery; but in the former case there is no appeal from the visitor's decision, unless the founder hath thought fit to make one (k). (b) Ej parte Davison. Cowp. 319 ; R. V. (/) R. ». Bp. of Ely, 1 Wils. 266, 268. Grundon, Cowp. 315, 321 ; 2 T. R. 333; (g) Martin i\ Abp. of Canterbury, Burn. per Holt, C.J , R.i'. President, &c, of St. F.ccles. Law, tit. Colleges, cited 4 T. R. John's Coll. Oxon, Comberb. 238. 238. (r) R.i. Bp. of Chester, Stra. 797; Green (/i) Com. Dig. Visitor, B. ; Phillips v. v. Rutherford, 1 Yes. 471 ; per Buller, J., Bury, 2 T. R. 353,354; Allen v. Nash, 1 R. i. Mp. of Ely, 2 T. R. 339 ; Att.-Gen. v. W. Jones, 393. " The jurisdiction is in its Middleton, 2 yet. 327. this must equally nature very peculiar. R is a despotism un- apply where a corporation aggregate is visitor, controlled and without appeal ; the only one a* in case of the Irish Society, of which the of the kind which is known to this kingdom ;" corporation of London is visitor ; id.} Skin- per Lord Camden, C, in Shipley's case; ners' Co. i. Irish Society, 12 C. a P. 425, vid.5 Lord Campbell's Lives of the Chan- Costs of visitation where a corporation is vi- cellors, c. 148, App. ; et wiT, Jones, 75; 1 fitor AtL-Gen. v. Skinners' Co., 2 Russ. Wils. '206 ; Stra. 798 ; Cas. Temp. Hardw. 418. 218,219; Burr. 200; Cowp. 322 ; 4 Inst. (d ) Gwynne v. Poole, 2 Lutw. 1566, per 340. The reason is, that in these societies, ell, J.; rid. 1 Ves. sen. 470, 21 Yin. error of judgment, the chance of partiality or Abr. 688, pi. ■> \ M irt< r, Btc, of St. John's injustice, is a less evil than the duration of Coll. Cambridge >• Toditlgton, 1 Burr. 199; contention; Master, &c , of St. John's Coll. I '. i'. Poster, 2 1'. W ma, 325. v. Todington, 1 Burr. 199. (e, Bp. ol II v v. Beodej.2 Pro. P. C. (t) Phillipa .. Bury. 2 T. R. 353; 8 220 • Matter, See , of St. John's Coll. Cam- As^is. pi. 29, 31 ; vid. Coveney's case, Dyer, bridge '. Todington, I Burr. 193, 199. The 209, A.; 2 Ayliffe, Hist. Orf. 84.86; 11 net moil probably be shown to bare been Rep. 99, B. ; AapU 8 Edw. 3, pi. 29. maliciously aid without probable cause; (k) Phillips v. Bury, 2 T. R. 353. Still rid. Gwynne p. Poole, 2 Lulw. 1566. a sentence of deprivation by a visitor may COLLEGES. 5,35 A visitor is not bound, in taking an inquiry, or conducting an in- vestigation, or adjudicating, to pursue any particular forms (Z) either of the common law or otherwise (Z). He may inquire, either per- sonally or (when the founder so appoints, as is usually the case,) by commission (m). Nor is he liable to prohibition from the superior courts at Westminster for irregularity in his proceedings, but only for proceeding without jurisdiction («) ; for where there is jurisdiction, the manner of exercising it affords no ground for prohibition (o) ; but where a visitor has passed a sentence in excess of his jurisdiction, the Court of Queen's Bench will prohibit the execution of the sentence, or (if, indeed, such sentence is not wholly void,) may, perhaps, enjoin the revocation of it (p). He may proceed to inquire and determine upon a grievance arising in the time of his predecessor (7), and in all cases he may proceed to examine upon oath, and also require the complaint and answer to be in writing, subject to the statutes (r). Whether on a general or ex officio visitation at one of the periods for visitation prescribed by the founder, or on hearing a particular appeal from some member of the college who conceives himself ag- grieved by a decision of the body from which he appeals, the visitor is to conduct the inquiry summarie, simjjliciter, et de piano, sine strepitu aut figura judicii, i. e. according to reason and justice (s), observing always, however, any forms prescribed by the statutes of the founda- tion. But if the visitor, having certain regular periods ascertained and prescribed in the statutes at which he is to make his ex officio visita- tions, pretends to visit (not being thereto requested by any party enti- tled to call upon him to interfere), at any other time or times, such visitations are wholly void, and anything done at them is of none effect, as being done coram nonjudice ; ex. gra., if the visitor, being required and empowered by the statutes to visit once in five years, makes his quinquennial visitation, and then, of his own mere motion, visits again indirectly be reviewed in the superior courts, (0) Bp. of Kildare v. Abp. of Dublin, 2 as was in effect done in that case in an eject- Bro. P. C. 179, explained In re The Dean of ment brought upon a lease granted by the de- York, 2 Q. B. 37, 38. prived person's successor; vid. 1 Wils. 209. ( p) 2 Q. B. 40. (O Bp. of Ely, v. Bentley, 2 Bro. P. C. (9) Com. Dig. Visitor, A. 15; 4 Inst. 220 ; per Buller, J. 2 T. R. 338 ; Case of 340. What does not amount to a visitation Queen's Coll. Cambridge. 1 Jac. 19. ei officio, 2 T. R. 348, 349. (m) In re The Dean of York, 2 Q. B. 1 ; (r) Com. Dig. Visitor, C. ; vid. tarn. R. (Phillips v. Bury, 2 T. R. 346). A rule for v. Gray's Inn, Doug. 342, semb. that a a prohibition ought to call upon the visitor as visitor cannot examiue upon oath. It was well as the commissary to show cause, &c. ; done in Phillips v. Bury, 1 Ld. Raym. 5. 2 Q.B. 1. As to the mode of framing a He may take viva voce evidence ; 2 Q. B. 15. commission to a commissary to visit, vid. ob- (s) 2 Ayl. Hist. Oxf. 95 ; 2 Q. B. 34 ; servations of the court, S. C. 42, note B. Com. Dig. Visitor, C. There need be no (n) Bp. of Ely v. Bentley, 2 Bro. P. C. information or complaint by a member to 220. So 1 Burr. 193, where there is a dis- enable the visitor to proceed on an ex officio pute who has the right to visit, and one of visitation ; he may proceed even to depriva- the two has long usage in favour of his right, tion wherever he sees cause, 2 T. 11. 358 ; or a prohibition to him to visit will be refused ; he may proceed upon complaint then made ; Martin v. Abp. of Canterbury, 1 Burn, 1 W. Bla. 85. Eccl. Law, tit. Colleges ; 4 T. R. 238. THE UNIVERSITIES. before the five years have elapsed, such second visitation is a mere nullity (t). A visitor having appointed to hold his visitation in the college hall or chapel, has a right of entry therein for such purpose; and the col- lege, by forcibly excluding or preventing him from entering, cannot render ineffectual the visitation (u) ; for to admit that, would be to allow them to profit by their own contumacy and breach of the sta- tutes, which they are sworn to observe according to the will and inten- tion of their founder ; for, in general, it is inseparably incident to their places that the members of the college should submit to visitation (x). The visitor, although not bound to any precise rules of procedure, ought nevertheless, unless expressly dispensed from so doing by the statutes, to proceed by process of some kind; probably by citation, and exhibiting articles, and hearing the party accused {y). As as been before observed, his jurisdiction does not extend to give him cognizance over disputes between the corporation and strangers, nor to disputes between any member or number of members and a stranger (z). The visitor, whether the great seal acting for the crown, or the person appointed by the founder to visit, appears to have the power of deciding the question of the costs of the petition or appeal (a) ; and where a visitor incurs expenses, it appears that he will be entitled to charge them on the college (b) ; and on one occasion of a case, where the sum allowed to the visitor by the foundation deed was so small as not to induce him to exercise the visitatorial power, Lord Hardwicke intimated that it might be augmented (c). Also in practice (it has been said) the power of a visitor is perfectly uncontrolled, of removal, new appointment, variation, and alteration (d). (0 Phillips p. Bury, 2 T. R. 348 ; et vid, sarv in pleading to aver matters by way of per Lee, C. J., 1 W. 151a. 56; 2 Gibs. Cod. explanation in what his power consists, for '>'-i. , 8 I. El. 109s 'i parte ((inning, 4 ('») Att.-Gen. v. Dean, Sec, of Christ's t . B. 612 ; 2 Vi rn. 396; 3 Moo. P. C. Cas. Church, Oxon, Jac. 487. :i7,u.; 15 East. 130. The court of a visitor (c) Att.-Gen. v. Price, 3 Atk. 108. has pow< i to suspend or adjourn the proa ('■>. But m v. Abp. of York, 2 liu". ,\ My, 468. Bo pleading an expulsion or deprivation by a per lloli, ( . J., 2 T. EL 349, 353; as to visitor, it is not necessary to state the afaiovi amotion, vid. 2 Q. B.36; per Lord Hard- rid, tup, p. 636. Nor is it neces- wicke, C.J. , Cas. T. Hardw. 219 ; ;;ecGould, COLLEGES. 537 However, a doubt had been previously intimated, whether in case of a freehold office a visitor has in general power to appoint (e). That he may remove, expel, or deprive a member of the corporation, is per- fectly settled (f). But though a power of amotion is incidental to the office of a general visitor, appointed by the founder without any restric- tions on his power, yet, on the other hand, a grant by a founder to a corporate body, that they should have power to amove the wardens, &c, of a hospital, does not constitute them founder's visitor (g). A power of suspension from office follows of course from a power of deprivation, because cui licet quod est majus, quod minus est magis licet, and because it is equally necessary to the execution of the office, by providing the visitor with a variable measure of punishment, which may easily be so adjusted as to meet every kind and species of delin- quency below such as require the extreme penalty of deprivation or amotion from office (h). The effect of suspension from a fellowship or other office in any of these bodies, is not to vacate the office, but only to prevent the individual from enjoying any benefit from the office; he may still discharge the office in any matters disconnected from the receipt of advantages from it ; so that a suspended fellow, as it seems, may still vote at an election, or on any other occasion, subject to the above limitation ; or if the suspended person be the head of the college, he may, during such suspension, put the college seal to a lease, or join with the rest of the corporation in maintaining an action, for the head- ship is not vacant so as to make it an answer to such action, that the corporation was in an imperfect state, in which it could do no other act than elect some one to the headship (£). The suspended person, on being declared innocent of a supposed offence, for which he was suspended, and the suspension being removed, is entitled to the intermediate profits of the office (k). It is to be observed, that in general, indeed always, in the absence of J., 1 Ld. Raym. 543; per Lord Mansfield, good cause of deprivation ; 2T. R. 357, 358 ; C. J., 1 Burr. 200; but Lord Mansfield 2Q.B. 36. The Court of Chancery disclaims strongly doubled whether visitor can repeal all power of interference in a case of depriva- or alter statutes, without an express power tion by a visitor, acting within the statutes of given by the founder, 1 Burr. 201; vid. 1 the foundation ; Att. -Gen. v. Master of Berk- W. Bla. 26; 2 Show. 170. Therefore in hampstead Grammar School, 2 V. & Bea. 134. pleading any of these acts, the cause need f-g) Case of Kirkby Ravensworth School, not be stated, for it is not traversable ; Kenn's 8 East, 221 ; R. v. Bp. of Worcester, 4 M. case, 7 Rep. 42 ; Rast. Entr. 1 ; Phillips v. & Selw. 420. In pleading the amotion of Bury, 2 T. R. 354. So on return to a man- the head, it is not necessary for the college to damns ; 2 T. R. 356 ; Yearb. 9 Edw. 4, fol. state how he was amoved ; Yearb. 5 Edw. 4, 24, pi. 31 ; Appleford's case, 1 Mod. 82. fol. 70, B. (e) Per Lord Eldon, C, Alt.-Gen. v. (h) Com. Dig. Visitor, C. ; 4 Mod. 110; Black, 11 Ves. 193. It is no objection to a Show. Pari. Cas. 43 ; vid. instance of sus- deprivation that the visitor has by the statutes pension, and subsequent deprivation, of a head, the power of appointment on a vacancy ; R. Skin. 645. v. Bp. of Chester, 1 Wils. 206 ; Lib. Ass. 8 ; ( i) Vid. 2 T. R. 351. Ass. 29, 31 ; vid. 2 Ves. 327 ; 3 Atk. 164. (k) Johnstone v. Sutton, 1 T. R. 525, 526. (/) Lib. Assis. 8 Assis. pi. 29, 31; The profits of a fellowship may be assiened in Phillips v. Bury, 2 T. R. 346, 349; 2 Q. B. equity; Feistellti. King's College, Cambridge, 36; Att.-Gen. v. Earl of Clarendon, 17 Yes. 10 Beav. 491. Whether he may let his 491; Case of President of Magdalen College, rooms in college, is a question for the visitor; Oxford, cited 13 Rep. 70. Contumacy when Att.-Gen. v. Stephens, 1 Atk. 360. 538 THE UNIVERSITIES. special provisions in the statutes, and except where estates have been accepted by the college appropriated and belonging to particular offices, neither the head nor the fellows, nor any other member of a college, has :mv title to the revenues of the college, or any part of them, in his own right ; hi> right to any specific share of the revenues does not arise until the amount of such share is ascertained upon the division of the revenues, which is m;ule at stated periods by the college, so that the head or fellow of a college has not a sole seisin in his office, and there- fore could not have maintained an assize for it(/). And so in trading and all other corporations, the law is that no corporator has any seisin in the real estate of the corporation, or any right in respect of it ; the entire fee is in the body politic (m). The effect of expulsion by the college of one of its members is, that the sentence is conclusive as long as it is not appealed from, and may be given in evidence to justify the corporation in removing the expelled person from the precincts of the college (n). From what has been stated to this effect, it appears that the visitor is to determine finally all questions of elections, all disputes respecting the internal management and discipline of the collegiate body; it follows that the Court of Queen's Bench in general cannot interfere to reinstate a person who has been removed from a college office, or from membership of the corporation. Therefore, in general, a mandamus cannot be had to restore a fellow to his fellowship (o) ; though in the vacancy of the visitor's office, it is said that the court has granted a mandamus (p) ; and there appears to be a very old instance of a mandamus having issued to restore to a fellowship (7). But it has been repeatedly de- cided that the visitor is the proper tribunal to appeal to in all cases, whether of amotion from, or refusal to admit to, offices, fellowships, &c, (/) Phillips v. Bury, 2 T. R. 355; Young (o) Com. Dig. Yi-itor, A. 15 ; Parkinson's v. Lynch, Sayer, 84 ; per Littledale, J., 7 li. case, Carth. 92; Proliurst's case, Carth. & C. 166. In pleading seisin in the master, 168 ; Walker's case, Cas. T. Hanlw. 218 ; fellows, &c, (the corporate name), it need It. v. All Souls' College, Oxon, T.Jones, 175 ; not be said they were seised jure collegii, for Broadnox's case, 1 Wils. 209; R. v. New ili.it -.hall be intended ; Fulmerston d. Stuard, College, 2 Lev. 14 ; int. 2 Keb. 861, 102. l)\er, 103, A ; Com. Dig. Pleader, E. 22. So where a college, as visitor, had removed (m) Ea parte Lancaster Canal Company, from a mastership in a school, mandamus to Bloat, & Bli. 94; S. C. 1 Deac & Ch. 41 1 ; restore was refused; Protector v. Craford, t«/. ace. per Maule. J., 7 M. & Gra. 210. Styl. 457 ; i id. Winston v. Dean and Ch.tp- («) R.u.Grundoii,Cowp.315, 316. There- ter of Rochester, 18 Law J. (N.S.)Chanc. fore an indictment or action for the expulsion 478, that a bill in Chancery will also be dis- in such case cannot be maintained ; S. C In missed in a like case, et Did. Stamp's case, pleading expulsion or deprivation by a visitor, 1 Sid. 40. it is not necessary to state a cilai ion, or hearing ( /> ) Heme's case, cited T. Raym. 112; the party ; Rast. Entr. 1 ; Trern. P. C. 479, \M. tarn. S. C. 1 Keb. 234; 4 f. It. 235. 484; 2T.It.322; 8 Assis.pl. 31. Expulsion is It seems that when a rule for a mandamus has generally in practice a question for the college been granted, the court will not supersede the to determine, subject lo the interposition of writ on affidavit that there is a visitor, but will the visitor ; on the other hand they have un- put the college to make leturn, on the ground limited power over admission to the college, that the complainant had no opportunity lo for there is no general right of admission to a right himself by action; It. v. Whaley, Stra. college in either university ; Wooller'i CAM, 1139; S. C. Serjeant Hill's MS. 2 Selw. per Littledale and llolroyd, JJ., 4 B. & C. N. P. 1016, 4th edit. ; rid. 1 Yes. sen. 470. 850. (q) Temp. Edw. 2, 1 Levinz, 23. COLLEGES. 539 in a college in the Universities (r), or of an irregular and void election to a fellowship, ex. gra., a stranger, where one of founder's kin was eligible (s) ; and where the proper candidate for a close fellowship has been improperly rejected by the corporation, the visitor may send him back to be examined before them again ; or if, from a misapprehension, the candidate did not present himself for examination at the proper time, still they may be called upon to examine him (t). Accordingly, an information in the nature of a quo warranto, was refused to try the right to a fellowship in a college ; although the college was apparently without a visitor, as the founder's heir (the proper visitor) could not be found (u). It has already been noticed, that in such a case the Court of Chancery will direct an inquiry before the Master to discover the heir (x), and if he cannot be found, the visitorship results to the crown, to be exercised by the great seal. Nor could an ejectment be brought to try the right to the mastership of a college, because there would be nobody to make the demise to John Doe. Where, however, a college refuses a copy of their statutes to a claimant to be admitted a fellow, a bill of discovery will be held to lie to compel them (y). To an infor- mation in equity for relief against an undue election to a fellowship, it is a sufficient plea that there is a visitor who has the sole determination of such matters (z). On the other hand, if an act of parliament makes it imperative on all fellows of colleges, &c, to take certain oaths, &c, and a fellow refuses to do so, then (the statute stating that any one so refusing shall be disqualified to retain his fellowship, or to become a fellow,) a mandamus will issue commanding the society to amove him (a) ; and the reason is, that this is a matter of public policy, depend- ing on the construction of acts of parliament and the general law of the realm, and therefore beyond the competence of a visitor to adjudi- cate. The courts will incline to construe liberally acts of parliament made in favour of colleges (b). The Act of Uniformity makes it incumbent on every head of a college (r) Com. Dig. Visitor, A. 15 ; R. v. War- R. v. Master, &c, of Catherine Hall, Cam- den of All Souls', Oxon, T. Jones, 175; bridge, 4 T. R. 244; Marriott v. Gregory, S. C. 2 Show. 170; Waddington's case, T. Lofft, 21. Raym. 31 ; vid. Burn, Eccles. L. tit. Col- (j) Sup. p. 531, note (a). leges. So mandamus refused to declare a (y) R. v. Abp. of Canterbury, Ridgw. fellowship vacant, and proceed to a new elec- Cas. T. Hardw. ; S. C. 2 Barnard. Chanc. tion ; R. v. Master, &c, of Catherine Hall, 437 : vid. sup. p. 293, n. (ft) ; sup. p. 527. Cambridge, 4 T. R. 233. (2) Att.-Gen. v. Talbot, 3 Atk. 662 ; 1 (s) Spencer v. Warden of All Souls', Ves. 78. Oxon; Wilm. Notes, 163, where " foun- (a) R. v. Master, &c, of Trinity College, der's kin" used absolutely, and without qua- Cambridge, cited Andr. 183; vid- 12 A. & E. lification in the statutes, was determined to 712. But the recusant must be made a party mean all his blood ad infinitum. " Shall and before a peremptory mandamus w\\l go ; R. may" means "must," in college statutes, 3 v. St. John's College, Skin. 546,549 ; 4Mod. Atk. 164. See further as to construction of 233; et vid. stat. 1 Geo. 1, c. 13, s. 13; et college statutes, 17 Law J. (N. S.) Chanc. vid. 5 & 6 Will. 4, c 62, s 8, giving the uni- 298; S. C. 2 Phill. 521. versities and all other bodies politic, legally (0 Ex parte Inge, 2 Russ. & M. 590. entitled to impose oaths at the passing of the As to interpretation of college statutes on a act, power to make bye-laws, Sir., for substi- question of a close fellowship, In re Univer- tutiug declarations in lieu of those oaths, sity College, Oxford, 2 Phill. 521. (b) Pits v. James, Hob. 122, 123. (u) R. v. Gregory, 4 T. R. 241 ; and vid. 640 TUT l Nl\ I KATIES. to subscribe the declaration mentioned therein at /us admission ; that means, as soon as is in his power after his admission; and the effect of the elected person neglecting to do so, is to make the office void with- out any declaration or judicial sentence, and therefore the corporation ought immediately to proceed to a new election (c). Where a writ of mandamus was directed to the master, fellows, and scholars of college, naming the Master John Goaz, it was held that the return need not be under the college seal, but was sufficient after bring filed, if indorsed Jicsponsio Jo/iannis Goaz, Sec. ; for after filing, the college are estopped to say it is not their return (d). Where the crown visits as founder, or as founder's heir, (whether directly or as ultimits hares,) it is through the great seal, and the mode of proceeding on the part of any one who is desirous to obtain the inter- position of the visitor, is by petition to the great seal, and not by bill or information in equity (e). So it is where a private person endows a royal foundation, but omits to appoint a special visitor, the king is visitor, and exercises the visitatorial functions by the same medium (f). A singular case of visitation is presented in the institution called St. Katherine's Hospital, Regent's Park, London, where the visitatorial power is ambulatory, being vested primarily in the Queens of England ; but the right remains in a queen dowager, and when there is no queen consort or queen dowager, reverts to the crown (g). Wc shall now proceed to state some points more particularly charac- teristic of this class of corporate bodies. With respect to the name of a college, minute accuracy will no longer be required to make good a grant or demise, or presentation to a church made by a college; and though some of the words in the name or appellation by which it was founded be omitted in the instrument, or equivalent words substituted, or additions given to the real name, none of these circumstances, nor all happening together, will invalidate it, provided that the essentials of the name are preserved, so that there can be no real doubt what is the college intended; for the established maxim in cases of corporations is nihil, facit error nominis dum de corpore constat (h). Thus where a demise and presentation had been by the name of " The Provost of Queen's College, in the University of Oxford, and of the Fellows and Scholars of the same College," the (c) Case of Queen's College, Cambridge, 498 ; et vid. 12 Cla. & F. 537 ; Co. Liu. Jac. 46 ; vid. 1 I'-urn, Kccles. L. 490, 491. 96 a ; lit/ N. 15. 42. (d) K.i'. St John's College, Cambridge, Or the crown may appoint special commis- Skinn. 368, 369. sioners to visit pro hdc vice; Com. Dig. Vi- (e) ll. i. St. Catherine's Hall, Cambridge, ritor, A. 3: tup. 529, note(s). I l EL 233; >»i. 1 Jac. 35; Lord Mans- >,; ) Eden v. Foster, 2 P. Wms.326. field's dictum in II. r. Gregory. 4 I. K. 241, (g) Alt. -Gen. v. Boiler, Skin. 644 ; l.md to the effect that a college is not a IJrounker t'. Montague, Skin. 14; S. ( . I. charity, but a corporation, and therefore thai Jones, 169, the power ol visitation h^ in the kind's < h ) Avrav's case, 11 Rep. 18 b; vid, I each, i-* fully overruled; 4 T. K. 214 ; mi. Cro. Jac. 248; per Coke, C. J., Ayray v. Et parte Wrangham, 2 Ves. jun. 60!), 617; I.ovelas, 1 Bulst 91 ; Croydon Hospital «;. Att.-den. r. Karl of Clarendon, 17 \ < -. 491 , Farley, 5 Taunt. 467. COLLEGES. 541 true name of foundation being " The Provost and Scholars of Queen's Hall, of Oxford," it was held that these differences were immaterial (h). The deed of foundation, the founder's statutes, royal confirmations of the charter of incorporation, the practice of the college itself, andusace may be looked to for the determination of the true name(i). A college (the site of which is not extraparochial) being seised in fee of lands to their own private use, are within the stat. 43 Eliz. c. 2, and rateable to the poor in their corporate capacity (/t); for they are con- sidered as inhabitants or occupiers (k) ; and an agreement by the parishioners that they should be exempt from the poor rate, though acted on for a century and a quarter, is no reason for not assessing them to the relief of the poor (I). A college, like other corporations, does all important acts — and all acts that vest or divest an interest in or out of the body — by its common seal (m) ; and where the master refuses to affix the seal to an act of the majority, though the act was resolved upon contrary to the vote of the master, (his concurrence not being necessary to the validity of the act,) a mandamus will go to compel him (n). But if it were shown in any case that to affix the college seal was clearly a matter within his dis- cretion, the writ would not issue (o). It has before been mentioned that the power of admission to a college depends absolutely upon the will of the collegiate body, the public not possessing any right of entering themselves on the books of a college; but this must not be understood to mean that each of these bodies may at pleasure add to the permanent body of its members. A college, which by its constitution is composed of a certain limited number of members, cannot, any more than any other corporation in such circum- stances, make a permanent, or even a temporary addition to the specified number of its members ; thus if by the constitution or statutes of the founder, the college is to consist of a certain body, as a master, so many fellows, and so many scholars, the college in general cannot add to such number in any of the branches; nor, strictly, can they diminish from the number, though the practice undoubtedly is not very rigid as to keeping each branch of the corporation always full of its proper number ; and in fact one or more fellowships, or one or more scholar- ships, are very frequently allowed to remain vacant for considerable periods of time. In general, however, when the college consists of a (h) See preceding note, (m) A verdict finding a lease from a col- (i) Vid. 11 Rep. 18 b, 20. lege, and entry by bailiff for condition broken, (/«) R. v. Gardner, Cowp. 79. As to the but does not find authority by deed to enter, manner in which colleges are rateable to the is bad, Com. Dig. Pleader, s. 20 ; though it poor, vid. Master, &c, of Downing College, need not be pleaded that he had it, Com. Dig. Cambridge v. Purchas, 3 B. & Ad. 162. As Pleader, 2 13. 2. to rateability of colleges to the land tax, 3 (n) R. v. Windham, Cowp. 377; vid. 3 Bos. & P. 635. As to property tax, 5 & 6 T. R. 594. Vict. c. 35, ss. 40, 54, 60, 61, No. VI.; and (o) Vid. Ex parte Garrett, 3 B. & Ad. 8 & 9 Vict. c. 4. 252 ; el vid. 3 A. fie E. 429, 432 ; 4 A. & E. (/) R. v. Ellis, 2 Dowl. N. S. 631. 297. 54/St THE UNIVERSITIES. number of members defined and specified by the founder, no addition can be made to that number, so as to put the new members exactly on the same footing with the old ones, except by a new charter, and a fresh incorporation, (which is the general rule applicable to all corporations alike); but where the corporate number is indefinite, any corporation, and colleges among the rest, may accept any addition to their members that they think proper (;;). The question then arises how, and with what limitations, can this be done? Now a college is not bound to accept an increase to its foundation ty), nor is it bound to accept any other trust; but if it does accept such increase, it will be compelled in equity to adhere strictly to the terms of the trust; for it is a general rule that a college, or other corporation, will be compelled to perform a trust as a private person (r) ; and where a college has accepted funds for the creation of new fellowships, or other additions to the original foundation, the visitatorial power over the new part of the foundation is co-extensive with that over the original foundation, except where the indenture of annexation, by which the college took the additional foundation, has expressly created a difference in respect of the visitation between the two foundations (s) ; for the founder of the new fellowships might, if he had chosen, and the college had agreed to accept the gift on those terms, have granted fresh and peculiar statutes to the new foundation, which might be at variance with those of the old foundation ; but of this there are said to be no instances known (t). If such statutes, or any statutes of any other kind, were given by the new founder, and the college accepted the donation, they will be bound by the statutes in all respects, for they take the benefit cum onere(u). Where no particular (p) Att.-Gen. v. Talbot, 3 Atk. 675; Gen. v. Talbot, cited 1 Burr. 191 ; case of Anon., 12 Mod. 232. Definition and origin University College, Oxford, cited 1 Burr. of colleges, Jenk. Cent, 229, pi. 77. 203. Where additional property is given to, (q) R. v. Master, «.\c, of St. Catherine's and accepted by, a college, with regulations Hall, 1 .Tac 11.381. A legacy " to educate inconsistent with those by which the rest of servitors," refused by Trinity College, Cam- the property of the college is governed, but bridge ; 5 Ves. 302. Nor has equity any no special visitor is appointed, the Court of power to force them to accept ; Att.-Gen. v. Chancery will interfere to compel the execu- Andrew, 3 Ves. jun. 633,640. They may tion of the trusts; Green v. Rutherford, 1 either accept or refuse, or suspend their deter- Ves. sen. 461, 467, 472. As to the mode of mination, S. C. ; but it may be a question enforcing as against the college the cove- whether, where the crown is visitor, they can nants in a deed of annexation, vid. 1 Burr, accept without the consent of thecrown ; Jac. 158, 192,202; 1 Ves. sen. 461. l'robably R.400. Whatnot an acceptance; Att.-Gen. an action on the case might be maintained v. Andrew, 3 Ves. 640, 646. Though a cor- by anyone not a member, who was injured by poration is not bound to accept an accession the nonperformance by the college of condi- lo its endowments, it may accept it as a trust tions on which they accepted the increase to with qualifications; Att.-Gen. v. Drapers' the foundation; Mayor, flee, of Lyme p. Company, 6 Beav. 382. Where an arrange- Henley, 1 Scott, 29 ; Brett v. Camberland, ment has been made at the time of the accept- Cro. Jac. 399, 621. ance, of which there is satisfactory evidence (t) 1 W. Bla. 77 ; viil. St. John's College, either from contemporaneous documents, or Cambridge v. Piatt, Finch, R. 222. The constant subsequent usage, the arrangement, Michel's Fellows, annexed to Queen's Col- even though not expedient, will not be dis- lege, Oxford, have a different visitor from the tnrbed ; 2 Keen. 160. old foundation; vid. Pref. to W. Bla. Rep. (') Att (Jen.y.Caius College, Cambridge, pp. xi. xii.; 1 W. Bla. 88. 2 Keen. 10. („) 1 Hurr. 197 ; 1 W. Bla. 89; Jac. R. (*) Master, &c, of St. John's College, 392; Att.-Gen. v. Andrew, 3 Ves. 633; Cambridge t. Todington, 1 Burr. 196 ; Ait.- Mayor, &.c, of Lyme v. Henley, 2 Cla. & F. COLLEGES. 543 statutes are given and accepted, making an alteration, the engrafted part always follows the original foundation, and is subject to the same discipline and judicature ; and the founder of the additional fellowships, &c, will be presumed, in such case, to have been acquainted with the statutes of the college, and to have meant that his* fellowships should be subject to the same statutes (x). Not only is a college, appointed by the charter to consist of a speci- fied number, unable to add to its numbers, but even a founder cannot make an addition to his own foundation without a fresh grant from the crown. Thus where A., being empowered by the crown, founds and endows, and obtains letters-patent incorporating a certain number, and conveys the lands to them, but afterwards made statutes, by which, among other things, he added to the number of members, and appro- priated to the new ones a portion of the revenues, it was held that A. had no power of creating additional members, or of declaring any trust of the property in their favour (y). Where the possession of an income of so much a year of private property is laid down in the college statutes as a qualification for an office in the college, it is not necessary that a candidate should produce his qualification at the election (2); but in such case, unless the con- trary appear from the statutes, real estate alone will satisfy the require- ment, and the modern notions of equity will not be applied strictly in deciding what is such real estate (a). Where a grant by the crown of an advowson or land is made to a particular functionary or officer of a college, ex. gra. the president or senior fellow, it seems such grant would operate to make him a corpo- ration sole (b) ; and devise of an advowson might be to the college in trust to present the senior divine, then being a fellow of the college, and it would be good, and the Court of Chancery would interfere to carry it into effect (c). Where there are cross presentations or nominations to a close fellow- ship of a college (that is, a fellowship which is held by the college on the terms that it is to be appointed to by the heir of the founder), and rules for writs of mandamus to admit have been severally obtained by the alleged patrons, the Court of Queen's Bench will direct an issue to 331 ; Priestley v. Foulds, 2 Scott, N. R. 205, denture of annexation, it was held that the 225. So where a founder instituted, and the fellows under it were entitled to the same University of Cambridge accepted, a lecture- benefits as the other fellows; Alt. -Gen. v. ship, &c, on the terms that the person Pembroke Hall, Cambridge, 2 Sim. & Stu. appointed lecturer should always be of a 44 I . certain age, and this and other restrictions (y) Att. -Gen. v. Dulwich College, 4 Beav. being found inconvenient, the University ap- 255; vid. Skin. 513 ; Andr. 182. plied to have the regulations altered in equity, (z) Case of Queen's College, Jac. R. 36. the Chancellor refused, though the founder's (a) Ibid. 37. heir consented, and no one opposed the appli- (ft) Dean, &c, of Christ Church case, 4 cation; Att.-Gen. v. Lady Margaret's and Leon. 190; vid. Green v. Rutherford, 1 Ves. Regius Professors of Divinity, Cambridge, 1 sen. 473, and University of Cambridge v. Vern. 55. Crofts, there cited. (x) Ex parte Inge, 2 Russ. & M. 590. (c) Green v. Rutherford, ljl 7 es. sen. 462. Vid. a case where on construction of the in- 544 THE UNIVERSITIES. try the right of nomination (d) ; and in such case, when the right of nomination is ascertained by the trial and verdict, the rule will be made absolute for a mandamus to the college to admit the nominee of the successful party (c), and the other party must pay him his costs of the application, of the trial, and of issuing the mandamus (f). This case, it will be observed, does not conlliet with the general principle that a mandamus to admit to a fellowship will not go, the matter being of visitatorial cognizance and within the competence of the visitor to de- cide; for here the question is not on the merits of an election under the college statutes, but as to the right to a freehold depending upon questions of common law, which, as before observed, a visitor cannot in general entertain, and upon questions of fact extrinsic to the affairs of the college, which he cannot try, as he Jias no power to summon a jury. Where a bond is given to Dr. C. (the master), fellows, and scholars, See, solvendum, to the master, fellows and, scholars, &c. (the corporate name), in debt upon it, a plea that Dr. C. is dead, is no plea, because it appears by the record that the bond was given to the corpo- ration (g). The master of a college giving an acquittance (without the college seal) for rent due to the college, does not bind the corporation ; for alone he cannot divest any right or interest which resides in the whole body in their corporate capacity (h). By 18 Eliz. c. G, upon leases made by colleges, a third part of the rent is to be reserved in corn (i). Where a bailiff of a college made conuzance for rent granted unto them in fee by indenture, and on nou concessit the jury found that the grantor granted the rent to them by deed, and delivered that deed to a stranger to their use, and they sealed the counter-part of the indenture, and the question was, whether a stranger, without letter of attorney from them to receive it, might receive the deed to their use, it was held by the court unanimously, that the sealing of the counterpart was suf- ficient to show that they accepted the grant, and that a power of attor- ney was not therefore necessary ; and further, that if they had not sealed the counterpart, but had brought an action upon the indenture, that would have been a sufficient recognition of the grant, and would have made it perfect (k). (d) Reg. r. Master, &c, of I'eterhouse, (/) 1 Q. 15.315. Cambridge, 1 Q. B.315. I orm of i^sue, id. (g) Master, &c, of Sidney Colleger. Da- 316. note. A- to evidence, id. 317, note. venport, 1 Wils. 184. MKitlier case of election to a fellowship (h) Magdalen College case, 11 Rep. 78. tor oatives ol a certain town, / n re St. John a (t) 'J Bla. Com. 322 : 6T. It. 388 ; Burn's College, Cambridge, 2 Eton, & M. 603; ei IVcles. I. aw, tit. Leases. This is a private act, vid. Exj tli e, id. 590. and must be pleaded; 4 Hep. 76; 19 \ in. («■) 1 (,». B.316. Semb. a return to such Abr. 499; 1 Leon. 306; Savil, 309. a mandamus, stating particular facta, shov. (A.-) Cooper t>. Goodrich, Cro. Kliz. 862. that the nomini e was unfit, <>ii the score ol Qu, tarn., as the taking the rent vested an in- roorals or discipline, t" be a member, would tercet in the corporation, whether it ought be good; I!, v. St. John's College, Oxford, not to have been authorized by their seal; 4 .Med. 308; lloli, R. 437. . Lyn .. \\ vim, O. Bridgm. 150. COLLEGES. 545 With respect to devises of property to colleges in the universities, it has, as it seems, been settled, that such devises are good, and will con- vey a legal and not merely an equitable title (7) ; and a devise to a college of a remainder is also good(w). The devise must, however, in all cases be for the benefit of the college, and not pass only a legal interest to the college, in trust for other charitable uses, or it will not be valid within stat. 9 Geo. 2, c 36 (n) ; and though it has been said that this principle relates only to such colleges as were in existence in the Universities at the time of the passing of that statute, i. e. a. d. 1736 (n), yet subsequently the courts have held that both the old col- leges and such as may have been established since the statute, are within it (o) ; also the principle applies to devises to either of the cor- porate bodies of the two universities, as well as to devises to colleges within them (p). We have before shown, that devises to colleges must be for purposes consonant with the objects of the college, and not for ostentation or to serve the devisor's vanity (. Sibthorp, 2 Russ. &: M. and eight senior fellows of Trinity College, 107. N N 516 THE I N IN BRSITIES. the annuity, and a bill may be brought in chancery by a student to whom the annuity is due by the will, to recover it (z). By the stat. 9 Geo. 2, c. 36, intituled " An Act to restrain the Dis- position of Lands whereby the same become unalienable," all colleges in the Universities were restrained from purchasing, acquiring, receiv- ing, taking, holding, or enjoying any advowsons of ecclesiastical bene- fices, above the number equalling one moiety of the fellows under the then constitution of the college, but this is now repealed by stat. 45 Geo. 3, c 101, so that the colleges are now subject to no restriction or limitation in this respect. It had been decided before the repealing statute, that a devise to a college to buy advowsons was good, although they had already the limited number of advowsons; for the devise, it was held, might be performed by means of exchanging advowsons (?/). Some points respecting college leases have been decided, which it falls within the scope of this treatise to state. A testator devises two college leases by a will, after the making of which he renews his leases, paying a large fine, but dies before the college seal is set to one of the two new leases : held, that as to the lease actually renewed there was a revocation of the devise ; as to that which the testator had attempted only to renew, there was not(:). The same principle we have already observed to operate with respect to the character of contracts, which have not been duly perfected by the affixing of the common seal, in cases of municipal, railway, trading and other corporations. A lease of a somewhat similar character may here be noticed, as illustrative of the same doctrine. A college seised in fee was restrained by its constitution from leasing otherwise than for twenty-one years, and at a rack rent. They made a lease accordingly to J. S., who entered, and during the term greatly improved the pre- mises by building. Of this circumstance an entry was made in the College Audit Book, together with a recommendation, signed by the head and majority of the body, to grant him a new lease at the end of the term at the same rent, and shortly before the end of the term an order was made by the college for such new lease. But Lord Parker, C, held, that the recommendation and order not being under the col- lege seal, was not binding upon the college, although it was signed by the majority of the members ; and that although if the tenant subse- quently to the date of the order had invested capital on the premises, in confidence and reliance upon the order, he would have been entitled in equity to compensation for the improvements, such compensation must have been made by the persons in their private capacity who (i) Coleman v. Coleman and Bennett Col- authorized to make leases for them, but sealed lege, Cambridge, Finch, It. 30. with his own seal and not the common sea), .\i:.-(mii. p. Green, 2 Bro, Cb. ('as. i-, it Beems, void; Anon., Moor. 70, Com. 492. Ui;i. Attorney, C. 14; vid, tarn. sup. p. 147 Ibnej v. Miller, 2 Atk. 597. A lease note (A;. made by a corporation to J. S. by their a-tnt, COLLEGES. 547 signed the entry, and not by the college, inasmuch as the intent of the proceeding was to wrong the college, and violate the statutes, and ac- cordingly the tenant's bill to compel the college to grant a new lease on the above terms was dismissed with costs (a) ; thus adhering to a principle of corporation law which has been frequently insisted on in this treatise, that where a majority takes upon it to do acts which it is beyond the competence of the corporation consistently with its consti- tution to adopt, the persons forming such majority are individually and in their private characters responsible for such acts, and cannot shield themselves behind the corporate powers and corporate responsibility which they have exceeded and violated (b). Colleges, it is said, are not obliged in equity to account so strictly or so far back as natural persons with respect to trust funds placed in their hands for administration. The principal ground for this doctrine is stated to be, that "colleges are a various fluctuating body," and " that the money is used and the persons who so applied it are perhaps dead" (c). Thus, where a college had let lands under a very long lease, and reserved rent, the college to pay the taxes, and it appeared that the tenant had paid the taxes by mistake for a great number of years, without deducting them from the rent, Lord Macclesfield, C, de- creed that the taxes were to be deducted from the rent in future, but refused to make an allowance backward, and refused to direct an ac- count, because the college had lived upon their whole income, and the sums were spent upon the repairs and other necessary demands of the college (d). Again, although where a college has by charter particular powers over a school, as of removing a master for misbehaviour, &c, though they were not appointed general visitors, equity would not inter- fere with their acts as regards such powers ; yet in respect to the reve- nues equity always interfered ; and the college having appointed one of their fellows master, and another usher, the latter of whom never resided, and the former took both his own and the usher's salary, Lord Hardwicke, C, decreed the master to account for fifteen years back for the benefit of the charity, not of the usher (e). But before equity (a) Taylor v.Dulwich Hospital, 1 P.Wms. My. & C. 484. Each is liable for all the 655; S. (J. 4 Yin. Abr. 495, 496; vid. Ed- consequences; Att.-Gen. v. Wilson, 1 Cra. wards v. Grand Junction Railway Company, & P. 1. 1 M. & Craig, 650; Dance v. Girdler, 1 N. (c) Atl.-Gen. v. Baliol College, Oxford, Rep. 34. Where a lease was in existence, 9 Mod. 407. It has also been alleged to rest but was void in law, as not being under the on the consideration, that to make them ac- common seal, and the tenant had paid rent to count would open the door to vexation, A 1 1 . - the head, it was held he might be considered Gen. v. Talbot, 1 Ves. sen. 78 ; still where as tenant from year to year to the corporation, there is no doubt of the misfeasance, misdeeds and that the servant of the corporation might committed long ago may be visited on the pre- make cognizance for taking a distress under a sent generation of corporators, Att. Gen. v. demise from them ; Wood v. Tate, 2 N. R. Caius College, 2 Keen. 150 ; Att.-Gen. v. 247. If defendant in trespass pleads a lease Mayor, &C, of Norwich, 3 M. & K. 651. granted by master and fellows of a college, (d) Anon. ci:ed 9 Mod. 410. replication that at the time of the demise (e) Att. Gen. v. Mayor, &a, of Bedforl, alleged there were no fellows, must go on and 2 Ves. sen. 505. As to removing master of traverse, absque hoc that the master and fel- a free school attached to a cathedral, &c lows demised ; Com. Dig. Pleader, G. 2. Whiston v. Dean and Chapter of Rochester, (6) Att. ■ Gen. v. Mayor, &c, of Liverpool, - 18 L. J. (X. S.) Chanc. 473. 1 My. & C. 171 ; Att.-Gen. v. Retford, 3 N N 2 548 Till" i DIVERSITIES. will give relief from abuses of management, it must be satisfied that there is a trust in the college in the sense that the words are under- stood in equity, otherwise the remedy is through the visitor (/). How- ever, a doctrine somewhat less lenient towards these bodies has been elsewhere laid down ; perhaps, it may be added, a doctrine more con- sistent with thr general principles of corporation law. Lord Brougham, C, held it to be " of no consequence, in cases of misappropriation of funds, that the individuals now sustaining the corporate character, enjoying the immunities, and exercising the franchises of the corpora- tion, are wholly different from those who did the wrong or who per- mitted the neglect, and are only connected with them through the medium of a common municipal character ; this is the condition insepa- rably annexed to their corporate character, and the individuality of the body politic, with all its incidents, is thus maintained as perfectly in the Bystem of jurisprudence, as the identity of the natural body is preserved entire in the system of the world" (g). The Court of Chancery cannot interfere with a trust which a testator has appointed to be in a college, upon any notion that there is more personal responsibility in indi- viduals (/*); and it will not appoint new trustees, although there have been great errors and misapplications of the charitable funds committed by the college for two centuries, no corrupt or improper motives having been imputed to them (h). But if there is no doubt that there has been a misfeasance, the misdeeds of the college committed long ago may be visited on the present generation of corporators (i); and it is a misfeas- ance, and a serious one, for any trustees, whether corporation aggregate or sole, or individuals, who are intrusted with different funds, to mix them together and so divert into one channel the bounty which was intended to flow in another (k). Various acts of parliament have been passed of late years materially affecting the powers of colleges over the enjoyment and disposition of the lands they hold jure collegii. Of these it is desirable to mention the principal, with some notice of their objects and purpose. By an act (1 & 2 Will. 4, c 15) to extend the provisions of the " Act for confirming and perpetuating Augmentations made by Ecclesiastical Persons to small Vicarages and Curacies" (29 Car. 2, c. 8), and for other purposes, the last-mentioned act is extended (I) to the case of augmentations made by colleges by grant or reservation out of any rectory impropriate, or tithes, or portion of tithes, belonging to such (/) Att. -Gen. v. Magdalen College, Ox- (k) Att.-Gen. v. Mayor, &c, of Norwich, ford, 10 Beav. 402. 3 M.& K. 651. Vid. as lo costs of recover- (g) \ii..i,in. v. Mayor, &C, of Norwich, ing against a corporation in such case, there :; it. & K.65I ; et rid. An. -(..... p. Mayor, being no fraud imputed to the existing mem- &c, of Leicester, ( J H<;.v. 546, wh< re Lord l><--r* of the corporation, Sol.-Gen. v. Mayor, Langdale, M. R., decreed, the corporation See, of Bath, 18 L. J. (N. S.) Chano. 275; who bad abused itttrusl in former dines, and but there the mode in which the corporation was now found indebted to the chanty 5365/., had dealt with the school property was at- to pay costs and inten tended with great pecuniary advantage to the (/i) Att.-d.-n. ..Cuius Coll., 2 Keen. 150. •chool.S.C.i rid. 1 Vern.44, n.(2). (0 2 Keen. 150. CO X * 8 Wl11 - 4 ' c - 45 ' s " 3 > et M ' S " 29, COLLEGES. 549 college, provided that every such augmentation shall be made to the incumbent of some church or chapel within the parish or place in which the rectory impropriate shall lie, or in which the tithes or portion of tithes shall arise, as the case may be ; and further (m), to the case of augmentations made by colleges by grant or reservation out of any lands, tenements, or other hereditaments belonging to such college. But all such augmentations whatever shall be (n) in the form of an annual rent. Also, colleges being owners in their corporate capacity of any rectory impropriate, or of any tithes or portion of tithes arising in any particular parish or place, are empowered (o), by a deed duly exe- cuted, to annex such rectory impropriate, or tithes or portion of tithes as aforesaid, or any lands or tithes being part or parcel thereof, with their appurtenances, unto any church or chapel within the parish or place in which the rectory impropriate shall lie, or in which the tithes or portion of tithes shall arise, to the intent and in order that the same may be held and enjoyed by the incumbent for the time being of such church or chapel ; and by the same means a college, being owners of any lands, tenements, or other hereditaments whatsoever, and also patrons of any church or chapel, may (p) annex such lands, &c, with the appurtenances, to such church or chapel, to the intent and in order that the same premises may be held and enjoyed by the incumbent for the time being thereof. And the provisions of stat. 39 & 40 Geo. 3, c. 41, respecting college leases, are extended (q) to such augmentations in certain cases, for which the statutes themselves must be consulted (r). By stat. 2 & 3 Will. 4, c. 80, reciting, among other things, that the masters, or other heads, and fellows and scholars, or other societies of the several colleges and halls in the two Universities, and of the colleges of Winchester and Eton, are proprietors of divers manors, messuages, lands, tenements, tithes, and hereditaments, and in many cases the boundaries or quantities, and the identity of the lands within such manors, and of such messuages, lands, tenements, and hereditaments, and of lands subject to any such tithes, or some part or parts thereof, are unknown or disputed, empowers colleges to enter into agreements or deeds of reference with their lessees, to ascertain and settle unknown or disputed boundaries, or quantities of such manors, &c, and modes of performing the same are minutely chalked out and provided. By 6 & 7 Will. 4, c. 70, colleges were empowered (s) to convey portions of their lands for sites for schools, but by 4 & 5 Vict. c. 38, this act was repealed, leaving untouched, however, acts done under it, (m) Sect. 4. Leases; Burn's Eccles. L. tit. Leases. Ac- (71) Sect. 5. ceptance of rent by a master of a college, not (0) Sect. 11. having authority from the college to do so, (p) Sect. 12. does not affirm a voidable lease during the (q} Sect. 14. continuance of such master in the headship ; (r) As to college leases generally, vid. 2 Gibs. Cod. 746 ; stat. 18 Eliz. c. 6, which is Bla. Com. 321, 322; Bac. Ab. tit. "Leases ; a private act, 1 Leon. 306; Savil. 129. 1 Leon. 306 ; Crabbe's Dig. of Statutes, tit. (s) Sect. 3. Till: l NIVERSn IES. and further and more enlarged provisions were substituted for the same object (/). With respect to benefices which are annexed by act of parliament, or Otherwise, to the headships of colleges in the two Universities, arrange- ments arc authorized by the Ecclesiastical Duties and Revenues Act(u) to be made, to enable the respective colleges, if they shall think fit to sell, or themselves to purchase, the advowsons, and to invest the pro- ceeds in proper securities, with provisions for the payment of the inter- and annual profits thereof to the respective heads of the colleges for the time being. We may here observe, that where a college con- sists of a master, fellows, and scholars, or a master and fellows, or the like, the head is an integral part of the college, which in the first case consists of three, in the second of two integral parts, and therefore the college cannot present the master to a benefice of which they have the advowson ; for such presentation would be liable to the objection founded on the principle often before noticed, that a man cannot do an act to himself (or). Therefore a master of a college cannot hold a col- lege living, strictly so called, though the master, as master, not {infre- quently holds a living annexed to the headship, and invariably descend- ing along with it. A head of a college is expressly exempted from penalties for non-residence on any benefice (y). By stat. 1 & 2 Vict. c. 23, s. 5, colleges in the two Universities are empowered to advance money from funds of which they have the power of disposing, without interest, in order to aid in the purposes of that act, i. e. for building, repairing, or purchasing houses or buildings for the habitation or convenience of the clergy, or sites for such houses or buildings, with respect to benefices in the patronage of such colleges, upon mortgages, &c, as in the act is directed ; and the stat. 1 & 2 Vict. c. 106, s. 73, empowers them to do the same for the purposes of that act. In numerous decisions of the courts of law and equity there are to be found principles laid down affecting the rights of colleges, or different members of them, in their collegiate capacity, as well as constructions of the statutes and constitutions of the colleges respectively, which it may often be useful for persons connected with those bodies to be ac- quainted with: we have endeavoured to construct as perfect a list as possible of the cases in which such decisions are contained, which are given below, opposite to the name of the college to which they respec- tively relate («). Most of these cases have been already alluded to or (l) 4 & 5 Vict, c 38, M. 6, 7, 9 ; et tid. Salk. 398 ; nip. p. 197. the explanatory act, 6 -v 7 Vict. c. 37 ; and ( y) I .Si 2 Virt. c. I0(i, s. 37. ;il Souk* College, Oxford, H v. War- (u) 3 & 4 Vict. c. 113, ». 69, Bj 71 den, &c. of All Souls, T. Jonee, 175 ; S. C. g to a college in Skin. 13; '2 show. 170; Spencet v. Warden the Universities may be permanently muted of All Souls, \\ dm. Notes, 163; vid. 3 B. 6c to a bem Bee held together with or in the pa- P. 635. of the bolder of sur-li sinecure, etc. Baliol College, Oxford, Att.-Gen. v. IJaliol ( r) li't. W ood ■ . Mayor, &c, of London, College, 9 Mod. 407. COLLEGES. 551 cited in the course of the foregoing statement of the law respecting col- legiate corporations. Brazen Nose College, Oxford, Att.-Gen. v. Brazen Nose College, 2 Cia. & F. 295. Caius College, Cambridge, Protector v. Craford, Styl. 457 ; Att.-Gen. v. Caius Col- lege, 2 Keen. 10; vid. 5 Huss. 76; 2 Iluss. & M. Ill, note. Catherine Hall, Cambridge, R. v. Catherine Hall, 4 T. R. 233 ; 1 Jac. 38) ; 5 Russ. 85. Christ Church, Oxford, Dean, &c, of Christ Church case, 4 Leon. 190. Christ College, Cambridge, Widdrington's case, T. Raym. 31; Case of Christ College, 1 W. Bla. 92 ; vid. 2 Russ. & My. 1 1 1, note. Clare Hall, Cambridge, Att.-Gen. v. Tal- bot, 3 Atk. 662, 673 ; vid. 1 Burr. 200 ; R. v. Blythe, 5 Mod. 404 ; Jenning's case, 5 Mod. 421 ; lid. 2 T. R. 312. Corpus Christi College, Cambridge, 4 Leon. 223 ; S. C. Ualis. 31 ; Coleman v. Coleman and Bennett College, Finch, R. 30. Corpus Christi College, Oxford, 17 Vin. Abr. 150; pi. 4; Wood v. Hantsell, 2 Rol. Abr. 198. Downing College, Cambridge, Att.-Gen. v. Bowyer, 3 Ves. 713 ; Att.-Gen. v. Downing, Wilm. Notes, 10 ; Downing College v. Pur- chas, 3 B. Sc Ad. 162; In re Downing Col- lege, 2 My. & C. 642. Exeter College, Oxford, Philips v. Bury, 2 T. R. 346 ; S. C. Skin. 447 ; Holt's opi- nion affirmed in Dom. Proc, Show. P. C. 35. King's College, Cambridge, Feistell v. King's College, M. R. Pasch. 1847, 10 Beav. 491. Magdalen College, Oxford, Att. Gen, v. Sibthorp, 2 Russ. & M. 107 ; Att.-Gen. v. Magdalen College, Oxford, 10 Beav. 402. The king's visitatorial power asserted by Nath. Johnston, a.d. 1688, Magdalen College, Ox- ford i>. Ward, Coop. Sel. Cas. (1846) p. 265. Merton College, Oxford, Fisher v. Boys, 10 Rep. 125; vid. 1 W. Bla. 76; Martin v. Archbishop of Canterbury, 1 Burn's Eccles. L. tit. Colleges. New College, Oxford, Dyer, 247 a • 1 Mod. 82; 1 Lev. 23,65; 2 Lev. 14- Raym 56, 94, 100 ; Siderf. 94, 152, 346; Att.-Gen! v. Mayor, Stc, of Bedford, 2 Ves. sen. 505. ' Pembroke Hall, Cambridge, Att.-Gen. v. Pembroke Hall, 2 Sim. & Stu. 441. Peterhouse, Cambridge, R. v. Bishop of Fly, 2 T. R. 290 ; Sandys v. Sandys, 1 Q. B 317, note. St. John's College, Cambridge, R. v. St. John's College, 4 Mod. 233; Green v. Ru> therford, 1 Ves. 471 ; Att.-Gen. v. Andrew, 3 Ves. 640, 646 ; Att.-Gen. c. St. John's Col- lege, 7 Sim. 241 ; In re St. John's College, 2 Russ. & My. 603; vid. 1 Burr. 195; Finch, R. 222; Statutes printed, Report of Charity Commissioners, 8th June, 1818. St. John's College, Oxford, R. v. St.John's 4 Mod. 260; S. C. Comberb. 238; stat. 18 Eliz. c. 6. Trinity College, Cambridge, R. v. Bishop of Ely, 1 W. Bla. 52 ; Walker's case, Cas. T. Hardw. 212; Bentley v. Bishop of Ely, Fitzgib. R. 307. Statutes printed, Report of Charity Commissioners, 8th June, 1818. Trinity Hall, Cambridge, R. v. Gregory, 4 T. R. 240, note ; overruled, 4 T. R. 244 • Ex parte Wrangham, 2 V. & Bea. 609; Ex parte Inge, 2 Russ. & M. 590. Queen's College, Cambridge, R. v. Grun- don, Cowp. 319; In re Queen's College, 5 Russ. 64 ; case of Queen's College, Jac. R. 35 ; Patrick's case, T. Raym. 101 ; S. C. 1 Lev. 65. Queen's College, Oxford, 2 T. R. 325; Ayray's case, 11 Rep. 18 b; Ayray v. Love- las, 1 Bulstr. 91. University College, Oxford, Davison's case, cited Cowp. 319; Usher's case, 5 Mod. 452; vid. 1 W. Bla. 38; 3 Atk. 667 ; 1 Burr. 203 ; In re University College, Oxford, 2 Phill. 521. Wadham College, Oxford, R. v. Windham, Cowp. 379. i 552 ) FREE SCHOOLS. We now proceed to examine the principal points in the law relating to scholastic incorporations, or incorporated free grammar schools. Prima facie an endowment of a free grammar school, without more words, ascertaining the founder's intention, means a school for teaching the elements of the learned languages ; but an usage to teach other branches of learning may be taken as explanatory of the words, and may suffice to put a different construction upon them (a). Accordingly . where there were several endowments, partly for a school, and partly for a free grammar school, and the constant usage had been to devote the whole to the latter purpose, the court refused to disturb the ar- rangement (b). The power of the courts of equity has been, since the above decision, largely extended by enactment (c), which reciting, " whereas (d) there are in England and Wales many endowed schools, (a) An.- Gen. v. Hartley, 2 Jac. &: \V. 375, 376 ; vid. tam. Att.-Gen. v. Jackson, 2 Keen. 541. In construing the statute mentioned in the text, perhaps it may be useful to observe the doctrine laid down, that even where sum- mary powers are given to the Lord Chancel- lor to vary piovisions relative to a trust, that does not extend, though given by parliament, to empower him to alter the general constitu- tion of the trust itself; Ei parte Bolton School, 3 I5ro Chanc. Cas. 662. Therefore the trus- tees of a free grammar school were not al- lowed to convert it into a commercial school, though it had ceased from before the time of living memory to be a school for classical education, and though elementary instruction in English had formed a part of the original institution; Att.-Gen. '. Earl of Mansheld. 2 Russ. 501. So an application to allow part of the funds of a grammar school to be devoted to the teaching of French, German, and mat- ters of commerce, was rejected on the ground that the nature of the charity cannot be altered, and the funds transferred to objects other than the founder intended, merely on the notion of an advantage to the inhabitants of the place •, Att.-Gen. v. Whiteley, 1 1 Ves. 241. (b) Att.-Gen. t. Hartley, 2 Jac. cV W. 370 ; t id. tam. as to mixing funds for different cha- ritable purposes, An.-(n o. i . Mayor, &c, of Norwich, 3 M. & K. 651, inf. No agreement of parishioners, where several charities are given for several purposes, can alter or diver) them to other u-cs ; .Man v. I. ill.it, l Vera. 42, pi. 43. \\ here a testator bequeathed lands, &c, for the maintenance of a tree school, and desired that the town should exempt the lands from payment of poor rates, and the school was established, and the usage of 125 years had been, not to assess them to the poor rates, yet it was determined that such assent of the pa- rishioners to the condition of the will did not exempt the beneficial occupier of the lands from being assessed to the relief of the poor in respect of such lands ; Reg. v. Ellis, 2 Dowl. N.S. 361. (c) 3 & 4 Vict. c. 77. (d) Sect. 1. Nothing in the act gives any power to obtain funds lor the purposes of the act by taking a portion of surplus enjoyed, as of light, by trustees, whether corporate or in- dividuals. " I apprehend the act can have no application whatever, except where there are certain revenues appropriated to the in- struction there pointed out. If there be a cer- tain amount of revenue devoted to a school, and you cannot apply that beneficially for the instruction of boys in grammar, in consequence of the situation in which the school is placed by change of circumstances, and so on, the court may then apply that amount to a more general subject of education; but it cannot obtain a further fund for the purpose of gene- ral education, by encroaching on the private right of another party," per Lord i M. II. ; therefore where a testator had left an estate for charitable purposes, in such a way as was construed to mean that the corporation he vested it in were to have a certain surplus, the court refused to increase the aggregate funds of the school by trenching on that sur- plus ; Att.-Gen. v. Grocers' Company, 6 Reav. . r ;5. This act relates to free grammar schools, as it appears the stat. 43 l-'.liz. c. 4, does exclusively ; for where a school had been erected by voluntary subscription of inhabi- tants, it was In-Ill that, n.it being a free school, it was not within 43 Elix. c. 4; Att.-Gen. v. Hewer, 2 Vern. 387; S. C. Eq. Cas. Abr. 49, vid. tam. 2 Y. & Jerv. 211, note(c); Att.-Gen. p. Ld. Dudley, Coop. Ch. Cas. 146. FREE schools. 553 both of royal and private foundation, for the education of boys or youth wholly or principally in grammar; and the term grammar has been construed by courts of equity as having reference only to the dead lan- guages, that is to say Greek and Latin ; and whereas such education, at the period when such schools or the greater part were founded, was supposed not only to be sufficient to qualify boys or youths for admis- sion to the Universities, with a view to the learned professions, but also necessary for preparing them for the superior trades and mercantile business ; and whereas, from the change of times and other causes, such education, without instruction in other branches of literature and sci- ence, is now of less value to those who are entitled to avail themselves of such charitable foundations, whereby such schools have in many instances ceased to afford a substantial fulfilment of the intentions of the founders, and the system of education in such grammar schools ought, therefore, to be extended and rendered generally beneficial, in order to afford such fulfilment ; but the patrons, visitors, and governors thereof are generally unable of their own authority to establish any other system of education than is expressly provided for by the founda- tion, and her majesty's courts of law and equity are frequently unable to give adequate relief, and in no case but at considerable expense ; and whereas, in consequence of the changes which have taken place in the population of particular districts, it is necessary for the purpose afore- said that in some cases the advantages of such grammar schools should be extended to boys other than those to whom, by the terms of the foundation, or the existing statutes, the same is now limited, and that in other cases some restriction should be imposed, either with reference to the total number to be admitted into the school, or as regards their proficiency at the time when they may demand admission ; but in this respect also the said patrons, visitors, and governors, and the courts of equity, are frequently without sufficient authority to make such extension or restriction ; and whereas it is expedient that in certain cases grammar schools in the same place should be united ; and whereas no remedy can be applied without the aid of parliament;" proceeds to declare and enact that whenever, after the 7th August, 1840, "any question may come under consideration in any of her majesty's courts of equity concerning the system of education thereafter to be established in any grammar school, or the right of admission into the same, whether such question be already pending, or whether the same shall arise upon any information, petition (e) or other proceedings which may be now or at any (e) Stat. 52 Geo. 3, c. 101 enacted that decided that if, on the petition coming on for certain charities, and, among others, free hearing, the trustees of the charity did not ap- schools, might be regulated in a summary pear, not having been served with notice of manner in the courts of equity, by way of pe- the petition, they would be given a day to show tition instead of information ; vid. Ex parte cause why the order prayed should not be Berkhampstead Free Grammar School, 2 Yes. made ; Ex parte Seagears, 1 Yes. Vid. sect. 9. Provisions respecting i the school bouse till they have the schoolmaster, new statutes, and rights of determined the master's interest therein, upon nomination, follow in ss. 10, 11, 12. summons and hearing him in his defence ; A right of nominating the master or mas- free schools. 557 Where adequate powers for enforcing discipline at present exist, to be exercised by way of visitation or otherwise, the persons in whom they are vested are empowered (r) to exercise the same when and so often as they shall deem fit, either by themselves personally or by commission, without being first requested or required so to do, &c. ; and where such powers are not adequate, the Court of Chancery may enlarge them as shall seem fit (s). Where there are no such powers, the bishop of the diocese may apply to the Court of Chancery, which may create them as shall seem fit (t). Where a visitor refuses or neglects to act, that court is empowered (?/), on the application of any person or persons interested in the school, to appoint a visitor pro hue vice; and so if it be uncertain in whom the visitatorial power resides. " Pro- vided, that nothing herein contained shall exempt any visitor from being compelled by any process to which he is now amenable to per- form any act which he is now compellable to perform." The proceeding by way of mandamus to a visitor to entertain and enter upon a complaint is therefore preserved. The Court of Chancery is empowered (.r) to enable a visitor, whether regular or appointed under the act, and the governors, or either of them, after such inquiries, and by such mode of proceeding as the court shall direct, to remove any master who has been negligent in the discharge of his duties, or who is unfit or incompetent to discharge them properly and efficiently, either from immoral conduct, incapacity, age, or from any other infirmity or cause whatsoever. " And ( y) whereas it is expedient to facilitate applications to the Court of Chancery under this act ; be it enacted, that all applications may be heard and determined, and all powers given by this act to the Court of Chancery may be exercised in cases brought before such court by petition only, such petitions to be presented, heard and determined according to the provisions of an act passed, &c." (52 Geo. 3, c. 101). The act is not to prejudice the jurisdiction or power of the ordinary, ters may be aliened by the founder or his bation of visitor, may assign a retiring pen- heirs ; Att.-Gen. v. Brentwood School, 3 B. sion in certain cases of removal, s. 18. Pre- & Ad. 59. Semb. it may be forfeited by cor- mises belonging to the school, held over by rupt or improper nomination, or by neglect- such removed master, to be recovered in a ing to nominate; Att.-Gen. v. Leigh, 3 P. summary way, s. 19; and he is restrained Wms. 146. But it is not subject to the ordi- from setting up any title, &c, s. 20. nary rules of lapse; Att.-Gen. v. Wycliffe, (y) Sect. 21. Schools in the patronage 1 Ves. 80. of the crown are to be appointed to by the (r) Vid. s. 13. If a founder appoints per- Lord Chancellor, except within the county sons with a power of superintending the pro- palatine of Lancaster, where the chancellor ceedings of the governors of a school, of re- of the duchy is to appoint, s. 22. Before moving them for misbehaviour and appointing this statute, equity did not in general inter- others, then, when the governors refuse to fere where there was a visitor, Att.-Gen. v. act, those persons are the proper tribunal to Price, 3 Atk. 108 ; nor to carry into execu- apply to in the first instance, and not the tion the statutes of the school ; Att.-Gen.!'. Court of Chancery ; Att.-Gen. v. Middleton, Middleton, 2 Ves. sen. 377. But in all 2 Ves. sen. 330. cases of charities it would act without com- (s) Vid. sect. 14. plaint being made, if there was ground for (t) Vid. sect. 15. doing so; Att.-Gen. v. Coopers' Co., 19 (u) Vid. sect. 16. Ves. 194. (i) Fid. sect. 17. Governors, with appro- 558 FREE SCHOOLS. nor to extend to either of the two Universities, or any college or hall therein, nor to the University of London or any colleges connected therewith, nor to the University of Durham, the colleges of St. David's or St. Bee's, the schools of Westminster, Eton, Winchester, Harrow, Charterhouse, Rugby, Merchant Tailors', St. Paul's, Christ's Hospital, Birmingham, Manchester, Macclesfield, Louth, or such schools as form part of anv cathedral or collegiate church (z). Various statutes have subsequently passed with the object of in- creasing facilities for the conveyance and endowment of sites for schools (a), by which corporations are empowered to convey land held for public or charitable purposes (which words, it seems, would include lands held by municipal corporations to the use of the corporation), under the limitations imposed by parliament, for the purpose of form- ing such sites (b) : and grants of land may also be made to corporations to hold as trustees for the purpose of the education of poor persons (c). A singularity in the case of corporations of schools is presented in this respect, that two persons only, the master and under-master, are frequently incorporated, contrary to the maxim of the civil law, which, as we may remember, holds that three persons at least are required to make a corporation aggregate ; and the same was generally true in our old law. But there are many examples of two masters of a school being constituted a corporation (d). Though a school may have been established in a place time out of mind, yet the master has no right of action against a person who comes and sets up another school in opposition to the old one (e) , but there seem to have been cases in which such interloping schoolmaster has been inhibited in the ecclesiastical courts (/). A devise of a debt, whether by statute-staple, bond, judgment, or recognisance, for the erection of a school, has been held to be a good appointment under the stat. 43 Eliz. c 4 (g). (2) Vid. sect. 24. The 25th section is an (ft) 4 & 5 Vict. c. 38, s. 6. The quantity interpretation clause. The Charity Commis- granted to each school is not lo exceed one sioners Acts, 58 Geo. 3, c. 91, 59 Geo. 3, acre, s. 9, explained 12 6c 13 Via. c. 49, c. 81, exempted from the operation of their s. 3. provisions all colleges, schools, &c, having (c) 4 & 5 Vict. c. 38, s. 7. special visitors appointed by the founders; (d ) El parte Berkhampstead School, 2 lid. 2 Russ. & M. 461, 465. As tojunsdic- Ves. & B. 144. The master and under- tion of the ordinary, 15 Fast, 132; 17 Yin. master of IMiddleton School, Yorkshire, were Abr. 559, pi. 7 ; Com. It. 448 ; in licensing incorporated by Queen Elizabeth by the name masters, R. v. Abp. of York, 6 T. It. 490 ; of" The Master of the Free School of Queen vid. Stra. 1023. Prohibition lies to stay a Elizabeth in Middleton ;" Att.-Gen. i>. Bra- suit in the Ecclesiastical Court for keeping zen Nose Coll , Oxford, 2 Cla. & F. 296, 297. school without license ; Chadwick v. Hughes, Vid. another instance in case of l'oeklmgton Carth. 464; vid. 2 Atk. 671, 672. So in- School, Keresby i. Farrar, 2 Yern. 414. dictment against free schoolmaster, for keep- (e) Yearb. 11 Hen. 4. fol. 47, pi. 21. ing school without license, quashed ; R. v. Case by schoolmaster for keeping slaughter- Douse, 1 l.d. Kaym. 672. rower of inter- house near the school, 3 ( hit. Plead, 341, 1st {.relation of the school statutes given to the edit. ordinary, though coupled with other great ( /") 2 Gibson, CoJex, 1101, Append, p. powers, does not make him visitor; R. v. 1571. Kirkby Ravensworth School, 8 Bast, 221. Ex parte Inhabitants of Sherborne, (a) 4 & 5 Yict. c. 38 ; 7 & 8 Yict. c.37; Toth 91 ; S.C. Duke, 79, pi. 21 ; tci. 112. 12 & 13 Vict. c. 49. FREE SCHOOLS. 559 The question does not appear to have been hitherto decided, what is the effect of a devise of lands, or money to buy lands, for the mainte- nance of a school, upon a condition, which, although illegal, as it turns out, has been acted on for a long time, ex. gra. a century and a quarter ; at least, the question whether in such case the lands revert to the heir, since the condition cannot be performed, has not been settled, though it has been ruled that the parties cannot be allowed to execute such illegal condition (//). Where a corporation has accepted an annuity granted upon a condition, and the condition has been acted on, they cannot afterwards renounce it at pleasure, although the gift was directed by the donor to be applied to another purpose specified, in case the corporation at any time should refuse or neglect to perform the con- dition (i). In many cases of charitable corporations, and very often in cases of scholastic charities, the estates given by the founders, or subsequently to the foundation, bequeathed by benefactors, have much increased in value beyond the amount at which the rents and profits originally stood. The question, therefore, has very frequently arisen in the courts how to appropriate the surplus. Where the testator or donor has himself (after providing for the charity) given the residue, if any, of the rents and profits to the corporation, whom he made trustees and visitors of the school, then it would seem to be beyond all dispute, and it has been decided, that such corporation is not placed in the situation of trustees as to the residue, but may dispose of it at their will and pleasure (k) ; and they cannot be compelled to make any ap- portionment of the residue among the objects of the charity (I). But it is a general rule, that where the founder, or testator, or benefactor, has pointed out what was the yearly value of the property he dedicated to the objects of his charity at the period of the foundation, bequest, or donation, and he has parcelled out the whole of such revenue to the objects of the charity, there, if the revenue increases, in process of years, the charity shall have the benefit of the augmentation : the in- tention that it should be so being inferred from his dividing the whole revenue at that time accruing from the estates ; from which it appears he meant that it should continue in future to be proportionately di- vided, as it increased, to the same purposes (m). The reason is, that the gift of the rents and profits of an estate is the gift of the estate itself; and a gift or devise of the above kind, showing that the whole of the rents and profits were intended to be absorbed by the charity, (h) Reg. v. Ellis, 2 Dowl. N. S. 361, 376. 294, 318, Lord Eldon, C, reviewed the for- (i) Att.-Gen. v. Christ's Hospital, 1 Russ. mer decisions from the earliest times ; Did. the & My. 626. effect of the decision in that case stated, per (fe) Att.-Gen. v. Skinners' Co., 2 Russ. Lord Cottenham, C, 12 Cla. & F. 826. 407, 435, the case of Tonbridge School ; et (I) 2 Russ. 438. v'd. Att.-Gen. v. Drapers' Co., 4 Beav. 67; et (m) 2 Russ. 441 ; Att.-Gen. v. Christ's vid. 8 Rep. 130 ; 12 Cla. & F. 826. In Att.- Hospital, 4 Beav. 73. Gen. v. Mayor, &c, of Bristol, 2 Jac. & W. 560 PEEE SCHOOLS. is a gift of the whole rents and profits, and therefore a gift of the estate [m); and so it would be, though the land were not given, but granted, in consideration partly of a sum of money, paid by the corpo- ration to whom it was granted in trust tor the charity, if it appeared that the whole of the rents then arising from the land was devoted by the grantor to the charitable objects (n). Another case is this. Though the founder, testator, or benefactor ha- not pointed out what was the yearly value of the estate, yet if he has sufficiently manifested his intention to give the whole of the estate to the charitable purposes, the increased rent must be applied to the charitable uses which he has mentioned (o). When he does not so manifest his intention, the trustees will be held to take the surplus upon trust for the charitable purposes, exclusive of any application of it to their own benefit ; but they will be entitled to a proportion of the surplus rents, in respect of the gift of the remainder, pro rata with the other specified objects of the founder's bounty (p). ( Generally it has been laid down, that in searching for the intention of the donor (which is the standard to govern a deed of gift), the facts 1 # That the gift is subject to a condition of making certain payments to others ; 2. That a forfeiture will be incurred by non-performance of the condition ; 3. That the donee may be subjected to loss by the per- formance of that condition— are sufficient to raise the presumption that, in case of increase of the funds, the donor intended to give to the donee the benefit of that increase (q). A. B. arranged with a corporation for the endowment of a school, and conveyed real estate to them of a computed definite value. The corporation stipulated to maintain the charity for certain fixed sums, payable out of the rents, of a computed definite amount (by which they agreed to abide), and they became bound to maintain it, though the rents should fail, with a clause of forfeiture on their non-performance : held, that although the corporation were bound to maintain the charity, even if the rents fell short, yet the charity was not entitled to the benefit of any increase in the rental ; the decision chiefly rested, it should seem, on the above clause of forfeiture, which would have been idle, it was observed, if the corporation had nothing to lose (r). (m) 2 Russ 431 ; Alt.-Gen. v. Christ's the school, but only as the trustees might Hospital 4 Beav.73. tMnk best to apply it for the good of the tin \tt .Geo.o. Mayor, &c, of Coventry, school, the surplus, after satisfying the exact r > \ em 398 • 4 Vin. Abr. 488. charge first created on the fund, belongs to (o) 2 Ku,. 59] Bridgm. edit. ; Att. Gen. evidence of donor's intention ; et i id. 1 ncf- t Wilson, 3 M. & K. 3G2 ; Att.-Gcu. v. ford School case, 8 Rep. 130; 4 Yin. Abr. Sparks. Ambl. 201. ^ 488. (P ISO (a) Jack v. Burnett, 12 Cla. & F. 812. Co., 3 My. & K. 531 ; Att.-Gen. «. Coopers , „, Ut.-Gen. V. Caius Coll., 2 Keen. (r) Att.-Gen. v. Merchant \ enturers Co., q^' 5 Heav. 338 ; tu'd. Att.-Gen. v. Cordwainers^ (q) Jackt). Burnett, 12 Cla. & 1. B12. Co., ius if a fund was given to the members of a Co., allege as trustees for the maintenance of a Don school, and it were not given out-and-out to 215. Thus if a fund was given to the members of a Co., 3 Beav. 29 ; Commissioners of Charitable colh-ee as trustees for the maintenance of a Donations v. De Clitlord, 1 Dru. & NV ar. FREE SCHOOLS, .Vil If a testator clearly declares an intention of devoting the whole in- come of a property to charitable purposes, then, although he does not in specifically directing the application of portions of the proceeds exhaust the whole income, still the general intention that the whole shall be applied to charitable purposes will prevail. So, though he does not make such express declaration of devoting the whole, but gives each and every portion of the whole income at the time to the charitable purpose, and by that means exhausts the whole, then (as we have seen), if the income should afterwards increase, the increase will also be applicable to the charity (s). So if certain specific sums are directed to be applied to the charity, but there are, either preceding or following such direction, general words to show that the testator in- tended to apply the whole revenue to the charity, there, whatever may be the amount of the rents or revenues of the property, and however they may exceed the particular stated applications of them, the whole must be applied to the charity (t). An incorporated company were grantees of an estate for the benefit of a school, of which they were constituted visitors by the grantor, and ordered to make certain payments to the school, which did not exhaust the rents, and the company, in his lifetime, and with his knowledge, applied the surplus to their own use, and had ever since continued to do so ; under these circumstances an information claiming the surplus for the school was dismissed (u). Where the surplus rents and profits of an estate, charged with cer- tain payments for the benefit of a school, are expressly devised, by the will of the founder, to his executors and their heirs, for their sole use and benefit for ever ; the school can claim only the specified payments, although, by the change in the value of money, such payments have become inadequate to the charitable intentions of the founder (x). Where a corporation, following the practice of their predecessors in the application of the profits of estates belonging to a free school, had themselves committed no wilful breach of trust, and no improper mo- tives are attributed* to them, the account of the profits, which they will be obliged to render, will not be carried back beyond the time at which they had notice that the propriety of such application of the property was questioned ; but if the estates have been alienated, though at a very distant period, the corporation will be made to compensate the present value of the lands, so alienated, out of such general property of the corporation as was not granted or devised to them on specific trusts (?/). (s) Att.-Gen. v. Coopers' Co., 3 Beav. 29. 647, which see remarked on by Sir E. Sug- (0 Att.-Gen. v. Grocers' Co., 6 Beav. den, C. Ir., in Commissioners of Charitable 546 ; Arnold v. Att.-Gen., Show. P. C. 22. Donations v. De Clifford, 1 Dru. ,\ War. 256. (u) Att.-Gen. v. Skinners' Co., 5 Sim. ( y) Att. Gen. v. Bailiffs of East Uetford, 596. 2 My, & K. 3-5, where see as to costs. (i) Att.-Gen. v. Gascoigne, 2 RJy. & K. O FREE SCHOOLS. Previously to the above cited statute (z), the courts of equity did not interfere, where there was a private visitor, in the regulation of matters within the scope of his authority (a) respecting the school ; but if a corporation be seised of lands, derived from grant by the crown, of the value, at the time of the grant, of 201. a year, to maintain a school- master of a school, of which by the grant they are also made visitors to see that the master and scholars behave acccording to the donor's orders, and the lands become of the yearly value of 100/., but still they pav only 201. to the master, equity in such case was used to interfere ; for though the corporation be visitors of the school, and have the re- ceipt of the rents and profits, yet, the not paying the whole to the pur- - of the charity is a breach of trust as trustees, there being no other use expressed in the letters-patent to which the surplus was to be applied (&). Vs has before appeared, where visitors are interested, they cannot vise the visitatorial power, because no man can be judge in his own case, and then the right of visitation devolves upon the crown (c) ; or, where there is a trust, the Court of Chancery will compel them to perform it ; and its jurisdiction in such case is independent of the stat. 1.] Eliz. e. 1 (f/) ; for the courts of equity have an inherent jurisdiction in matters of charity, prior to, and apart from, all consideration of that statute (e). Also, previously to the statute (f), it had been determined that a visitor had not in general power to order a new distribution of the revenues of the charity ; and that such new arrangement must be made, if at all, by the Lord Chancellor, not on the petition of the visitor, but in the Court of Chancery, as presiding over the charitable foundations of the kingdom (y). Now, it seems, the matter may be settled upon petition ; at any rate in cases under the statute of Victoria. By 59 Geo. 3, c. 91, s. .">, the trustees of any free school were em- powered, with the consent of five or more of the Charity Commissioners, to petition the Lord Chancellor praying relief, in cases where the sta- (z) 3 & 4 Vict. c. 77, sup. p. 552. Tables of Cases, p. lxxxi. (a) Vid. sup. p. 555, note (fc); Att-Gcn. | c) Eden 0. Foster, 2 P. Wms. 325 ; rid, i. (iovernorsof Harrow School, 2 Ves. sen. Whiston r. Dean and Chapter of Rochester, 551. But a limited power of visitation only 18 L.J. (N. S 178. having been given by tin: Founder, the n>i of (d ) Att.-Gen. v. Lock, 3 Atk. 164; Att.- the visitatorial power, it was said, the ( 'ourt of Gen. t;. Foundling Hospital, 2 Ves. jun. 42, Chancery would exercise; at least, the ju- 47; Att.-Gen. d. Dixie, 13 Ves. 519, 533, ri-diction of the court was not thereby ex- cluded: 8 East, 221 ; 15 Ves. 305. (e) Att. Gen. V. Corporation of Dublin, 1 ft) Hynshaw i. .Mayor, Sec, of Mor- Jili. \.S. :;:i7, per Lords Redesdale and peth, Duki -' P. Wms. Eldon; Incorporated 8 ciety in Dublin, &c, (Birmingham School); <( i id. Duke, i. Richards, 1 Dru. iv War. 258. K4, 124, pi. 27 ; 15 \ is. 314. The appoint- ( / ) 3 & 4 \ ct. c. 77. sup. p. 554. ment of a corporation to take the legal estate, (^) Ait Gen. v. Smythies, 2 Run. & M. with the r. , does 717,737. Where there is a visitor appointed not constitute tin in visitors without express with powers of management, yet if the charter words; 2 P. Wms. 325; or foundation deed expresses a trust as to the .Middleton, 2 \ 27. Vid. list of revenue, equity will interfere to compel a doe cases respecting jurisdiction of equity in mat- application thereof , Att.-Gen. v. lierkhamp- ters of charity, 1 Coop. Ch. Hep. (1846), stead School, 2 Ves. & B. 134. FREE SCHOOLS. 5G3 tutes of the foundation are insufficient for the due administration of the funds. Before the statute (h), if, in respect of the same charity, it was de- sired to attain two objects of the following kind — one comprising an account of the estates, an application of the surplus rents, and the set- ting aside leases ; the other comprising the appointment of the school- master and the removal of some of the governors — it had been deter- mined that the first object could only be attained by means of an information in equity, but that the second was to be effected by way of petition to the great seal as visitor (i). Now, as it seems, the whole might be accomplished by a petition (k). But, it seems, that still a petition must not combine an application as to the abuses in a school with one as to the abuses in a college, though the latter are abuses in relation to estates given to the college for the benefit of five scholars from the school, the college and the school being distinct foundations ; for it was held that an information (before the late statute) was bad for multifariousness on this ground ; and, moreover, the late statute does not extend to colleges, so as to render available, under it, the mode of petition for relief with respect to them (/). If lands be vested in an incorporated school for the purposes of the charity, and any improvident disposition of them be made by the cor- poration, it may be set aside in equity. Thus the master and under- master of Pocklington school, being a corporation, had leased some school lands for eighty-one years, in consideration of a fine and the surrender of a former lease, &c, &c, at a considerably under value ; and the lease was set aside, and the lessee decreed to pay arrears of rent according to the full value of the land, and to deliver up the pos- session (m). A lease of school lands to one of the governors is always bad, and will be set aside on general principles as inconsistent with his duty ; and he will be charged with the full value, if that be found to exceed the amount of the rent reserved (»). But it does not follow that, when the governors of a school have been convicted of a breach of trust in letting the lands at under values, with fines, &c, they will be removed by the Court of Chancery, and others appointed in their place ; the course has been, upon a bill being exhibited against them, and proof of the breach of trust, to give relief to the school, but to leave things as nearly as possible in the state in which it was the inten- tion of the founder they should continue (o). Still a corporation will (h) 3 & 4 Vict. c. 77, sup. p. 554. 10 ; Ex parte Brown, Coop. 295; In re (i) Att.-Gen. v. Dixie, 13 Ves. 519. Upton Warren, 1 My. & K. 410. (k) Vid. sect. 21, sup. p. 557. (m) Reresby v. Farrer, 2 Vern. 414. \l) Vid. Att.-Gen. v. St. John's Coll., 7 (n) Att.-Gen. v. Earl of Clarendon, 17 Sim. 241 ; vid. 5 Sim. 670. Decisions to Ves. 497. (Harrow school). Inf. p. 576. similar effect on petitions under 52 Geo. 3, (o) Poor of Chelmsford v. Mildmay, Duke, c. 101, Mayor, &c, of Ludlow v. Greenhouse, 83. (Chelmsford school). 1 Bli. N. S. 17 ; Ex parte Rees, 3 Ves. & B. o o 2 5G1 FREE SCHOOLS. be divested, bv the court, of a trust in the same cases that any other trustees would be divested of a trust for an abuse (p). If, however, lands be vested in a corporation for the maintenance of a schoolmaster, usher, &c., and statutes are settled, and the corporation appoint, contrary to those statutes, the Court of Chancery will remove a master so appointed, and order the corporation to proceed to a fresh appointment, and to pay the costs(ry); and though in general such a power of appointment, being a trust, could not be delegated, yet it \\a^ held in one case, after 250 years' usage, that they might continue to de- legate the power to St. John's College, Cambridge, so far as that the college should nominate to them a fit person, on a vacancy, the corpo- ration retaining to themselves the power of approval or disapproval (7). A power to appoint a schoolmaster given to the vicar and church- wardens, of whom there were eleven, and in case of their neglect in appointing, then to devolve to two corporate bodies in succession, and to result, in the dernier resort, to the same vicar and churchwardens, to whom also the general power of managing the trust was committed, is well executed by the vicar and a majority of the churchwardens ; especially if such an election be supported by usage (r). Where visitors and feoffees, having a power of dismissal, had exer- cised it, they could not nevertheless maintain ejectment to recover the schoolhouse until they had determined the master's interest therein, upon a summons to him to appear before them, and giving him the op- portunity of being heard in answer to the charges on which the ground of his dismissal rested (s) ; for he was entitled to the schoolhouse, unless he had been in due manner removed from his office (t). But the above statute renders the ejectment unnecessary in most cases of this kind. With respect to the effect of lapse of time on charity property, it was laid down by Lord C. J. Holt, that no statute of limitations, nor any length of time, shall bar a charity; but if anything in it be obscure and dark, and there has been an enjoyment for a very long time, without in- terruption, that is a great evidence of a right (w) ; and this doctrine was confirmed by Lord Eldon (x). A possession of 150 years was held by (p) Att.-Geo. v. Earl of Clarendon, 17 J. B. Moore, 368 ; vid. 8 T. R. 109. Ves. 499. CO ,)oe d - Coyle •»« C° ,e - 6 Car. ,\ P. (n) Mayor, &c, of Shrewsbury t>. Att.- 359; vid. 4 & 5 Vict. c. 38, ss. 17, 18. Gen 2 Bro P. C. 402. («) AtL-Geo. v. Mayor, etc., of Coventry, (r) Withnell v. Gartham, 6 T. R. 388. 3 Madd. 368 ; S. C. 2 Vera. 399 ; vid. Att.. After acting as schoolmaster for several years, <>■ D. I Hungerford, 2 C. & F. 357 ; 4 Yin. without there being any imputation against Abr. 488, marg. ; 3 \ 4 Will. 4, c. 27, s. the mode of bis discharge oi the duties, the 29 As to demand of tithes by a corporation, validity ol his appointment cannot 1"' ques- 2 fit 3 Will. 4, c. 100, a. ). doned; AtU-Gen >. Hartley, 2 Jac. fie W. . it) Gen. v. Mayor. &c, of Bristol, 2 353, 376. An appointment undi r a convey- Jac. 6c W. 314. Except in cases ol charitable ance to charitable uses maybe made in ge- trusts, corporations will Debarred by (South neral by trustees without writing ; Wilkinson Sea Company p. Wymondell, 3 P. Wms. ,. Malin, 2 Cro. >\ J. 636; and as it divests 143), or have the advantage ol (Wych v. no interest out of ihem, a corporation msj also East India < ompany), 3 P. Wms. 310, sta- appoint without di up p.60. tutes of limitations just us individuals. («) Doe (/. Karl of Thauct i. Gartham, 8 FREE schools. 565 the House of Lords to be very strong evidence to show a right (w); and an adverse enjoyment for a series of years forms a very material consideration in construing an instrument by which a charity claims (z). The distinction between the old statutes of limitation and the 3 & 4 Will. 4, c. 27, is, that the former acts only barred the remedy ; whereas under the latter, when the remedy is barred, the right and title of the real owner are extinguished, and are, in effect, transferred to the person whose possession is a bar. Cases of charities were not included in any of the early statutes of limitations, nor were charities bound by that analogy to those acts which equity applied in all other cases; and they would seem not to have been included within the enactments of the 3 & 4 Will. 4, c. 27, but to form a casus omissus (a). With respect to that statute, adverse possession has now no operation (b). On the other hand, as regards lapse of time, it is to be considered that it will not by itself legally justify a departure from a charitable trust, though it is nevertheless a circumstance which is always very material to be taken into consideration, and may have different weight attached to it according to the circumstances which have taken place (c). It is desirable to notice, that though a gift for the maintenance of schools of learning or free schools is good as a charitable use(d) ; and so a gift for furniture, &c, of the schoolhouse, or for provision for the master, or under-master (e) ; yet the statute of Elizabeth does not ex- tend to schools for dancing, fencing, &c. (e), or for instructing in the catechism, for that is matter of religion (e); nor to schools which are not free schools (/). We will not quit the subject without remarking, although the obser- vation does not, for the most part, apply to incorporated free schools, that such of the charities for purposes of education among others, as were vested in municipal corporations as trustees previously to the passing of the Municipal Corporations Act, are now divested out of them ; and all the interest, and all the powers of the corporation, as trustee in each case, ceased on that act, which provides that the Lord Chancellor shall make orders for the administration of the trusts. Therefore, where new trustees have been appointed by him, all that it is necessary to do, in order to find what are their powers, is to look and see what were the powers of the corporation antecedently to the (y) Att.-Gen. v. Brazen Nose College, 2 (c) Att.-Gen. v. Grocers' Company, 6 C. & F. 330. Beav. 544; vid. further cases, Jac. 443; 1 (z) Att.-Gen. v. Mayor, &c. of Bristol, 2 Meriv. 495; 5 My. & C. 16. Jac. & W. 294; vid. Reg. v. Ellis, 2 Dowl. (d) Porter's case, 1 Rep. 22 b: commented N. S. 361. on, Att.-Gen. v. Bower,3 Ves.jun. 726 ; Com. (a) The Incorporated Society in Dublin for Dig. Uses, N. 3. promoting English Protestant schools in Ire- (e) Duke, 134. land v. Richards, 1 Dru. & War. 258. How- (/ ) Com. Dig. Uses, N. 3 ; 2 Vern. 387 ; ever, in that case, Sir E. Sugden, Ch. Ir. ex- as to Winchester College, Broadnox's case, pressly disclaimed deciding the point ; vid. S. cited 1 W. Bla. 58 ; Moseley v. Warburton, C. as to taking an account in favour of a Salk. 320 ; Eton College, Phillip Williams's charitable corporation by annual rests. Report of the Proceedings aguinst Provost of (6) 1 Dru. & War. 289; vid. 2 M. & W. Eton College, 1816 ; statutes printed in Report 894. of Charity Commissioners, 5 June, 1818. 566 FREE SCHOOLS. passing of the act ; for the act only substitutes one authority for an- other; and there is no ground for dividing the trust by vesting the legal property in one party and the discretionary in another (g); and therefore the power of nominating and removing the head master, when formerly lawfully exercised by the corporation, is now in the hands of the trustees (/<). Also it may be considered as now settled, after some hesitation, that where there are exhibitions provided out of the surplus funds of the school, none but boys who are objects of the charity, and not the master's boarders, ought to be eligible to them (A). (») Att.-Gen. r. Mayor, &c. of Ludlow, 2 M. & \V. 913, on this point; sup. p. 511. Phfll. 087, which is at variance wiih Doe A. (h) 2 Pliill. 685 ; vid. sup. p. 554, n. (g). Governors of Bristol Hospital v. Norton, 11 ( 567 ) HOSPITALS. A class of corporations next comes to be examined which differs but little, in legal consideration, from that of colleges ; and perhaps the principal distinction between the two is, that the constructions which have been put upon their statutes have interpreted the founder's inten- tions more strictly in the one case than the other, so as to devote the former foundations more exclusively to their original object of the sus- tentation and maintenance of poor persons than has been done with respect to the latter, whose original object was the education and main- tenance of poor persons ; but, however that may be, the legal sense of the word hospital is a corporate foundation, endowed for the perpetual distribution of the founder's charity, in the lodging and maintenance of a certain number of poor persons, according to the regulations and statutes of the founder. Such institutions are not necessarily con- nected either with medicine or surgery, and in their original establish- ment had no necessary reference either to sickness or accident ; though it was not uncommon, in ancient times, to found hospitals for lepers and other diseased persons (i). Strictly, such corporations are only, in a legal sense, hospitals, when all the inmates of the foundation are incorporated, and have a common seal, and, in all other outward respects, resemble a college ; when the trustees or governors only of the house were incorporated, that is to say, when certain persons were appointed to manage the concerns of the house in which the poor resided, and such persons were incorpo- rated, and a mode of maintaining the succession pointed out, but the poor objects of the charity were not themselves incorporated, the insti- tution was not held to be, in the strict legal sense, a hospital (ft) ; and the same was the case if a body already incorporated were again incor- porated as governors of the foundation, of which there are many in- stances (/). (t) 10 Rep. 33 b; vid. 2 Inst. 726, marg. at the accustomed rent or more, payable Colleges and hospitals are the same in their yearly during the term ; 13 Eliz. c. 10, s. 3, nature and properties, differing only in de- and 14 Eliz. c. 14; 14 Eliz. c. 11, s. 17. gree ; Phillips v. Bury, 2 T. R. 353"; vid. 1 If a master is removable for certain speci- Leon. 215. fied causes, and for other reasonable causes, (k) 10 Rep. 31 a ; vid. tarn. 2 Inst. 724 ; as often as to a majority of the governors shall Att.-Gen. v. Brown's Hospital, 19 Law. J. seem convenient, he has not such a freehold (N. S.) Chanc. 73. In other hospitals the as gives a vote for the county ; Davis v. Wad- estates are vested in the master; and though dington, 8 Sc. N. R. 807, nor have the bre- there is a common seal, the brethren have thren, S. C. only power to consent; Co. Lift. 342. In (/) Governors of Bridewell v. Germain, other hospitals none but the master or warden cited 10 Rep. 31b; Doe i) 10 Rep. 31, 32. Meaning of t/omtis ns lished, s. 8. appl,, >iial, 10 Rep. 32 a ; 2 1.1;. impson, app., Wilkinson, mp., 7 M. & 325. It may not be demitea by the corpora- Gra.50. tion. 11 1 lit c. 11, a. 17. (0 in Rep. 33 b. Whether the hospital 10 |;, ,,. :j| i,. be founded at common law <>r ander the stat. (p) Co. l.itt. 264 a. 39 Eliz. <■. r, - 2 Inst. 724 ; vid. inf. y. 61 I. (q) 3 Atk. 21, ?2(j, 750; Case of Small tfariattw. Pascall, Anders. 210 ; S. C. Pox Hospital, An I. 161 ■ ^ited 10 Hep. 32 b. (r) LI & 12 Vict. c. 123, s. 8. The enact- HOSPITALS. 569 of the founder, his name, if so included at the incorporation of the body, used to be thought an essential part of the corporate name (u) ; but a corporate name will not be bad as a name of incorporation, be- cause the name of the person referred to in it is not the actual founder's name ; thus when Hen. 8 founded the hospital of the Savoy, by the name of" The Master and Chaplains of the Hospital of Henry, late King of England, the Seventh, of the Savoy," it was admitted in argument, that, the foundation being made in pursuance of the will of Hen. 7, the name was sufficiently good, though Hen. 8, in fact, en- dowed and erected the hospital (x) ; and this appears to be the law (x). Formerly, very minute accuracy was required in regard to stating the name of a corporation of this kind in suits by or against them, and in grants and leases by or to them, &c, &c. Thus a writ of scire facias against the provost, &c, of St. Nicholas of Canterbury was supposed to abate because it called them the provost, &c, of St. Nicholas in Canterbury (y). So to an assize by a body calling themselves in the writ by the name of " The Master and the Brethren of the Fraternity of Nine Orders of Angels in Brentford," it was pleaded in abatement, that the fraternity was incorporated by the name of " The Master and the Brethren of the Fraternity of All Saints and the Nine Orders of Angels," sans ceo that they were incorporate as they had called them- selves (-) ; and in leases by or to hospitals, variations in the name had been held to invalidate the demise, at least if they applied either to the name of the persons of the house, of the foundation, or of the dedica- tion, or of the lieu conus where the house was situate (a). From the reign of Edw. 6 to the end of the reign of James 1, many decisions are to be found turning on many nice points of this nature ; and many, now apparently frivolous, objections were entertained ; but a greater liberality of sentiment now prevails in the decisions of courts of justice. Accordingly it is now quite settled, that if a hospital lease or convey property by a name which is not exactly their name of incorporation, and seal the instrument with their common seal, and receive the rent or consideration money, they cannot be allowed to say the lease or con- veyance is void because they misnamed themselves in the deed (b). Notwithstanding, however, the ancient precision, a hospital, it was considered, might be named, and known, and used to plead, and be im- (u) Vid. cases cited in Croydon Hospital (y) Yearb. 15 Edw. 4, fol. 15, pi. 20. v. Farley, 6 Taunt. 467. Though the courts (s) Yearb. 22 Edw. 4, fol. 34, pi. 13 ; et take notice that " A. B. and Company" is not vid. Com. Dig. Capacity, B. 5. a corporation, R. v. Harrison, 8 T. R. 508; (a) Per Manwood, C. B., Moor. 235. yet it seems, nevertheless, that the incorpora- (b) Croydon Hospital v. Farley, 6 Taunt, tion of a hospital ought to be stated in plead- 467. Most of the old objections would now, irjg, for it will not be presumed ; per Maule, if apparent on the pleadings, either be set J., 7 M. & Gra. 63 ; therefore, they must say right on summons to amend as in case of mis- in pleading seisin, that they were seised in nomer of individuals, or might be amended right of the corporation, not of the hospital; by the judge at Nisi Prius under the Law 10 Rep. 34 a. Amendment Act, and the established prac- (x) Mariattu. Pascall, Anders. 210 ; S. C. tice thereon ; vid. Lush, Pract. 309, 310. cited 10 Rep. 32 b. 570 HOSPITALS. pleaded as well by one name as another. Thus the master of St. Lazarus hospital had been for a century and a half used to be named, known, &C., as well by the name of " The Master of the Hospital of St. Laza- rus of Burton, of the Order of St. Lazarus of Jerusalem in England," as by the name of " The Master of Burton St. Lazarus of Jerusalem in England" (c). But it has since been considered that the law is otherwise, for Sir E. Coke says, " there is a difference between ancient corporations and corporations made of late times ; for ancient corporations may, by usage, have divers and several names ; and leases, grants, &c, by any of them, shall be good enough" (d); but the others he intimates may not. A devise to a corporation to the use of a hospital was held good, though the corporation to whom the devise was made was misnamed in the will ; for it was said a devise to a charity shall be favoured (e). There are four principal and substantial particulars to be observed with regard to these corporations aggregate, as it has been said ; and the effect of the rule laid down is, that 1. Each corporation must be known by a name, as master and fellows, or rector and confreres, or master and brethren, or warden and brethren, or master and brethren and sisters, warden and poor, &c. 2. There must be a place certain where all the persons incorporated shall be resident, which must also have a name certain, as college, hospital, &c. 3. The corporation must have the name, either of a saint to whom it is dedicated, or that of the founder, included in, and making part of, its corporate name, under which it sues and is sued. 4. There must be a place known in which the house shall stand, and such place shall be known by some name before the foundation of the hospital, &C. ; ex. gra. in Oxford, in Lon- don &c. (/). To erect a hospital by the name of such a hospital in the county of A., or the bishopric of B., or the like, is not good, as being uncertain (g) ; it must be of some place, ex. gra., city, town, vil- lage, or hamlet, in the county of, &c. But if these matters be stated, in pleading or demising, in such a way as sufficiently to distinguish the corporation from any other, it will suffice, and advantage cannot be taken of such misnomer ; for it is im- material to the merits of the cause (A). However, if they grant or make an indenture by a name substantially different from their own name, such indenture is invalid (i)- (c) Masler of Burton, &c, v. Prior of cated, and al-o the founder's name; et vid. Sempringhun, Yearb. 9 Edw. 4, fol. 19, 20, V er Whitlock, J., I Leon. 126 ; 8. C. Moor. i,l. W ; vid. yearb. S Hen. 6, foL 28, pi. 10. 2(36, cited 10 Rep. 126 ; vid. as to the effect (rf)'Caseof Mayor, tie., of Lynn Regis, of omitting the name of the saint in a grant, 10 Hep. 126 a. Deed of grant to a corpora- &c, 11 Rep. 21 ; et vid. 6 Taunt. 467 ; 3 tion by such a name is evidence against per- Rep. 75. sons claiming under the grantor, that the cor- (*) Per Popham, C. J., in Button V. a was known by such name at the Wnghlman, Poph. 57. time: Mayor. &c, of Carlisle v. Blamire, 8 ffc) Marriott v. Pascal, 1 Leon. 12b; ,g 7 * Case of Mayor, &c., of Lynn, 10 Rep. 125 ; ' (e) Case of Mayor, &c, of London, Duke, Croydon Hospital V. Farley, 6 Taunt. 467 ; 83; et vid. slat. 14 Elk. c. 14. Abbot of York v. Abbot of Selby, \ earb. 8 (f) Per Manwood, «'. B, in Fan-haw's Ldw. 3, fol. 68, pi. 35. Moor. 231 ; vid. 6 Taunt. 467 , 469, (i) R. ..Inhabitants of Haughley, 4 B. 5c that the name of incorporation may include Ad. 650, 655. both the name of the saint, See, to whom dedi- HOSPITALS. 571 An addition to the real name was never held material (k) in pleading or leasing. Still wider latitude is allowed (as we have seen) in a devise to a cor- poration of this kind, for there the devisor will be allowed to use the name by which the hospital is usually known and named in common parlance, which seldom, or never, contains all the above particulars ; and so if a corporation of this kind is mentioned in a statute (I) ; and " he who would avoid a writing, demise, grant, &c, made by a corpora- tion, or to it, by reason of any verbal or literal misnomer, ought to show that there are two corporations within the same city, borough, or town, &c, viz. one by the true name, and another by such name as is con- tained in the deed, &c, and to have the deed good for, or to, one of them ; but where in truth there is but one corporation, leases, grants, &c, made by them or to them, ought not to be avoided by such nice and verbal variances, when in substance the true name of the incorpo- ration, either by matter expressed or necessarily implied within the words themselves, appeareth to the court" (m). The proper mode of taking the objection at present, if the declaration stated the deed to have been made by or to the corporation by its correct name, while in truth the deed was made in a name which might be either that of the corporation made a party to the suit, or the other corporation of a somewhat similar name in the same place, seems to be doubtful (w). With respect to the manner of founding a hospital at common law, it is laid down, that to erect a hospital there is nothing required in law but incorporation and dotation, or endowment (o). But the incorpora- tion may be effected in two ways. Either the crown, in the charter of incorporation, may designate the place in, or at, which the buildings or tenement of the hospital is to stand, and appoint the number of cor- porators, and give the name, so that the incorporation is complete by the charter, and there remains for the founder nothing to do, but to grant the lands or property forming the endowment, which he may do by an instrument not containing any words of erection or foundation, such as fundo, erigo, stabilio, or the like (p) ; or the crown, by the (k) Ayray's case, 11 Rep. 20a; Button Christchurch v. Parot, 3 Leon. 190; vid. 3 v. Wrightman, Poph. 56. Rep. 75. (I) 10 Rep. 57 b; Com. Dig. Capacity, B. (n) Compare Smith v. Jennings, 9 Dowl. 5; 11 Rep. 21 b ; 2 Leon. 165. 155, with North v. Wakefield, Q. B., East. (m) Sir E. Coke's note to the Mayor, &c., T., 1849 ; vid. 6 Dowl. & L. 96 ; 6 C. B. of Lynn's case, 10 Rep. 126, commenting on 290. Quare whether the right course is to Yearb. 25 Edw. 3, fol. 91, pi. 3, the Prior set out the deed on oyer, and plead non est of Worcester's case, where in a precipe quod factum. reddat the writ was abated (it being shown (o) 10 Rep. 33 b. 15 Hen. 6 is the ear- that there was a prior of the church of St. liest date on record of incorporation of a hos- Maiy of Worcester, and a prior of the friars pital. preachers also in Worcester) for the uncer- (p) 10 Rep. 33 b. tainty of it, as it ran precipe priori WigorniiB, The nomination of persons to be corporators &c. ; et vid. 11 Rep. 21 b. of the hospital, if not otherwise disposed of, The grant of the crown of lands to a cor- vests in the founder and his heirs, being inci- poration by another name than that by which dent to the foundership ; Att.-Gen. v. Ripley, they were known before has the effect of 3P.Wms. 145; vid. Att.-Gen. v. Brentwood passing the lands, and also incorporating them School, 3 B. & Ad. 59. by the new name; Dean and Chapter of But the heirs may forfeit the right by a 572 HOSPITALS. charter of incorporation, may reserve for the founder the nomination of the persons, and the giving of the corporate name, when the founder must nominate the parties, and impose the corporate name by which they shall sue and be sued, which he may likewise do without any of the above-mentioned description of words. In this case, it is not until the founder has stated these particulars in writing, that the incorpora- tion is complete : and in either case it is the crown, and not the founder, who incorporates the body (rj). But from the principles of corporation law, it follows that the incor- poration must, in either case, precede the endowment; for until the incorporation of the persons, who are to be the objects of the charity, there is nothing for the endowment to operate upon; because a body of persons, not incorporated, cannot take to them and their successors, as they cannot, qua individuals, have any successors ; and therefore, in order to effect the purpose, that the lands or property granted may perpetually feed the charity, there must be a corporation already esta- blished, to whom the lands or property may be granted in perpetuity (r). Of course, also, for this purpose, the corporation must have a license in mortmain to enable them to hold the lands (if lands be granted), for the reasons fully explained above. Therefore, the license to hold in mortmain, as well as the incorporation, ought to precede the endow- ment of the hospital, if it is intended by the founder to endow it with real property, either wholly, or in part(r). On the whole, it appears that the best and least troublesome mode of founding a hospital is to obtain the insertion in the charter of incor- poration of the names of the parties whom it is intended should be the first objects of the charity, together with the intended name of the cor- poration, because then the whole that is necessary to be done may be accomplished by the charter alone, for as we have seen, a charter of incorporation may always also contain the license to hold in mortmain, and if it contain all these particulars, then nothing remains for the founder but to grant the lands and frame the statutes, and name the visitor (s); otherwise if the charter leaves to the founder to nominate corrupt and improper nomination of unfit ob- (s) Where the founder gives ttie visitors jects of the charity, or by making no nomina- power to place and displace the officers of the tion at all, having had due notice of the hospital at pleasure, that fully empowers them vacancy ; Alt. -Gen. v. Leigh, 3 P. Wms. 14tj. to amove without assigning any cause : and Where one seised in fee of a manor granted when a founder's statutes say that in such a rent in fee out of it for the support of poor and such cases ihey shall and may amove, the persons, and afterwards grants the manor to words are to be construed theu mtut ; Att.- J 5., the right of nominating the poor persons lien. v. Lock, 3 Alk. 164 ; Davis, app., Wad- not pass with the manor, but remain- in dington, rcsp., 7 M. & Gra. 45. As to in- the grantor and his heirs ; Alt. Gen. v. Rigby, terpretaiion of founder's statutes, vid. In re 3 P. Wms. 145. I ' rsity College, Oxford, 2 Phill. 521. (ii) 10 Rep. 33 b. Winn- die hospital A mandamus to restore a sister of the hos- waa, by charter, created to consist of a certain pital of St. Itartholomew's, in Sandwich, of Dumber, in pleading such number ought to royal foundation, was refused, because the i Master ol Wycombe Hos- almswomen there were removable at will, pital, Yearb. 84 H'"- 6, fol. 27, pL6; but R. r. Wheeler, 3 Keb. 360 ; and urnb. even St i- otherwise in pleading a hospital by pre- if she had had a freehold interest, as this was ■eription. S. C. a removal by the governors, the proper course, {r) Vid. 10 Rep. 26b. '» that case, as well as in the former, would HOSPITALS. the parties and give the name, then, as we have said, the incorporation is only complete when he has clone so, and the crown must a). The founder may appoint such person or body politic to visit, or appoint to places in, the hospital, as he pleases, according to statutes (/y), to be set forth in writing under his hand and seal, not being repug- nant to the laws of the realm ; or may reserve to himself, or his heirs, or assigns, the power of removing and appointing the corporators in the hospital (r). A right of appointing the master, and, as it seems, of appointing all (n) Master of St. Bartholomew's Hospital A declaration of an use by a founder was case Yearb. 22 Edw. 4, fol. 18, B ; vid. 21 presumed from an entry in an ancient book. Edw. 4, Vol. 13 ; el vid.' sup. p. 147, note (h). purporting to be such declaration, but witb- A master having the fee in him is bound, out signature or date, the book being kept by like a hospital aggregate, not to make any the trustees for entering their proceedings, and lease "ift grant, o°r conveyance, estate, charge, containing an order of the trustees dated six or incumbrance to bind his successor, other years after creation of the trust, that the de- than for twenty-one years, or three lives in claration should be entered as a direction to possession, at the customary rent; Co. Litt. the trustees ; Att.-Gen. v. Boultbee. 2 Ves. 342 a. 380. (o) \tt.-Gen. v. Mayor, &c, of Plymouth, (r) 39 Eliz. c. 5. 9 Beav 67 As to setting aside leases by Wherever the founder omits to appoint a hospital's ild. cases Chittv, Eq. Ind. p. 306; visitor, Sir E. Coke says, the bishop of the 1 l'latt 'Leases, 347, 351; 5 Vict. sess. 2, diocese shall visit; 2 Inst. 725. Visitor, c. 27- 5 St 6 Vict c 108; 33 Hen. 8, c 27 ; when not entitled to general natatorial 12 Hep 120. powers; Att.-Gen. v. Brown, 19 L.J. (X. '(],) Per cur., Yearb. 1 4 Hen. 8, fol. 30, S.) Chan. 73. Spiritual hospitals are mostly 31 pid I vii i ' Wyn, O. Bridg. 14i5 ; Wood visitable by the ordinary, except those under v Mayor \c of London, Salk. 398 ; 8 .Mod. 25 Hen. 8, c. 21, s. 20, where the visitation 304 ; 3 Burr. 1563; 17 Vin. Abr. is to be exercised by the crown by commis- ( n ) 39 Eliz. c. 5. s ' on UQ der the great Beal. The best mode of securing the general vi- As to hospitals Founded at common law, if material power to the visitor is, to prescribe the founder appointed no visitor, he was to that no act shall be done without bis assent ; visit during bis life ; and after his death, the Att.-den. v. Dulwiih College, 4 Beav. 341. bishop of the diocese or his chancellor ; 14 SirE Coke recommends that the statutes Eliz. c. 5. be broiled and that they bear date after the Hospitals founded by the king or his pro- endowment of lands, 2 Inst. 725 ; which is genitors, kings ol England, are visitable by best effected he says, by way ol bargain and the great seal, and a prohibition will go I sale "between the founder of the one part, ordinary if be attempts to visit; la/,. N. B. and 'the master and brethren, &c, ol the hos- 42, A.; ud. 17 Vin. Abr. 245. pital ol the other part, 2 Inst. 725. HOSPITALS. 577 the corporators, may be aliened 0), and the patronage of a hospital may be specially limited, so as to be a desultory kind of inheritance (*). The appointment of the master, where he is a corporation sole, does not vest in him individually the estate in the lands, &c, of the hospital for his life, though it gives him a life estate in the mastership or office, subject to be divested on deposal or deprivation, when he loses ipso facto all right and interest in the property («). The master has no power of taking to him and his successors unless he is incorporated. Therefore, where a devise was made of the residue and remainder of all the testator's estate to the governors of the Found- ling Hospital and their successors for ever, it was held that, not being a corporation, the persons so designated could not take (x). On the other hand, when he is incorporated, and recovers in debt money owing in respect of the charity, his successor, and not his execu- tors, shall have scire facias on the judgment ; for he cannot make exe- cutors in respect of anything appertaining to the house or corporation (y). When in an action the master claims as master, but he is not sued as such, but only in his individual character, he ought to state how he is appointed, or became, master, and, if elected by the brethren, he must state how he was so(r). If he is sued as master, then his cha- racter is admitted, and it is not necessary to state how he acquired it. The master of a hospital is liable in equity to refund fines, which he had received contrary to his duty, though according to the example and usage of his predecessors, for the renewal of leases of the hospital lands (a). Whatever be the nature of the incorporated hospital, purity of elec- tion by the corporators is provided for by special enactment, thus (b), that " if any which have election, nomination, voice or assent there- unto, of any person, to have room, or place, in any hospital, shall have or take any money, reward, or profit, directly or indirectly, or promise of money, reward, or profit; then such room and place to be void, and another to be preferred to the place by those that have authority to elect," &c. But it seems that a quo warranto information, under the (s) Vid. Williams v. Bishop of Lincoln, The mastership is not grantable in rever- Cro. Eliz. 790. The patronage of a hospital sion ; Lord Brouncker v. Atkins, T. Jones, is treated as assignable in stat. 39 Eliz. c. 5 ; 176 ; S. C. 1 Chan. Cas. 215. and in 31 Eliz. c. 6, the rights of patronage (t) Atkins v. Montague, Cas. in Chanc. to churches, colleges, schools, and hospitals, temp. Car. 2, 214 ; vid. 3 Salk. 250; 3 B. & are considered of the same nature. Ad. 72 ; Att.-Geu. v. But'er, Skin. 644 ; The Att -Gen. v. Master of Brentwood School, Case of St. Katherine's Hospital, cited sup. 3B,& Ad. 59, shows thai the right of ap- p. 540 ; 2 Dugdale, Monast. 460. poiutment to the mastership of a free grammar (it) Per Herle, J., in Shiraks v. Archbi- school may be aliened ; vid. 3 P. Wms. 145. shop of York, Yearb. 8 Edw. 3, fol. 70, A. Quare impedit lay for the mastership of a (i) Arnold v. Chapman, 1 Yes. sen. 108 ; spiritual hospital; Mavor, &c. of Bedford v. vid. 17 Ves. 466; vid. Gravest;. Colby, 9 A. Bishop of Lincoln, Willes, 608. Form of & E. 356. declaring; Rast. Entr. 463, B. (y) 8 Vin. Abr. 42, pi. 6, marg. As to Nonage of the master is no plea to an ac- claim of tithes by master, 2 C. B. 775. tion of debt against the hospital ; Yearb. 21 (z) Yearb. 34 Hen. 6, fol. 27, pi. 6. Edw. 4, fol. 13, 14 ; 2 Vin. Abr. 151, pi. 10, (a) Att.-Gen. v. Pretyman, 4 Beav. 462. marg. (b) 31 Eliz. c. 6 ; 2 Inst. 726. P P .",Ts HOSPITALS. stat. 9 Ann. c. 20, is not the proper mode of questioning the election or appointment of a master of a hospital, although the affairs of the hospital be managed under an act of parliament for the purpose (r), and the hospital had been originally founded by royal charter. In general all acts, in these, like other corporations, are to be done by the simple majority of the whole body, in the absence of special di- rections t<> the contrary in the founder's statutes. Therefore, where a corporation of a hospital consisted of a master and brethren, and an advowson was conveyed to them, to the use of the master and brethren and their successors for ever, the right to nominate belongs to the majority of the entire body of master and brethren, and the master's concurrence in the act of the majority is not necessary (d). And the master, in such case, will, upon his refusal, be compelled to affix the common seal to the nomination, and this though there are visitors, ap- pointed by the founder, to whom all disputes between the master and brethren are to be referred (e), the application being made on behalf of a stranger to the corporation ; for to such a case, as we have seen, the visitatorial power does not extend, and the court has always inter- fered (/). Indeed it is very questionable, whether a private founder of a hospital incorporated of master and brethren could legally impose statutes depriving the corporation of the common law incident to cor- porations in general of acting by a majority, unless he were specially empowered by act of parliament to do so (g). At any rate the courts will lean against such a construction of the statutes of such a corpora- tion as gives a veto to the master. Even in case of a corporation erected by royal charter, it might be doubtful whether such an arrangement would be binding, although there, it might be contended, that the ac- ceptance of the first corporators of the charter, which is alway necessary to give it validity, and must therefore be stated in pleading, might make a difference ; it does not however appear that there is any au- thority to show that statutes must be accepted by a hospital, in order to give them a binding effect. They rather seem to be imposed by the founder on the corporators, who are in all respects the creatures of his bounty (h). At any rate we may with much probability conclude, that a founder, acting under the 39 Eliz. c. 5, would be considered to (c) Reg. v. Mousley, 8 Q. B. 946. Man- 3 Burr. 1647 ; It. v. Bland, 2 Hum's Eccles. damns does not lie to restore to a place in a L. 1 17, 8th edit ; R. v. Mayor, 8tc, of Bed- hospital ; Parkinson's case. Carth 92. ford, cited 1 Q. B. 37H, note (c). (,/ 1 Reg. i. Kendal!, 1 Q. B. 366 ; et vid. (g) P« cur. I Q. B. 383. Vid. 33 Hen. '.',.', IN n.8 c. 27. By C. 27, thai in corporations none shall have The act', to be binding, must be done at a a negative voice, in affirmance of the com- meeiing convened for the purpose ; R. v. mon law, and making invalid all statutes of Theodorick, 8 East, 543. But it seems that founders to the contrary ; vid. inf. p. 686. < the corporation may be constituted of two per- ( h ) Per cur. 2 Q. B. 96. There are in- nly, vid. instance, AtL-Gen. i Brown's stances in which the crown has, by a subse- itaf,'l9 I- J. (N. B.) Cbanc. ?:;. nueni < harter, empowered the visitor to alter (e) Reg. i. Kendall, I Q. B. 366; << mi. ihe previous statutes, although they ordained R. i. Windham, Cowp. •'!'". What is ;i that tin- constitution thereby fiaed should sufficient demand and refusal, 1 Q. 1'.. 380, never be changed; vid. 19 L. J. (N. S.) 386. Chaoc. 73. (/) R. i. Vice-Chancellor of Cambridge, HOSPITALS. 579 have exceeded his powers if he took upon him to introduce a rule unknown to the common law, and either gave a veto to the master, or prescribed any other mode of passing corporate acts than that of a simple majority of the entire body. The body must also of course vest or divest an interest by deed under their common seal ; but in pleading, it is not necessary for their lessee to plead that they took (even in the case of an incorporeal hereditament, as a way, which lies in grant) by deed, where the way is incident to the land and not in gross, and the statement is but inducement, and where he cannot have the deed to make profert of; thus a lessee for years of a hospital may plead that the hospital and all they whose estate they have in a house, &c, have had a footway to the river Thames, &c. (i). But if they had themselves had occasion to plead the right of way, they must have shown how they came by it (k) ; that is to say, supposing that they were founded within time of memory, and they might allege that such an one was seised ; and he and all those whose estate he hath have used, &c, and then, from such person, derive their title, making profert of the deed (I). If an action be brought by a stranger, for an injury done him by an illegal act of the corporation, and he recover damages, they must be paid by the guilty majority, not out of the corporate funds (m), but out of their own pockets. Equity will not marshal assets in favour of a charity. Thus where the testator left real and personal estate, and directed, after payment of debts, charges, &c, a legacy should be given to the corporation of the Sons of the Clergy, and the residue to Christ's Hospital, the court refused to marshal the assets, by throwing the debts on the real estate, in order to leave the personalty clear for effecting the charitable lega- cies in) : and though the contrary was at one time held, yet now the doctrine of marshaling assets, so as to give charities the full benefit of the pure personal estate, is wholly exploded, as an evasion of stat. 9 Geo. 2, c. 36 (o). By the 19 Geo. 3, c. 91, the trustees of any hospital are empowered, with the consent of five or more of the charity commissioners, to peti- (i) Slackman v. West, Cro. Jac. 673 ; S.C. of maintaining a way, ferry, port, or the like, Palm. 387 ; 2 Roll. R. 376 ; et vid.2 Ventr. they shall have toll, it need not allege that 139; Com. Dig. Pleader, E 24; Savile v. the consideration is performed, for it is suffi- Master, &c, of Sidney Sussex College, 18 cient that they are bound to perform it; Yin- Vin. Abr. 137 ; Co. Litt. 121 a. kestone v. Ebden, Salk. 249. But the verdict (k) Bishop of Salisbury's case, 10 Rep. must find that the hospital was bound to 59 b ; Co. Litt. 121 a. maintain, &c. ; S. C. Carth. 359. (0 Per Doddridge, J., 2 Rol. R. 376. (m) Feoffees of Heriot's Hospital v. Ross, A bailiff" making conusance on behalf of 12 Cla. & F. 507. a hospital need not say that he was autho- (n) Foster v. Blagden, Ambl. 704 ; Att.- rized by deed ; for it shall be intended that Gen. v. Hurst, 2 Cox, 365; Rodgers v. Mor- all was done regularly; Com. Dig. Pleader, rison, 1 Cox, 180; Moggs v. Hodges, 1 Cox, 2 B. 2; but a verdict finding an entry, by 9 ; Att.-Gen. v. Tyndall, 2 Eden, 207. bailiff of hospital, for condition broken, must (o) Foy v. Foy, 1 Cox, 165; vid. Rodgers find also that" he had authority to do so by v. Morrison, id. 180; Hoare v. Chapman, deed, Com. Dig. Pleader, S. 20. 4 Ves. 542. If the hospital avows that in consideration P P 9, 580 HOSPITALS. tion the Court of Chancery, praying relief in cases where the statutes or regulations are insufficient for the due administration of the funds. This extends to incorporated hospitals (p). Where in covenant, a demise purporting to be made under the com- mon seal of an incorporated hospital appears on the record, the court will not, on demurrer, take notice judicially, that no such corporation was or is in existence ( 12 A. & E. 535. Bridgm. 144; Co. Litt. 44, 45; Carter, 16. ( f) Co. Litt. 344 a; Yearb. 27 Edw. 3, Must be by indenture, and not deed-poll, fol. 8, pi. 25; Dav. K. 46, B. Finch, Law, 110, note. Where in concur- (g) Lyn t. W vn, <). lirdgm. 148; Yin. rence with their lessee they sell land under a Abr. Corporation-. K 1 , pi. 7 ; Kerwil's case, railway act, a.< to how the conveyance should 12 Fdw. 4, fol. 10, A. So they may borrow be made, rid. I'.i parte Ward, 17 Law .1. money for the supply of the necessary wants ( N. S. ) Chanc. 249. of the corporation, and the lender may recover As to decreeing specific performance of co- against it; 11 Hen. 6, fol. :s<>. lots, Dean and Chapter of Ely v Stuart, (/.) Lyn v. Wyn, O. Bndgm. 148; vid. 2 Alk. 44. As to renewal of leases, 6a" 10 Rep. 31 b. Will. 4, c. 20, e. 64; 5 .V 6 Vict c. 108. (i) Co. Litt. 264 a. I'aihfTto be expressly warranted by dean and (k) Lyn v. Wyn, O. Bridg. 148; Co. Litt. chapter, or his acceptance of rent for them 264 a; 6 Vin. Abr. 314, pL 21. will not set up void lease; Lyn p, W yn, O. 33 lien. 8, c. 27; Yearb. 14 Hen. 8, Bridgm. 149. <; 21 Edw. 4, fol 27 ; 15 Edw. 4, fol. An agreement for a lease executed by the 'J. A; 9 Hen. 6, fol. 32; per Broke, J., 13 dean Jor Inmsrlj 'and the chajiier will bind the Hen. 8, fi>L 13, H. corporation in equity; 2 Atkins, 44; vid. With n.spect to leases by dean and chapter, Dyer, 40, II. ; Lli/.. c. 10; 8 Mem. 427; 2 Preston, (») Lyn v. Wyn, <). Bridgm. 149; vid. Ab-tr. Convey. 10, 11; 8Q.B.139; Baugh 11 Hep. 78; Cro. Eliz. 862; 2 Burn, Ecc ». II aynes, Cro. Jac. 76 ; Dean and Chapter L. 118. of Worcester's case, 6 Hep. 37 ; Harg. Note, DEAN AND CHAPTER. 587 quittance, under their common seal, or by warrant of attorney appointing their receiver to accept, or by matter tantamount appearing by deed (m). Acceptance of rent by the dean and chapter, after the death, or re- moval, or resignation, of the dean, in whose time the lease was made, does not, it has been held, set up, as against them, a lease void under stat. 13 Eliz. c. 10 (n) ; but a lease, which is voidable only, as at com- mon law, may be so set up, during the time of such succeeding dean, against the corporation (o) by acceptance ; but even though the lease were absolutely void, on the death or other removal of the dean in whose time it was made, the acceptance of rent by succeeding deans and chapters for a number of years has been lately held to be evi- dence, from which a demise from year to year by the dean and chapter might be presumed (p). They might avoid a lease, bad under 13 Eliz. c. 10 (at any rate before they accepted rent), though they had them- selves (i. e., the same dean and chapter,) granted it(^). The law, as above stated, ignoring the negative voice of a dean on determinations of the majority, extends to presentations to benefices, and rests on the common law, as restored and confirmed by the stat. 33 Hen. 8, c. 27, which has before been stated at length. As we have seen, the concurrence of the master of a hospital in such a presentation is not necessary, and the dean stands precisely on the same footing in this respect ; the master and brethren are one person in law ; so are the dean and chapter ; but still the master is head, and so is the dean ; and the determination of the headship produces a wholly different effect from the determination of the membership of any other of the corporators ; for many acts, which may be good against the cor- poration during the continuance of the head under which they were done, may be set aside by the corporation under his successor ; but the death or removal of any other corporator produces no effect of the kind upon the rights or liabilities of the body. In bringing an action by a dean and chapter, it is not necessary, and in fact it is preferable not, to state the name of the dean. As the pos- sessions of a dean, formerly held in his separate right as a corporation sole, are now, as will be pointed out, vested in the Ecclesiastical Com- missioners, it is no longer important to notice that, in respect of them, actions ought to have been commenced in his Christian name (r). If rent be due to the dean and chapter, and the dean die, the rent is payable to the succeeding dean and chapter ; and the executors of the deceased have no claim upon any part of it ; for the dean has no right (m) See preceding note. Estates, G. 5 ; Doe d. Pennington v. Taniere, (n) Rickman v. Garth, Cro. Jac. 173; 3 18 Law J. (N. S.) Q. B. 49. Com. Dig. 254, citing Bishop of Salisbury's (p) Doe d. Pennington v. Taniere, 18 Law case, 10 Rep. 62 a ; vid. Doe v. Butcher, J. (N. S.) Q. B. 49; vid. Doe d. Tucker v. Dougl. 50; Jenkins v. Church, Cowp. 483. Morse, 1 B. & Ad. 365. (o) S. C. Cro. Jac. 173; per Bridgman, (9) Morrice v. Antrobus, Hardr.326; Bac. C. J., in Dean and Chapter of Westminster's Abr. Grants, A. 2. case, Carter, 16; 5 Vin. Abr. 365, pi. 5; vid. (r) Dyer, 86, A. pi. 96; 1 Campb. 466. Owen u.Thomas, Cro. Car. 94,96; Com. Dig. 5S8 DEAN AND CHAPTER. to any part of the profits of the estates belonging to the body corporate of dean and chapter until after a division is made(s). But it seems they cannot compel the tenant to pay the rent, until the succeeding dean be fully appointed, for until then they are incomplete as a corporation, and cannot sue, or give a valid acquittance, for the amount. If the dean and chapter make a voidable lease, and the dean dies, and the succeed- ing dean and chapter accept rent, such acceptance sets up the lease during that dean's time, but not against his successor and the chapter, who may avoid the lease (t) if they choose. The dean, as a corporation sole, is capable of taking lands and all kinds of real property to him and his successors in succession, which, as we shall find, is common to all corporations sole ; and it had been usual, for a length of time, that deans had separate estates in lands, &c, vested in them as deans, over and above their share of the revenues of the corporate property belonging to the general body of dean and chapter. These estates are now vested in the ecclesiastical commis- sioners for England (?/). Also all founders' statutes, and customs, in cathedrals, by which any land, tithes, or other hereditament, had been assigned to the dean, in addition to his share of the corporate revenues, or by which had been appropriated separately to him, during his incumbency, the proceeds of any land, &c, being part of the corporate property of the body, are wholly annulled as regards any dean appointed since 11th of August, 18-K)(:r); provided, that the lands, &c, annexed or belonging to, or usually held and enjoyed with, the deaneries, or any of the canonries in the cathedrals of York, Chichester, Exeter, Hereford, Lichfield, Salis- bury, and Wells respectively, may, if it seem proper to the Ecclesiastical Commissioners for England, be transferred to and vested in the general body corporate of dean and chapter in each case, so as to augment the divisible revenues, &c. (y). The practical effect of these arrangements transferring the fee in the estates held by the deans and canons in their respective separate rights, («) Lyn v. Wyn, O Bridgm. 145, where, ter p. Dean and Chapter of Norwich, Moor, p. 148, and in Ayru 9. Orme, Dyer, 222, see 875. vid. ace. O. Bridgm. 146, 147; Harg. as to accepting rent during vacancy. It is not note (266), on Co. Litt. 45 a. necessary in pleading acceptance of rent by (u) 3 & 4 Vict. 113, s. 50. The section dean and chapter to state that it was by deed ; enacts the same with respect to canons, and Dean and Chapter of Windsor v. Cover, 2 the separate patronage of all benefices with Saund. 305, A. ; and so of pleading entry for cure of souls, posessed by either in right of forfeiture by dean and chapter, Edgars. Sor- their separate estates respectively, are given nil, Cro. Car. 169; vid. Dyer, 102, B. j 11 to the bishop, sect. 41 ; that in the gift of the (,». 15. 127 ; and so of pleading entry by leave corporation is regulated by sect. 44. and license of the corporation, Vearb. 21 (x) 3 \ 4 Vict. c. 113, s. 28. This sec- Edw. 4, fol. 19, pi. 22, or by their command tion enacts the same with respect to canons. as their servant, Vearb. 18 Kdw. 4, fol. 8, pi. As to power of sale, transfer, or exchange of 1 1. Where a verdict finds that they accepted lands, &c, belonging to any dean and chap- so much rent, it shall be intended ih.it it was ter, vid. sect. 68. The inheritance in such accepted by deed; Lyn r. Wyn, U. Bridgm. property being in the entile body, could not I5L huve been sequestered for the private debt of (I) Lyn v. Wyn, O. Bridgm. 148, 149. the dean or a canon; Salk. 320, 321. Covenant lies on a lease only bad under 18 Kliz. (y) Sect. 52. dunng incumbency of same dean, &c. ; Wal- DEAN AND CHAPTER. 589 to the Ecclesiastical Commissioners for England, appears to go far to de- prive them, for most practical purposes, of the character of corporations sole. Such questions as the following can no longer arise : A canon, seised, in right of his canonry, of lands, leases them, and the lessee dies, having before his death assigned over his lease, and then the canon dies, and the question was whether his successor could bring debt against the lessee's executors for rent accrued due after the assignment ; by three judges against one, the action was held not to lie (z). A bond given to a dean and his executors, or to a canon and his exe- cutors, goes to the executors at his death, and not to the successors (a), although it be given to him in respect of matters connected with his office exclusively, and which he might be enabled to take merely by virtue of his office (a), and though it might be for the benefit of his suc- cessor. But it has been said that a bond, given to a bishop and his successors, shall not go to his executors (b) ; for that an obligation may as well go in succession as land(c). This, however, has been con- tradicted by other authorities, who have laid it down that both in the case of a bishop and a dean a bond made to him and his successors goes to his executors() MirchouM v. Rennell, 8 Bind). 490; (k) Harg. Note (47), on Co. Liu. 9 a; S. < . i ( I,,. ,\ f, 527: ,id.l 15. 8t C. 113; ptr Cake, C J., in Cnrven's case, 12 Rep. 7 Q. 15. !(7 ; 2 T. U. 365. Howley t). Knight, 19 Law J. ( \. S.) (q) Dean and Chapter of Norwich's case, Q. 13. 7; rid. f '.I/. H. 13. 120. D. 3 Rep. 75 b; rid. nip, pp.588, 589. (0 19 Law J. (N. H.) ii. 13. 7. DEAN AND CHAPTER. 591 of it, by the late enactment (r) ; but it does not appear that they are thereby empowered to alter the common law rule that they cannot pre- sent the dean (s) ; for the dean, being the head of the corporation, can- not, it is said, be severed from the corporation as an ordinary member of it may ; for though an action (ex. gra., trespass) may be brought against a corporation, together with J. S., a member of that corporation, that is otherwise if J. S. is the head of the corporation (t). It seems that if a person be once duly instituted, inducted, and installed dean, all acts regularly done by the corporation during his headship shall bind the corporation; and if they be acts of confirmation, shall bind the bishop and his successors, although the dean be afterwards attainted or deprived (u), and that, even though he were deprived for a defect in his eligibility ab initio (#); for his installation and occupation as dean are sufficient to make his acts good during his incumbency (x) ; but it is otherwise if he be an usurper or intruder (jy). An obligation given by a dean, purporting that by it he, " J. S., dean of, &c, is held and firmly bound, &c, in testimony whereof he has thereto put the common seal," does not bind the corporation after the accession of the succeeding dean (z) ; for it does not bind the corporation during the continuance of the incumbency of J. S., because it is informal in not alleging the participation of the rest of the corporation in the act of executing the deed (a); for they are an entire body, and the dean cannot execute a deed, and the chapter confirm it, but they must all make it at once, and not by two deeds, as the above would in fact be (a). So the dean cannot lease to, or enfeoff, the chapter ; for they have no separate existence as an aggregate body corporate (6) ; that is to say, though the dean has a separate corporate existence as a corpo- ration, the chapter by itself is not a corporation aggregate. If a dean be appointed, and afterwards, for a supposed defect in his appointment, be deprived, and another be made dean, and, with the chapter, do corporate acts, and then the first is restored by the proper authority, these acts do not bind the corporation after the restoration (c). If a dean or canon be presented by the crown, and the demise of the (r) 3 & 4 Vict. c. 113, s. 44. They can- fol. 29, 30. not grant the next avoidance of a benefice, (i) Abbot of Fountain's case, Yearb. 9 for that is within 13 Eliz. c. 10; Dean and Hen. 6, fol. 33, B. Semb. it would be other- Chapter of Hereford v. Ballard, Cro. Eliz. wise of acts done that divested an interest out 440; S. C. 5 Rep. 15. of the corporation; for, semb, the acts of a (s) Lyn v. Wyn, O. Bridgm. 148; vid. dean defactn, being voluntary, are not good to Salk. 398; Co. Litt. 264 a; per Broke, J., charge his successor; O'Brian v. Knivan, 13 Hen. 8, fol. 13; per Brudenel, C. J., Cro. Jac. 522. Yearb. 14 Hen. 8, fol. 31; Jenk. Cent. 199, (y) Yearb. 9 Edw. 4, fol. 11, B. 200. ( Z ) Yearb. 14 Hen. 6, fol. 16, pi. 54; (O Yearb. 8 Hen. 6, fol. 1, pi. 2; Yearb. Yearb. 22 Hen. 6, fol. 4, pi. 6; Fitz. N. B. 21 Edw. 4, fol. 32. 194, I.; 5 Vin. Abr. 372. (u) Vid. Dyer, 123, B. pi. 37; Costard (a) Dyer, 40, B. v. Winder, Cro. Eliz. 699 ; vid. Cas. Temp. (b) Salter v. Grosvenor, 8 Mod. 303; vid. Hardw. 150; 3 B. & Aid. 271 ; Cro. Eliz. Yearb. Chapter of Lincoln v. Dean of Lin- 534. If not duly appointed, &c, his acts do coin, 9 Edw. 3, fol. 18, pi. 3. not bind the succeeding dean and chapter; (c) Abbot of Bristol's case, Yearb. 34 Hen. Abbot of Fountain's case, Yearb. 11 Hen. 6, 6, fol. 35, pi. 43. 592 DEAN AND CHAPTER. crown happens before induction, a presentation made by the succeeding sovereign is good, though it makes no mention of the first presenta- tion (d). The reason seems to be this : in general, at common law, a lay patron may revoke his presentation at any time before the freehold is In the presentee (e), and therefore the crown may (/") ; and if the presentee die before induction, the crown (in case of a presentation by lapse) may present again, for it has not had the fruits of the presentation (^) ; and so it is if the party who is presented comes before the bishop and de- clines to avail himself of the presentation (A). If dean and chapter recover judgment in debt on annuity or other- wise, and before execution the dean die, it seems the succeeding dean and chapter must sue out a sci.fa. to execute the judgment (t). Semb. a dean and chapter are not impeachable of waste, for they are not within the statutes as to waste (k) ; and at common law only three descriptions of persons at most could commit waste, tenants in dower, guardians in chivalry, and tenants by the curtesy (Z); though perhaps where the crown is founder, they might be prohibited or enjoined in chancery at the instance of the attorney-general. With respect to the canons, we may observe that great changes have been wrought in their situation and circumstances, as well as their cor- porate rights, by the late legislation regulating ecclesiastical duties and revenues. The mode of appointing canons in the different chapters in England had always been various, but by a late act the following mode is estab- lished for the future. The three canonries in the cathedral of St. Paul's, London, existing on 11th August, 1810, are thenceforth to be in the direct patronage of the crown (m). Those of York, Chichester, Here- ford, Salisbury, and Wells respectively, are to be in the direct patronage of the bishops of the respective sees(?0» as are those of Ripon and Manchester (o). The rest of the chapters remain as they stood before 11th August, 1840, except that a new canonry is established in each of the chapters of St. Paul's and Lincoln (p). In Wales the direct (d) Calvert v. Kitchen, Lane, R. 71, 100; office, 1 B. & Ad. 761 ; provided the alienee vid. Dyer, 292, A., note (70); 17 Vin. Abr. were a corporation sole, and also a spiritual 344; Co. Litt. 344. person capable of discharging all the duties (e) Stone v. Sykes, Latch, 192; Rogers v. incident to the canonry : S. C. But an act llollied, 2 \Y. Ma. 1039; vid. Darling v. of parliament is now necessary, since stat. 1 Bardolph, Vearb. 44 Kdw. 3, fol. 35, pi. 24. Ann. stat. 1. c. 7, s. 5. Wright i. BUhop of Norwich, 1 Leon. 156. (n) 3 8c 4 Vict. c. 113, s. 25. Wheiethe (/ ) Yearb. 25 Kdw. 8, fol. 90, pi. 35. canons were appointed by election of the dean (g) 17 Yin. Abr. 344. pi. 4; Gylet v. and chapter, it was settled that the bishop .!, Dyer, 360, B.; Kitz. X. IS. 34, C.j could not present In lapse in virtue of his ml. Batkerville'l case, 7 Hep. 28. visitatorial power; Mishop of Chichester ti. (h) Yearb. 20 Hen. 6. fol. 13, B. Harvard, 1 I. R. 650. Also it had been (i) Pert s (; ct. 499 ; 20 Yin. Abr. 28. held lhat the dean, in elections, had no casting (A.) Vid. 8 Q. B. 152, 153. voice, and that the canons might vote by (I) Co. Lilt. 53, 54 ; 2 Inst. 299 ; 1 1U proxy, per Boiler, J., 1 T. K.662. 1'ul. 108. (o) 3 .\ 4 Vict. c. 1 13, s. 26. (m) 3 & 4 Yict. c. 113,s. 24. Where the (p) 3 & 4 Vict. c. 118, a. 26; vid. 1 Bla. crown was founder's heir, it might, at common Com. 383 ; 1 B. &c Ad. 768,769,770; by law, alienate a canonry, which is looked upon winch it appears that, in various cases, the as an ecclesiastical benefice and not a mere right of appointing to one or more canonries DEAN AND CHAPTER. 593 patronage of the canonries in the cathedral church of St. David is given to the bishop (//). The chapter (or, speaking more correctly, the corporation) are given the power of appointing minor canons at stipends of not less than 150/. a year each (r). Neither the dean, nor any other member of the chapter, any longer holds any separate estate in right of his deanery or canonry ; the only revenue of a canon is now his canonica portio, or share of the corporate revenues of the dean and chapter, and the advantage of the residence house ; but unless the house were annexed to the canonry, and always went along with it, there seems no ground to doubt that ejectment would not lie either for the canonry or the house (s). Where a person has been duly appointed to a canonry, or where he has been duly appointed to an office (ex. gra. an archdeaconry) to which a canonry is inseparably annexed, a mandamus will go to the dean, upon his refusal of a proper demand, to compel him to administer the oath, required by the statutes, to the party as canon (t). But in no case will a mandamus go, either to the dean or to the corporation aggregate, to fill a vacant office where the party has a remedy either by quare impedlt, or other action at common law, or by suit in equity (u). And where no such remedy is available, still plenarty of the office is a good answer to the application for a mandamus, if an information in the nature of quo warranto is applicable (x). Nor would a mandamus have gone to a visitor having under the statutes power to visit, examine the dean and canons upon oath, if necessary, and expel, &c, to command him to restore a canon he had amoved and deprived (y). It may be useful to point out here, that where the crown presents by a title which is not the proper one, as where the crown is, in fact, patron, and ought to present as such, but presents as though entitled by reason of lapse, as well as where the crown presents by reason of lapse, having in truth no title to present in any way, the presentation is void ; and so is an admission, institution, and induction made thereon ; except so far as this, that the presentee makes a plenarty so as to avoid in the new foundations had been granted to Ad. 95. The party had already been declared the bishops of the respective dioceses by various entitled to the canonry in virtue of his being- sovereigns, archdeacon ; King v. Baylay, 1 B. & Ad. (9) Sect. 38 ; vid. 4 & 5 Vict, c.39, s. 14. 761. Where the crown is founder's heir, it A spiritual patron may not vary from his pre- might, at common law, grant to an archdeacon sentation before induction as a lay patron and his successors (an archdeacon being a may; Stock v. Sicks, Noy, K.91. corporation sole), that a canonry be for ever (»•) Sect. 45 ; vid. s. 75 ; vid. s. 93 ; 4 & 5 annexed to the archdeaconry, I B. & Ad. 761 ; Vict. c. 39, s. 15. For the number of canons and such annexation cannot be dissevered, in each corporation of dean and chapter, as and the archdeacon becomes canon in fact settled by the act. vid. schedule. and in law by institution and induction into (s) Doe d. Butcher v. Musgrove, 1 M. «Se the archdeaconry ; S. C. An act of parlia- Gra. 625. If the house had been appropriated ment is necessary to perfect such annexation in severalty to the canon, semb. ejectment at present; 1 Ann. stat. 1, c. 7, s. 5. might have been brought for it, S. (J.; She- (u) Vid. sup. p. 269; Reg. v. Chapter of rard's case, 2 W. Bla. 853. Dilapidations; Exeter, 12 A. & E. 512. Radcliffe v. D'Oyley, 2 T. R. 630 ; vid. 9 (1) 12 A. & E. 527. M. & W. 170; 4 & 5 Vict. c. 39, ss. 6, 18. (y) R.v. Bishop of Chester, 1 W. Bla. 22. (0 B. v. Dean, 6ic, of Rochester, 3 B. 6c See now 2 Q. B. I — 41, sup. p. 583. Q Q 594 DEAN AND CHAPT] R. lapse: and therefore the rightful patron may present even seven yean after, and, if his clerk be inducted, the former presentee is immediately ousted (z). This rule will apply to cases where canonries are in the direct patronage of the crown, and, probably, with some qualifications, in other cases of canonries not presentable by the crown but by the bishop. In case of a canonry, to which a corporation sole is entitled in right of an office, as an archdeacon, who is a corporation sole by prescription, the canonry is ipso facto full upon institution and induction to the arch- deaconry, although the statutes of the foundation may require institution and induction into a canonry in all cases ; for it is questionable whether such statutes, though imposed by the crown as founder, have the force of law(//\ and the general law not requiring such acts to constitute a person in such circumstances a canon, the practice under those statutes will not, it seems, make any difference (b). With respect to a dean in general, however, it has been laid down by high authority that he has not the freehold in his office until he is in- stalled (c). Yet a person in the above circumstances is ipso facto, upon being inducted into the archdeaconry, inducted into the annexed canonry, and may claim to be sworn in without being installed, and, upon refusal, the dean will be compelled by mandamus to administer the oath required by the statutes from canons at their admission (d). But the ground of this decision is, that an archdeacon being connected by the nature of his office with the cathedral, his title must needs be known to the dean and chapter, and, therefore, that a fresh institution and induction, which are forms practised for the purpose of making notorious who is holder of the office, or, as it were, of openly giving seisin of it, are needless in that case(e); but it would be different in case of persons not connected with the cathedral by the office which gives the right to the canonry in it ; ex. gra. the provost of Oriel College, or the master of Pembroke Hall, Oxford, each of which is a corporation sole (/), or the Margaret's Lecturer of Divinity in the same university, who is also a corporation sole (//), and all have canonries annexed, for it seems they must be installed, though they need not be instituted, in order to become canons, and upon the accession of either of them to his headship or lectureship, and refusal of the dean to instal without institution, a man- damus would go to compel him to instal (h). (i) Green's case, 6 Rep. 29 b, compared 40; vid. 15 Vin. Abr. 193. A person cannot with Vaugh. It. 14 ; Cro. Car. 689; I om. In obliged by the spiritual court to take an Dig. Grant, G. 9; IT t case. ,,.(„,,.. Of common right, ihere must be a (nj Vid.$up.p. 581 ; tt vid. tup. p. 137. rilyoftbe body present, and a majority note(t), for the principle that a corporation ol them must do the act; but a usage may having undertaken a public trust cannot divest warrant holding a chapter with less than the itaell ol the means of fully performing it. In wholi per Holt, C.J. , Hai th< Bishop of Bath's case, G. Benl. 81 , held thai surrendei ol a d< anery extinguish . 16. corporation ol d< an altogether. I wbank, I Rol.R. 82. c) Sharrocko. liourclner, T. Haym. 88, («) ' ' ''• DEAN AND CHAPTER. 597 profits, and emoluments to the canonry belonging," but that it would pass by the words " tenements or hereditaments" (y). Generally, in these, as in other corporations, acts, to be valid, must be under the corporation seal, and by deed properly delivered by attorney, where a delivery on the land is necessary, but this important qualifica- tion has been engrafted on that doctrine, that where, in any case (ex. gra. in a lease), there is an executory contract, though to enforce it against them it may be necessary to show that it was by deed, yet, on the other hand, where they have acted as upon an executed contract, it is to be presumed against them that every thing necessary to make it a binding contract on both parties was done, they having had all the advantage they would have had if the contract had been regularly made (z) : another instance of the application of the rule of omnia rite acta pr Dean of St. Paul's case, Dyer, 368, A. In the ens, (it abbot and convent it w;is said pi. -17 ; S. C. I Leon. 156; vid. per Popbara, that a chapter house could not be out of their C. J., Moor. 6 IB, c,>nt. ; but Com. Dig. Uses, convent, Dyer, 233, A., note ; but this seems M. ace. citing 4 Kep. 110 b, HDb- Moor. only a hasty diclum j ml. Vearb. 21 Edw. 4, 694. DEAN AMD CHAPTER. 599 chased certain lands, and agreed with the executors of the testator for finding the priest perpetually, &c, and obliged themselves et omnia bona sua ad ptrformandum , &c, but there was no settlement of the lands for this purpose, and their goods only were charged ; it was held by the majority of the court that the lands were not forfeited (I). There also, it would appear, that the testator did not contemplate the charge ex- hausting the whole rents of the lands in which his bequest was to be invested. (i) Holloway v. Watkins, Cro. Jac. 51 ; Com. Dig. Uses, M. ; vid. 2 My. & K. 684. II I QUASI CORPORATIONS AGGREGATE. BESIDES the aggregate bodies whose legal character and attributes have been above discussed, there are various other aggregate bodies, partaking in some respects, and for some purposes, of the corporate character, but which nevertheless are not complete corporations for want of some of the essentials of corporations, and which therefore have been called quasi corporations. Churchward] ns. The most important of these bodies are churchwardens, who, though empowered to hold goods, &c, in succession, for the church, &C., have not power, as we shall see, to hold lands in succession, have not a common seal, and want other characteristics of complete incorpo- ration. Churchwardens, upon being elected or appointed (?n), and making the declaration required by 5 & (3 Will. 4, c. 62, s. 9, and being sworn in(n), are so far incorporated by operation of law as to be capable of taking and holding money or goods to the use of the parish by gift or legacy (o), and to be the proper parties to bring an action for injury (m) As to election of churchwardens, Daw-on v. Foul.-, Hardr. 378; R. v. Bishop ,.t Winchester, 7 East, 573 ; R v. Chi . M. 413; Com. Die. Esglise, F. 1; Sira. 1246; Burn's Just. Churchwardens, s. iii, iv; 12 A.& E. 158, 139, 161. Appoint- ment under Church Building Acts. 59 Geo. :;, c. -17 ; 1 .\ '2 Will. 4, c. 38. Plea that ! :its never were chosen, 1 Mod. Entr. 53. Mandamui to admit, R. v. Williams, 8 );. vV ''. ti81 ; Churchwardens of Chelsea v. Braropston, 3 Lev. 5362; to restore, 15 Vin. Abr. 193 Aliens, Papists, Jews, children under fourteen years, convicted felons, cannot h.; elected, Antony v. Seger, 1 Hagg. 10, per - iwell. \\ ho exempt, Burn's Just. Churchwardens, Sect. II. Issue by consent ■ to nv the right between two parties, 4 T. K. 381 ; vid. 7 \. \ E. 257 ; 7 B. & C. 765. Prohibition grantt-d in order to tiy right by custom to appoint, Evelin ,l ; \\ arner'i ea« . I ise, Cro. Jac. 670 ; vid. >„_ v> K. 139; Hardr. 379. Mandamus to I A. \ j.. 342; 7 A. •. I. 256; ■'- Burr. I 120; ■', A. ,. I. .,15, 617 ; 4 Dowl. 15; 15 \ in. Abr. ! ■,. 2 I t may also be adopt) d Bl a means of try in^ the title. Mandamui to parishioners to proceed to elect (where an I to be void) for tin; remainder of _!.uit< h. 5 A. \ E. 468; per Holt, C. J., 4 Vin. Abr. 527, pi. 12; (men i. Pope, 1 Id- Raym. 128. As to the oath, Com. Dig. Esglise, K. 1. (o) Att.-Gen. v. Ruper, 2 P. W'ms. 125; ^ , arb. :)7 Hen, '>, fol. 30, pi. 11, where the gift was to the parishioners to the use of the church. Kut they cannot take a remainder ot a term oi years, Fawkner's case, lletl. 74. That tiny are not a body corporate appears from Case "i v t. Saviour's, Southwark, Lane, 'J I , where the churchwardens were incorpo- rated either by act of parliament or charter of .lac. I; Did. Anon., Keilw. 32 ; lo Rep. 66; v St. Hist I 'or. 1080. I hey are a orporation, Withnell v. Gartham, 6 tat. 17 Geo. 3,C 17, -. 115, in- corporated the churchwardens of Enfield. CHURCHWARDENS. G01 to the goods of the parish, possession and custody of which are vested in them ; in whom such property goes in succession for the benefit of the parish (p); and also they may have an action for taking the goods, &c.(q), whether in their own time or in that of their prede- cessors (r) ; for their predecessors cannot commence an action as churchwardens, after the expiration of their term of office, for any thing done or any cause of action which had arisen during that term (s) ; for the possession and custody of the goods of the church are only vested in them for the benefit of the parishioners, the property always remaining in the parishioners during such term. Therefore, as it seems, it is held, that in an indictment for stealing the goods of the parish, the property, if laid in the churchwardens at all, must be laid to have been in the churchwardens who were in office at the time of the offence committed (t); but though the successors may sue for in- juries done with respect to the goods of the parish, or on contracts broken, or for debts accruing due to the parishioners, in the time of their predecessors, it does not follow, nor has it ever been holden, that the successors may always sue for whatever their predecessors could have sued for(z<). Their whole power of taking and holding the pos- session of the goods of the church [x) is only for the benefit of the parishioners; they cannot of themselves act with the parish goods or money so as to cause a disadvantageous result to the interests of the parish (x); therefore the*y cannot release a debt, or make a gift of the goods of the parish, without the consent of the parishioners first duly obtained (y); nor can they accept any thing which is or may be bur- densome to the parish {y) without such consent; and at common law, if they wasted the goods of the parishioners, or otherwise were guilty of gross breaches of duty, they might be removed by the parishioners before the ordinary determination of their office(^). In suing in trespass or trover, when churchwardens proceed for an injury done in their own time, they may lay it either aol damnum ip- sorum, or ad damnum parochianorum, for the goods being the goods (p) Morgan v. Archdeacon of Cardigan, (u) Addison v. Round, 4 A. & E. 804. Salk. 166; per cur. 1 Vent. 267; Anon., (x) Yearb. 13 Hen. 7, fol. 10, pi. 5; March, 67; Evelin's case, W. Jones, 439; Staikeyi\ Barton, Yelv. 173; Anon., March, Anon., Noy, 139 67 ; Com. Dig. Esglise, F. 3. (9) Yearb. 8 Hen. 5, fol. 4 ; R. v. Rees, N. B. The property in goods chattels, fur- 12 Mod, 116. niture, provisions, clothes, &c, provided for (>') Yearb. 8 Edw. 4, fol. 6, pi, 5 ; Dent the use of the poor of any parish was vested v. Prudence, Stra. 852; Bac. Abr. Church- in the overseers and their successors by 55 wardens, E; 2 Wms. Saund. 47 c; Marriott Geo. 3, c. 137, so as to enable them to pro- v. Tarpley, 9 Sim. 279; Att.-Gen. v. Ruper, secute for embezzlement, &c, of goods pro- 2 P. Wms. 125; Fitz. N". B. 91, K. vided for the use of the poor in the work- (s) Vid. cases in last note- ; Yearb. 11 house, &c. ; sed vid. 5 & 6 Will. 4, c. 69, s. Hen. 4, fol. 12 A. 7, inf. Guahdians of the Poor. (t) Vid. dictum per Patteson, J., 4 A. & (y) Yearb. 13 Hen. 7, fol. 10, pi. 5; Mot- E. 802. Lord Macclesfield, C, held, that tram v. Mottram, 3 Bulstr. 264; Methold v. the property in the goods was always in the Winne, 4 Vin. Abr. 526; Bac. Abr. Church- parishioners, Whitmore v. Bridges, 4 Vin. wardens, B. Abr. 525, pi. 1, marg. It may be laid in the (s) Yearb. 26 Hen. 8, fol. 5, pi. 25 ; 1 parishioners in an indictment, Dyer, 99 A, Bla. Com. 394 ; vid. inf. p. 604. pi. 58. C>02 QUASI CORPORATIONS AGGREGATE. of the parish they are responsible to the parish for the safe custody of them, and hiking them may be said to be an injury to either church- wardens or parishioners. But if the successors bring the action, it must be laid to the damage of the parishioners, for the successors are not liable to the parishioners except for what happens in their own term of office (a); and the goods must be Laid to be bona parochia- jwrum(b). Perhaps, however, it will be found difficult to reconcile all the decisions with the earlier authorities, which laid down absolutely that the property oi' the goods was in the parishioners; it appears to have been considered, in later cases, that not only the possession, but a certain kind of property is vested in the churchwardens (c), as against strangers to the parish, and wrong-doers among the parish- ioners (c). A prohibition will go if the trespasser, or other wrong-doer, be sued in the spiritual court (d) for taking the goods; for no process can issue in such case but those of trespass or trover in the temporal courts (e/); and therefore for taking the bells, organ, chalice, books, or the like goods belonging to the church, or for taking the title deeds to the advowson out of the parish chest in the vestry, these actions in the courts of common law lie, and no other suits or proceedings else- where can be had(d); and this is true, though the person who does the tort is a parishioner, or the parson himself (e). But it is by no means true that they are confined, in the common law courts, to these two forms of action respecting goods, &c, for they may bring an action on the case for defacing a tombstone or monument in the church (/); an action of account against their predecessors {g)\ or as- sumpsit for money had and received against the predecessors, whether immediate or remote(//); and that they may do, although they are only churchwardens de facto (h). On the other hand, churchwardens de jure may sue for money had and received by churchwardens de facto(i). But a mandamus will not lie to the old churchwardens to (a) Madman v. Ringewood, Cro. Eliz. v. Round. 4 A. & E. 799, 804 ; Com. Dig. 179; Com. Dig. Esglise, F. 3 ; 2 Wms. S. Esglise. F. 3. 47 c, note (1;; Yearb. 8 Edw. 4, fol. 6, (e) 2 Inst. 492; Vearb. 11 Hen. 4, 12, A.; pi. 5. Com. Dig. Esglise, F. 3. (h) Bac. Abr. Churchwardens, B. (/) Bishop D.Turner, Godb. 279; Yearb. (c) Jackson v. Adams, 2 Bi. N. C. 102 ; 26 lien. 8, fol. 5, pi. 25; Com. Dig. Esglise, Bac. Abr. Churchwardens, B.; t id. Addison F. 3. v. Round, 4 A, & E. 799; Hawk. B.C. cap. (g) Yearb. 8 Edw. 4, fol. 6, pi. S; Tarlour 23, s. 44; oU. (up. p. 601. >. Parner, IVentr. 88; S. C. I Mod. 66. (d) Starky v. Churchwardens of Watling- Justices have no authority to make an order ton, Salk. 547; 2 Inst. 4*12: Gardner v. on the present churchwardens to pay over Barker, 4 T. B. 351 ; Com. Dij.'. I glise, money to their predecessors, 4 Yin. Abr. 1 . (. I hough they have a right to the cus- 531, pi. 21. An indictment will lie against lody "t Certain goods on behalf oi (In: pariah- them il they take money corruptc adore officii, ioners, it does not follow that they can bring Com. Dig. Esglise, I. 2; B. o. Eyres, 1 trover, if they have never had them in their Siderf. 307. ]y; for though ■ man who has ■ right ( h ) Turner p. Baynes, 2 II. Bla. 559; to recover the custody of chattels may bring Astle I , Thomas, 2 B. & C. 271 ; vid. Form 3 trover, that action will not lie to obtain the Wentw. Breced. 73. custody of them for the first time; Addison (i) Andrews v. Eagle, 4 Vin. Abr. 527. CHURCHWARDENS. 60S deliver up the parish books to their successors ; the proper mode to try the right is by a feigned issue (7c). In all actions they must all join in suing(Z). Churchwardens may also institute a suit in Chancery to restrain a person from pulling down the churchyard wall, and, after the determi- nation of their office, they may file a supplemental bill for the purpose of stating facts which have occurred since the filing of the original bill, and may join their successors as co-plaintiffs in the supplemental bill (to); though it does not appear that the successive churchwardens, as they are renewed, need be made parties to an original bill(ra). Where a bequest or gift of stock, or money to be invested in stock, is made to churchwardens for a charitable purpose, as for the perpetual maintenance of a school in the parish, equity is the proper tribunal to appeal to, in order to carry it into full effect; for at common law it seems the churchwardens cannot take in succession chattels under such limitation (o). On a bond given to them and their successors ; their executors, and not their successors, must sue after their death ; for it is said they have no capacity to take a chose en action to them and their suc- cessors (p). Also as they have no common seal^), they cannot bind themselves and their successors by that means or any other; they cannot therefore covenant as a corporation ; in other words, covenants entered into by churchwardens for the time being are merely personal covenants, binding the individuals and their executors, &c, not their successors in the office (r). For the same reason they cannot as it seems execute a power of attorney, authorizing a person to continue to receive divi- dends of stock, notwithstanding fluctuations in the numbers and iden- tity of the members of their body (s). Nor can they make a promissory note so as to bind their successors ; and therefore they are responsible individually for the amount, though they make it as churchwardens, styling themselves so on the note, and though interest have been paid (k) R. v. Stroud, 8 Mod. 98. goods and chattels in succession belonging to (I) Withnell v. Gartham, 6 T. R. 396. the church, but not to hold stock in succes- (m) Marriott v. Tarpley, 9 Sim. 279. sion, given for the maintenance of a school in (u) Vid. 4 Vin. Abr. 529. pi. 10. the parish, vid. 8 A. & E. 798; nor an (o) Vid. 8 A. & E. 798; 2 Y. 8c Col. annual sum to be paid out of land, &c, 350; 6 Scott, N. R. 537; 11 Beav. 481. for keeping in repair the family vault of tes- (p) Per Shelley, J., Dyer, 48, A.; per tator, Giavenor v. Hallum, Ambl. 643. Qu. Brian, C. J., in Robinson v. Lewis, Yearb. whether their executors might be tenants in 20 Edw. 4, fol. 2, pi. 7; 4 Vin. Abr. 530, common with their successors in such case, pi. 5. vid. Co. Litt. 190 a. A bond given to churchwardens of such a (s) Ex parte Annesley, 2 Y. & Col. 350; place, without naming them by their iDclivi- vid. Mavor v, Nixon, 2 Y. & Jerv. 60. dual names, said to be good, Dolby v. Harris, A covenant to invest money in bank or Skin. 243 ; S. C. Toth. 94; vid. Perk. s. 55. government stock in the corporate names of (q) Vid. R. v. Austrey, 6 M. & Selw. 319. the archdeacon, vicar, and churchwardens (r) Furnivall v. Coombes, 6 Scott, N. R. respectively, is legal, Tufnell v. Constable, 7 537 ; vid. per Patteson, J., in Rew v. Pettit, 1 A. & E. 798 ; the dividends to be received A. & E. 200; et vid. Tufnell v. Constable, 7 and held by these parties in trust for a school, A. & E. 798. &c. Semb. they are only a corporation to hold 604 QUASI CORPORATIONS AGGREGATE. on the note out of the parish funds (0; but the amount of the note being money actually lent to the parish, probably they could have recovered the damages cither in an action against their successors at common law, as money paid to the use of the parish, or by suit in equity (*). Whatever there is of the corporate character belonging to churchwardens may reside in two persons; but in whatever number it resides, one cannot act so as to bind the others without their consent. Thus where there are two, one cannot release costs without the con- currence of the other (.r): nor can one pledge the credit of the others without their knowledge (y) ; and if one of them gives orders to a n to draw plans of the church for the inspection of the commis- sioners for building new churches, under stat. ~>& Geo. 3, c. 41, he is undoubtedly individually responsible for the charge (z); but he may reimburse himself out of the church rates, if he was the proper party to procure such plan to be prepared (a). On the other hand, notice to one of several churchwardens is notice to all, as it is in the case of a partnership; but it is not so in the case of a corporation regularly formed (6); and, as we have observed, the successors may have actions against the predecessors for their acts during their term of office. But the successors cannot proceed in the spiritual courts against their predecessors for acts done ratione officii (c). An information in the nature of quo warranto has been refused to remove a churchwarden (d); perhaps (it has been said) because they are only temporary officers (e); the reason given by the court itself being, that there was no usurpation upon the rights or prerogatives of the crown, in claiming or using the office of churchwarden wrong- fully; but the real ground seems to be, that they are not removable by the Court of Queen's Bench on this information, because they are removable (as already mentioned) by the parishioners {f) ; and the (0 Rew v. Pettit, 1 A. & E. 196. Chester v. Frewer, 2 Ring. 365; vid. 12 East, (u) \\ here an agreement was entered into 556 ; 2 H. Lords, 108. I., the vestrv beneficial to the parishioners, (b) R. v. Marsh, 5 A. & E. 486, 487 ; and the parson, churchwardens, overseers, and nor of a body in the nature of a corporation, some other inhabitants, executed articles pro- Steward v. Dunn, 1 D. & L. 649. viding that the five o'clock morning bell (c) Bishop o. Turner, Godb. 279; vid. should not be rung during plaintiffs life, the Welcome v. Lake, 1 Siderf, 281 ; S. C. 2 of Chancery issued an injunction, re- Keb.22; Com. Dig. Ksglisc, F. 2, that they straining the ringing of the bell, against the may for neglect or breach of duty. See.; Martin v. Nulkin, 2 P. (/ ) Nortbwaite v. Blanett, '1 ('. .\ M. cases ol municipal corporate officers, whose 316. ofhue is not necessarily more than annual, (-.) Brook p. Guest, p*r Abbot, «'. .'., al vid. tup \>. i\i-i Prius, cited 3 King. 481. (/) Wats. Clergym, Law, p. 400, chap. B| oU i. Powef, 3 Bing. 485; Lan- 39; Yearb. 26 Hen. 8, fol. 5, pL 25; Finch, CHURCHWARDENS. GOj mode of doing it is stated, in a great variety of authorities of very con- siderable weight, to be by complaint to the ordinary (g). In one book it is said the removal may be effected either by complaint to the ordi- nary, or by the parishioners themselves (A). The result seems to be, that by a complaint properly laid by the parishioners before the ordi- nary, the churchwardens may be removed during their yeav or term of office for misconduct in their office. Where there is a custom in a parish to pay the parish clerk a sum of money yearly, which by the custom is leviable by the church- wardens on the parishioners, the clerk may have an action on the case against them for not making a rate and levying the sum; or if they do levy it, and omit to pay it over to him, an action of assumpsit for money had and received to his use (i). They are entitled (at least in actions brought against them for acts done relative to temporal matters (ft), but not in actions for non-fea- zance(/),) to plead the general issue, and give the special matter in evidence, by the joint operation of 7 Jac. 1, c. 5, and 21 Jac. 1, c. 12, s. 3. Though the corporate character extends to their taking and hold- ing, with a certain kind of property therein, the goods of the church for the benefit of the parishioners, it does not extend to enable them to take or to hold lands ; for churchwardens are not partakers of the corporate character for that purpose (m). Therefore, neither Law, 179; 8 Edw. 4, fol. 6, pi. 5 ; 1 Bla. Com. 394; 13 Rep. 70; 4 Vin. Abr. 530, pi. 3; Comyns's Digest, Esglise, F. 1, F. 2; Bum, Eecles. Law, 413; 1 Gibs. Codex, 396; Prideaux, Churchw. 30. (g) Burn, Eecles. Law, 4i3 ; 1 Gibs. Codex, 396; vid. App. Gibs. Cod. p. 1479 ; argu. Dawe v. Williams, 2 Add. R. 133, 134; Burn's Just. (if. Churchwardens, s. 9; Prideaux, Directions to Churchwardens, p. 30. (h) Hughes, Parson's Law, 115. (t) Parker v. Clerk, 6 Mod. 253. (k) Cro. Car. 285. (/ ) Atkins v. Banwell, 3 East, 92. As to costs in actions against them, Cro. Car. 285, pi. 31 ; 3 M. & Selw. 131 ; vid. now 5 & 6 Vict. c. 97, s. 2. The certificate may be granted either at, or any time after the trial, 7 T. Ft. 448 ; 3 Y. & Jerv. 203. (wi) Gibs. Cod. 241 ; 1 Bla. Com. 394 ; 2 Wms. Saund. 47c; Co. Litt. 3a; per Fineux, C.J., Yearb. 12 Hen. 7, fol. 29, A.; Keilw. 32, A; 1 Bla. Com. 394, 395; 3 C. B. 226, 227; Doe d. Higgs v. Terry, 4 A. & E. 274; Doe d. Hobbs v. Cockell, 4 A. & E. 478. If, however, they have let from year to year, they may maintain ejectment against a tenant coming in under them, Doe d. Bailey v. Foster, 3 C. B. 215, 226: but then the demise must be laid in their individual names, if the ejectment is brought after they are out of office, S. C. ; and the notice to quit must also be given in those names, S. C. ; et lid. 12 A. & E. 444. Generally they cannot take a term, Finch, Law, 197; Fawkner's case, Hetl. 74 ; nor can a grant of a term to J. S., with remainder to the churchwardens of Dale, be available for them, S. C. The stat. 7 & 8 Vict. c. 37, s. 4, empowers the rector, vicar, or perpetual curate, together with the churchwardens, to hold in succession lands for sites for schools to the extent of one acre. By the custom of London the parson and churchwardens are a corporation to hold and demise, &c, lands to the use of the parish, Warner's case, Cro. Jac. 532 ; Humphrys v. Knight, Cro. Car. 455 ; Com. Dig. Ksglise, F. 3; vid. 4 Rep. 110, 116, cases cited; Co. Entr. 198; Doe d. Brooks v. Fairclough, 6 M.&8elw.40; Prid. Churchw. 141 ; Bohun's Privil. Lond. 99 ; Gibs. Cod. 241; Anon., Noy, R. 139; Cox v. Copping, 5 Mod. R. 395; Harg.Co. Litt. 3 a, note (13); Rogers's Eecles. Law, 225; Steer, Parish Law, 89; and the parson might lease for years to the churchwardens lands, &c, held by him in right of his rectory ; Parson of St. Dunstan's case, Yearb. 15 Hen. 7, fol. 8. The same custom holdsinsomeolher places ; Harg. note( 13) to Co. Litt. 3 a. In Kvelin's case, W. Jo. 439, the court said, by the cus- tom of London the churchwardens were a cor- poration. So Anon., March, 67, pi. 104. COG QUASI CORPORATIONS AGGREGATE. a feoffment nor conveyance to the parishioners vests in the church- wardens; it cannot vest in the parishioners, for they are not a corporation at all (//) ; nor, if made to the churchwardens in the first instance, does it vest any estate in them, but is wholly void, for want of a person to take as grantee (o). And as they cannot have in them the fee, neither can they lease lands of the parish for life or terms of years ( p) ; nor can they maintain any action for the profits of lands (p), or for entry into them ( p) ; nor can they lease lands vested in feoffees for the use of the parishioners (q) ; for, in fact, they are in all respects merely bailiffs (/•), and bailiffs cannot lease. However, though they are in- capable, as churchwardens, of holding real property, and therefore the property in the church cannot belong to them, and is perfectly well recognised to be in the parson (s), yet where a local act of parliament for paving, lighting, See, a district, enacts that the rates and assess- ments to be levied or assessed upon, or in respect of, any church in the district, " shall be paid by the churchwardens," they are personally liable for the rates, and the want of parochial funds does not exempt them from that liability (s) ; but although neither the local act ex- pressly, nor the common law in general, give them power to compel their parish to make a rate to reimburse themselves, yet it is said that by necessary implication they must have the power {t). This decision is important as affecting large districts in London, Westminster, South- wark and elsewhere, which have similar acts for paving, &c. (jt) Mayor of Reading v. Lane, Toth. 69 ; Yearb. 13 Hen. 7, fol.9, pi. 5. ',o Per Fineux, C. J., 12 Hen. 7. fol. 29. A. ; Keilw. 32, A. pi. 4 ; Finch, Law, 179; Com. Dig. Esglise, F. 3; Co. Liti. 3 a ; Presgrave v. Churchwardens of Shrews- bury, Salk. 167 ; 1 Bla. Com. 394, 395 ; 4 A. & E.281 ;?1U C. 433. (p) Per Fineux, C. J., 12 Hen. 7, fol. 2y, A. ; Com. Dig. Fsglise, F. 3 ; vid. tup, nole (m). Hut payment and acceptance of runt, 6.C., under a lease for yean by them, might have sufficed for the court to construe the holding as a tenancy from year to year; Doe d. Higgs v. Terry, 4 A. & E. 273 ; vid. now 59 Geo. 3, c. 12, inf. p. 608. (9) Yearb. 13 Hen. 7, fol.9, pi. 5; Com. Dig. Esglise, F. 3. (V) Bishop D. Eagle, 10 Mod 23. (s) Com. Dig. Cemetery, A. 2 ; Beckwith v. Harding, 1 B. ic A. 517. (() Hopkinson v. Puncher, 3 Exch. 95, 100, 102, 103. A mandamut would go to enforce a church rate if the parish refused, s. C. ; iid. 4 Yin. Abr. Churchwardens, C. pi. 4, 9; 2 11. Us. R. 108; Cas. Temp. Hardw.381; 12 A. Sc E. 246. ( G07 ) CHURCHWARDENS AND OVERSEERS. Churchwardens, of themselves, being unable to take or to hold lands or other real property, and therefore to let to lease lands, &c., it had been usual for persons making grants, gifts, or devises of lands, &c., for the benefit of the poor of a parish, to vest the property in feoffees, to the use of the poor of the parish, with provisions and regulations for supplying the vacancies made by death or removal in the number of the feoffees, so as to keep up something like a perpetual succession, and give to the body a character analogous in some respects to that of a corporation. But this having been found, in practice, but a defec- tive contrivance, it was enacted, " for the greater ease of parishes in the relief of the poor," that the churchwardens and overseers of the poor in any parish, with the consent of the major part of the parish- ioners in vestry, or other public or parish meeting, for that purpose assembled, or of so many of them as shall be so assembled, upon usual notice thereof first given, shall be empowered to purchase or hire houses in the same parish, or contract with any person or persons, for the lodg- ing, keeping, maintaining, and employing all or any such poor in their respective parishes, as shall desire to receive relief, &c, from the same parish, &c. ; and they were further empowered to contract with the churchwardens and overseers of any other parish, with the same con- sent as aforesaid, for the lodging, &c, of any poor person or persons of such other parish as to them shall seem meet (it) ; and it had been held by the courts, in exposition of this enactment, that this body of church- wardens and overseers of a parish partook so far of the corporate cha- racter that the whole was bound by the decision of the majority of the entire body ; and though not a corporation technically, they were de- clared to stand in pari ratione, so far as concerns the regulation of the poor of the parish under this statute (v) ; although it is true that the decision principally proceeded on the ground that the stat. 43 Eliz. c. 2, directed that the general acts to be done by the churchwardens and overseers respecting the poor shall be done by a majority, and that the spirit of that act must be considered as pervading all the subsequent acts respecting the government of the poor (v). («) 9 Geo. 1, c. 7.s. 4. As to the latter 6 A. & E. 885. part of this section, vid. 45 Geo. 3, c. 54,9. 1. They are not partners so as to bind each Where there are only two overseers, who are other personally in contracts ; Marsh v. Da- also churchwardens, vid. 51 Geo. 3, c. 80, vies, 1 Exch. 668; vid. 5 B. & Ad. 1069. s. 1 ; R. v St. Margaret's, Leicester, 2 B. But service of notice, &c, on one is good ; & A. 200; Reg. v. Leominster, 5 Q. B. 640. R. v. Justices of Warwickshire, 9 A. & E. (v) R. v. Beeston, 3 T. R. 592, 594 ; per 877. Whether the rest are cognisant of what Bayley, J., in Blacket v. Blizard, 9 B. & C. passes between one of the body and a third 851,857 ; vid. Reg v. Justices of Surrey, 3 party is a question for the jury in civil ac- D. & L. 573 ; R. v. Justices of Derbyshire, tions ; Malkin v. Vickerstaff, 3 B. & A. 89. I IRPORATIONS AGGREGATE. Succeeding churchwardens and overseers are specially empowered to repay money expended by preceding churchwardens and overseers for the maintenance of the poor, where such expenditure was made while there was no rate, <>r pending an appeal ; and in default of such repayment the quarter sessions shall make order for payment (a;). But the powers above given not being found sufficient, it was further enacted (y), "that all buildings, lands, and hereditaments which shall be purchased, hired, or taken on lease by the churchwardens and over- seers of the poor of any parish, by the authority and tor any of the purposes of this act, shall be conveyed, demised, and assured to the churchwardens and overseers of the poor of every such parish respec- tively, and their successors, in trust for the parish ; and such church- wardens and overseers of the poor, and their successors, shall and may, and they are hereby empowered to accept, take, and hold, in the nature of a body corporate, for and on behalf of the parish, all such buildings, lands and hereditaments, and also all other buildings, lands and here- ditaments belonging to such parish ; and in all actions, suits, indict- ments, and other proceedings for or in relation to any such buildings, lands, or hereditaments, or the rent thereof, or for or in relation to any other buildings, lands, or hereditaments belonging to such parish (z), or the rent thereof, and in all actions and proceedings upon, or in relation to, any bond to be given for the faithful execution of the office of an assistant overseer, it shall be sufficient to name the churchwardens and overseers of the poor for the time being, describing them as the church- wardens and overseers of the poor of the parish for which they shall act, and naming such parish ; and no action or suit, indictment or other proceeding, shall cease, abate or be discontinued, quashed, de- feated, or impeded by the death of the churchwardens and overseers named in such proceeding, or the deaths or death of any of them, or by their removal, or the removal of any of them, from, or the expira- tion of, their respective offices." Now, it will be observed, that the former part of this clause is entirely prospective; it regards future purchases and leases ; it is addressed to the conveying party as well as to the grantees; and these last it not merely empowers to take, but throws upon them the obligation of taking in a certain capacity, and with certain trusts ; and it is confined to buildings, &c, taken under the authority and for the purposes of the act. The latter part (x) 41 Geo. 3, c. 23, 8. 9. house from the churchwardens and overseers I (ieo.3, c 12, s. 17. Power to in the guardians of the union of which il»- rations to convey and lease lands, &c, parish >> ;> member; Doe <. Webster, 12 .. lii. A. Si E. i (2 ; "' demise by force <>i the statute solely; offices ; for the hist only is necessary, and the and therefore it is not necessary in pleading a former will lie struck out on motion, &c. ; demise to them to state thi ir aco ptance of it Doe i . Roe, 1 I towl. '222. by an instrument under seal, Smith V. Ad- Proof that the lessors of the plaintiff have kins, '<'> M. Si W.362; ""t is it necessary to acted as such churchwardens, &c, is sufii- mention the names of the persons who were cient, without proof of their appointment; in office 'it the lime of the d< mise, as a grant I toe '/. Bowley D. Barnes, 15 Law J. (N. 8.) by the name of oilier would be good, 8. C. Q. 15. 293; vid. 2 Dowl. & R. 708 ; 8 Q. B. Plea, justifying entry, Sec., u servant of lo;j7. churchwardens and oveneei v I • In ejectment against them the declaration When they sue in respect of lands \<-iin. W. 370. so they most demise in 4, c. 69, s. 3. ejectment ; Uoe d. Llandysilio t. Roe, Tyrw, \ CHURCHWARDENS AND OVERSEERS. 613 to divest it out of the churchwardens and overseers, although the guardians are empowered thereby to sell and dispose of the property, their powers in that respect being held to be consistent with the con- tinuance of the legal estate in the body of which we are treating (t). The legislature only gives the guardians the management of the pro- perty for and on behalf of the churchwardens and overseers ; and there is nothing in the statutes to show that they have ceased to be a corpo- ration capable of acquiring land (u). Still they are not constituted a proper body corporate, with all the legal incidents and restrictions be- longing to such a body by the common law ; and therefore a demise to them suffices, upon their acceptance and entry, to vest the property under it in them on behalf of the parish, without any acceptance under common seal, as might have been necessary in the case of a proper corporation, according to the rules of the common law above stated ; and the grant will be good by the name of office, although the statute renders it necessary that when they sue or are sued their individual names must be used (x). Then the loth section provides and enacts, " that, for the promotion of industry among the poor, it shall be lawful for the churchwardens and overseers of the poor of any parish, with the consent of the inha- bitants in vestry assembled, to let any portion or portions of such parish land as aforesaid, or of the land to be so purchased or taken on account of the poor, to any poor and industrious inhabitant of the parish, to be by him or her occupied and cultivated on his or her own account, and for his or her own benefit, at such reasonable rent and for such term as shall by the inhabitants in vestry be fixed and deter- mined (?/)." Before the statute, as we have seen, churchwardens could not lease parish property, much less can they since the statute ; the lease must be by the then churchwardens and overseers, or a majority of the entire body (z), and therefore in like manner a lease by the overseers alone is void (a). On these words it has been held, that the power given to this body, (t) Doe d. Norton v. Webster, 12 A. & E. cupy (qu. tarn.), for in the latter case they must 442; 5 Viet. sess. 2, c. 18, s. 2 ; 8 Q. B. delei mine the tenancy in the usual way; but 405,406. that where the order of justices is correct in (u) Worge v. Relfe, 11 Law J. (N. S.) form and regularly made, as regards informa- Mag. Cas. 125. tion, summons, &c., the court on certiorari (x) Smith v. Adkins, 8 M. & W. 362. will not inquire into the reasonableness of (y) As to form of notice to quit by church- their decision, wardens and overseers, Doe d. Bailey v. Fos- With reference to this, it is material that ter, 3 C. B. 215; etvid. 4 A. & E. 274, 478. where the jurisdiction of a borough, &c.. does _ As to summary jurisdiction of justices to not extend over the whole of the parish in give them possession of parish houses from per- which it stands, every building erected, pur- sons intruding therein, 59 Geo. 3, c. 12, s. 24. chased or hired as and for a workhouse, with Same of parish lands, id. s. 25. Reg. v. Jus- the appurtenances and land occupied there- tices of Middlesex, 7 Dowl. 767; and Reg. with, is brought within the jurisdiction of the v. Bolton, 1 Q. B. 66, show that the house borough, &c, though situate in a part of the must be one provided for the habitation of the parish locally beyond the chartered jurisdic- ■poor (qu. tarn.), and not one for which rent was tion, by 4 & 5 Will. 4, c. 76, s. 44. paid to the churchwardens, &c-, in the usual (:) Phillips v. Pearce, 5 B. & C. 433. way, and also that the party must have in- (a) Doe d. Grundy v. Clarke, 14 East, 488. eluded, and not have been permitted to oc- Gil- QUASI CORPORATIONS AGGREGATE. "not as a general, but as a special corporation," applies to those cases only where the rents are applicable solely to such parochial purposes as arc under the control of the parochial officers. Therefore this body cannot take lands, on hire or lease, jointly with other persons; for if they were allowed to do so, the statute would not be complied with, as the land in such case could not be managed by the body of church- wardens and overseers exclusively for the use of the poor, because the other lessees, having the legal estate jointly with them, might apply part of the land to other purposes. Accordingly, where a lease had been made to the churchwardens and overseers of a parish, and the surveyors of highways, their executors, administrators and assigns, and successors in office, and the question was whether the persons who were churchwardens, &c, when the lease was executed, were liable for the rent personally, after the determination of their offices, it was held, that the lease was a personal undertaking of their own, for which they were individually responsible on the above ground (b). Perhaps such leases might also be held to be somewhat objectionable on the ground of the inconvenience of a corporation and an individual or individuals taking a lease together ; and at any rate they could not by law join in making an underlease of such lands (c), and therefore difficulties would arise when they came to act upon the loth section, by letting out the lands to the poor, with respect to the manner in which the demise was to be made. We may observe, the power of taking a lease of lands, (S:c, expressly given to this body by the statute, shows that they are not a complete body corporate, because every regular and full cor- poration has, as incident, the power of taking leases, if such power be compatible with their constitution and objects for which they arc incor- porated, and the only restriction is, that they must not contravene the Statutes of Mortmain ( However, the want of a com- (b) Lthwatt r. Elkins, 13 M. \ \Y. 772. a freehold, and as there cannot be an entry (r) I 'id. 2 W in-. Sound. 319, note (4), and into a rent-charge, the crown shall have it; srKeble, J. ; Y/earb. 16 Hen. 7, per Paaton. J., 19 Hen. 6, foL 63 ; et nd. 3 fol. 1"). pi. 12. Tney would be tenants in Edw.4, fol. 12, pi. 8 ; Rowlesu. Mason, 2 common, and Biiefa cannot make a joint de- Brownl. H»7 ; et rid. tup. |>p. 115, 127. erley ». Werton, 2 Wife. 232. ( /' ) Wrench v. Lord, 4 Scott, 381. (< ur, > V< . ;<47. equivalent to a term for life, anil therefore to CHURCHWARDENS AND OVERSEERS. 615 raon seal is not an objection to bonds given, or demises in ejectment, or leases, made by them. On an information filed against them as trustees of a charity, by pa- rishioners, they will be ordered to produce the parish books (f any work- houses, tenements, buildings, land, effects or other property belonging to any such parish or union, Ac, hut llns does not divest out ol' the churchwardens and overseers the ti hi the parish realty ; I'"' d. Norton d. w ebster, 12 A. Si L. ii'2 , rid. ■• \ ict. 2, explaining tin- above enactment. ire meant the guardians to he a body capable of taking lauds m succession is plain from th<- next section (s. 8), " that all buildings, lands or hereditaments, uoods, effects or other property which, before the passing of this act, may have been conveyed with the consent, or under the directions of the Poor Law Commissioners, to any person in trust for and for the use of any union or parishes shall, without any further act, vest in the guardians thereof as such corporation, in e manner as if the same respectively had been conveyed to or vested in them under the provisions of this act." In these lands, fitc., therefore it should seem the legal estate is vested in the board of guardians ; though the legal (state in the lands vested in the churchwardens and overseers by 5!) Geo, 3, c. 12, remains when it was, and the legal estate in property vested in existing feoflees for the use 01 'In parish remains there also, notwithstanding the above ss. 3 and 8 ; Mm '> Vict sess. 2, c. 18, s.2. They are now fully empowered " <<> accept, take and hold, on fcs- hnli 'of the union or parish respectively for Which tin ii iiuiii net, mil/ loiitls, buildings, goods, effects or oilier property »s a corpora' tion, mid in oil cotes to sue ami he sued in their corporate capacity ; " 5A < , s. 16; Did. per Rolfe, B., 6 M. & W. 819. All corporations are empowered to convey lands, &c, to them for the purposes ol 5 8c 6 Will. 4, <•. 69, subject to the approval of the l'oor Law Commission, by sect. 1 of that act. GUARDIANS OF THE POOR. 617 be sued, and take, or resist, all other proceedings for, or in relation to, any such property, or any bonds, contracts, securities, or instruments given or to be given to them, in virtue of their office. And in every sucli action and indictment, relating to any such property, it shall be sufficient to lay, or state, the property to be that of the guardians of the union, or of the guardians of the parish of ; and in case of any addition to, or separation of any parishes from, any such union, under the authority of the said act, passed in the fourth and fifth years of the reign of his present majesty, the board of guardians for the time being, shall, notwithstanding such alteration, have and enjoy the same corporate existence, property, and privileges, as the board of guardians of the original union would have had and enjoyed, had it remained unaltered." Many remarks have already been made, in the course of this work, with respect to the nature of contracts not under seal, upon which cor- porations may be made liable like individuals ; but as the decisions respecting guardians of the poor are somewhat peculiar, and as ques- tions of this kind may probably often arise, we shall state here some of the principal points which have been determined with respect to them, though at the risk of some objection on the ground of repetition. Corporations, we have seen, are enabled to do acts either necessary for or incident to the purposes of their institution, or acts of a trivial nature, without being obliged to resort to the use of their common seal, and the expense of a deed, &c. ; especially where such acts must neces- sarily be of frequent occurrence. On this ground, as it seems, is to be rested the decision that a board of guardians was liable, on a verbal order given to one of their officers, who gave it to the plaintiff, for some iron gates for the workhouse, which had been supplied accord- ingly by the plaintiff(Z). On the other hand, where the order given by the guardians was for work, &c, not of the above character, that is, where the order, in its nature, was not of an every-day description, nor essential or incident to the purposes for which the board was instituted, there the common seal is necessary ; and although the work, &c, be done by the party, and be accepted by the board, yet they are not liable for it, if there be no contract under their seal. The following is a re- markable instance. The stat. 6 & 7 Will. 4, c. 96.. s. 3, gave power to the Poor Law Commissioners, in certain circumstances, to order new valuations of premises, &c, in parishes, for the purpose of the poor rate, and also to order a survey, with or without a map or plan, to be made and taken of the messuages, &c, liable to poor rates, and to direct the guardians to appoint a fit person, or persons, to make and take such survey, map or plan, and valuation, and to make provision for paying the charge thereof, either by a separate rate, or by a charge on (/) Sanders v. Guardians of St. Neot's rell v. Guardians of Billericay Union, 3 Exch. Union, 8 Q. B. 810, as explained in Lamp- 307. G1S QUASI CORPORATIONS AGGREGATE. the poor rates, &c. A board of guardians entered into an agreement for such survey, map, &c, of one of the parishes of their union, under an order of the Poof Law Commissioners, with the plaintiff, such ement being under seal. The survey, map, &c., were executed ; but the commissioners ing the propriety of having an additional map. the board gave a verbal order for this to the plaintiff, and he pre* pared it accordingly, having no written agreement with the board under their seal respecting thi< second map ; and it was held, that for it he could not recover | m). " The plan was wanted in order to enable a fair and correct estimate to be made of the net value of the hereditaments rated in that parish; the other parishes in the union had nothing to do with it, nor were in any way benefited; so that the making the plan cannot have been in any way incident to the purposes for which the defendants were incorporated (n). M This was the principal ground of the decision ; but it was also held, that the section of the statute of Will. 4, above referred to, showed the legislature did not intend the guardians should make themselves liable for the amount of the costs and expenses of making such surveys, &c.; and it follows, as appears, that the contract, though under seal, would not have bound the guar- dians in their corporate capacity, though perhaps the individuals com- posing the majority who ordered the common seal to be put to it might have been so bound, on the ground that having entered into a contract beyond the power of the corporation to enter into, they were not pro- tected by the shield of the corporate character beyond which they had stepped. So where a board of guardians contracted under their common seal with a builder for the building of certain premises, &c, under the di- rection of certain architects, for a certain sum, with a provision that, if any additional works beyond those specified and agreed to be com- pleted for that sum, were required, the architects Mere to give the builder written instructions, without which he should not have autho- rity to do such additional works. The builder made some additional works without the previous authority of the architects, who however subsequently approved of them, and the board accepted and entered upon the whole; and it was contended that though, for want of written instructions, the builder might have no remedy for the price of these additional works, under the deed, yet that the board of guardians, having accepted the additional works, and so had the full benefit of them, just as much as if they had been done under the deed, the plain- till' had a right to be paid on a quantum meruit, independently of the deed; but it was decided that the principles stated above, which form (m) I'aine v. Guardians (if the Strand within the union; at least, when the witness I , B <,>. 1!. 326. Smb. they cannot was liable t<> l»: compelled to attend hy pro- contract to remunerate a mtneea for attend- ceis, independently of the contract, S.C. ing on uppeal against a parochial asse-inent (>/) l'cr cur. 8 Q. 15. 341. GUARDIANS OF THE POOH. 619 the doctrine of various former cases (o), clearly exempted the defendants from all liability as to the matters in question, although in the case of a building contract entered into with an individual it would be other- wise; for the employer might in that case be taken to have entered into a new parol contract — he being competent to do so — with respect to the additional works, independently of his liability on the deed (p). A board of guardians refuse to pay for certain works done for them by a builder, on the ground that no written order had been given by them for the performance thereof, it having been expressly provided in a contract, under which he had performed for them certain other works, to which these were supplemental, that no additional works should be allowed for, unless the same should be ordered in writing ; in such cir- cumstances there is no ground for the interference of equity (q). Still a board of guardians may be liable, though there was no con- tract under seal, in certain cases ; ex. gra., a servant of theirs pays over to them, by their order, money which had come into his hands in virtue of an order of the Court of Chancery, they having in truth no right to the sum ; he is afterwards obliged, under another order of the court, to pay the same sum to another party, which he does out of his own pocket ; he may recover this sum from them as money paid to their use, in an action of indebitatus assumpsit as for money paid to their use (r). The acts of this body are to be done by the majority of the members present at corporate meetings, which, it seems, can only take place in the board room, or regular place of meeting, upon the principles already laid down with respect to municipal and other corporations ; but there is this additional statutory provision made, with respect to all questions coming for decision before meetings of the board, that, in case of an equality of votes, the presiding chairman shall have a second or casting vote (s) ; thus introducing a principle unknown to the com- mon law as regards the composition of corporate majorities (t). With respect to the name of incorporation, the same principles are applicable to this body that prevail with respect to the name of com- plete corporations ; grants, deeds, &c, made by, or to, the body must be made in its correct name ; but a merely literal or syllabic deviation from the name will not be considered a breach of the rule, so long as the substance of the name is preserved. A substantial variance will in general be fatal to the validity of a deed made to them (u) ; though it (o) Vid. sup. pp. 178, 62; Mayor, &c, of Dunmow Union, 9 Beav. 508. of Ludlow o. Charlton, 6 M. & W. 815 ; (r) Jeffreys v. Gurr, 2 B. & Ad. 833. Arnold i>. Mayor, &c, of Poole, 4 M. & Gra. (s) 12 & 13 Vict. c. 103, s. 19. 860 ; Paine v. Guardians of Strand Union, 8 (0 The board of guardians of a parish are Q. B. 338. to act by a majority ; Reg. v. Poor Law Com- (p) Lamprell v. Guardians of Billericay missioners, 9 Q. B. 291. Distinctions between Union, 3 Exch. 283. guardians of a parish and of an union, 5 Q. (q) Kirk v. Guardians of Bromley Union, B. 506, 513. 2 Phill. 640; et vid. Ambrose v. Guardians (it) Per Parke, J., in R. v. Haughley, 4 C20 QUASI CORPORATIONS AGGREGATE* would be otherwise in a devise to them, when it will suffice if it can be perceived what body the testator had in view. Guardians of a poor law union comprising twenty-nine parishes, in one of which the workhouse stands, arc rateable to the poor in that parish as occupiers of the workhouse, although it was built on land which, from the nature of the previous occupation, had not been rated before (x). A somewhat new principle with respect to the dissolution of corpo- rations seems to have been engrafted upon the old law of dissolution by the poor law legislation as to these bodies. This appears in the course of a case which arose respecting an union dissolved by an order of the poor law commissioners under the provisions of the Poor Laws Amendment Act ( y), where it was thrown out that some boards of guardians may be dissolved for some purposes, but not for all pur- poses (c) by such order ; and where it was held that in an action of re- plevin the plaintiffs were not estopped, by having sued the defendants as a corporation, from giving in evidence the previous dissolving order; that without deciding whether the dissolution operated to divest tin- property in certain premises, viz. the workhouse, &c, out of the body, but that assuming it did, still if the plaintiffs had contracted with the body as owners, either expressly or impliedly, and had had the benefit of the contract by entering upon and occupying the premises, the mere absence of the legal ownership would not take away the right of the body alleged to be dissolved to distrain (a) ; the rent having been always paid by the one party, and accepted by the other, as rent. The order of the commissioners was held to have been rightly admitted in evi- dence, if the dissolution of the corporation was not the necessary effect of the order, assuming it to be valid, and if it might be material evidence for the plaintiffs, without proving such dissolution {b). We have cited this case among other reasons, for the sake of observing, that upon the construction of 5 & G Will. 4, c. G9, s. o, it was considered to be mani- fest, that the guardians of a dissolved union may remain a corporation for some purposes only, though not for others (c); though it was cer- tainly not necessary for the plaintiffs, in the particular circumstances, to contend that the defendants were not an existing corporation, nor even that they were not the legal owners of the premises in question ; for both these points might be conceded, and yet the relation between ]'.. & Ad. 655, relying on Mayor, Sec, of " possibly a corporation might lie said not to J. win's case, 10 Rep. 124; Croydon Hob- be dissolved quoad the individuals for par- pitalc. Farley, 6 Taunt. 467 ; et vtd. Ex parte ocular purposes, though it is so quoad tin: ley, 1 I), -v L. »>7:j. corporate body," which is the converse of tin; d) Reg. v. Guardians of Wallingford, In idea in the text. I.. §5Q, \- to rateability of visitor Guardians of Woodbridgc Union v. and guardians constituted under Gilbert's Act, Guardians of (ulneis, 18 Law. J. (X. >.) ( v ». I, in., i is provided lor by s. 15. I'26. 19 ol that statute. (6) Pereur. 18 L.J.(N.S.)Q. B. 134. s & 5 Will. 4, c. 76. (e) P« Col ridge, J., I» Law J. (N. B.) ggeated in R.v, Paraore, <,>. B. \X5. 3 1. K. -240, per Lord Kenyon, C. J., that GUARDIANS OF THE POOR. G21 the parties might not be that of landlord and tenant, but referable solely to the order of the commissioners. Moreover, it was held that 4 & 5 Will. 4, c. 76, s. 32, under which the order was made, did not give it the effect of ipso facto dissolving for all purposes the board of guar- dians to which it referred, viz. the defendants who had been incorpo- rated by a local act, making them a body corporate to all intents and purposes ; which terms, it will be observed, are much larger than those cited above from 5 8c 6 Will. 4, c. 09, s. 7, which incorporate boards of guardians of unions throughout the country generally; for the latter enactment (d) obviously has the effect, and has been so held(e), to in- corporate for certain purposes only, and constitute quasi corporations merely, and not corporations with full corporate powers. Therefore, the decision must perhaps be regarded as strictly applicable only to boards of guardians originally constituted under local acts, with the same extent of powers as had been given to the board in question by its local act; and therefore it would be necessary before applying the judgment to the case of any board of guardians formed under local act, that might in future be dissolved by virtue of the Poor Laws Amendment Act, to scru- tinize narrowly the terms of the statute under which it was established. However, the enactment just mentioned (/) contemplates the future dissolution of boards of guardians incorporated both before and after the passing of it, and. is applicable therefore to all boards, whether formed before or since 13 Aug. 1834, and provides with reference to both species of corporations, that no such dissolution shall in any manner prejudice, vary, or affect the rights or interests of third per- sons, unless they shall by themselves or their agents consent in writing to such dissolution ; and such dissolution must have the concurrence (y) of a majority of not less than two-thirds of the guardians of the union which it is proposed to dissolve. Hence creditors of the corporation having security under their common seal, and not consenting to the dissolution, would still have a right, after the dissolution, to all their remedies at common law ; and for this purpose the corporation must remain answerable ; and as the only remedy could be on the corporate funds, these must still exist in order to be answerable (k). This is the effect of a dissolving order by itself; whatever may be the powers which the poor law commission may have of subsequently providing for this and similar cases ; it dissolves for the purposes of the care and management of the poor, but leaves standing the corporation for the purpose of answering outstanding claims against it in the hands of cre- ditors not consenting to the dissolution, and leaves it clothed with all (d) Fid. sup. p. 616. being the act of the body, but of the indivi- (e) Per Rolfe, B., 6 M. & W. 819. Per dual members ; per cur. 18 Law J. (N. S.) cur. Smith v. Adkins, 8 M. & W. 362 ; vid. Q. B. 134. 8 Q. B. 394 ; sup. p. 616. (h) Per cur. 18 Law J. (N. S.) Q. B. 134. (/) 4 & 5 Will. 4, c. 76, s. 32. What is a valid order in such case, id. 134; (g) Which need not be in writing, not form, id. 128. QUASI CORPORATIONS \i cRF.GATE. its former rights and interests in its corporate property, so far as is necessary to make such property available for the liquidation of its corporate debts. The proper mode of trying the right to the office of guardian is not by information in the nature of quo warranto (*) ; this is now settled after Borne hesitation on the part of some members of the Court of Queen's Bench, in different cases which have come before them (k) ; and in answer to the objection that was urged, in argument, of the absence of any other remedy, it was observed that was a good argu- ment on an application for a mandamus, but not on one for a quo warranto (I). It was doubtful whether a mandamus will go to the board to admit a clerk to the board, as the office is not mentioned in stat. 4 & 5 Will. 4, c 7<>, and is not perhaps within the range of the decisions in which the writ has gone, in cases of clerks to trustees of roads, &c, and which have proceeded partly on the ground, that the office was shown to be valuable, and of a permanent character, and partly that it was of a public character ; but it seems that where two persons are elected, the court would perhaps direct a feigned issue, upon terms, to try the right (m). The writ will certainly not be granted for the purpose of inquiring into the right to their offices of the guardians who had voted at the election of the clerk (m) ; but as the office is now recognised by statute, perhaps there would no longer be much difficulty in granting a mandamus to admit, if a case were to arise in which it became neces- sary. Where the officers of a parish, included in a poor law union, have been required by a precept of the guardians of the union, duly issued according to the rules and regulations of the poor law commission, to pay a certain sum to the treasurer of the union, out of the poor rates of the parish, and have refused, it is no return to a mandannts reciting the due appointment of the guardians, and their having taken upon themselves the maintaining, providing for, regulation and employment of the poor of the union, to state that the said supposed guardians were not, nor were any of them, duly appointed, tt fi Vict c. 67, 8. 8, vesting in (he ('") Reg. v. Guardians of Dolgelly Union, pour ; on the power of determining 8 A.& E. 561. Seml>. the proper mode of dispute! relathre to eleeti trying the right is an action for the fees if any (k) 11. i. Ramoden, J A. i\ E. 456; tt be attached to the office. The office is BOW . .... E. 476. nieed by 5 & 6 Vict. c. 57, s. 17. GUARDIANS OF THE POOR. 623 unions; elections of boards were to be made as the Poor Law Amend- ment Act directed; this board was in the full exercise of its autho- rity ; monies collected for the use of the poor were to be paid according to the orders from the commission, which orders have the force of law, unless and until set aside by the Court of Queen's Bench ; and that if any defect existed in point of fact, showing that the election of the guardians was bad, it ought to have been distinctly stated on the return, that the court might have exercised its judgment, whether, if esta- blished, it would have defeated the order of the commission. But the statement that, for some undisclosed reason, the parties charged with a plain duty refused to perform it, because they choose to say, in general terms, that those to whom they are bound are not duly appointed to their office, is wholly insufficient (n). From what has been said respecting churchwardens and overseers, it will be seen that the legal estate in parish property is not vested in the board of guardians of the union, nor in the guardians of the parishes respectively comprised in it, (for these parochial guardians are not in- corporated in each parish), but remains in the churchwardens and over- seers, for such property therefore the board cannot bring ejectment ; but they have the remedy which was given to churchwardens, &c, for the summary removal of persons intruding into the houses and lands of the parish, &c, by application to two justices (o), extended to them by a subsequent statute, with respect to any houses and lands vested in their management (p) ; and it seems, therefore, that either body may apply to the justices for a summary removal in the cases contemplated by the statute of Geo. 3. Another body of this description is the district board, formed under 7 & 8 Vict. c. 101, An Act for the further Amendment of the Laws relating to the Poor. To the body established by this statute, s. 44, gives the power, sub- ject to the order of the poor law commission, to exercise the powers given by stat. 4 & 5 Will. 4, c. 76, or any other act or acts, (without the consent of any rate-payers or owners of property, &c, of any parish, to any sale or other disposal of any workhouse, tenement, building or land,) to boards of guardians of the poor for the purchase and hire of lands and buildings for the schools and asylums mentioned in the act, and for borrowing money (to be repaid, with interest, in twenty years) for purchasing sites, or for purchasing, hiring, or building, or fitting, &c. ; and to charge the future poor rates of the unions or parishes combined under the act, with certain restrictions. Then s. 45 enables (?j) Reg. v. Governors, &c, of St. An- Reg. v. Bolton, 1 Q. B. 66; sup. p. 616, drew, &c, Holborn, 10 A. & E. 736. note (k). (o) 59 Geo. 3, c. 12, ss. 24, 25 ; et vid. ( p) 5 & 6 Will. 4, c. 69, s. 5. Reg. v. Justices of Middlesex, 7 Dovvl. 767 ; 624 ^/CORPORATIONS AGGREGATE. them " to accept, take, and hold, on behalf of the district for which they act, any lands, buildings, goods, effects, or other property, as a corporation, and in all cases to sue and be sued as a corporation, by the name of ' The Board of Management of the District School or Asylum/ as the case may be." But they have no common seal ; although the words in which they are enabled to sue " as a corporation" seem to go far to make them a corporation, and at least to invest them with a larger portion of corpo- rate powers than churchwardens and overseers, who are only described in the statutes as taking in the nature of a corporation. If there were a school and an asylum in the same district, it would seem that there would be two corporations, the board for the manage- ment of the school, and that for the management of the asylum; though each might be composed of the same individuals ; of which double kind of incorporation we have before seen instances. There is still another body of this kind, namely, the Visitor and Guar- dians of the poor, under 22 Geo. 3, c. 83, who (by s. 21 of that statute) are constituted one body politic and corporate, and may accept, take, and hold, by purchase or lease, any lands, tenements, or hereditaments of inheritance, or for life or years, &c, not exceeding in a city or town one acre, and not exceeding in the open country twenty acres, for the site of a house or houses to be built, and for lands to be oocupied, for the purposes of the act, &c. This body seems to be a more nearly complete corporation than the board of guardians under the later poor laws; but as no decisions of importance occur respecting them, and they are not very numerous, it may suffice to refer to the statute for the details of their constitutions. Another instance of a quasi corporation aggregate is found in the officers of the board of ordnance, who, by virtue of the statutes 1 & 2 Geo. 4, c. 69, 3 Geo. 4, c. 10S, and 2 Will. 4, c. 25, are in the nature of a corporation, so far as to have vested in them certain manors, messuages, lands, &c, which have been, at various times, purchased for the use of the ordnance, for the purposes of the general defence of the realm. They are, in respect of such lands, &c, trustees for the crown for that purpose, so as to prevent the necessity of the property being transferred from one set of officers to another. But it does not ap- pear that they arc so seised as to be enabled to defend an ejectment (7). The proper mode of proceeding to recover such lands, er Kelyi C. .'., in quire and bequeath lands in his natural capa- Lee v. Boothbv, 1 Keb. 720 ; Butler v. Pal- city, mer, Salk. 191; vid. 3 T. K. 197; Dyer, (i) 2 Inst. 186; 2 Bla. Com. 346: Com. 355, A. marg. ; Cro. El i. 24; Com. Dig. Dig. Patent, A. ; Prserog. D. 89 ; Nichollsu. Patent, G. 3; 17 Vin. Abr. 171.pl. 7"; Hutt. Nicholas, Plowd. C. 484T But the king may R. 1 ; 4 East, 327 ; per Altham, B., Lane, present by parol on an avoidance of a bene- R. 61. fice, for no interest passes ; Anon., Cro. Jac. (:) Abbess of Brinham's case, Yearb. 18 247, 248 ; Com. Dig. Patent, C. 5, C. 4. Edw. 3, fol. 23. And it is only a recommendation of the clerk ; (a ) 2 Rol. Abr. 348, 1. 33 ; Colt v. Bishop Co. Litt. 120 a; Com. Dig. Esglise, H. 8. of Coventry, Hob. 148, 149. S S 2 628 CORPORATIONS SOLE. The kino-, as a body politic, cannot divest an interest but by deed; though he may give a license that has not the effect of divesting an interest, as a license to an oflicer to absent himself for a time from his office, by word of mouth (6); for the incorporation, in right of the crown, does not deprive the person wearing it of all the rights and powers of the natural person; but he may both retain, and dispense with, the sii vices of officers and servants by the same means that any other individual may (c). The king cannot be a copyholder cither in his corporate or natural capacity (d). By the common law the king could not make any grant of land but under the great seal of England, but by custom of the Court of Ex- chequer, leases of crown lands, made under the Exchequer seal, are good, and in pleading, it is not necessary to state that the common course of that court is to make leases for years under their seal (e); for the cus- toms and courses of every of the king's courts are as a law, and the common law for the universality thereof doth take notice of them, and it needeth not to allege, or plead, any usage or prescription to warrant the same (/). It is to be observed that since the Union with Ireland, the great seal is, properly speaking, the great seal of the United Kingdom of Great Britain and Ireland, and though, by the common law, no grant of any land by the king is available in general or plead- able but under the great seal (g), yet, if it be alleged in pleading, that an instrument is under the great seal of Great Britain, and evidence be given of an instrument under the great seal of the United Kingdom, this is no variance (A). But now the crown is enabled by stat. 59 Geo. 3, c. 91, to grant, by warrant under the sign manual, lands, &c, coming to the crown by escheat or forfeiture; and hence it has been held that a grant under the sign manual is sufficient to pass the pro- perty in a promissory note, which had become forfeited as the goods and chattels of a felo de se (i). But with this exception of lands escheated or forfeited, the crown must have "ranted all inheritances and (b) Reynel's case, 9 Rep. 99 a. As to C. 320, B. ; v. Chittenden, Hardr. 98; evidence in ejectment on demise by the Hayward D. Kinsey, 12 Mod. 573, 578; crown. Doe d. King William the Fourth i. Odes >. ( lark, 1 Ld. Rayra. 397 ; 8helton Roberts, 13 M.& W. 520; Did. 12 East, 96. v. Crow, 1 Ford's MS. 466; contri, Hay- (c) Whetstone d. Higford, Cro. Eliz. 124. ward o. Bennett, 5 l>...\ I- 483,484. There But be must retain a chaplain within Mat. 21 is a difference of opinion whether a court of Hen. 8, nnderseal ; Brown v. -Mugg, Salk. error can take notice of the practice of the 162. ordinary courts of Westminster Hall. Yfearb. ; Cro. Car. 52. .So of a lease for life; Kemp cant. Hayward d, Bennett, 1 D. \ L.236; i. Barnard, Cro. Car. 513; Com. Dig. Pa« pm Ho1royd,J., Sandonv. Procter, 7 B. .\ tent, C. 3; Did. tarn. 48 Geo. 3, c. 7 ;, ■ 3. c. B06. (J ) J Rep. 16b; so Sprike v. Tennent, (g) Lane's case, 2 Rep. 16; vid. 4 B. & 1 Rol. Rep. L05 , 19 \ in. Abr. 36, F. pi. 7 ; ( . 145; Com,. Dig. Patent, C. 2. Worlicb v. Maasey, I (/ ( ; K. i. Bullock, 1 Taunt. 71. As to own, < rn. ( ar. 528; Kempt'. Barnard, seal of Great Britain, vid, 5 Ann. c. 8. Cro. Car. 513 ; 1 he Case ol Mines, Plowd. I. an, l.cit i . Taylor, 4 11. & C. 138. CORPORATIONS SOLE. 629 chattels real under the great seal (/<). So it was said all offices in fee or for life must be granted (/). As to chattels in general, the king may dispose of a chattel under the privy seal ; and a warrant to issue treasure, though not good by word of mouth, will be good if under either the great or privy seal(w)- The king forms an exception to the general rule, that chattels will not go in succession in case of a corporation sole ; and therefore they belong to his successors and not to his executors (n) ; and indeed it must be carefully borne in mind, that the king is altogether upon a dif- ferent footing from other corporations sole (o), and therefore no argu- ment to other corporations can be drawn from what is laid down with respect to the king. It is otherwise in the case of almost all other descriptions of corpo- rations sole ; for with them neither chattels real or personal, choses in action, terms for years, nor any other species of personalty, can go in succession (p) ; and a bond, though taken expressly to a corporation sole and its successors, would nevertheless go to the executors of the individual (q). However, there is again an exception in the case of the Chamberlain of London, who, by the custom of orphanage money in the city of London, is a corporation sole, to take recognizances, obligations, &c, in trust for the portions of orphans of the city (?*). Also by ancient usage the ornaments of a bishop's chapel go to the successor, and not to the executors (s). But if a lease for years be made to a bishop or other corporation sole, the lease goes to his exe- cutors, and not to his successors (t) : on the other hand, if a lease for years be made by a bishop, or any other corporation sole, of the lands that he holds in right of his corporation, the successors shall have the covenants upon it; for that the lands descend to the successors, and therefore the covenants in the leases respecting them. But in general all chattels, whether real or personal, in action, or possession, go to executors and not to the successor (u). The executors of the deceased would have the right of action for covenants broken in the lifetime of (k) Moor. 476-, Plowd. C. 213 b ; Com. case, Hob. 64. As to lease for years, Co. Dig. Praerog. D. 88; vid. now 1 Ann. st. 1, Litt. 9 a. c. 7. (?) Howley v. Knight, 19 L. J. (N. S.) (/) Com. Dig. Patent, C. 2. Q. B. 7. So of a lease for years to a bishop (m) Earl of Devonshire's case, II Rep. and his successors, Co. Litt. 46 b; vid. Yin. 92 a ; 4 Inst. 1 16 ; 2 Inst. 555 ; Moor. 476. Abr. Corporations, G. 6, pi. 7. So of a bond (n) Earl of Devonshire's case, 11 Rep. to a chantry priest and his successois, per 92 a; Com. Dig. Prerogative, D. 87 ; Co. Choke, J., 20 Edw. 4, fol. 2, pi. 7 ; per Bo- Litt. 90 a ; 17 Vin. Abr. 200. sanquet, J., in Dom. Proc. 1 CI. & F. 542. 0) Per Littledale, J., 7 B. & C. 167. (r) 4 Rep. 64 b; Bird v. Wilford, Cro. The ancient jewels of the crown descend to Eliz. 464, 682. the successor as heir looms, and not as an in- (s) Corven's case, 12 Rep. 105, 106; stance of a sole corporation taking in succes- Case of Bishop of Carlisle, Yearb. 21 Edw. sion; Harg. Co. Litt. 9 a, note (47); Co. 3, fol. 48, pi. 73; Bro. Abr. Chatties, pi. 4. Litt. 18 b; vid. Cro. Car. 344, that the king (t) Co. Litt. 46 b. may grant them by letters-patent. (it) Com. Dig. Biens, C. ; vid. 7 B. & C. (p) 1 Bla. Com. 477; Co Litt. 46 b; 177. The successor does not take any such Fulwood's case, 4 Rep. 64 b ; Howley v. rights or interests as are less than freehold ; Knight, 19 L. J. (N.S.)Q. B. 3; Arundel's Rennellv. Bishop of Lincoln, 1 Cla. & F. 542. 630 CORPORATIONS SOLE. the testator (x) ; and the successor would, in no case, be bound by any other covenants than such as had been usually inserted in former - (y). The best reason that can be given why chattels should not go in succession as well in the case of a corporation sole as of a corporation aggregate, seems to be the application of this, which is an unquestion- able rule of law, viz., that the title to, or property in, chattels, can never be in abeyance { z) : but if the goods of a corporation sole were allowed to go in succession, there would be an interval, viz., the time between the death or removal of each predecessor and the appointment of his successor, during which there would be no visible owner of the goods. It will be observed, that in the case of the crown such interval does not exist, because ipso facto upon the natural decease of the per- son holding the crown, his successor is seised (a) ; and if the cases of bishops and the Chamberlain of London cannot be explained in this way, as they certainly cannot, they must be referred in the latter case solely to custom and necessity, and in the other to usage and convenience (b). The preponderance of opinion seems to be, that a corporation sole cannot hold lands by copy of court roll (c). It is material to observe, that in strictness a parson, bishop, or any other corporation sole, except the king, must have a license in mortmain before he can hold lands or hereditaments, granted, &c, to him and his successors ; and accord- ingly by statute (d), now repealed (e), the legislature permitted parsons, &c, the yearly income of wdiose parsonages, See, did not amount to the clear yearly value of 100/., to take, receive, and purchase, to them and their successors respectively, lands, tenements, rents, tithes, or other hereditaments, without any license in mortmain ; and(/) all owners of tithes in any parish, or chapelry, were also enabled at the same time, to ■jive and annex the same, or any part thereof, to the parsonage, or vicarage, of the said parish church or chapel, where the same lay or arose, &c, without any license in mortmain. The license in mortmain to a corporation sole ought to be made to him and his successors by his name of office, not mentioning his personal names (g). There is a difference between the case of lands granted to the king and an individual, and to J. S., Bishop of Dale, or any other corpora- tion sole, by his christain and surname, and addition of his corporate name, and an individual and their heirs ; for in the first case, the king would take as tenant in common with the subject, and not jointly ; for (i) Mniliv i. I'olliill, 3 Venlr. 56. corporation becomes possessed of lands by (v) Com. J > i j_r _ Covenant, C. 3. conveyance from a tenant liable to pay fines {:) llellam t. Ley. BrownL 132; 2 Inst. on death or forfeiture for crime, the corpora- l < . T ,12 Rep. 113 * 2 Bla. tion must indemnify the lord for the lost of his i . • i. 132. aoriaJ rights; Thornton p. Robin, l Moo. 2 Howell, - • ■'. Cro, 1'. C. Can. 439. (J) 17 Car. 2, C. 3. s. 8. (In [fowl It, 19 I-- .1. ' N. 8.) (<•) I .\ 2 Viet. e. 106. n. II. 7. 17 Car. 2. c 3, s. 7. Fid. 1 s-Tiv. Copyh. 108, 4th I rq. Abr. I ender, pi. 10 ; Vearb. 14 man law is, il.at when a Hen. 7, fol. 31 ; 1.5 Hen. 7, fol. 1. CORPORATIONS SOLE. G.31 he would take as a corporation sole and injure corona', and therefore his successors would be tenants in common successively with the indi- vidual and his heirs respectively ; for as we have seen, there cannot be a joint tenancy between a corporation and an individual (//,); but in case of a grant of lands made as above stated, &c., to a bishop or other corporation sole and a layman or other individual, and their heirs, they would take as joint tenants, for each would take equally in his indi- vidual capacity (i). So if a lease for years be made, or goods given, to a bishop and an individual, they are joint tenants (i). Again, if a bishop have an advowson in right of his fee, and the church have become void in the lifetime of the bishop, neither his successor nor executor shall have the presentation ; for the executor shall not have it, because nothing can be taken for a presentation in such circumstances, and therefore it is not assets ; and secondly, being a chose in action of a peculiar character, it goes to the king in preference to the successor, because the king has the custody of the temporalties of the see in the interval between the death, and the appointment of the successor (k) : and so it is if the bishop be deprived, the king shall have the presentation to a church devolved to the bishop by lapse before his deprivation, but not filled up by him (/) ; nor would the lapsed turn have gone to his executors at his death, for the reason given above (/). But if the bishop were outlawed during a vacancy of a church of which he was patron, without having collated, it seems that a grantee of out- law's " goods and chattels" would have the presentation (m). Where an office was granted by the crown to A. B., bishop of Salis- bury, for his life, and that all his successors, bishops of Salisbury, should hold the office in future, and A. B. died bishop of Salisbury and holding the office, but none of his successors for many years (from Edw. 4 to James 1) held it after him ; it was determined, upon the claim of a subsequent bishop, that the grant was void as to making the successors such officers ; for that A. B. took an estate in the office for his life, and in his natural capacity, and if he had been removed from his see would have remained officer, and his successor in that case could not have taken the office, because of the limitation to A. B. for his life ; and the consequence is, he did not take an inheritance, nor was it possible for him to take both in his natural and in his political capacity at the same time ; and therefore for these reasons, and because there had been no use of the office by the successors, the grant was held void (n). (h) 2 Wms. Saund. 319, note (4). fol. 26, pi. 19. The king's right is as founder ; (i) Co. Litt. 190 a. The words "bishop semb. Fitz. N. B. 34, O. ; Poyner v. Cliorl- of, &c," are merely words of description in ton, Dyer, 135, A. ; vid. irtf. 632, n (q). such case. (/) Colt v. Bishop of Coventry, Hob. 154. (k) Co. Litt. 388 a, 90 a, and Harg. note (m) Holland v. Shelley, Hob. 302 ; S. C. (85); Fitz. N. B. 33, P.; Potter v. Chap- Winch, 692 ; S. C. Owen, 155 ; 1 Leon. 201; man, Ambler, 98; Yin. Abr. Presentation, 4 l.eon. 107. C. a, E. a; R. v. Bishop of St. David's, (n) Bishop of Sarum's case, Moor. 809. Yearb. 50 Edw. 3, fol. 26, vid. 24 Edw. 3, 632 CORPORATIONS SOLE. On the other hand, the options granted to the Archbishop of Can- terbury, by bishops on their consecration, went to the executors (o), before the late acl 3 s\ I Vict. c. US, which, by sect. 42, enacts, ''that it shall not be lawful for any spiritual person to sell ur assign any pa- tronage or presentation belonging to him, by virtue of any dignity, or spiritual office, held by him, and that every such sale or assignment shall be null and void to all intents and purposes," which, in future (p), places options in the position of being no longer available as assets, and it seems they will therefore devolve upon the crown for the reason before stated, in the circumstances mentioned. In the case of a cor- poration sole however, whose temporalties were not taken into the hands of the crown upon a death, if, having the advowson of a rectory in right of his corporation he died during a vacancy, the presentation went to the administrators or executors^); though with respect to a parson, there is authority to show that in case of his death, in such cir- cumstances, the patron of the parsonage presented (r). Lands must be granted to a corporation sole and his successors, or they will not in general go in succession (5) ; there is an exception in the case of the king (t) ; and the grant must not be made in time of a vacancy or it will be void, unless by way of remainder, and the vacancy be filled during continuance of the particular estate (u). A grant to a bishop to hold in frankalmoign passed the fee to his successors, without adding the word successors, from the peculiar nature of frankalmoign (a-); but the rule with respect to modern grants for lay purposes is as stated. On the other hand, the introduction of the word successors into a royal grant of a rent, will serve to create a cor- poration sole by implication, in the grantee (y). There is a difference when the grant is made to the corporation by the politic name only, for then it shall be intended to be made to the body politic, and not to the individual, and to descend to the successors accordingly; but if the grant describes the grantee as J. S., bishop of, &c, the words following his christian and surname are taken for words (,,) 1 Born'fl Eccles, L.239; per Aldereon, them any longer. Hut it lias been declared g #> 2 I itch. l". - Littledale, J., 7 B. & C. to be a fallacy to say that executors take no- |i>7 ; rid. cases relative to giants of presenta- thing but what i> valuable; per Parke, 15., in tions by corporations sole, 7 15. & C. 123 ; Dnm. Proe. I CI. & F. 556. Hob 304. The grant of an option by a bi- (r) 2 Hoi. Abr. 346, F. pi. 1 j vid. per shop is not binding on bis successors j 1 Bla. Danby, C.J., 7 Edw. 4. fol, 12, B. If how- ( ol|1 ever the vicarage be void, and the parson, be- ( ),) 2 Bxcb.40; vid. legality of devising forehepresent.be made a bishop, he shall option- disputed, per Lord Wynford, in Doro. nevertheless present, because il «•'- a chattel Mirenousev.Rennel), 1 Cla.& F. 609; vested in him; Fit/. \. B. 34, N.j el vid. etvid pp. 560, 561. 575, 576, 600. per Bayley, J., 7 B. & C. 186, 187 Rennell v. Bbhopol Lincoln, 7 I'.. & <>) Per Choke, J., in Robinson o. Lewis, C. |i3j nd. I Cla. & F. 538. Qu,ir,- the Y earb. 20 Edw. 4, fol. 2, pi. 7. operation of the stat. 8 & iVicJ c. 113,8.42, (() Co. Litt. 9 b. e, which may still a ("> Vaugh. 199. ■^nssole; for if it be true that < Co.Litt.94. A corporation sol ( .„, (irs :vll ,! ■ Iministrators, can only be enfeoffed in /roc alms without deed; Co. •.hat would !•• assets, h would seem to LiU.94b; per Newton, C. J., 20 Hen. 6, fol. follow from that principle ami the statute, 36, B. that inch pre-eniations cannot devolve upon (jf) Buckland t. Foucher, 10 Rep. 27 a. CORPORATIONS SOLE. G33 of description, unless the word successors be added, to show how the descent is to take place ; and therefore J. S. would only take for life(z). If the lands be granted to John, bishop of, &c, whereas the name of the bishop is George, this will not avoid the grant, for there can be but one of that dignity, and therefore the grantee is sufficiently ascertained (a). All corporations sole are within the statutes of mortmain, whether they be ecclesiastical or temporal bodies (b), and therefore, though they can take, they cannot retain lands, if the lord or the king chooses to enter under those statutes, except when they have a license to hold in mortmain (c). But the stat. 29 Car. 2, c. 8, s. 2, empowers all ecclesi- astical persons and bodies corporate, whether aggregate or sole, to augment poor vicarages and curacies, and enables such vicars and curates to take, hold, and enjoy, to themselves and their successors, such augmentations, without license in mortmain ; and stat. 2 & 3 Ann. c. 11, empowers persons to give, grant, or devise, to the corporation of the governors of Queen Anne's Bounty, any lands for the augmentation, to be applied according to the will of the donor, &c, of curates, &c, without license in mortmain; and by 1 Geo. 1, stat. 2, c. 10, s. 4, such augmented curates, &c, are made bodies politic, to take, &c, such lands in succession, any statute to the contrary notwithstanding (d). Strictly, every corporation sole ought to have and use a corporate seal, by which he must grant, demise, &c, lands, tenements, and here- ditaments held in right of his corporation. Thus a bishop must seal deeds, &c, of grants, leases, &c, respecting the lands, &c, of his see, with his episcopal seal (e). However, the successor, it would seem, would be liable on the contract of his pre- decessor, though not under this seal, if the contract was executed, and the thing done, or goods delivered, &c, had come to the use of the see, and had not been done or delivered to the bishop in his private capacity (/). So he must probably accept rent under such seal, and there might be convenience in doing so, as since the late statute, 8 & 9 Vict. c. 113, it would, like other corporate seals, prove itself. Before the late stat. 3 & 4 Vict. c. 113, s. 50(g) (The Ecclesiastical (z) Co. Litt. 94 b, 8a; Bentley v. Bishop 5 Rep. 119 b ; 2 Dowl. N. S. 570; Vulgar of Ely, Stra. 913; S. C. 1 Barnard. 453; v. Higgins, Palm. 173; Shep. Touch. 74; Fitzo-. 308,312. 2 Bulstr. 247; Freston's case, 11 Edw. 4, (a) Co. Litt. 3 b. fol. 4, pi. 1 ; Coin. Dig. Pleader, 2 \V. 18. (ft) Co. Litt. 2 b • 2 Inst. 75. But his seal to a certificate, or letters of or- (c) Co. Litt. 2 b. dination, is not to be regarded as a corporate (d) Vid. 9 Geo. 2, c. 36; sup. p. 548. seal; It. v. Inhabitants of Bathwiclt, 2 B. & (e) Vid. Heath v. Prynn, Ventr. 16 ; Cort Ad. 6-18 ; such documents being executed by v. Bishop of St. David's, Cro. Car. 342. The the bishop in his ecclesiastical or spititual ca- same observations regarding authentication of pacity, and not as a corporation, and even if documents apply as in case of a corporation ag- they were deeds, the episcopal seal would not gregate (?;((/. sup. p. 59), and they areconfirm- be indispensable; vid. 21 Edw. 4, fol. 81, ed by the judgment of the court (2 B. & Ad. pi. 30; vid. form, Dyer, 386, B. pi. 48. 648), in which seals of corporations are said (f) Vid. 21 Edw. 4, fol. 19, pi. 21 ; S. C. to be of a permanent character. The objection fol. 80, pi. 28 ; Bro. Abr. Chatties, pi. 25. is to be taken on mm est factum as it seems ; (g) Vid. sup. p. 66, note (ft). <;.;i CORPORATIONS SOLE. Duties and Revenues Act), the clean in every cathedral, and some or all the prebendaries (or canons as they are now styled), were corporations sole respectively. That enactment vested, with some exceptions, the separate estates which each of these corporations sole, with some ex- ceptions, held in its corporate capacity, distinct from its corporate share of the revenues of the aggregate corporation — the dean and chapter — in the Ecclesiastical Commissioners for England, for the pur- poses of the act ; but as the act preserves, to the corporations sole affected by it, all other rights and privileges whatsoever, and as a corpo- ration sole may exist with or without revenues as such (//), they may. it seems, still take lands, &c, in succession. In genera] a corporation sole can only divest an interest in anything which he has in right of his corporation, that is, in other words, be- longing to his politic capacity, by deed(i); but a parson may, by cus- tom, nominate a parish clerk, by parol, for there no interest passes out of the body politic, and besides the custom that gives the right to the parson to nominate, and is good for that purpose, is also good to enable him to do so without writing, although it is an office for life with fees, and in general such an office cannot pass without deed (k). It is fur- ther said, that a corporation sole may command his servant to demand a rent, and make an entry, by parol ; and the reason given is, that, as a sole corporation, he is capable of the same acts as all natural persons are (I) ; but this seems only to be said obiter, and the principle laid down was not necessary to the decision of the question before the court, nor has it been confirmed by subsequent decisions. The correctness of it therefore ought not to be lightly assumed. A parson may assume, i. e. promise, by parol to a parishioner, for a valuable consideration, that he shall be discharged of tithes for his lands, and if the parson sue for them in the spiritual court, that is a breach of the agreement («t); but if made for more than one year's tithes, the contract was void (n) ; for the parishioner had them not by way of grant, but of retainer or sale, and they are growing all through the year (n). A parol contract with a stranger, by way of grant or lease of the tithes, would be bad altogether, for they lie in grant, and therefore only pass by deed (//)• But this result depends partly on other prin- ciples than that which requires a corporation to bind itself by deed. Now all leases of tithes by corporations sole are established by 5 (ieo. 3, C. 17. (/O Case of Dean, fee ,of Norwich, :s Itcp. (/) Wood v. Chivers, 4 Leon. 181 ; S. C. 75; IS . 43, pi. B, there rated. Date. B6, pi. 1. (0 All grants, be, <>i lands : ""l other («0 Brown v. Ktnmao, 1 Hoi. Abr. 430; I,, ri ,; longing to the body politic nd. Gardiner v. Williamson, 2 B. fit Ad. 886. Ie by deed, confirmed bythepa* («) Hawks v. Brayneld, Cro Jar. 187; iron ami ordinary, in the ease of parsons, and 8. C. 2 Rol. Abr. 68 ; aid. Owen, 108 ; Cro. bv the ) Yin. Abr. Additions, K. pi. 3; F. pi. Bonee, he goes as J., Bishop of A., &c, par- 4; (J. pi. 7; vid. 2 Insi. 669. son of 15., \c; Fitz. N. B. 49, note (o), 60 ; (e) Bro. Abr. Dean and Chapter, pi. 19; Latch, 23;} : Abbot of Colchester's ease, Encumbent, pi. 14; Xapper v. Jasper, Hob. Vearb. 49 Hen. 6, fol. 16. If, as commen- 117; Dean and Chapter of Stoke v. Master datory, he ought to soe in that name, Latch, of Hospital of St. MaryOvereis, Vearb. 39 23;} ; Vearb. "27 Hen. B, fol, 16. Hen. 6, fol. 14. So a parson may be charge ). Where a corporation sole sues in respect of his office for the reco- vt.iv of lands, &c., belonging to it, and recovers judgment, but dies be- fore execution, it is in general the successor, and not the executors, who are entitled to bring sci. fa. to revive the judgment; thus, if the pre- decessor had recovered in ejectment for lands belonging to the see, par- sonage, vicarage, kc, but had died before the writ of possession had been executed, the successor must bring sci. fa. (a). On the other hand, if one have judgment against a vicar, and before execution the vicarage is united to the parsonage, yet the plaintiff has his execution against the parson (r). It seems that an information in the nature of a quo tcarranto may issue against a corporation sole, and that judgment of fjuod capiatur may be had against him for an abuse of such liberties, and a fine set, and the liberties be seized into the hands of the crown for his time (s). If the corporation sole disclaim the franchises or liberties in quo war- ranto, this disclaimer will bind the successors ; principally, as it seems, because exyedit reipublica ut sit finis Utiurn{t): levying a fine, how- ever, or confessing or admitting a claim in any other proceeding, had not in general the same effect (u), but the successor could have the right, &c, restored by means of a writ of right, or other proper form of action. With respect to the limitations under which corporations sole may dispose of the corporate estate so as to bind their successors : — If a corporation sole make a feoffment of the lands he holds in right of his corporation, or otherwise dispose of them, or any part of them, without being duly authorized to do so by the parties who have autho- (o) Co. Liu. 134 a. 517, which come to the king as founder, 1 (p) Pe> \\ ilde, C J., in Gosling v. Veley, Cla. & F. 586. l'» I.. .1. ( N. S. ) Q. B. 141. (0 Co. Litt 103 a; R. v. Archbishop of (a) Fid. Atkins o. Gardiner, Noy, R. 121 ; York, 6 Edw. 3, fol. 51, when it appears Perk. seel. 499. but r ' the exe- that at that time an ecclesiastical corporation tutor wouhl have the action for the mesne sole could Vid. precedents cited by Nov. Ait.- to 1 Khz. c. 19; vid. Dyer, 109, B. pi. 38; I , kI. Bro. Abr. Forfeiture, 18 ; Yearb. 40 Edw. 3, 4 j r ,o P. II 9, 110; a. fol. 27, B.; 45 Edw. 3, fol. 18, pi. 14; 13 n .,[',.. fearb. 6 Edw. :), Hen. 7, fol. •">, B.j tmb. that it could; fol. 50. Perhaps this would be the proper Glaovil. lib. vii. c I; FHz. N.b. 210, F, t, it a bishop did sets .ill <;.; Yearb. 33 Hen. 6, fol. 6, pi. 21. iration befon completely That the king was considered as founder, vid. . A bishop is not able to Co. Litt. 134a, 344a; slat. 1 Jac. l,c. 3, s. 1. etc, before consecration: I (u) Co. Litt. in:i a; Yearb. 6 Edw. 8, foL rth. 314,315; Vangh. 51; 38 Edw. 3, fol. 33, Prior ol New] 20. I tor is not perfect successor case; vid. Ibbotof SuMary Dirlandv. Prior until be has r« solution of his temporalnes from of Achassels, 34 As-, pi. 7. the crown; bishop of Oxford's case, balm. CORPORATIONS SOLE. G39 rity in that behalf, or by statute, &c , the successor may enter at once, and is not left to his action to recover (x). The parson must have the confirmation of the patron and ordinary in order to make valid leases, grants, &c., by him of the corporation lands as against the successor ; but a patron's mere acceptance of a lease of such lands from the parson is not equivalent to a confirmation by him of the lease for this pur- pose (?/), though if he warrant over the lease, that is a good confirma- tion (z) ; and being confirmed also by the ordinary, the lease will stand against the successor. If the patron have granted away the next avoid- ance, before he confirms, his confirmation, it has been intimated, will not suffice, without that of his grantee also (a). A bishop must, as we shall see, have the confirmation of his dean and chapter, under their corporate seal, to bind his successor. At common law, if a corporation sole had judgment against him for a matter connected with his corporation, and not belonging to his private capacity, and died before execution, the plaintiff* must have had a sci.fa. against the successor ; he could not proceed to execution without a scire facias (b) ; but it seems it would perhaps be a good defence for the suc- cessor to show that the predecessor had allowed judgment to go by de- fault (c). An instance of this might occur where a parson was bound to pay a rent-charge, or other annual payment in right of his parsonage, and charged upon it, and had had judgment against him and died before execution. It would be otherwise if the payment were a mere personal annuity, for then the executors of the predecessor would be liable. The impoverishment which was likely to be caused to the successors was a sufficient reason why the first case just mentioned should not con- tinue to be law; but it was not until the 1 Eliz. c. 19, that to charge the estates held in right of the corporation was prevented as regards the successor (d). On the other hand, if a corporation sole be entitled to an annuity in right of his corporation, and he dies, leaving arrears due, his executors, and not his successors, shall have the arrears; for the sum due for arrears is a chattel which never vested in the successor (e). At common law, if a parson had made a lease for years of his corpo- (x) Per Broke, C. J., Yearb. 12 Hen. 8, Hen. 6,fol. 24, pi. 10; 4 Hen. 7, fol. 2, pi. fol. 7, B.; Co. Litt. 103 a. 4 (vid. Prior of Huntingdon v. Parson of (t/) 1 Rol. Abr. 480, O. 1. 6. Clington, Yearb. 12 Hen. 8, fol. 7, cent.); (z) 1 Rol. R. 361 ; Maund v. French, 1 10 Rep. 61 a; Com. Dig. Estates, G. 5; Rol. Abr. 481 ; Hodges v. Newcomen, cited Fitz. N. B. 49. Otherwise, if predecessor 5 Rep- 15 a. had had verdict against him, I'itz. N. B. 50, (a) Per Brown, J., Dyer, 133, A. ; 2 D. Wats. Compl. Incumb. 864. (d) 1 Eliz. c. 19; Bac. Abr. Leases, E. ; (/) v Vid. Prior of Bath ». Percechay, Yearb. Sheph. Tou( h. 282. The statute, being a 8 Edw. 3, fol. 27 ; Prior of St. Oswald v. private act, must be pleaded ; vid. 1 Burr. Parson of Langley, Yearb. 29 Edw. 3. fol. 219, 220. Still, arrears of a pension, pay- 34; Abbot of Colchester's case, 49 Hen. 6, able by prescription out of the church, both fol. 16, pi. 20; Bishop of Rochester's case, accruing in his own and the predecessor's Owen, 73; Yearb. 9 Edw. 4, fol. 49, pi. 7 ; time, are recoverable from the successor; 48 Edw. 3, fol. 26, pi. 11. It would be a Trinity College v. Tunstall, Cro. Eliz. 810. good defence for the successor to say that, (e) Per Newton, ('. J., Yearb. 19 Hen. 6, having resigned, he was not parson at the day fol. 44, pi. 94; Bro. Abr. Arrearages, pi. of suing out the scire facias ; 9 Edw. 4, fol. 143 ; Fitzh. Abr. Scire Facias, 153 ; Ognel's 49, pi. 7. case, 4 Rep. 48 b ; vid. further as to charging (c) 8 Edw. 3, fol. 27, 28, 29 ; Yearb. 8 livings, 7 Dowl. 753, 763; 3 B. & Ad. 915. ''Ill CORPORATIONS SOLE. ration lands, to begin after his death, or had granted a rent-charge in the same way, and had obtained the confirmation of the patron and or- dinary, that would have bound the successor; hut now no confirmation would make them good against the successor (/*)• If the patron and ordinary give license to the parson to lease, &c., and the parson leases, &c., accordingly, this is good to hind the succes- sor; for a license precedent, if by deed, is all one with a subsequent confirmation (g) ; and the confirmation maybe made at anytime during the incumbency, but not after it is determined whether by death or otherwise (g). Where the bishop confirms as ordinary merely, he may agree either by license or confirmation under seal; but if he be patron as well as ordinary, the dean and chapter must confirm as well as the bishop, in order to bind the successor beyond the continuance in office of that bishop (h). If A., being parson of the church of B., is also patron of the church of C, as belonging to the church of B., and presents D., who, by his consent, grants a rent-charge out of the glebe of C, with the ordinary's confirmation, this is not good to make the rent-charge perpetual, without the assent also of the patron of A.(?) This is an illustration of the rule that, wherever there is patron paramount, his confirmation, as well as that of the patron immediate, is indispensable to charge the successor ; and in fact, without such confirmation of the patron paramount, the lease is wholly void, at least as against the successor, and the accept- ance of rent under it by the successor only operates to creates a tenancy from year to year (k). If a parson de facto only make a lease, and get it duly confirmed, still it does not bind the successor (/) ; at least, this seems to be the better opinion, and moreover is conformable to the doctrine laid down in respect of a bishop de facto. The reason also that is given for the latter decision, viz., that voluntary acts tending to the depauperation , enacted that all grants by episcopal corporations sole, even though confirmed by the dean and chapter, other than for the term of one-and-twenty years, or three lives, from the making, or without reserving the usual rent, shall be void. This statute relates to and includes any estate or interest in any lands, tene- ments, or hereditaments, parcel of the possessions of the see, and any charge or incumbrance upon it, or any other thing in their disposition, to bind the successor (y) ; but, observing the limitations of the stat. 32 lien. 8, bishops may make leases for twenty-one years, or three lives, to bind their successors. However, though the lease be of lands usually demised, and the usual rent be reserved according to stat. 1 Eliz., yet, if all the limitations of the stat. 32 Hen. 8 be not observed, the lease will not bind the successor without it be confirmed by the dean and chapter (?/). Concurrent leases, if confirmed by the dean and chapter, were held to be valid as regarded the statutes, 1 Eliz. c. 19; 13 Eliz. c. 10; pro- vided that, together with the lease in being, they did not exceed the term permitted by the acts (z). Subsequent legislation (a) established further restrictions. By 6 & 7 Will. 4, c. 20, s. 1, it is provided, that Hob. 7 ; Trelawney i; Bishop of Winchester, a lease caDtiot be made without, even to try a 1 Burr. 221. 'there is no rule of public title; for the statute being express.no con- policy which prevents them from dealing with struciion or pretence can be urged to avoid it ; the temporalties independent of the restrain- Carter v. Claypoole, Moor. 593 ; 1 Leon, ing statutes ; Metcalfe v. Archbishop of York, 306; Savil. 128. Where a lease is voidable 1 My. 6: Cra. 547 : nor any instance previous by the successor, and the bishop who made it to stat. 1 Eliz. c. 19, of a lease of an ecclesi- dies, the crown may avoid it in right of the astic being set aside in equity on account of vacancy ; Earl of Bedford's case, 7 Rep. 7 the length of the term granted ; Att.-Gen. v. b ; but its acceptance of rent in the vacancy Morris, 2 Madd. 303. does not bind the successor, S. C. (y) Bishop of S;ilisburv'^ case, 10 Rep. («) Co. Lilt. 45 a ; Bishop of Hereford v. 60 b; rid. J. Bridgm. 29, 30. If the lands Scory, Cro. Eliz. 874 ; Moor. 108 ; Carter, have not been let before, they cannot be leased, 14; Fox v. Collier, Moor. 107; S. C. 1 though previously waste ; Doe d. Tennyson v. Anders. 65; vid. <). Bridgm. 101. Concur- Lord Varborough. I Bing. 24 ; Goodtitle v. rent lease for life void, though confirmed ; Funucan, Dougl. 552. The leases, Ate., were because the first would be dispunishable of to be avoided by the successor by entry, and waste; Com. Dig, Estates, (>.. r >; Sheer* V. wi re M i op lor his time by acceptance of rent; Pentor, 1 Leon. 4 ; S. C. 4 Leon. 117 ; Liu. rid. Sbeph.Touchst. 284 ; Hare, note (266) on II. 304. Co. Litt. 46 a; .Moor. 875; O. Bridgm. 146, (a) Vid. 2 P.la. Com. 320, 321; Bac. 147; Lyn. i. \\\n ; Owen >. Ap \\< <■< Cro. Abr. tit. Leases; 13 Kliz. c. 10, which ex- Car. 'Hi. But now it is held mat the lease is tends I Eliz. c. 19 to all ecclesiastical corpo- wholly void, and acceptance of rent only ope- rations sole below the dignity of bishop. The to create a tenancy from year to year; recital- in 13 Elk. do not limit the force of Doe d. Brammall v. Collinge, 18 Law J. that enactment to cases where the mischief by (N.8.) ' . B. 305 ; Com. Dig. Estates, G. 5 ; the alienation is done to the personal interest Dyer 239, A. There must be a rent reserved ; of the successor, but it extends and applies to CORPORATIONS SOLE. 643 where any lease shall have been granted by an archbishop or bishop for twenty-one years, no concurrent lease shall be granted until seven years shall have expired of the former ; also that when a lease has been granted for years, there cannot be another granted, by way of renewal or otherwise, for lives. Here we may observe, that a lease to one person for three lives, or to three for their three lives, is all one within the intent of the statute of Eliz. (b). The law at present with respect to parsons, vicars, &c, being cor- porations sole, is, that they cannot make leases of the lands held in right of the corporation so as to bind the successor for any term what- ever, without the consent of the patron and ordinary, nor with such consent, for any longer term than three lives, or twenty-one years, except building leases in certain cases mentioned below ; also no lease shall be made without impeachment of waste (c) ; also no concurrent lease can be made unless where the old one will expire within three years, or unless in the case of a forty years' building lease. But in the case of a parsonage or vicarage donative, the confirmation of the patron alone is sufficient to all leases, &c., made by the parson or vicar, and requiring confirmation, and will bind the successor without con- firmation of any other person (d). In all cases, though leases made by the above corporations sole contrary to the acts of parliament regulating them are thereby de- clared to be void, yet they are good as against the grantor during his incumbency (e), but not against the successors ; and although such grants may have been acquiesced in by various successors, yet that does not set them up against another successor ; for he is not bound by them if they are void against successors, although the former made no objec- tion {f). On the other hand, once avoided, a lease, grant, &c, is avoided for ever, and cannot revive again against a subsequent succes- sor (g). The successor, so far as we have seen hitherto, is uniformly regarded at common law ; and perhaps the only cases in which the strict rules of the common law have been departed from, as against him, are in the instance of a lease, made by a parson for years, rendering rent, &c, yearly ; and the tenant having paid to the successor the entire rent for the year in which the predecessor died, it was held that the executors persons who were seised as mere trustees ; a ; Roe d. Earl of Berkley v. Archbishop of Dean and Chapter of York v. Middleborough, York, 6 East, 86 ; Com. Dig. Estates, G. 5. 2 Y. & Jerv. 196. (/) Trelawney v. Bishop of Winchester, (6) Baugh v. Haynes, Cro. Jac. 77. 1 Burr. 219. (c) Ploughing up ancient pasture land not (g) Plowden v. Oldford, Cro. Car. 582; always waste ; Duke of St. Alban's v. Skip- S. C. W. Jones, 454 ; vid. 7 Rep. 8 a ; Co. with, 8 Beav. 354 ; sup. pp. 636, 637. Litt. 46 a ; Dyer, 72 B. pi. 5; Com. Dig. (d) Bac. Abr. Leases, F.; 1 Rol. Abr. Estates, G. 3. Polydore Vergil's case, cited 481 ; Dyer, 273 B. pi. 38 ; Co. Litt. 344 a; from Hale, MSS., Co. Litt. Harg. 46 a, 1 Piatt, Leases, 303. contra. (e) 2 Bla. Com. 321 ; Co. Litt. 329 a, 45 T T 2 64 1 CORPORATIONS SOLE. were entitled to an apportionment (h) ; and in those which have oc- curred, to a similar effect, respecting composition for tithes (t). It is held, that though the presentation to a vicarage belongs of common right to the parson, he may, with consent of the patron and ordinary, grant the presentation to another (j). The successor of an ecclesiastical corporation sole has, as is well known l>\ what is called, though erroneously, the custom of England, for a genera] custom extending throughout the country is in fact the common law), the power of recovering against his predecessor in case of the cession, resignation, or deprivation of such predecessor, or against his personal representatives in case of his death (/<), for dilapidations to the residence house, or glebe, &c, held in right of the corporation (k) ; and if A. dies. Leaving the premises out of repair, B. succeeds and dies, leaving them still dilapidated, and C. succeeds and recovers from B.'s executor, such executor may recover over from A.'s executor (I). But, besides, the common law courts have sometimes issued writs of prohibition to corporations sole to prevent them committing irreparable waste on the possessions of the church; ex.gra. to a parson ne pros- ternat arbores in cameterio (m), and generally, whether at the instance of the patron, or a stranger, according to Coke, C. J., a writ of prohi- bition of waste lay against a parson («) ; and dilapidation of ecclesias- tical palaces, houses, and livings, is even held to be good cause of de- privation (o). Subsequently, however, the courts of common law have proceeded some way in retracing their steps in this respect, and it has been held that the Court of Common Pleas has no power to issue an original writ of prohibition, to prevent a bishop from committing waste, at any rate at the suit of an uninterested person. An intimation was also made, that no court of common law had the power in such case, and it was left a question whether, in those circumstances, the Court of Chancery had it (p). But there is no doubt that in general the Court of Chancery will issue an injunction to prevent waste, when it is satisfied that the thing to be enjoined against is really waste, in the proper sense of that term, (h) Hawkins v. Kelly. 8 Ves. 308; vid. Edw. 1, Mat. 2 ; Costard's case, 2 Rol. R. I Will. 4, C. 22; Oldershaw v. Holt, 12 111; I. ord Rutland's case, 1 keb. 557 ; S.C. A. it E. 590; Fordyce (. Bridges, 1 11. 1 Siderf. 152. Ldj. l. | Knowle v. Harvey, 1 Rol. R. 335; U) Ainsley v. Wadi worth, 2 V. fie Uea. S. C. 3 Bulstr. 158; so backer's case, 3 331 ; Williams v. Powell, 10 East, 2»)9. Bulstr. Ill ; Drury v. Keut, Hob. 36; vid. 1 (j) Per Bayley, B., in Dora. I'<»r., 1 r. Rol. R. 86. & K. 585; I itz. V B. 34, A.; Holdsworth (o) 3 Inst. 204 ; Stockman v. Wither, 1 v. Pa >!..*, 8 , fol. AG ; Woods n. ■')!'). Stmb. in caseol conviction for cue, 12 Mod. 237 ; Bishop of Sarum's case, felony of the predecessor and bis consequent Godb. 259; liro. Abr. Deposition, pi. 1 ; 1 attainder, the law affords no direct remedy 15. 8c P. 128. for ddapidations lo the succc-- (/') Jeffreson P. Bishop of Durham, 1 B. (/) IJunbury v. Hewson, 3 Kxch. 558. fie P. 105; rid. nip. p. G37 ; Duke of St. (m) Thompson's Entries, 240; vid. 35 Alban's v. Skipwith, 8 lieav. 354. CORPORATIONS SOLE. 645 as applied to a parson or bishop (q) ; and even yet this offence is held to be a cause of deprivation or deposition (r), whether of bishops, arch- deacons, or parsons. Proceedings for punishment, short of deprivation, lie also in the spi- ritual courts : and there, of course, corporations sole might be deprived for canonical offences (s). The grant by a bishop of the next presentation to a church, of which he has the advovvson in right of his corporation, is good against the grantor, but void against his successor (t). Still less is the grant of an advowson for twenty-one years good against the successor, though it was good against the grantor (w) ; but these grants are void against the successor only by the stat. 1 Eliz. c. 19, in both cases (x). The lease of a bishop de facto, though duly confirmed by dean and chapter, is void; for though his judicial acts shall be good, it is other- wise of his voluntary acts, tending to the depauperation of the suc- cessor ( y). The principle upon which all the cases proceed is, that a corporation sole shall not of himself, without the concurrence of those who are interested in the office or franchise, which he holds in right of his cor- poration, and to whom the law commits the duty of watching over the rights of the successor, and preventing the dilapidation of the estate attached to the corporation, do any act to deteriorate the estate in such a way as to be binding beyond his own time. In this respect it is obvious that deprivation, translation, or resignation must each have the same effect as removal by death, and so it is laid down (z). The principle may be thus presented. If a corporation sole make an estate, lease, grant of rent-charge, &c, or do any other act which may operate to the diminution of the revenues of the corporation, the estate, &c, or act, not being made or done with the concurrence of those whose concurrence can alone authenticate, ratify, and give it posthumous va- lidity, such estate, &c, or act, is of force only during the time of the grantor, and upon his removal, by whatever means, will not bind the (q) Vid. 8 Beav. 354 ; Ackland v. Atwell, nothing in the church during the life of the 2 Rol. Abr. 813 ; Strachy v. Francis, 2 Atk. incumbent who survived him, so as to bind 217. the successor; Montgomery's case, Dyer, (r) Per Eyre, C. J., I B. & P. 128. 244, A. (s) Bishop of St. David's v. Lucy, 1 Salk. (m) Armiger v. Bishop of Norwich, Cro. 134; v id. Specot's case, 5 Rep. 58 a; 17 Vin. Eliz. 690, where no rent was reserved, nor Abr. 346, 347. In pleading sentence of de- did the advowson appear to have been usu- privation, not necessary to show before what ally let or demised, Bac. Abr. Leases, E. judge it was given ; Bedinfield v. Archbishop (x) Vid. 7 B. &c C. 174. of Canterbury, Dyer, 293, A. (y) O'Brian v. Knivan, Cro. Jac. 552. (t) Smallwoodu. Bishop of Coventry, Cro. (z) Co. Litt. 329 a; vid. Dyer, 356, B. Eliz. 207 ; S. C. 4 Leon. 15; vid. 1 Cla. & pi- 42. Resignation is breach of a contract F. 542, 543. Where, before the stat. 1 KHz., to demise for a term of years ; Rudge v. the crown granted an advowson to a bishop, Thomas, 3 Bulstr. 202 ; Price »'. Williams, after the death of the then incumbent, the 1 M. & W. 6. In pleading a resignation, not bishop could not grant a lease of the advowson necessary to state Christian name of ordinary to commence when it falls in, though con- to whom made, 38 Hen. 6, fol. 33, cited 9 firmed by dean and chapter, because he had Rep. 48 a. 646 CORPORATIONS SOLE. successor ; but it is otherwise of an act which has not the effect of en- croaching on the permanent revenue appropriated by the foundation, or otherwise, to the corporation sole(z). Accordingly, equity will relieve against a fraud upon the successors; as where a corporation sole had taken a hue for granting a lease for a long term, contrary to the inter- ests of the successor, the executors of the predecessor were decreed to repay the fine with interest, and the amount of the whole was ordered to be laid out in land for the benefit of the successors (a). If a lease be granted in consideration of a surrender of a former lease made by deed-poll, but, the substituted lease, being voidable, is avoided by the successor, that does not revive the surrendered lease (b). Another example of the principle above stated is found in the follow- ing case. A bishop, with the dean and chapter's confirmation, grants an annuity or annual rent out of lands of the bishopric, with clause of dis- tress, and dies. The grantee brought debt against the executors of the bishop, and the sole question was, whether, since stat. 1 Eliz. c. 19, the grant was void against the successor, so that the grantee could not maintain a writ of annuity against him, but only an action of debt against the executors ; and though the question does not appear to have been determined by the court, the case in which it arose has been often cited as an authority that the annuity determined with the life of the grantor, on the ground that it went to the impoverishment of the successor (c). It is to be observed, however, that the action was for arrears incurred in the life of the grantor, and therefore, it would seem, was correctly brought against the executors (d). If a bishop makes a lease for three lives, reserving the ancient rent, and then makes a lease for 100 years, if three men so long live, this, though duly confirmed, is void ; for though not within the words, it is within the spirit of the statute (e). It even seems to have been decided that a grant of a personal annuity by a parson, confirmed by the patron and ordinary, is bad within the equity of stat. 13 Eliz. c. 10, s. 2, as tending to dilapidations, impo- vcri-hment of the successor, and decay of the living (/). So if an archdeacon make a lease for three lives, according to the statute, and the lessees make a lease for 100 years, confirmed by the archbishop, bishop, and dean and chapter, yet it shall not bind the successor; for to allow such a proceeding would obviously make the statute of no e preceding note. Davenant v. Bishop of Sarum, 2 Lev. 68; (a) Galley v. Baker, Cas. Temp. Talbot, B.C., I Ventr. 223; 3 Keb. 69. What are 199, usual covin. mis, Doed. Earl of Kgremont v. (6) Doe d. Bishop of B . Stephens, 6 Q. B. 208. 1 B. & A.l. 847. CO Dale's case, Dyer, 370, B.;wd.Bonl- \',,i. Bac. .\ ton's case, J. Brid .r. 49; 11 Rep. I (•; Bisbop of Hereford v. Stacy, cited 10 Rep. 60 b; J. Bridgm.30; l Ley, R. 74; rid. 5 Hep. 10 a; liac. Abr. 6 Rep. 1"., 1 Rol, R. 171. So covenants in Least -. I . do not bind the sneaessor, unless Ihey (/) Eitrue'a <•:!-<•, .0 Rep. 14 h, nted. So have h««jii usually inserted in previous leasee ; of a bishop, Com. Dig. Estates, Ci. 5. CORPORATIONS SOLE. (>17 avail (g). So the grant of a next avoidance of a benefice of which a bishop is patron j ure episcopates, though confirmed by the dean and chapter, has been often adjudged to be invalid to bind the succes- sor (h). So a corporation sole cannot permit of an usurpation, on a church which belongs to him in right of his corporation, so as to bind the suc- cessor (i), who will be entitled to present at the next avoidance as though no usurpation had taken place, and will not be put to an action to recover the right (i) ; for the sufferance is void by stat. 1 Eliz. c. 19 (i). Nor can a bishop make a grant of a new office, not being of necessity, so as to bind the successors (/<) ; nor an ancient office with a new fee (/), or with the ancient fee, and so much added ; but there is some difference of opinion whether the whole grant is void in such case against the successor, or only void for the surplus over the ancient fee(w); nor can he grant an ancient office to two persons, when it has been usually granted to one (n) ; nor can he grant in reversion an ancient office formerly only granted in possession (n). But ancient offices, with the ancient fees, he may grant in the same manner as they were usually granted before stat. 1 Eliz. c. 19 (o), whether they are necessary or useless (o), which is a wholly immaterial question as re- gards offices granted before that statute. In one case it was held that the grant of a new office, being one of necessity, is good against the successor, if it be confirmed by the dean and chapter, and if the fee attached be a reasonable fee, which last point is a question for the court (p); but it has been observed, that there never has been a deci- sion since the case on which this doctrine was grounded, in which a grant of a new office with a new fee was solemnly determined to be good against the successor (p), and the balance of authority seems to be decidedly against the notion that a bishop, or other corporation sole, (g) Case of Ecclesiastical Persons, 5 Rep. (n) Bishop of Salisbury's case, 10 Rep. 61 ; 15 ; vid. Cro. Car. 49 ; Ley, R. 74. Walker v. Lamb, Cro. Car. 259 ; Bishop of (h) 10 Rep. 60b; vid. 3 & 4 Vict. c. 113, Chichester v. Freedland, Cro. Car. 49; Young s. 42 ; Cro. Eliz. 440; 5 Rep. 15 a; Com. v. Fowler, Cro. Car. 555; Scambler v. Wal- Dig. Estates, G. 5; J. Bridgm. 30; Sheph. ter, Cro. Eliz. 637; Sheph. Touchst. 282, Touchst. 282 ; Bac. Abr. Leases, H. 283. So if the office, being usually granted (i) Dalton v. Bishop of Ely, W. Jones, for one life, is granted for two lives, the grant 46; S. C. Cro. Jac. 673 ; Com. Dig. Estates, is invalid against the successor; Cro. Car. G. 5; vid. Stowel's case, Plowd. C. 376; 49, and that for both lives. So if two offices Howel's case, Plowd. C. 538; 11 Rep. 71 a. were usually granted to one person and are As to pleading in such case, W. Jones, 47. granted to two; Cro. Car. 259. So a recovery had against a bishop by default (o) Trelawney v. Bishop of Winchester, I in quare impedit is aided by the statute in fa- Burr. 219 — 226 ; Ridley v. Pownall, 2 Lev. vour of the successor, Dalton v. Bishop of 136; Jones v. Beau, 4 Mod. 16; S. C. Carth. Ely, W.Jones, 47. 213; Salk. 465; 1 Show. 288 ; Humphry v. (k) Com. Dig. Estates, G. 5; 10 Rep. 61 ; Parsol, 1 Brownl. 182. Usage since the sla- 1 Burr. 220, 221. tute is evidence of what was the usage before (/) Bishop of Chichester ?;. Freedland, Cro. it; Jones v. Beau, 4 Mod. 17; Com. Dig. Car. 49. In. pleading, the office will be in- Estates, G. 5; vid. Dyer, 109, B. pi. 38. tended to be ancient, if no averment be made (p) 10 Rep. 61 b; Boulton v. Bishop of to the contrary; per Hutton, J., Cro. Car. Chester, cited J. Bridgm. 31 ; case of Bishop 48. of Ely, cited Cro. Car. 48 ; vid. Pollexf. R. (m) Com. Dig. Estates, G. 5; vid. J. 136; 1 Burr. 220, 221, 222; Com. Dig. Bridgm. 32 ; Cro. Car. 48, 557 ; Ley, 75 ; Estates, G. 5. 1 Burr. 222 ; Sheph. Touchst. 282. 648 CORPORATIONS SOLE. can bind his successor by the grant of a new office, imposing a new charge on him (7). Therefore none of these grants which have just been enumerated as void would be set up by the confirmation of the dean and chapter, so as to bind the successor (r), though they would be valid against the grantor during his incumbency (s). A bishop may grant in reversion an office which has usually been so granted (Oj and so may an archdeacon (w), and any other corporation sole. The grant of offices must, like the grant of any other thing, parcel of the possessions held in right of the corporation, be made by deed indented, in order to bind the successor under the statutes ; and, indeed, if a corporation sole appoint to an office, and there is nothing to prevent him so appointing to an ancient office, to hold at will only, it must still be by deed, for a man cannot have an office at will but by deed (a-); and besides, if the appointment divests an interest out of the corporation, it must be made by a deed. Where an appoint- ment to an office is to be made by a corporation sole, by virtue of a custom, attaching such appointment to the corporation, he may appoint to such office, ex. gra. the clerkship of a parish, by parol, for no inter- est is divested, the fees of the office not being payable out of the pos- sessions of the corporation (a-). In suing for arrears of annuity charged on the lands of the bishopric as salary for an office, the officer ought to show that he performed the duties of the office, or that the bishop exonerated, discharged, and pro- hibited him from executing the office, and if the action is against the successor, he ought also to show a tender of his services to such suc- cessor (y). The rules above stated, which result from the restraining statutes, do not in general relate to estates granted to charitable uses, and held by corporations sole in trust for such uses. Thus, if a gift of lands be made to a parson and his successors for ever, to the use of the poor of the parish, and the parson make a lease of the lands for thirty years, the gift is good, and the lease is valid also, notwithstanding stat. 13 Eliz. C. 10; for the lease does not foil within the restrictions of the statute, for two reasons— 1. Because it was not made of ancient glebe of the church ; and. 2. Because the length of the term granted could not tend to the impoverishment of the successor, inasmuch as it was given to a charitable usc(r). With respect to the subjects of demise under the statutes, it is to be (9) Per cur. 1 Burr. 223; vid. Slieph. <■.".. .. 282, ,,,-r. (") Woodward*. Fox, 2 \ cntr. IR8. (r) Shepb. Toucbit 283. The grant of (i) Par Powell, J. f in Gattonv. Milwich, an ancient office with ihe ancient fee mual be Salk. 536; per Holt, <'. J., in Reg. v. Wall, confirmed in order to bind the racceasor; 10 11 Mod. 261. 52 a ; | Hun. ( V) Lucas o. Bp. of Ely, Dyer, 15G, 13. ; - , Per Brudnell, C. J., in Hecker u. Pro- vid. 1 Leon. 209. . ,rb. 14 Hen. B, I («) 1 . I) " k ''. 1:i!l - A l"» rson 30 31, ma v take lands (but not goods), and bold Young ti. Fowler, (ro. Car. 555 j 1 * i them in succession, to the use of the parish j Yin. Abr. Ill, pi. 5; Com. Dig. Alt-Gen. v. It u per, 2 P. Wms. 125. CORPORATIONS SOLE. 649 observed, that at common law, leases to bind the successors must have been of lands, or tenements corporeal and manurable, whereto resort might be had, for the rent reserved thereon, by way of distress (a), and, therefore, valid leases could not have been made of things which lie in grant, as advowsons, fairs, markets, franchises, &c. (a) ; but now leases of tithes and other incorporeal hereditaments, for one, two, or three lives, or twenty-one years, are made valid, and the action of debt is given to recover arrears of rent reserved on such leases, as well as on leases made, under the previous statutes, of corporeal hereditaments (b). Therefore, for rent reserved on a lease for years or for lives, a corpora- tion sole may distrain, if the lease be of corporeal hereditaments, or may have an action of debt, provided the rent be in arrear twenty-eight days before the commencement of the suit (c), and an action of debt, under the same restriction, for rent due on a lease of incorporeal here- ditaments (c). The same rights in either case belong to the succes- sors (c). A lease or agreement to let for three years (not being under seal) of a rectory and tithes, and also a messuage used as a homestead, at an entire rent of 200Z., is bad and void, both as a sale of the tithes for three years, and a demise of them ; because tithes being incorporeal cannot pass by parol, and as no distinct rent was reserved in respect of the homestead, a distress for arrears of the entire rent could not be maintained (d ). If the demise had been under seal, it seems the rent would have been held to issue wholly out of the homestead, and to be distrainable for there (e), and the lease would have been good against the successor if demised at the usual rent(e). But where a corpora- tion sole demises his tithes in a regular manner under seal, a covenant by the lessee, for himself, his executors, administrators, and assigns, that the farmers of the parish shall not be allowed to take any part of the tithes, runs with the tithes, and binds the lessee's assignee, against whom the lessor may maintain covenant for a breach of such arrange- ment (/). It seems, however, that the court laid some stress upon the circumstance of the word assigns being expressly mentioned in the co- venant, and therefore it is not quite clear that the same conclusion would have been come to against an unnamed assignee (g). (a) Co. Litt. 44 b; 7 Rep. 51; 5 Rep. Wilm. Notes, 344; vid. 10 East, 136; 3 ; Dean and Chapter of Windsor v. Gover, Brewer v. Hill, 2 Anstr. 413. But see as to 2 Saund. 303 ; vid. 2 Rol. Abr. 451 ; 2 B. demising tithes for more years than one, An- & Ad. 336 ; 3 Wils. 25 ; Cro. Eliz. 690. gel v. Rolf, 2 Keb. 376 ; Hawkes o. Bray- As to tithes of lay impropriators, vid. 32 field, Cro. Jac. 137; Owen, 103; 2 Rol. Hen. 8, c. 7, s. 7 ; 8 Ann. c. 14. Abr. 63 ; Petch v. Tutin, 15 M. & W. 110 ; (6) 5 Geo. 3, c. 17. Gale v. Burnett, 7 Q. B. 858, sup. p. 634. (c) 5 Geo. 3, c. 17, s. 3; Bally v. Wells, (g) Vid. Collins v. Plumb, 16 Ves. 454 ; 3 Wils. 25. Gray v. Cuthbertson, 2 Chit. R. 482 ; S. C. (d) Gardiner v. Williamson, 2 B. & Ad. 4 Dougl. 351. Parson rateable to the poor in 336 ; vid. Bird v. Higginson, 2 A. & E. 556. respect of corn rent, instead of tithes, reserved The demise of the rectory would have passed on allotment of inclosed lands made to him the tithes without express mention of them ; in lieu of rights of common and belonging to Vaugh. 197; vid. Vaugh. 202; Co. Litt. the rectory ; R. v. Inhabitants of Wistow, 5 142, 144 a. A. & E. 250; Lowndes v. Home, 2 \V. Bla. (e) Holden v. Smallbrcok, Vaugh. 203; 1252. Must not take fine or gratuity for 13 Eliz. c. 10, s. 3 ; 2 Rol. Abr. 451. letting tithes of common field lands, under 13 (/■) Bally v. Wells, 3 Wils. 25 ; S. C. Geo. 3, c. 81, s. 23. After publication of GjO CORPORATIONS BOLB. A corporation sole may be lord of a manor in respect of his corpora- tion, and may as such grant copyholds so as to bind his successor ; but then such grants must conform to the custom of the manor in every way (//); and, therefore, though ecclesiastical corporations sole are em- powered bv Btat 89 & 40 Geo. 3, c. 41, to grant several leases of par- cels of the lands, cS:c., formerly granted in a single lease, or to demise a part for less than the ancient rent, retaining the residue in their own hands, provided, in the first case, that the aggregate of the several rents be not less than the ancient single rent ; and, in the second case, that the real value of the part reserved should be equivalent to the differ- ence between the rent of the other part and the old rent of the whole ; and provided also, that where any specific thing which cannot be di- vided shall have been reserved in any entire lease, it may be reserved and made payable wholly out of any competent part of the lands de- mised by such several leases ; yet where a parson, lord of a manor, had granted lands, (until that time held at a certain money rent and two hens for three lives, at the will, See, according to the custom, &c.,) at the same rent, reserving, however, to the lord for the time being a garden, parcel of the lands : and his successor, during the continuance of the life estates, granted to other persons for three lives, at the will, &C Sec, the said garden at a rent of two shillings, this grant was held to be void against the successor, in the absence of proof of any custom in the manor to parcel copyholds and apportion rents (i). There is ground for considering, that formerly, when a corporation sole was lord of a manor in right of his corporation, the character of the lord of the manor prevailed over that of the ecclesiastical corporation, and he was considered by the law to act in the former character in almost all respects in dealing with the land ; for it has been several times decided that no confirmation was necessary to make good grants of copyhold lands in fee, in tail, or for lives, or for any number of years, provided they were made according to the custom of the manor (k), but that the successor was bound by the custom (k). It had, however, been held, that lands which had been accustomably used to be demised at will, by those who had the inheritance of the lands, rendering rent, were lands accustomably letten to farm within stat. 13 Eliz. c. 10, s. 3 (I). sequestration cannot bring ejectment ; the statutes where there is no prejudice to the ordinary is the proper lessor of the plaintiff in custom. Successor bound by the custom of neb can; Harding v. Hall, 10 .M. <.\ \V. the manor; lirown's case, 4 Rep. 23 b, 24. 64, 50 ; Doe d. Morgan r. Bluck, 3 Campb. If the successor accepted rent reserved on a 447. void demise of a copyhold, flee., the demise (A) Doe d. Rayer v. Strickland, 2 I}. B. was si.-t up against ban ; Up. of Gloucester 792 ; Ban. Abr. Leases, P. <. Wood, Harg. note 262, on Co. Lilt. 44 b. (i) 2 Q. I'.. 792 ; vid. S 8c 6 Vict c. 108, Daring a vacancy, whilst the temporalis arc n. 20 ; Cro. Jac. 76; vief.fi Rep. 5 b, 3rd in the hands of the crown, the tenants of the Resolution ; 2 Sugd. Pow. 409, 7th edit. manor are tenants at will of the crown ac- (/c) Bac. .Abr. Leases, E. ; Clark '• Pen« cording to the euscora, &c. ; per l'aston, J., nifather,4 Ilfp. 24 ; vid. tarn. Long V. Baker, STearb. 21 Hen. 6, fol. 37, B.; vid. Yearb. 1 l;-.l. R. 202; Sheen: v. IVntor, I.iti. H. l. r > lien. 7, fol. 10, pi. 13; Doe d. Hurgcss .< . l Leon.4; 4Leon. 117 ;>«/.. . Thompson, 5 A. 6c K. 532 ; vid. 4 Rep. Bfanwood, ('. I'.., in Heydon d. Ware.Savil. 21 b, 22 a. 06, thai ■■< copyhold interest is within gent I I ) Dean and Chapter of Worcester's case, CORPORATIONS SOLE. 651 If a manor have been usually leased at a certain rent, and on renewing, the incumbent excepts the demesne lands, reserving however the entire old rent upon the other part so leased, but, in fact, accepts as rent the difference between the value of the whole and the value of the part newly demised; that acceptance does not bind his successors (m). If, however, two manors have been usually letten for 60/. a year rent, and a bishop grant a lease of one of them only, reserving thereon the whole rent, this is a good lease within stat. 1 Eliz. c. 19, for it does not tend to the impoverishment of the successor (n). Here less than the ancient quantity of the subject of demise was let in the new lease, and the ancient rent payable out of the whole was made payable out of the part, and the lease was good ; but, on the other hand, when more than the ancient quantity is demised by the new lease, and the ancient rent reserved, that is a bad lease against the successor. Hence, where lands of a corporation sole had been usually letten with an exception of all crab trees and such like trees, rendering so much rent, and a new lease was granted of the same lands, but without the exception, at the same rent, the court decided this to be a void lease as against the successor, for there being more let than was anciently (the trees and the profits of the trees, and the soil itself, is excepted by this exception), so as every successor cannot have the benefit of the boughs and fruits yearly renewing, and it is not the ancient rent where more is let than was before (o). Where a parson had entered into an agreement with parishioners, by which, in lieu of the ancient glebe, they allotted to him and his successors a quantity of land, exceeding by twenty-nine acres the ancient glebe, and, in lieu of tithes, provided for a fixed annual pay- ment as compensation, but the patron was not a party to the transac- tion in any way, it was decided in equity, and ultimately in the House of Lords, that the agreement should be set aside as to the compensa- tion for the tithes, that part of the agreement being distinct from the other, though contained in the same deed, and it was set aside on the ground that the compensation had been calculated only on the value of the past tithes, without any regard to the future increase of their value, and so the successor's interests had not been properly 6 Rep. 37 ; Heydon's case, cited 6 Rep. 847 ; vid. Warner v. Potchett, 3 B. & Ad. 37 b; Baugh v. Haynes, Cro. Jac. 76 ; 921. Banks v. Bronan, Moor. 759. As to the re- (m) Dyke v. Bp. of Bath and Wells, 6 servation of the accustomed rent generally, 6 Bro. P. C. 365. Rep. 37 b; 12 M. & W. 361, 362, 379, (n) Threadneedle v. Lynham, 1 Mod. 397; Campbell v. Leach, Ambl. 740; Doe 203; S. C. 2 Mod. 57; S. C Pollexf. R. d. Earl of Shrewsbury v. Wilson, 5 B. & Aid. 176 ; 1 Freem. 92 ; 3 Keb. 192. 375 ; Co. Litt. 44 b ; 5 Rep. 5 b ; 3 Com. (o) Smith v. Bole, Cro. Jac. 458 ; * id. 4 Dig. 253, 254. Ancient rent, what, 1 Piatt, Rep. 63 ; Pollexf. R. 180 ; vid. Bp. of Lon- Leases, 79—83; Willes, 176. Land tax to don's case, Yearb. 14 Hen. 8, fol. 1 ; Sugd. be reserved in addition to the ancient rent, if Powers, 2 vol. 409, 7th edit. ; 6 Q. B. 208. not, the lease may be avoided by the sue- A heriot not part of such ancient rent, Dean cessor; 42 Geo. 3, c. 1 16, ss. 69, 88; Doe and Chapter of Worcester's case, 6 Rep. 38. d. Bp. of Rochester v. Bridges, 1 B. & Ad. 652 CORPORATIONS SOLE. provided for. Hero, although the arrangement had been in operation eighty years, forty of which had elapsed since the death of the parson who had made it, and it had been acquiesced in during the whole of that period, there was no doubt felt that the part of it which was in- jurious, or might ln-come so, to the successor's interests, must be an- nulled, and the maxim was relied on, ecclesia meliorari non deteriorari potest (p). So no real composition for tithe made since stat 13 Eliz. c. 10, is valid against the successor ( OU.& C. promise of renewal, be may have an action 4-21. for the breach of t hut promise, though ii were (ij) Mortimer i. W'inthrop, 7 Bro. P. C. not made under the corporate teal; Frevill 41 ; vid. B Bro. P.C. 233; l Y. Sc Col. 1. o. Ewbank, 1 Rol. R.82; BacAbr. L (r) 6 & 7 Will. 4, e. 20, a.1 ; (vid. 5 6c 6 B. \t to renewal of under-lease, 39 6c 40 Vict. C. 106, •. 8). 1 lie statute includes ec- Geo. 3, c. 41, s. 10. clesiastical corporations aggregate as well as CORPORATIONS SOLE. 653 ration sole did not, within one week after, grant a new lease for three lives, the surrender should be void, and the new lease was, in fact, made within the week, it was held that the surrender thereupon be- came absolute, and the new lease was valid (s). Wherever any ecclesiastical corporation sole shall, after 1st of March, 1836, grant any renewed lease of, &c. (as before), and such lease shall contain a recital or statement, in the case of a lease for lives, setting forth the names of the several persons named as cestui que vie in the then last preceding lease of the same premises, and stating which of such persons, if any, is or are then dead, or for whose life that of some other person has been exchanged by virtue of a subsequent proviso, and in the case of a lease for years, setting forth for what term of years the last preceding lease of the same premises was granted, and how much of such term has then expired, and how much remains to come and unexpired, every such recital or statement shall so far as relates to the validity of the lease so to be granted as aforesaid, be deemed and taken to be conclusive evidence of the truth of the matter so recited or stated (*). Any person executing any such lease, or the counterpart thereof, knowing such recital or statement, or any part thereof, to be false, or wilfully introducing, or causing to be introduced, or aiding or assisting in introducing, any such recital or statement into any such lease, knowing the same, or any part thereof, to be false, or preparing or ingrossing, or causing to be prepared or ingrossed, any lease or counterpart of a lease containing any such false recital or statement as aforesaid, knowing the same, or any part thereof, to be false, shall be deemed guilty of a misdemeanor, and, in addition to any punishment to which he may be liable, forfeit and pay to any person suing for the same the full sum of 500/., or, at the option of such person, five years' improved annual value of the hereditaments comprised in such lease (u). But it is provided, that in cases in which it shall be certified as follows, that for ten years now last past it hath been the usual practice (which must have commenced prior to the time of the person for the time beino- representing the corporation sole) to renew such leases for forty, thirty, or twenty-one years respectively, at shorter periods than four- teen, ten, or seven years respectively, nothing in the act shall prevent any ecclesiastical corporation sole from granting a renewed lease con- formably to such usual practice ; provided, that such usual practice shall be made to appear to the satisfaction of the archbishop of the province, in the case of a lease granted by such archbishop or by a bishop, and in the case of a lease granted by any other ecclesiastical corporation sole, to the satisfaction of such archbishop, and also of the bishop ($) Wilson d. Eyre v. Carter, Stra. 1201. Will. 4, c. 64, in the same session which gave (0 6 & 7 Will. 4, c. 20, s. 2. The omis- to the section the sense attributed to it in the sion of the word and in the statute as passed, text. rendered it necessary to pass another act, 66c 7 (.«) 6 & 7 Will. 4, c. 20, s. 3. 664 CORPORATIONS SOLE. having jurisdiction over such corporation sole, and shall, before the granting of such lease, be certified in writing under the hand of the archbishop in the one case, and of the archbishop and bishop in the other case ; the certificate, so signed by an archbishop only, to be after- wards deposited in the registry of such archbishop, and the certi- ficate so signed by an archbishop and also by a bishop, to be after- wards deposited in the registry of such bishop, which certificate shall be conclusive evidence of the facts thereby certified (x). The statute does not prevent any ecclesiastical corporation sole from exchanging any life or lives in being, for which any lease shall have been granted as aforesaid, and accordingly granting any renewed lease, with a view to effectuate such exchange of a life or lives; provided that the same shall be approved of (in the case of an archbishop) by her majesty in council, or (in the case of a bishop) by the archbishop of the province, or (in the case of any inferior corporation sole) by the archbishop of the province and the bishop of the diocese ; such ap- probation, when required to be given by the queen in council, to be testified by the president of the council, certifying on the renewed lease, to be granted as aforesaid, such approbation, and in all other cases to be testified by the person or persons, whose approval is hereby required, certifying on such renewed lease his or their approbation of the same ( y). The statute does not prevent any grants or renewals of leases autho- rized by acts of parliament specially relating to the particular estates demised by such leases (2), nor the granting a lease with a view to confirm any title or otherwise for the life or lives of the same person or persons, or for the life or lives of the survivor or survivors of them, or for the same term of years, and commencing at the same period as the lease last granted, for a life or lives, or a term of years respec- tively (a); and no lease not authorized by the laws and statutes now in force shall be rendered valid by anything in this act contained (b) ; but any lease granted since 1st day of March, 183G, contrary to this act, shall be void to all intents and purposes whatever, excepting leases granted pursuant to any covenant or agreement entered into previously to that day (c). The statute making the executing, &c, the lease a misdemeanor, and also subjecting it to a penalty, to be recovered by a common informer, and also making void absolutely the lease itself, it is manifest that if a person were let into or continued in possession under such a lease, he would not be bound to pay rent or execute any other covenants which might be contained in the lease (d). (1) Gii.7 Will. 4, c.20, s. 4. (/,) Sect. 8. set 6. Sect. 9. (1) Sect. 6. (d ) Turner v. Gaslight Company, G liing. {'} --'-el. 7. N.C. 324. CORPORATIONS SOLE. 655 All ecclesiastical corporations sole are now empowered to grant building leases for terms not exceeding ninety-nine years, to take effect in possession and not in reversion, or by way of future interest of all or any part of the lands, or houses of or belonging to such corporation in his corporate capacity (e); and on such lease to reserve an increased rent(/); and to lay out and appropriate any part of the lands demised for streets, yards, gardens, squares, avenues, &c. &c. (g) ; and to grant leases of running water, waterleaves and wayleaves, &c. &c, for any term not exceeding sixty years, the best yearly rent being re- served, payable half-yearly or oftener, without line, &c.(/j); and to confirm leases voidable for informality, and to accept surrenders, and grant new leases or apportioned leases (i); also to grant mining leases for any term not exceeding sixty years, to take effect in possession, and not in reversion, &c, under such powers, provisoes, restrictions and covenants as shall be approved of by the Ecclesiastical Commissioners for England (k). But the house of residence, garden and outbuildings, &c, thereto belonging, are not to be leased under this act(£). The improved value of episcopal sees to be paid to the Ecclesiastical Commissioners(m); and beyond 5001. a year, the improved value of archdeaconries(n); and beyond certain sums in proportion to popula- tion, the improved value of benefices is also to be paid to them(o). Each lease or grant under the act is to have the consent of the Ecclesiastical Commissioners for England. Also if made by an incumbent of a benefice, it must, besides, have the consent of the patron. Also, by whomsoever made, a lease of any lands, houses, mines, mi- nerals, quarries, or beds, of copyhold or customary tenure, or of any watercourse, ways, or easements, &c, where the copyhold or customary tenant thereof is not authorized to grant or make leases for the term of years intended to be created by such lease, without the license of the lord of the manor, must have his consent, in addition to the former (p), and execution of the lease by the consenting parties, as parties to the deed, shall be evidence that the requisites of the act have been complied with (q). There is also an enactment that corporations aggregate shall consent by affixing their common seal (?')> which seems to be unnecessary, as (e) 5 & 6 Vict. c. 108, s. 1. This act re- (i) Sect. 5. lates also to all ecclesiastical corporations (k) Sect. 6; vid. s. 14. aggregate, with some exceptions, s. 1. The (I) Sect. 9. parsons and vicars in the city of London were (m) Sect. 10. empowered, by stat. 22 Car. 2, c. 2, s. 75, to (n) Sect. 12. let building leases with consent of patron and (o) Sect. 13. ordinary, without fine, for any terras not ex- (p) Sect. 20. ceeding forty years. (q) Sect. 7, s. 21. (/) Sect. 2. (r) Sect. 27. With respect to building (g) Sect. 3. leases, &c, of bishop's lands within twenty (k) Sect.4. Lease void if any fine exacted, miles of a city or town, vid. 4 & 5 Vict. c. s. 30. 39, s. 26. 656 CORPORATIONS SOLE. the common law would have required the affixing of the common seal to such a consent and concurrence as the act requires, the corporation so consenting being named as a party in the deed, &c, as the act also requires; but perhaps the clause was inserted to intimate that corpora- tions sole might execute by their private seal and signature, and not by affixing their corporate seal, though this seems difficult to suppose. All ecclesiastical corporations sole were empowered a few years ago(s) o> grant, convey, or enfranchise land, not exceeding one acre, belonging to their corporations, for sites for schools, provided, that every ecclesi- astical corporation sole, being below the dignity of a bishop, must first obtain the consent in writing of the bishop. It is commonly said that an Archdeacon is a corporation by pre- scription (t). His leases must be confirmed by the bishop, and the dean and chapter (u); and if he make a lease for three lives, according to 13 Eliz. c. 10, and his lessee make a lease for 100 years, and the arch- bishop, bishop, dean and chapter, confirm it, still such lease will not bind the successor {x). A grant of the next avoidance of an archdeaconry may be made by a bishop so as to bind himself, but not his successor, and the executors of the grantee may have guare impedit to compel the grantor to admit their testator's clerk (y). An archdeacon is liable to an action on the case for refusing to induct a parson, &c, though such action does not lie against the ordinary who refuses to institute, because in the latter case there is the remedy of guare impedit at common law, or a duplex guerela before the metropo- litan (z). By 4 & 5 Vict. c. 39, s. 9, any archdeaconry may be endowed with a benefice situate within the limits of the archdeaconry, by annexation ■ with consent of the bishop and of the patron, whether the archdeacon in possession consent or not (a). By 17 Car. 2, c. 3, an act for uniting churches in cities and towns corporate, if such parsonages, vicarages, churches, and chapels, so united, or if any other parsonage or vicarage with cure, in England or Wales, shall not amount to the full sum of 100/. per annum, clear and (s) 4 & 5 Vict. c. 38, s. 6 ; vid. 7 & 8 canonrv to this corporation of archdeacon, so Vict. c. 37, s. 5. A rector is a corporation as to bind its royal successors, Grendon v, sole to take and hold lands for tin- benefit of Bishop of Lincoln, I'lowd. C. 493 ; King v. bis church, and for other purposes, 1 > u k o , Baylay, 1 13. & Ad. 761. Charit. Uses, 139, i. e. win re the rector is an (tt) I Piatt, Leases, 301 ; Smith t>. Bowles, individual ; hut corporations aggregate, as 1 Hoi. Abr. 479, 481 ; Ycarb. 2 Hen. 4, fol. colleges, are frequently rectors. Hector of a 2, pi. 7. donative must resign to the donor; if there (i) 5 Hep. 14 15. are two donors, resignation to one 6ufhces, ( ii) SmaJlwood V. Hishop of Coventry, Fairchild r. Gayre, Cro. Jac. 63. Cro. Eliz. 141,207; Did. 1 Cla. & F. 542, (O 1 B. & Ad. 783. A prebendary or 543, 5GI; Foord's case, 5 Hep. 81; Co. canon is another instance of a sole corpora- Entr. 508. tion which may exist by prescription or bv (;) Hole v. Godfrey, Moor. 836; Vearb. charter of the founder, per Bosanquet, .1.. I 26 Hen. 8, fol. 3 A.;' 12 Rep. 128. When (la. 6c F. 5:<8. liefore 1 Anne, c. 7, s. 5, may be deprived, 10 B. & C. 305. the crown might have annexed a prebend or (a) Vid, 1 HA Ad. 761. CORPORATIONS SOLE. G57 above all charges and reprises, the incumbent and his successors were empowered (b) to take, receive, and purchase to him and his successors lands, rents, tithes, and other hereditaments, without any license in mort- main, and without any limitation as to the amount of the yearly value of such lands ; but this statute was repealed by 1 & 2 Vict. c. 10G; and though several of its provisions were re-enacted, this is no longer the law. Perpetual Curates are made corporations sole in certain circum- stances by stat. 1 Geo. 1, st. 2, c. 10, s. 4, enacting, " that all such churches, curacies, or chapels, which shall at any time hereafter be augmented by the governors of the bounty of Queen Anne for the aug- mentation of the maintenance of the poor clergy, shall be and hereby are declared and established to be, from the time of such augmentations, perpetual cures and benefices, and the ministers duly nominated and licensed thereto, and their successors respectively, shall be and be es- teemed in law bodies politic and corporate, and shall have perpetual succession by such name and names, as in the grant of such augmenta- tion (c) shall be mentioned, and shall have a legal capacity, and are hereby enabled, to take in perpetuity to them and their successors, all such lands, tenements, tithes, and hereditaments, as shall be granted unto or purchased for them respectively by the said governors," &c. " And (d) to the end that churches and chapels may at all times be capa- ble of receiving augmentations for the maintenance of the ministers thereof, be it enacted, &c, that if the governors, &c, shall, by deed or instrument in writing under their common seal, allot or apply to any church or chapel any lands, tithes, or hereditaments, arising from the said bounty of her said late majesty, or from any -private contribution or benefaction (e), or from all or any of the ways aforesaid, and shall declare that the same shall be for ever annexed to such church or chapel, then such lands, tithes, and hereditaments, shall from thenceforth be held and enjoyed, and go in succession with such church or chapel for ever ; and such augmentation so made shall be good and effectual to all intents and purposes whatsoever, whether such church or chapel for which such augmentation is intended be then full or vacant of an incumbent or minister; provided such deed or instrument be inrolled in the High Court of Chancery within six months after the day of the date thereof" (/*). The statutes of mortmain apply, as we have seen, to corporations sole in general, but no express mention of them is made in the above cited statute ; and it would seem from this, and from the language used, that the legislature did not intend perpetual curates to be corporations to take and hold lands in succession generally, but only such lands as might be annexed to them by the governors of Queen Anne's bounty in (6) Sect 8. (e) Which may be by way of devise, by (c) How proved, Doe d. Graham u. Scott, 43 Geo. 3, c. 107. 11 East, 47. (/) Vid. 9 Geo. 2, c. 36 (d) Sect. 21. U U CORPOB ITIONS SOLE, the specified manner. However this may be, it has been settled, that smh augmented curates cannot demise the corporate lands so as to bind the successor, if the patron only consent, and not the ordinary (g). A perpetual curate cannot be said to be a parson, but he appears to be a vicar (A); and whether he has a fee simple is a very difficult and disputable point ; but it is said he has whatever estate he possesses, vot in right of his church (i). He is neither instituted nor inducted, which are, or at least the last of them is, requisite to confer the tempo- ralties; but, nevertheless, his successor may sue him for dilapidations done to the houses or lands (A). However, a seisin of the church en- dowments in a corporate character is not a necessary condition to the maintenance of this action, and the liability of the defendant (It). In equity it seems to be the principle of injunction to stay waste, as by cutting clown trees, that the timber on the lands of ecclesiastical corpo- rations is a fund, which is to go in succession for the benefit of the church (/), and so it does not rest on the fact of seisin. With respect to the mode of establishing a right to a perpetual curacy, a bill in equity, and not an information by the attorney-general, is pro- per, except in cases of charities ; and augmentations of vicarages, Sec, form such exceptions; and according to the authority of Lord llard- wicke, C, augmented vicarages are by 29 Car. 2, c. 8, made charities within the statute of the 43 Eliz (m). To constitute a perpetual curate, in general these things must concur : his church must have parochial rights, as clerk, wardens, &c, and all rights of performing divine service, baptism, sepulture, Sac., especially sepulture : then there must also be a right in the inhabitants to have performed there divine service, baptism, &c, and the absence of right to resort to the mother church for these purposes, or to any other place but this: then if the right of the minister has always been admitted to the small tithes and surplice fees, and he has always enjoyed them, this will complete the proof of a perpetual curacy ; for they show, especially the last, that the curate is not removable by the rector, and it is a con- tradiction to say that a perpetual curate is removable at will and plea- sure It is further provided by the Ecclesiastical Districts Act, 2 & 3 V Let. (fr) Doe . 15. 371. confirmed by the patron paramount, where lAasou v. Lambert, 17 Law J. (N. S.) ■..i| aa the patron ami ordi- Q. B. •'!<>(;; vid. Latch, 2.'!<>. Where two nary, <>r it is void and cannot I. -■ t ip parsons e* hangs htm tin-, each may sue as against tin- successor bj i. i e of successor, the other as predecessor, for dila- i, Brammall v. Collioge, 18 pidations; Downes v. Craig, 9 M. & W. 166; 306; vid.inf.f 659. vid. HuaUaj p. H assail, 19 Law J. (N. S.) (/, , p e , Lord Denman, C. J., 9 A. & E. Q.B. 239 II. is something less than vicar, (t) I lei rin^ v. Dean, 6cc, of St. Paul's, Iittledale, - 1 ■<>'■ » '• •!• 665; 3SwansL492; vid. 3 Meriv. 421. (m) Att-Gen. t. Brereton, 2 V< . J.. 9 I. & I ■ 575. 425. But i>er cur. in Mason i. Lambert, his in- (u) had. CORPORATIONS SOLE. G~)9 c. 49, s. 2, that in case of any church or chapel, which has already been, or hereafter may be, augmented by the said governors of the bounty of Queen Anne, and for or to which any district chapelry has already been, or hereafter may be, assigned, whether before or after such augmenta- tion, under the provisions of certain acts of parliament, such church or chapel, from and after such augmentation, and the assignment of such district chapelry, shall be and is hereby declared to be a perpetual cu- racy and benefice, and the minister duly nominated and licensed thereto, and his successors, shall not be a stipendiary curate, but shall be and be esteemed in law to be a perpetual curate, and a body politic and cor- porate, with perpetual succession, and may receive and take to himself and his successors all such lands, tenements, tithes, rent-charges, and hereditaments, as shall be granted unto or purchased for him or them by the said governors of the bounty of Queen Anne or otherwise, &c. (o) An ecclesiastical corporation sole may resign ; and as every resigna- tion must be made to a superior, a bishop must resign to the king, and so of a dean, but others, as it seems, to the immediate ordinary ; and the proper words of resignation are renuncio, cedo, dimitto ; but a resig- nation upon condition in such case is bad, as indeed every conditional resignation is ; and as in corporations aggregate we found that a resig- nation of a charter, until acceptance by the crown, was ineffectual, so the resignation by a corporation sole, until acceptance by the superior, to whom the resignation is made, has no force or effect (p). The resigna- tion here spoken of, however, is unlike the resignation of the charter of an aggregate corporation in this respect, that it cannot put an end to the corporation as the latter may do, but merely amounts to divesting the person who makes it of the corporate character in respect of the cure which he gives up (q). Generally, the bishop is the immediate ordi- nary ; but by custom, in some places, as the county of Chester, the archdeacon is immediate ordinary (r). By the custom of London the Chamberlain of the city of London is a corporation sole for the special purpose of taking obligations and recognisances for orphans' portions, which obligations by the custom (o) This seems to be a creation of a body &c. ; he ought to traverse that he was pars in corporate to take all manner of lands, and at the day the writ was sued out; 17 \ in. not merely those which the governors of Abr. 359, F. b, 2, pi. 2; Vearb. 7 Edw. 4, Queen Anne's bounty convey to him ; vid. fol. 15, 16; 8 Edw. 4, fol. 15, pi. 17; 9 Edw. sup. p. 658. Powers to sell lands, residence 4, fol. 49, pi. 7. Of a donative, the resignation house, &c, in certain cases, ss. 16, 17. is to be made to the founder; and if there be (p) Anon., Rol. R. 137 ; per Coke, C. J. two founders, resignation to one enures to and Haughton, J., Bret v. Johnson, Lane, R. both, Fairchikl v. Gayre, Cro. Jac. 63 : S. ( '. 4; Riley v. Adams, 11 Mod. 276; Walrond 1 Brownl. & G. 202; vid. 7 B. & C. 160; v. Pollard, Dyer, 294 a; Gaston's case, 8 Bing. 490; 2C. B. 687. A prebend might Owen, 12; Com. Dig. Esglise, N. 2 ; Fane's have been resigned to the king as supreme case, Cro. Jac. 197; Bro. Abr. Barr, 81; head of the church, and the resignation was as and the resignation must be so pleaded, Smith good as if made to the immediate ordinary ; i>. Fox, Noy, R. 147; Yearb. 7 Edw. 4, fol. Walrond v. Pollard, Dyer, 293 b. 16; 9 Edw. 4, fol. 49. But in sci.fa., upon (q) Bro. Abr. Arrearages, pi. 8; per Fro- an annuity recovered against him as parson, wicke, C. J., Kelw. 64. it would be argumentative to plead that he (>•) Com. Dig. Certificate, A, H. As to has resigned into the hands of the bishop, name of ordinary, sup. p. 645, n. (s). u u 2 660 CORPORATIONS SOLE. go in succession (s). In pleading payment of a bond given to the cham- berlain and his successors, if the chamberlain, in whose time it was given, is no longer in office, the obligor ought to show that the said chamberlain was deposed, or died, or the like, and then he paid it to J. S., his successor, showing how J. S. was elected, &c. ; for otherwise it will be intended, according to a well known rule, that the first con- tinues chamberlain {t). (*) Bird t: Wilford, Pasch. 38 Eliz., (<) Yearb. 8 Edw. 4, fol. 18, pi. 29; vid. Cro. Eliz. 46-1; vid. Howie? t. Knight, 19 12 Hen. 6, fol. 3, A. Law J. (N. S.) Q. B. 7. ( CGI ) QUASI CORPORATIONS SOLE. Some instances of quasi corporations sole remain. These are generally officers of the crown, as the Lord Chancellor, the Lord High Treasurer, or the chief justices, who, for certain purposes, are in the nature of cor- porations sole respectively. A very early instance is that afforded by a grant of Hen. 3 to Philip Luvel, then Lord Treasurer, and his successors, treasurers of the Ex- chequer, of the guardianship of the hospital of St. James in Westmin- ster (u). The chief justices of the two benches are so far considered as quasi corporations, that they may be prescribed in, as is the case with respect to real corporations. Thus it may be pleaded by one who has a grant of an office from either, that the chief justices have been used from time whereof, &c, to grant the office (v). So a sheriff, though he cannot prescribe for fees for doing his office, for at common law no fees were payable to him on that account, yet he may prescribe to have a fee for a thing which is not within his office ; as to take a bar fee for every prisoner acquitted, such fee not being given for doing his office (w). The annual officer of a hundred, to whom has been granted a fair, may prescribe to hold it, though he is not a corporation, and though the rule is that bodies not corporations cannot prescribe (x), and particu- larly that annual officers cannot prescribe (y). By the Friendly Societies Act, 33 Geo. 3, c. 54, s. 11, all the monies, goods, chattels, stocks, annuities, and other transferable securities and effects whatsoever belonging to the said societies, are vested in the re- spective treasurers thereof for the time being ; and by sect. 4 bonds may be given to the treasurer for the time being, and any treasurer for the time being may sue upon such bonds, an enactment which has much the same effect as making these officers corporations sole to take chat- tels in succession (z). By a similar enactment, 27 Eliz. c. 13, the clerk of the peace, for a county at large, was invested with a quasi corporate character. (u) Mad. Firm. Burg. 45. (y) Yearb. 42 Edw. 3, fol. 4 ; Bro. Abr. (v) Yearb. 19 Hen. 6, fol. 8, pi. 17; Fees, &c, pi. 18; id. Corone, pi. 103; id. Skro^ges v. Coleshill, Dyer, 175; Coste's Office, &c, pi. 31 ; id. Prescription, pi. 9. case, 21 Hen. 7, fol. 17 A. (s) Vid. Cartridge v. Griffiths, 1 B. & ALL O) 2 Inst. 210; Com. Dig. Extortion, B; 57; et vid. 10 Geo. 4, c. 56 ; 4 & 5 Y\ ill. 4, Coste's case, 21 Hen. 7, fol. 16, pi. 28. c. 40 ; 3 & 4 Vict. c. 73 ; 9 6c 10 Vict. (x) Taylor v. Rondeau, 2 Ld. Ken. 50. c. 27. INDEX. The Schedules of the Municipal Corporations Regulation Act, 5 § 6 Will. 4, c. 76, will be found under the head Schedule below. ACCEPTANCE, of a charter of incorporation, 18 what is, 23 when to be made by majority, 19 whole body, 19 n. c clear proof of, necessary, 20 must be whole of a charter, 19 n. e, 20 for ever, 19 of office, how to state, in application for quo warranto, 257 n. a, 410 mayoralty, what sufficient, 422 whether renders valid illegal charter, 20—22 annuity, effect of, 559 rent by successor of corporation sole, 640 n. k a charter does not need common seal, 23 a grant does, 110, 542, 544 rent, what evidence of, 149 n. u, 549 n. r, 587, 588 abrogates inconsistent usage, 19 assignee of a term, 152 addition to endowments of a college, 542 resignation of an office, 225, 267 n. n. incompatible office, 243 n. e, 246, 437 ACCOUNT, action of, preferable to suit in equity, 192 how corporation may assign au- ditors in, 63, 192 against dean and chapter, 595 when equity will decree an, against corporation, 117, 118, 138, 287, 288 respecting charitable funds, 513, 514 when not, 281 decree for, of tolls, 163, 177, 181 n.u toll-thorough, 182 land cheap, 187 rents and profits, 145 when owner of shares may have bill for an, 129 how far back will be taken against corporations, 514 ACCOUNT— continued. taken in their favour, 565 by master of school, 547 by corporation of profits of school es- tate, 561 college, 547, 548 stated, count on, in Borough Court, 465 n. k ACTION ON THE CASE, when lies against a corporation, 154, 161 n.p, 168, 519 lies against corporation for breach of prescriptive and official duty, 277 n. f charter duty, 277 n.f, 284 v for negligently managing fire, 277 n.g neglect to repair, id., 501 negligence generally, 277 n. g refusing to pay dividends, id. injuring houses near railway, id. falsely certifying custom, id. damages, when to be paid by guilty majority, 579 when against corporator refusing of- fice, 157 n. I, 221 president of electoral assembly, 203 n. g disturber of such assembly, id. voters for plaintiff's disfranchise- ment, 267 a visitor, 534 college, 542 n. s when does not lie against judge of Court of Record, 465 n. e a college, 538 n. n by corporation, for subtraction of tolls, 171, 172 fraud on market, 175, 176 n. / erecting a market, 179 invasion of rights of corporators, 184 injury to head, 193 fraudulent breach of contract, id. breach of custom, 335 refusal to deliver books, &c, 212 false imprisonment of mayor, 429 661 INDEX. ACTION ON THE CASE— continued. entering ami executing process against sheriff of county, &c, 353 n. i . 1 • ; s n. g against officers, 232 n. l) l).l\l.\ I M, writ of, 101, 102, 1(15 not obsolete, 102 ADVOWSON, grant of, 193 n. .s, 5 13 bad against successor of corpo- ration sole, 6 15 ADVOWSON— continued. devise of, 5 1". purchase of, by colleges, 5 16, 550 alienation in mortmain of, 100, 1 10 municipal corporations must sell, 192 how corporation grants next avoid- ance i. f, .'>'> hospital nominates, \c, 57S Under what words in lease does not pass, 596, 597 AFFIDAVIT, on motion for certiorari to remove an indictment from a borough, &C, 152 quo warranto, 25 7 to remove cause from Univer- sity Court, 520 n. e on claim of conusance by University, 526 in an answer to claim of privilege of University, 522 n. d change of venue in county of city, 355 how to name corporations in a, 51 n. k right of freehold not determinable on, 410 AFFIRMATION, effect of, as to fining for non-accept- ance of office, 224 at elections, &c, 414 n. b AGENT, of corporation, when must prove ap- pointment under their com- mon seal, 61 n. c bis seal to lease not sufficient, 546 n. z mayor, when is not the, 153 authority of, when need not be shown, G'.i tort of, when visitable on the body, 278 contract of, 294 ALDERMEN, number fixed in each borough, 355, 415 more claiming to be, than that num- ber, 117 when eligible, 416, 117 n. I offices incompatible with office of, 417 qualification of estate, 408, 117 when competent to act as. 1 1 7 disqualification to be elected or be, 397, 39N,416, 417 what are not, 417 n. x acts of disqualified aldermen, 418 exemptions from being, 401, 102, 120 extraordinary vacancy in office of, 415,416 duty at elections in boroughs divided into wards. 103, 10 1 punishment for refusing to revise bur- li-t-, 10.',, 100 declarations to be made by, 407, 408 within what time, 418, 1 19 INDEX. 665 ALDERMEN— continued. return to mandamus to adminis- ter, 417 acts of person not having made the, &c., 419 fine for refusal to serve as, 362, 419 mayor, 225 what equivalent to refusal of office of, 419 n. x penalty for acting as clerk to justices, 473 neglecting duties, 419 bankruptcy of, 406, 430, 417 n. s insolvency, composition with credi- tors, 407 election of, how made, 415 councillors before, 419 not to be previous to that of mayor, 421 n. c mandamus to proceed to, 416 riot at, 416 n. h due, question of, how raised, 419 re-election of, outgoing eligible for, 356, 415 after absence, 430 amotion of, 420 quo warranto for the office of, 416, 252 n. i resignation, 420 absence of, &c, 430 fine for, 406, 407 outgoing, may vote at election of mayor, 415 be elected mayor, 415 n. f, 421 presiding at election of, 415 n.f indictment for libel on, 430 information against, costs of an, 488 when must not return jury, 420 ALE LICENSE, refusal of justices to grant, 449 n. s, 450, 453 fees for granting, 453, 454 notice of appeal, &c, 453 n. d meeting for granting, 454 transfer of, 454 n. g in the Universities, 454 n. i, 527 ALE-TASTER, mandamus to admit an, 238 n. r swear in, 384 n. c ALIENS, cannot generally be corporators, 6 excluded from municipalities, id. may belong to trading corporations, id. effect of grant of incorporation to, 23 cannot be churchwardens, 600 n. m ALMS, meaning of, in Municipal Corpora- tions Act, sect. 39, 3S8 n. e Reform Act, 507 n. s AMOTION, what is, 240 bribery good cause of, 232 n. c other causes, 240—247, 420 when must be under common seal, 240 n. i AMOTION— continued. necessity of, 243 mode of, 245, 246 of town clerk, 437 clerk of the peace, 443 treasurer, 439 n. b mayor, 426, 427 de facto officer, 233 by visitor, 536, 537 mode of, 247 of corporator of a college, 538, 539 hospital, 572 n. s governors of a school, 554 n. e master of a school, 557 odious in law, 240 n. k, 243 n. a ANCHORAGE, what, 163 ANNEXATION, deed of. Vid. College. construction of indenture of, 543 n. x of rectory, &c, to a church, 549 ANNUITY, corporation chargeable with, when not relieved from, 24, 559 having accepted, cannot re- nounce, 559 sole, how chargeable with, 636 n. c payable by or to corporation, 303 n. t how to grant an, 146 n. d by dean, 585 n. a grant of, by bishop, 646 parson, id. devise of, to student of a college, 545, 546 bill for recovery of, 546 ANSWER IN CHANCERY, how made by a corporation aggre- gate, 56 and n. u, 57, 287, 288. Vid. Head. APPEARANCE, how to be made by a corporation ag- gregate, 274, 275 n. r by a corporation sole, 636 compelled, 284, 496 in equity, 286 effect of failing to appear in quo war- ranto, 298, 299 appearing but making default, 299 APPRENTICE, mandamus to admit to freedom, 238 n. r APPRENTICESHIP, bye-laws respecting indentures of, 78, 79 ARCHDEACON, how to sue, 635 is a corporation sole by prescription, 594, 656 where may grant an office in rever- sion, 648 where he is canon in right of office, 593, 594 GGG INDEX. ABA HDEACON— continued. mandamus to compel, to swear in churchwarden, 600 n. m action on the case against, GoG -. 6 16, 656 ARK! corporator when privileged from, 15G, 157 by process out of University Court, 521 and n. r ASSESSORS, duties of, in election for councillors, &&, 106, 123 notice of vacancy by, 107 penalty on, for acting without having made the declaration, eVc, 418 how and from whom to be elected, 131 duration of office of, id. who ineligible to be, id. are ineligible to be councillors, id. with the mayor form the Court of Revision, id. appointment of deputy by, id. omission to elect, how remedied, id. mandamus to compel election of, id. declaration by, 431, 432 penalty for acting without making, 432 acts of dc facto, good, id. of wards, id. councillors disqualified to be, id. ASSIGNEE, of lessee of corporation, how to be accepted by them, 57 ASSISTANT BARRISTER, appointment of, to hold quarter ses- sions, 1 1!), 450 remuneration of, 450 n. u ASSISTANTS, the, of a city company, mandamus to admit, 298 n. r to restore, 250 ASSIZES, for a county of a city where to be held, 352 Mr sir, may be had on a bye-law, 88 when not, ')7 promissory note, 27 G for duties, 159 tolls, port dues, &rc, 102 — L65 market tolls, 171, 181 n. u stallage, 1 7 ."> . to try right to office, 238 difference of tolls taken from plaintiff above other persons, &c, 270 n. | money had, &C, by churchwar- dens, 002 ASM MPSIT SOLVERE, action of, in a Borough Court, 337. ATTACHMENT, in tile nature of pone, 2S4. for refusal to swear in officer, 214, n. k for contempt, against corporators, 231 n., 285, 463, 10 1 sheriff) .').'< 1 councillors 355, n. a mayor 428, n. u judge of borough court, 4G3 keepers of University seal, 518. ATTORNEY, how retained bv a corporation, 56, GO, 147 n. A to claim conusance, 526 acts of, when bind corporation, 5G n.s consenting to order of reference, 281 when to be appointed under common seal, 196*, 274, 382 n. a presumed to be so, GO n. u corporation must appear by, 274 n. /( when to demand rent, 150 not necessary to accept under seal, 110 lease by common seal, 1 17 n. h how authorized by churchwardens and overseers, 280 must deliver signed bill for business done at borough court, 461 n. s and at quarter sessions, id. when not entitled to inspect corpora- tion books, &c, 313 of sheriff's court, entitled to compen- sation, 382 privileged against University Courts, 523 and how to plead it, 52 1 remedy against, as steward of manor, 188 when exempt from municipal office, 226 exempt from serving sheriff) 35 1 mayor, 421 n. e constable, 368 n. q may be town clerk, 433 borough justice, 169 as to being registrar of Borough Court, 160 ' practising there, 460, 161 n. I ATTORNEY-GENERAL, how exercises power in /, 261, 282, 299, 300 when may demand removal, \c, by certiorari, 152 AUDIT, in municipal boroughs, &c, 440 — 442. book of a college, effect of insertion of order in, 5 16 AUDITORS, their duties, 1 nt, 1 12 election and duration of office, I 12 and n. I who eligible to be, 1 12 INDEX. 667 AUDITORS— continued. declaration to be taken by, 442 cannot be councillors, id. mandamus to admit, 238 n. r AYLESBURY, dissolution of corporation of, 304 n.z BAIL, not taken for corporations defendants, 274 n. n BAILIFF, how commanded to enter for condi- tion broken, 50, 151, 541 to take distress, GO, 150, 151 to make conusance, &c, 188, 189, 201 n. s, 544, 519 n. I BALLASTAGE, what, 163 BALLOT, voting by, 256 custom to elect by, 322 BANISHMENT, from University, nature, &c, of, 516, 518 n. s, 515 n. e BANK OF ENGLAND, how mav issue bills, bonds, &c, 65, 2*76 n. b forgery of securities of the, 66 n. z empowered to alien lands, 139 n. I action against for refusing to pay di- vidends, 277 n. g and evidence therein, 314 proof of entry in books of, 317. BANKING CO-PARTNERSHIPS, 275 n. r how to obtain charter of, 276 n. b establishment of, as quasi corpora- tions, 624, 625 BANKRUPTCY, as to amotion for, 242 n. p disfranchisement for, 264 does not disqualify to be elected coun- cillor, 398 but does to be councillor, &c, 406, 407 BARGAIN AND SALE, as to corporation taking by, 107 and n. q, 111 conveying by, 139 hospital ought to be endowed by way of, 576 BEACONAGE, what, 163 bill in equity for, 181 BEDFORD LEVEL, corporation of the commissioners of the, 139 n. I BELL, how to recover, 242, 243 BELLMAN, custom respecting, at Lichfield, 331 BERKHAMPSTEAD SCHOOL, incorporation of, 558 BERWICK-UPON-TWEED, made a county of a town, 352 sheriff of, 353 mayor of, 427 corporation of, fined for contempt, 464 BEWDLEY, case of borough of, 20 n. n sci.fa. to repeal charter of, 40 n. s BILL OF DISCOVERY, against clerk to corporation, 287 w.j] 293 n. z corporation, 2S7, 288 to enable a corporation to defend ac- tion, 288 n. n of college statutes, 539 to detect breaches of a charter re- fused, 293 prejudicial to charter, refused, 38 n. b answer to, how made, 56 n. u, 57 BILL OF EXCHANGE, by trading corporation need not be under seal, 61 what corporations may and may not accept, 276 BILL FOR SPECIFIC PERFORM- ANCE, cannot be had in University Courts, 521 n. n BISHOP, when to exercise church patronage of a municipal body, 492 when to apply to equity as to visita- tion of a free grammar school, 557 visitor of dean and chapter, 582, 583 when fully vested in office, 638 n. s bond to, and his successors, 589, 629 ornaments of chapel of a, 629 generally the immediate ordinary, 659 lease for years to, 629 and n. q } 631 by, 629, 639 when cannot be made, 638 n. s, 642 and n. y concurrent lease by, 642 name of, how to be used in grant to, 630, 633 in actions, &c, 635, 636 name of dignity of, when words of description, 631 n. i what interests successor of, takes, 629 and n. u executors of, 629, 630, 638 building leases of lands of, 655 n. r presentation to advowsons of, 631 grants of lands, &c. by, 641, 642 grant of an office to, and his succes- sors, 631 by, when binds them, 647, 648 de facto, lease of, void, 645 grant of option by, 632 n. o annuity, 646 GGS BISHOP— c onti Inued. next avoidance of living bv, bad, 647 how to try rigbt to office of, g;js n . s successor of, when fully entitled. 638 n. s not bound by acts of crown on the vacancy, 642 not bound by judgment a (il7 n. i effects of deprivation of, 631 dilapidations good cause to deprive, 64 I. 645 effects of outlawry of, G31 options of, 632 corporate seal of, G33 proves itself, id. BOARD OF MANAGEMENT OF DISTRICT SCHOOLS, &c. have no common seal, 624 are to sue as a corporation, id. BOND, effect of, given to voluntary body afterwards incorporated, 1 n. by all the members, but under common seal, 3 how to sue on one given before a change of corporate name, 21 n. 7i made to a corporation and an indi- vidual, (II of Bank of England, 65 not voidable by bye-law, 80 master or head cannot take, 1 19 n. y plea of privilege, &c, 523 against heir on bond of ancestor, 522 n. s for compensation, 43G n. I by corporation de facto, 282 may be sued on, notwithstand- ing death of mayor, 130 given to old <•< rporation, may be sued on by the revived one, 304 n. a custom in London, Sec, in debt on, 336 and n. a Bristol and Norwich, 339 given to a college, 5 1 1 to churchwardens, G03 and overseen, 61 1 elegit to execute judgment on, 382 n. / by hospital for renewal of base, 575 "•« . Statute of Limitations not pleadable to, 2U 1 by corporation to mayor, bad, 426 pleading a, in Borough Court, 465 and .,. k for money borrowed for building pri- I, &C , 1^1 interest on compensation bond not payable out of borough fund, n. in ii h_\ corporation in an University ■ 521 n. /< KS, refusal to deliver up the, 212, 383 — 385, l.;i n. k in boroughs, &c, 242, 243 whether Beizable under a sequestra- tion, 289 bill of discovery of books, &c, 293 n. z rule to inspect, 29S n. r, 311, 312 how admissible in evidence, 317, 31S rule to produce, rasure, &C, 317 n. appointment of officer in, <;o incorporated since Municipal Corpo- rations Act, how to buy land, . 108 n. x effect of alteration of limits of, 1S5, 18G style of a borough in the Municipal Corporations Act, not evidence of its locality, 310 every one of record in the Exchequer, 324 n. c what not an improvement of, within s. 92 of Municipal Corpora- tions Act, 1SS n. o name of corporation of a, 342 liability to taxation of districts added to a. 190 n. z new boroughs not exactly same as old ones, 312 n. 2, 3 Hi limits of the new boroughs, 343 — 348 site of castle of the lord of a, 34 1 n. /' prescribing for right of common in a new borough, 346 n. k freemen of a, 504—510 exclusive jurisdiction in a, 349 n. g court of record of a. Vid.Cor i Record police office in, 367 union of churches in, 493 division into wards, \<\, 102 — 404 parliamentary franchise in, 111 — 1 13, 507 and n. i/ disqualification of aldermen in bo- roughs having wards, &c.,416 prisoners Of a, where triable, 151 may be committed to another gaol, 456 when exempt from county rates. 452, 156 liable to hundred rate. l~>3 jurisdiction of county justices in, when no grant of separate quarter sessions, id. when such grant, bow exempt from such jurisdiction, id. liability to repair bridges, id. n. c, 500, '.-.Ml costs of, for prosecuting, maintaining prisoners, &c.,454 — 156, 155 n. ;■ INDEX. GG9 BOROUGH— continued. how estimated, 455 gaol of a. Vitl. Gaol county gaol within a, 486 BOROUGH COURT, actions in, 336, 337 if held time out of mind, &c, that ought to appear, &c, 337 customs in, contrary to rules of prac- tice, 337, 338 discontinuance, miscontinuance, id. habeas corpus to a, id. error on judgment in, id. custom of taking out capias in, id. trying by six jurors, 339 allowing writ of inquiry after defendant has given a cogno- vit, id. mayor, whose election void, sitting in, 426 n. c how may be pleaded to be held, 339 29 Eliz. c. 4, does not extend to judg- ment in, 354 n. o BOROUGH FUND, costs of opposing mandamus when not payable out of, 356 n. d salary of police magistrate payable out of, 367 expenses of prosecutions, &c, 373, 374, 429 payment of special constables out of, 375 compensation of officers out of, 379 —382 not chargeable with costs of showing cause against rule for manda- mus, 408, 409 chargeable with town clerk's salary, 433 in the case of treasurer, 439 how payments to be made from, id. what penalties not payable into the, id. 440 fees and mileage to coroner payable out of, 444 payment of expenses of prosecuting, maintaining, transporting,&c, prisoners, 454 — 456 where no contract, &c, 455 n. r penalties, forfeitures, &c, fees, &c, payable into, 471, 473, 474 costs of building, &c, district prison, court house, &c, and of try- ing prisoners, &c, payable out of the, 483 and interest, &c.,of loan for such purposes, 484 of what consists, 487 and n. i, k, 489, 490, 492 principal of monies, &c, not part of, 487 n. i dividends of stock are, id. money arising from sale of real pro- perty not part of it, id. nor from sale of church patron- age, &c, 492 BOROUGH FUND— continued. fines, penalties, &c, levied by the corporation payable into, 487 and n. k trust monies, &c, payable into, 513 charges upon, 487 — 489 interest of compensation bond not payable out of, 488 n. m nor costs of act of parliament, 488 n. o, 499 petition to Lord Chancellor, 489 destination of surplus of, 488 — 490 jurisdiction of equity over, 489, 490 BOROUGH JUSTICE, quo ivarranto lies for, 254 n. i BOROUGH JUSTICES, jurisdiction of, 346 n. k, 453, 469, 470, 475, 476 mandamus to sign poor rate, 411 n. k punishment of, for refusing spirit li- cense, 422 power to appoint overseers, 424 action by, for words, 425 power of, over borough fund, 439 no power over county gaol, 486 appeal from their refusal to grant ale license not triable at quarter sessions, 449 n. s where is triable, 453 appeal from their orders of removal finally cognizable by whom, 450 for payment of lunatic's expenses, id., 451 committee of, to treat as to district prisons, &c, 483 n. m. when not entitled to notice of action, 453 resignation of, 475 information against for absence from duties, 475 to meet for granting ale licenses, 454 spirit licenses, 454 n. g appointing of visiting, to district pri- sons, 4S3 n. m in petty sessions, 474, 475 in quarterly gaol sessions, 475 of whom to consist, 469 when first created, id. n. I how constituted since Municipal Cor- porations Act, 469 must reside, &c, 469, 471 n. b declaration and oaths to be taken by, 469 power as to poor relief, 475 who disqualified to be, 469 when may commit to district prison, 483 cannot delegate their duties, 469 _ limitations, venue, &c, in actions against, 475 jurisdiction of county justices, 469, 477 concurrent jurisdiction with county justices, 471, 478 670 BOROUGH JUSTICES- continuaL warrants, convictions, 8 n. u, 170 n. a form of judicial acts of, 469 n. u mav be ruled to do any act, &c, 475, 177. 178 not corporate officers, 170 may line for contempt, id. rving on juries, id. ISO may tender oath, 171 not disabled by being liable to bo- rougfa rate, id, powers of, to issue warrants for in- dictable otfeliees, id. commitments by, id, 472 convictions by, 172 form of, -172 and n. h appeal from them, 472 and n. i not removable by certiorari, 473 and n. k may appoint clerk, 473, 474 information does not lie for removing him, 171 may appoint surgeon to borough gaol, 175 gaoler. 4S5, 4S6 trespass against, to try validity of dis- trict rate, 490", n.a are to allow district rate, 494 BOROUGH RATE, mode of making a, 190 n. y levying a, 490 n. z on district added to a bo- rough, 490 n. z parish partly within, ftc., the borough, 493, 191 publication of a, 191 n. e form of order for a, 490 n. b warrant respecting a, 190 estimate for a, 490, 491 destination of a, 490,493 mortgage of a, 484 appeal against, 190 n. a, 447 n. p, 150 n. d may be levied to pay interest, ftc., customary, 490 n. c n iiMspective, bad, 491, 494 n. b excessive, bad, 491 special, id. order and levy of, how far must correspond, 8 c., 401 n. h effect of levying a, without authority, 128 how to try validity of a, 490 n. a quota payable to, by a parish, 491, 494 part of a pariah, id. equity will see to application of a, has jurisdiction over means of raising a, id. liability to. u h. a d( ible a justice, &c, 171 TON, custom of foreign bought, ftc, at, 322, INDEX. BOUNDARIES, of the new boroughs under the Mu- nicipal Corporations Act, ftc., 344—348 cities, ,\c. 348—351 what evidence of, ."3 15 n. A statutory alterations of, 3 19 BRIBERT, at corporate elections, 232—286, 421 n. c plaintiff in action for, lias right to in- spect, iS;c., 312 at elections for members of parlia- ment, 413 BRIDGE, definition of, 500 n. g corporation how bound to repair a, 283, 2S4, 346 n. m indictable for non-repair, l(il n. I, 500 n. n sources of liability to repair. 153 n. r, 500, 501 rateable to repairs of, 500, 501 indictable for not building a, 500 n.e may levy rate for repair of a new, 500 n. g, k mav be sued for non-repair of, 501 meaning of, in pleading, 500 n. g, i repairs of, how compellable by Indict- ment, 500 n. o liability of corporation to repair county, 501 BRISTOL, chamberlain of, 86 jurisdiction of justices of, 346 n. k sheriff of, 353 custom of foreign attachment in, 330 parol covenant in, 335 calling woman whole in, id. in debt on bond, 33(J, 339 BUOYAGE, what, 103 BURGAGE, tenants in, as to their voting for mem- bers of parliament, ftc., Ill, 1112 n. o BURGESS, not within G ft 7 Vict. c. SO, 227 n. I mandamus to restore a, 227 n. i judgment of bribery against a, '_'.". I may copy entries in minute book of the council, 857 n. / to inspect voting papers for council- lors 401 how to bring action for penalty, &c, against mayor and other < Ili- ccrs, 418 action on case, IL'7 n o BURGESSES, as to revising the list of, in a new corporation, 17 burgesses, meaning of, 30 u.J' INDEX. G71 BURGESSES— continued. burgess, meaning of in Municipal Corporations Act, 393 \\.J' who are to be, 387 — 393 quo warranto to try right to be, 394 have a freehold in the franchise, 393 exempt from serving on juries, when, 480 how disqualified to be councillor, &c, 397, 398 disfranchisement of, 398 how to vote for wards, &c, 404 lists of persons claiming to be, &c, 435 BURGESS LISTS, making up and revisal of the, 390 — 393 refusing to revise, 405, 406 power of mayor to insert on, 393 n. g fine on mayor for neglect, 423 n h effect of being on, between 22nd Oc- tober and 1st November, 397 mandamus to insert on, 405 n. z expenses of printing, &c, 487 refusal of perusing, &c, 406 title to be on, one qualification for aldermen, 416 BURGESS ROLL, who has a right to be on, 387 making up of the, 393, 394 mandamus to enrol on, 392 n. c, 406 n. a restore to, 393 n. d when begins to take effect in each year, 397 n. g copy of, 435 how to be made up in wards, 404 mistaken use of term, 405 n. z none to be removed from, on affidavit, 410 BUTCHERS, the company of, 92 BYE-LAWS, definition of, 76 power of making, when incident to corporations, id. imposing an oath, id. n. h on whom binding, 77 power of making, where vested, 77n. u when bad, 76 n. h, 77—80 if cumulative on a statute, 77, 78 founded on custom, 78, 79 must strictly follow it, 79 powers given in charter, id. regulating elections, 79, 80 when considered as part of charter, 80 general rules of, id. when bad though not disallowed, 81 must not limit discretion given by the charter, id. how far may regulate a right, id. elections to office, id. imposing penalty for refusal of office, 82 n. x BYE-LAWS— continued. founded on custom, 82 n. x cannot annul a custom, 83 in restraint of trade, id. regulation of, 84 giving power to imprison, id. forfeit goods, 84, 85 in the nature of a forfeiture, 85 of distress, 85, and n. x reasons for, need not be stated in, 86 in Latin, id. reservation of penalty in, 86 andn. i, 87 who to sue thereon, 87 construction of, 88, 89 validity of, how questioned, 89 effect of exacting money under, 89, 90 evidence of a, 90, 91 against, 90 repeal of, 90, 91 what evidence that not inconvenient, 90 effect of usage as to a, 91 replacing lost bye-law, id. pleading same, 91 n. r certain kinds of, to be allowed, &c, 91,92 effect of allowance, 92 n. z founded on custom of London, 92 of railway companies, 92 — 94 joint stock companies, 93 disallowance of a, by railway com- missioners, 94 of municipal corporations, 95 — 97 respecting a ferry, 186 where actions on, may be tried, 194, 195 chamberlain of London, &c, may sue on a, 195 officers in general cannot do so, 196 suing on a, 201, n. z, without one, 271 corporators bound to know every, 207 n. k suing for penalty on a, 217, 218 delegating power of election, 218 cannot narrow number of the eligible, 219 give casting vote, 219 settling mode of elections by, 219, 220 penalty in, for refusing office, 223 — 225 to qualify for office, 240 as to action on a, against corporation, 276 inspection of entry of a, 312 meaning of pain in a, 362 n. n in a municipal corporation, 362 — 361 what certain enough in such corpo- ration, 363 how to be enforced in municipal cor- porations, 364 validity of, how triable, id. what unreasonable, 361 n. y to imprison, bad, 370, 371 G12 INDEX. BYE-LAWS— continual. ascertaining fine for non-acceptance of municipal offices, 401, ! 19 penalties, &c, under old, 1S7 n. k breach of a, no ground for uuo war- ranto, 527 substituting declaration for oath, 539 n. a oath cannot be imposed by a, 59-1, n. d ( ALLS, relief in equity against, 292 evidence in action for, 319 n. a CAMBRIDGE, I Diversity of, reincorporated by sta- tute, 19 i). b its powers over prostitutes, &c, 516 n. h may imprison for incontinency, 516 how visited at different times, ') 17 n. u statutes of, 517 n. n mandamus lies to, 518 warrants of Charles 2 to, 518 dispensation with statutes of, 518 power in statutes of, to alter and amend, Src, 518, 519 n. u Chancellor of, his power, 5 1 8, 5 1 9 i). u jurisdiction of court of, 519 —524 power of banishment in, 518, n.s V ice- chancellor of, his power to interpret, &c, statutes, 518 n. s visitor of what colleges in, 530 n. x Jmvilege of servants of, 523 etters-missive of Chancellor of, 525 claim of conusance, &c., how made by, 525, 52G is clerk of the market, 52(3 cannot, as such, imprison, 526 ( INDIDATE, who is, at an election, 204 n. a disabled to be a, 205 and n. /', i, 208 when becomes officer, 210 infancy of a, 211 n. o (ANON, a corporation sole, 581, 588 — 590 who is, 581, n. x mortgage of his canonica portio, 581 n. b right of successor of. 590 to definite portion of revenues, . ii. //, 593 separate property of, how vested, 581, ■ n z patronage of, how, 590 i< varijaciai as to prop erty of, 585 n. r bond to, and his executors, 589, 590 changes in situation of a, 592 appointment of a, 592 CANON— continued. minor canon, 593 as to ejectment for house, \c.. 593 and n. 5 dilapidations, id. where oliiee of, is attached to arch- deaconry, ~>'Jo, 591 to other offices, 59 1 institution and induction generally necessary, id. when to have inspection of archives, (Ye-.. 595 how to sue, 635, 636 ejectment for house by, 637 CANTERBURY, sheriff of, 353 archbishop of, whether visitor of Uni- versity of Oxford, 517 n. n CARLISLE, grant of privileges, &c., to, 116 CARMARTHEN, sheriff of, 353, ISO n. n CASTING VOICE, at an election, 80 of chairman of guardians, 619 of mayor, 1 15, 121 cannot be given by bye-law, 219 but may by prescription, &c., 219 n. c given to chairman of meetings of the council in boroughs, &c, 357, 415, n./ CERTAINTY, what sufficient, in a grant, 31, 52 return to mandamus, 22S, 229 quo warrunto information, 258 n. //, i indictment, 429 n. I CERTIORARI, to remove indictment against a cor- poration, 275 n. i costs thereof, 437 what orders of municipal council re- movable by, 360 as to removal of indictment by, 374 n.f. 496 motion for removal of order of pay- ment by, 378 judgment of quarter sessions irremo- vable by, when, 450 after delivery of, action lies against recorder, &c, 451 as to removing convictions bv, 451, 152 when demandable by crown, 152 attachment for proceeding after de- livery of, 162, n. i proceeding)) when not in general re- move! h\ . 163 ii. //' when must be delivered to the judge, 163 n. n direction of, 463 n. o removal of judgment of borough court by, 466 what proceedings removable by, in CER TIO RA RI— continued. boroughs, &c, 407, 473 and n. k form of, for removal of order for con- tract with council for mainte- tenance of prisoners, &c, 473 n. / form of rule for, 473 n. m CHAIRMAN, of meetings of municipal councils, 357 board of guardians, 619 CHALLENGE, form of, 480 n. x to the array, what good, 259 n. p, 3.54 n. n, 479 n. o, 481 of a juror, 310 n. e, 420, 588 n. g of the polls, 481 n. y CHAMBERLAIN, of London, Bristol, &c, SO custom of London makes him a cor- poration sole, 659 of London, how a corporation sole, 629 CHANCELLOR, of Oxford, vid. Oxford University of Cambridge, vid. Cambridge the Lord, a quasi corporation sole, 661 CHANTRIES, abolished, 124, 598 CHAPLAIN, of borough gaol, &c, 485 CHARITABLE CORPORATION, person injured by, no right of indem- nity out of charity funds, 118 bequest to, when bad, 121 unduly possessed of estates, 138 governor of a, cannot be lessee of, 145 always subject to visitation, 553 n. e petition to Lord Chancellor respect- ing, 553, 554 not barred by time, 564 and n. x taking account in favour of, 565 effect of lapse of time as to departure from scheme of a, id. statutes of, seem to be imposed on a, 578 CHARITABLE USES, what, 113—116 devise to, must be to a corporation, when, 115 n. u lands held to, when administered in equity, 117 corporation seised to, how looked on there, 118 remedy against, id. surplus of funds devoted to, 559, 560 alienations for, when void, 119, 120 abroad, 121, 122 and superstitious blended, 125. dispositions to, when void, id. need not appear on face of convey- ance, 128 as to sale of estate settled to, 137, 138 letting lands settled to, 142 n. t, 144, 149 n. g index. (;7;j CHARITABLE USES-continued. duration of leases of such lands, 145 when leases by corporations not within statute, 150 costs of petition to Lord Chancellor respecting estates held for, i 89 municipal bodies hold property in trust for, 4S9. Vid. Trusts. gifts for maintenance of schools when good as, 565 CHARITY, nature of a, cannot be altered, 552 n. a, b surplus of a, 559, 560 definition of a, 114, 115. costs of a charity suit, 289 petition respecting, 512 and n. p, q CHARTER, what is, 9 granted de assensu pralatorum, fyc, effect of, 10, 24n./c if confirmed by act of parliament, 10 if granted under authority confirmed by statute, id. once granted irrevocable, id. mode of obtaining municipal charter, 10 n. a charter of private corpora- tion, id. opposing grant of former, id. latter, id. effect of, granting only a limited dura- tion, 10,11 of incorporation, who may grant, 1 1 legal effect of charter other than royal, 11 n.f granted to a commonalty, \2n.m. use of the word communia in ancient, 12 n. q defined, 13 effect of, on statutory corporation, 7 n.e if granted before time of legal memory, 10 by subjects, 1 1 n.J", i cannot be forced upon a corporation or individuals, 13 effect of a new charter, id. powers of crown to grantcharter of mu- nicipal incorporation, 16, 17 of municipal incorporation, when valid, 17 illegality of a, who to prove, 17 n. u acceptance of a, what the rule of, 18 affidavit of, when necessary, id. n. b by whole body, when souk ne- cessary, 19 n. c must be of the whole or none, 19 for ever, id. may be varied by accepting new one, id. illegal, effect of acceptance of, 20 — 23 of Bewdley, 20 n. n recital in, 21 n. q X X 674 INDEX. C II \RTER— continued. CH in force until repealed, 21 D. r surrender of, when valid, 21, 22 oat of in consideration of surrender of a former void charter, nu- • ry, 22 n. t may be good against grantees, stem as to others, 22 n. x contrarv to statute void, 22 n. i/. 23 with noii obstante clause, IN! n. :. 25 in hindrance of trade, void, 23 n. a incorporating alii > of confirmation, 23 n. g ignorance of, cannot be pleaded, 23 new, why commonly drawn as a con- firmation, •_■;; n. h must not be pleaded as a grant and a confirmation, 24 n. h how to plead a, id, effect of, on a statutory corporation, 24 n. k fresh charter by the old name, 2 1 com/ruction of', 2.3- — 29 two intents, 25 double intent, 26 n. u three intents, 26 construction of word majority, &c, 263 n. // means of construing. 27 what not to be presumed in construing, 27 n. t usage cutting down sense of a charter, 28 when words doubtful, id. how to be taken against grantee, 29 repugnant clauses, id. when incidents pass by a, id. cannot alter the law, id. date of, id. words of creation, 30, 3G, 37 must give a name, 30 earliest recorded, 31 n. g must define limits of municipal cor- poration. ."51 n. / when passes tolls, 32 conceuimta it confirmavimus, how construed. 32, 33. conxui tudim t, ■><■.. 32 n. r repetition of same ideas in, id. parliamentary, how repealsble, 33. rights granted by, cannot be interfered with, id. words of exemption, how construed in. id. disqualification how, id. and ilc livery of. ;; I meaning of " years" in, ill. words conveying monopoly, id prohibiting trade, id. n straining it, "/. of permission to hold courts, id. direction, ."l and a. s, :;~> power of distress, :!<> conusance of pl< mm intromit tani clause, id. inspection of. :;7 .WVVV.W— continued. nee of, 38, presuming existence of, 38 ana a. a. bill of discovery prejudicial to, -5S n. b profert of, ."i s a. t . id. copy of a, 39 voidance of, 39 — 45 by statute, 39 scire facias, 40, 12 - 15 in part by set. fa., 10 — 42 validity of. how questionable, 41. 12 granted in pursuance of statute, whe- ther repealable, 42 n. It how to be cancelled, 1 1 n. I surrender of, 21, 22. I.j — 47 when restrained, 46, 158 effect of statute upon, 47 designation of grantees of a, 48 grantees of a, how bound, 70 bye-law, when considered part of a, SO giving power to imprison, 8"), 8G n.d may grant in remainder to corporation which it creates. 111 breach of, may render liable to action, 151 granting exemptions, 182 notes of foreign corporation, how proved, 200 n. q. incorporating inhabitants, 203 n. p, 20G notes granted since 7 Will. 4 & 1 Vict. c. 78 . . 253 to burn or rase the, 2G5 construction of provisions relating to disfranchisement, id. how to obtain a, for a banking co- partnership, 276 n. b may impose a duty, for breach of which corporation maybe indictable, 284 n./ surrender of, when restrained, 293 bill of discovery to detect breaches of a, does not lie, id. probably must be produced, 29 1 cannot be attacked on quo warranto against individual corporators, 2'.<:> n. // Set. to. to repeal, 29."> — 298 forfeiture of, 295 new charter after seizure of liberties, 297 and n. o what franchises to be claimed by, 299 n. v pleading a charter, 299 new charter altering name, &C, does not necessarily abrogate pre- scriptions, &c, 301 n. a new charter, win n cannot revive old corporation, 303 can, 304 must be adopted by majority, &c v 304, n. a. instances of grants of new, 304 n. s new, cannot be imposed on University, 5 1 5 surrender of, 30G, 307 INDEX. ,.) CHARTER— continued. inspection of, 311 n. .r custom contrary to, is upset by, 323 may be used either as a grant or a confirmation, 324 may erect a county of a city or town, 348 who to keep the, 434 under 7 Will & 1 Vict. c. 78, how not to be attacked, 445 admiralty, &c, jurisdictions under a, abolished, 449 n. r sometimes gave power to tax, &c, 490 n. z, c when undue admission of freemen operates to forfeit a, 504 n. I how may incorporate a hospital, 568 explained by founder's statutes, 573 whether may give veto to master of hospital, 578 may empower visitor to alter statutes, 578 n. h construction of, granting exemption . from toll, &c, to dean and chapter, 595 CHESTER, mode of incorporating by charter in the county palatine of, 10 n. ., custom of foreign attachment in, 330 sheriff of, 353 his duty in executing criminals, 353 n. d CHIEF JUSTICES, the, of either bench, quasi corporations sole, 661 CHRIST'S HOSPITAL, case of discovery by, 122 a corporation, trustees for, 126, 127 unduly possessed of an estate, 138 School Act does not extend to, 558 Vid. Add. et Corrig. CHURCH, appropriated to a corporation is dis- appropriated on dissolution, 303 n. t sale of church patronage by corpora- tions, 492, 493 union of churches in boroughs, &c, 493, and n. I property in a, 606 CHURCH BUILDING ACTS, stated, &c, 104, 105 CHURCH RATES, corporations when liable to, 285, 501 n.r mandamus when goes to enforce a, 606 n. t retrospective, 614 and n. f CHURCHWARDENS, a quasi corporation, 600, 601 which may reside in two persons, 604 or by custom in one, id. n. x election, appointment, swearing in of, 600 u. m CHURCHWARDENS— continued. have no common seal, 603 who cannot be, 600 n. m what acts one of the body cannot do, 604 are temporal officers, 600 n. m ; and mere bailiffs, 606 notice to one notice to all, 604 cannot take a lease, 600 n.o, 608 n.z or real property, 605 cannot make a lease, 606 nor take grant of remainder of a term, 605 n. m oath of, 600 n. n what actions may bring, 601 — 603 what cannot, 602 n. d, 606 what suits in equity, 603 what property, &c, in the goods of the parish they have, 601, 602, 605, 606 cannot covenant, &c, 603 evidence of tenancy under them, 606 n. b what gift, &c, they cannot accept, 601 cannot release debts, &c, id. make promissory note, 603, 604 warrant of attorney, 663 rights of successors, 601, 603 ; and liabilities, 602 — 604. predecessors, 601, 602 de facto churchwardens, 602 may be removed by parishioners, 601, 604, 605 when may bring ejectment, and how, 605 n. m all must join in suing, 603 when may plead general issue, &c, 605 indictment against, 602 n. g notice to quit by, 605 n. m bequest to, for charitable use, 603 and n.r bond to, 603 and n. p case against them, 605 CHURCHWARDENS AND OVER- SEERS. how to sue in ejectment, 190, 279 n. y be sued in same, 279, 280 how constituted, 608 n. y nature of their incorporation, 279, 280 n. z, 607, 609 majority of, what a, 280, 607 not partners to bind one another, 607 n. v whether can mortgage lands, &c, Gl 1 notice to, 607 n. v when must produce parish books, 615 empowered to repay predecessors, &c, 608 take and hold lands, Src, id. leases, &c, 608, n. y, z, 614 but not in mortmain, ! not hold an office, 17 I CLERK OF THE MARKET, when indictable, l 75 n. k. corporation may he a, 21.') n. u CLERK OF THE PEACE, of a borough, v" 11 warranto lies for, 252 ii. ( infant may he, 1 13 n. it how appointed, l 13 cannot be clerk t<> the justices, id. his duties, 1 13, 17!) 1 1.: amotion of, id. mandamut to, when lies, id. CLERK OF Till". PEACE— confimioZ. power to appoint an assistant, when, 449, 450 to give notice of holding of quarter dons, 17!) Bummon jurors, id. of a countv, a quasi corporation sole, G61 CLERK OF WORKS, mandamus for, 250, 384 n. c COLCHESTER, custom of foreign bought, eVc, at. 322, 329 COLLEGE, master of, cannot devise lands to, 110 n. s devise to a, 114, 115, 123, 121 may accept, or otherwise, a devise, 121 when excepted out of 9 Geo. 2, c. 3G, 120 cannot present master to a living, 149 n. i/ the Universities not corporations of colleges, &c, 515 whether power to interpret statutes of a, constitutes a visitor, 518, 519 n. r within the privilege, as defendant, of the University Courts, 521 privilege of servants of a, 522, 523 nature of the incorporation of colleges in the Universities, 529 style of the corporation of a, id. every, has a visitor, id. names of head of, need not be stated in pleading, 529 n. o meaning of the term, id. damns in statutes of, 529 n. t " admission to office" in, id. how compelled to perform a contract, 532 trust, 532 n. o effect of visitor's interpretation of sta- tutes of a, 529 n. / power of visitors of, 531 — 510. / id. Visitor. publication of statutes of a, 530 n. », 293 n. b elections in, 531, 532 n. / contrary to the statutes, 530 n. z abuses in, 532 n. / dispensation with statutes of, when presumed, 530 n. z notice not taken that college has a visitor, 532 n. Hi how empowered, 550 cannot present head to a living, id. devise of lease of, 546 may advance money for repair of parsonages, &c, 550 renewal of lease of, 546, 547 leases of, generally, 549 and n. r order entered on audit book not bind- ing on, unless under seal, 546 list of cases respecting colleges, &c, 550, 551 members of a, when personally re- sponsible, 546, 547 petitioning Great Seal against, 563 how to account for waste of funds, &c, 547, 548 tenant of void lease of a, 547 n. a pleading lease of a. id. members of, may be liable for mis- deeds of predecessors, id.n. c, 548 when equity will interfere in case of trusts, though there is a vi- sitor, 548 ; when not, id. 554 n. e must not mix charitable funds, 548, 552 n.a costs of recovering against a, for a misappropriation of charity funds, 548 n. k how may augment livings, &c, 548, 549 identity of lands within manors of a, 549 how convey land for sites of schools, id. 550 benefices annexed to headships of, 550 COLONY, how to grant, &c, lands situate in a, 117 n./i GTS INDEX. COMMISSARY, of a visitor, 535, and n. m COMMON. bye-law of a corporation regulating en- joyment of, 79 n. / lands included in Statute of Mort- main, 99 n. I in gross, 1 v">, 327 n. b rvation of rights of, 185j 505, 509 of estovers, 185, n. /', ."27 n. b turbary, 324 n. /' freeman, liow to prescribe for, in a new borough, with in limits, 3 lb" n. I: COMMONALTY, use of tbe word, 1 2 and n. q could nut incorporate, 12 and n. m COMMON SEAL, release by every one of corporators bad; ought to be under the, 1. 55 n. n effect of levying troops under, 3 individuals liable for illegal acts done under, id. bond under, but in name of all exist- ing corporators, id. acceptance of charter need not be under, 23 omission to grant power to use, 30 corporation aggregate speaks by its, 55 rule as to affixing the, id. keepers of, refusing to affix, 55, 56 to answer in chancery necessary, 5G when unnecessary where there are directors, &c, id. must be put to return to mandamus, 57. fid. tarn. 63 requisite to devest an interest, id. what not a substitute for, id. n. p whether necessary to create tenancy at will, id. to appointments to offices, 58 to removals from office, id. incident to corporations, id.' whether proof of being a corporation, id. when necessary to discharge an of- i , id. what may be, 59 whether may be changed, id. GO to warrant of attorney. <.<» submission to arbitration, id. presentation to living, «l. 61 does not validate a contract which the corporation make, 60 I nie of corporation act- ing by, id. b affixed, <;1 as to mutuality of contract not under, 178 n. m, 194,618, 619 whether must be affixed to appoint- ment of steward of a manor, 188 and n. /. acquittance of debt due to cor- poration must be under tin 128, 12!) in case of distraining for amercia- ment, &c, ls.s, 189 need not lie averred to be affixed to tin' demise in ejectment, 189 to notice to quit, id. n. z when implied to have been affixed, 190, 191 n. n to appointment of attorney, 190 auditors in account need not be as- 'I under the, 192 of foreign municipal corporation. 200 n. r not needed to give title to an officer, when, 210 n. // effect of, to promissory note, 8rc , 276 presumption of, in trover, 277, 278 usurp illegal, 281 n. /> when not sufficient evidence, 288 to application to parliament for a fresh statute, 290 COMMON SEAL— continned. effect of want of it, to a contract, 294 persons assuming a, liable to quo warranto, .'500 necessary to authenticate consent of corporation to surrender, &c, 302 putting to surrender, without such consent, indictable, 306 n. h corporation without a, 310 want of, some evidence that the body not a corporation, 310 n. p, 568 proves itself, 310 entry in minute book not equivalent, 357 n. k mandamus to affix to appointment of officers, 378 n. c does not go to detach. Vid. Add. et Corrig. ought to be put to appointment of town clerk, 433 so to retainer of town clerk, 433 n. m must be to resolution to compensate, &c, 436 contract for improvements of the borough, 488 n. o warrant respecting borough rate, 490 conveyance of advowson, church patronage, &c, 492 assent to union of churches, 493 warrant to distrain for bridge rates, 501 n. u appointments, &c, under charit- able trustees, 513 to order or resolution of a col- lege, in order to bind the col- lege, 546 visitor cannot compel the affixing of, 532 n. p lease sealed with seal of agent, and not with common seal, bad, 546 n. z return to mandamus by college need not be under, 540 cannot be removed, 576 of a college, 541, 544 presumption from absence of a, 568 of a hospital, 579 dean and chapter, 586, 587, 591, 597 effect of want of, in churchwardens. 603 and overseers, 609, 614 guardians of the poor may have, 616 effect of contracts of, not under common seal, 617, 618 effect of their dissolution on contracts under, 621 joint stock companies must contract under, 625 n. g but bound by parol contracts, id. corporations aggregate to execute building leases under, 655, G~>6 COMMUNIA, use of the word, 12 n. q INDEX. (J7!) COMPENSATION, to officers removed, &c, 379—382 town clerk, 136 bonds for, 436 n. /, 488 n. m COMPOSITION WITH CREDITORS, disqualifies from retaining what mu- nicipal offices, 417, n. s CONCESSIT SOLVERE, debt on, 336 pleadings in, id. n. /' CONFIRMATION, charter of, 23 of parsons' leases, &c, 640, 642, 643 bishops, 639 CONSTABLE, quo warranto for, 262 CONSTABLES, in municipal corporations, how to be appointed, 367, 368 who fit men, 3GS n. q exempt, id. notice of appointment, id. quo warranto for office of, 368 indictment for refusing office, 369 oath, id. mandamus to restore or discharge, id. n. e swear in, 368 n. r notice of action, 369 and n. y, and costs, 369 venue, 369 not corporate officers, 368 n. r do not gain a settlement, 368 n. t powers of, 369, 370 punishment of, 370 and n. g whether dissenters exempt from being, 368 n. a, 370 office of, whether may be served by deputy, 370 duties of, 371, 372 protection of, 372, 373 expenses of, 372 and n. y special constables, 374, 375 number, &c, of, to be reported, &c, 375 in the Universities, 523 n.f, 527 and n. b CONTEMPT, what a, of the mayor, 422 and n. x, 425, 428, 429 ; in corporators, 463, 464 fine for, by justices, 470 of Chancellor's Court in Universities, 516 n. i CONTRACTS, simple contracts binding a corpora- tion, 55 — 57 principles on which rest, 60—62 equity, when interferes to en- force, 62, 619 annul, 576 contracts of joint stock corporations bind them though not under seal, 625 n. s G80 INDIA. CONTRACTS— continue*, mutuality of, 62 n. k corporation suing on, estopped to say not duly entered into, 63 contracting to grant lease, 1 17 D. e executory and executed, 1 19 secuted by mayor, 152, 153 not under seal, not necessarily mu- tual. 17S n. w, U17, 618 by guardians of poor, 617, ' CIS, 010 when bind the corporation, though made before it was incorpo- rated, 294 made by an agent, 294, 5 lfi n. : what disqualify to be councillor, &c, 397, 398, 407, 117. 126 for maintaining, &c, prisoners, 17.'! and n. /, 154—456, is 1 committing prisoners to gaol of another borough, 456 with committee of district prison, 156 n. x these last may be made contingently, 482 n. k and when in existence, save from the obligation of maintaining a borough gaol, 482 of guardians of poor, in case of their dissolution, 621 r ONUSANCE, claim of, by Universities, 522, 525, 526 affidavits in answer to, 522 n. d. Vid. Universities. CONUSANCE OF PLEAS, how to be claimed, 36 extent of, id. in Norwich, 17 effect of grant of, 329, 464 pleading, &C, 464 operation of statute giving an old form of action in a new case, &c, id. ( ONVEYANCE, by or to corporation, as to name in, 51, 52 formalities of 9 Geo. 2, when needed in, 108 what best mode of, 139, 140 CONVICTION, at quarter sessions, whether remov- able, 151 for keeping open beer-house, jfce., 15 1 n.g ( OOKS, the mystery of, &C, 200 n. in ( OPYHOLD, corporatii ate cannot hold lands m, 101) not vested in churchwardens and overseers, id. corporal'. .not bold by. 630 CORONER. whether within 6 fr 7 Vict. c. 89, 22 7 n. .r quo warranto for office of borough coroner, 262 venire facias, when awarded to, lso n. x removing inquisitions of, in a county of a city, 351 directing process to, 35 1 in what boroughs to be appointed, 1 1 1 his fees, id. how to be elected, id. his duties when sheriff is a party to a suit, ivc, id. 1 15 cannot be justice of peace, 100 to lay an account of all inquisitions, &C, before the council, 1 15 how to try right to the office, id. amotion of. id. deputy coroner, 111 and n. q CORPORATION. definition of, 1 an abstraction, 3 what cannot do, id. a single person, 1 n. s members of, 5 indispensable requisites to creation of, id. how may be formed, id, most usual mode, 6 five origins of, id. sole and aggregate, id proper, 5 prescriptive, 7 how to plead a prescriptive corpora- tion, id. parliamentary, id. how may be altered, id n. e statutory powers of, 7 dividing a, 8, 12 n. q compounding two or more into one, 8 by implication, 8, 30 note- < ./ private or public, 9 how may be empowered to create a corporation, 12 municipal could not create municipal, id. restricted to the objects specified in its charters, 13 name, 13, 11, 12 1,25 must sue, &c, by its, 50 by implication, id. in leases, &c, 51 of municipal corporations, 52 place, formerly essential to, 1 1 not now, 53, 5 1 naming "I first corporators in, 14 at common law cannot exist for a limited period only, 15, 16 by statute may, 16 erection of a municipal, still a com- mon law prerogative of the crown, id. powers of crown therein, 16, 17 INDEX. CS1 CO RPOR ATION— continued. majority of, must accept new charter, 19 by charter, may be reincorporated by statute, 19 n. h need not accept new charter under common seal, 23 what is such acceptance by, id. era of corporations, 31 n. g prescriptive, how to be abated, 42 n. h bow compellable to bring in charter to be cancelled, 44 n. s what, restrained from surrendering charter, 46 reconstruction of, after surrender, id. of what number may consist, 48 a county cannot be incorporated, id. compound, id. whether compound or not, a fact for a jury, 49 bow opened to every one, id. need not be named of a place, when, 53, 54 whether can be two of same name, 50 devise to, 51 lease by, id. may purchase by what name, id. naming in bill in equity, 53 how acts and binds itself, 55 trading corporation how bound, id. how answers in chancery, 56 and n. u makes feoffment, 56 lease, id. presentation to living, id. appointment of attorney, id. surrender of lease, id. contract to pay money, &c, id. borrow money, id. authorizes bailiff to enter, &c, id. after adopting agent's act, cannot ob- ject that his authority was not under the common seal, 57 when may bring use and occupation, id. proof of claim to be a, 58 servant of, how to justify in trespass, 59 n. k when cannot bind them, 59 how commanded to do small acts, 60 if trading, may accept, &c, bills and make notes without seal, 01 so may order insertion of advertise- ments, id. execution of writ, id. agent of, suing, 61 n. c binding them, 61 when not bound by simple contract, id. liable for money had and re- ceived, id. n.g cannot object to the absence of their common seal to a con- tract, 62, 03 cannot indict in such case, 02 n. k when not, by seal unduly affixed, 6 I CORPORATION— continued. who may not sue as a, 05 how to surrender, id. acts by majority, 08 its will, bow ascertained, 09 how relieved in equity, 71, 72 bye-laws, 70—97 when bound to pursue remedy given by statute, 79 n. n cannot sue in their own name on bye-law, 87 bound by bye-law, S8 may be sued by an officer, 89 liable in trespass, id. exaction of money under bye-law may be fatal to, id. 90 books of, when evidence of bye-laws, 90, 91 ■property, 98 power to purchase, id. license in mortmain not essential to a, 101 n. z grant by, for church endowment, 100 n. n purchasing fee-farm rents, 107 mode in which takes lands, &c, id. could not do homage, &c, id. cannot hold by copy, 109 be joint tenant with another cor- poration of land, id. may be tenant in common, when, id. whether has a fee-simple, id. 110 lands of, when revert to donors, id. how to accept grants, &c, 110 state of, during vacancy of its head, id. Ill n. t may take rent issuing out of lands in tail male, 111 could not take lands by devise, 112 may now, 113 take in trust for individual, 115 when hold lands subject to equity, 116 bequest of money to a charitable, 117 must account for trust funds, id. lands of, how revert, id. compellable to discover, id. n. u chargeable with interest of trust funds, 118 remedy against corporations trustees of charities, id. grants to, void, when, 119 devise to a non-existing, 123 remainder in a corporation when di- vested, id. head of, cannot devise to, id. may accept, &c, a devise, 124 grants, &c, to, for charitable uses, when void, 125 may take husbandry lease, 127 when has only the management of property, 12S, 129 whether may grant real properly, 129—153 undertaking public trust, cannot di- ve: l themselves of means of performing it, 130 n. t I M > I \ . CORPORATION— continued. when not accountable in equity, 138, 139 may hold in trust for private pur- poses. 139 and n. k omnia rite acta applied even against, 1 13 n. 6 name of, in a lease, 145, 146 demise in ejectment, 146 n. b how to grant, &c, lands lying out of England, 147 n, A declare on their dei d, 117 n. / may be enfeoffed by a corporator, 1 1!' n. y cannot lease trust estates, when, id. may lease in mortmain, 150 when estopped to deny assignee of term to be their tenant, 152 when may act under general autho- rity, 154 liable to action in case, id. how does corporate acts. id. incident to trading corporation to ap- ply to parliament, when, 159 may sue for duties, when, 159 when may have port duties, 1G0 n. e indictable for non-repair of a port, 1G1 n. ]) responsible to party injured, 1 6 1 how to prove right to market toll, 167 n. u liability of, under grant of market, 168 how may demise a market, 169 n. //', tolls, 170; forfeit, 169 distraining for market tolls, 170, 171 remedy for subtraction of tolls, 171, ' 172 placing market stalls without leave, 171 n. y as to suing and being sued for tolls, 177, 178 indictable for misfeasance, ISO n. b when relieved in equity as to tolls, 182 may sue for breach of right of their corporators, 184 bye-law respecting a ferry, ' 186 be lord of a manor, 187 their remedy as such against steward, \c, 188 how to appoint him, 188 and n. k be impropriate rector, 191 sue for injury done to their head, .. 193,197 prove debts, 8 <■ , 197 move to rescind final order, &c, as to suing as common informer, be., id. in •cell- iastical courts to have faculty to enable them to oc- . ; 202 as to suing in equity, 199, 200 CORPORATION— continued. foreign corporation suing here, 200, 201 may be executor. 202 sue corporator for refusing office, 221 discretion of a, not interfered with, 226 n. u power of amoving from office, 240 — 217 obligation of same, 243 court does not interfere with a pri- vate, 272 what officers may fill, 21."> have a veto on resignations, 268 how compelled to perform duties, 269—271 conform to general law, 271 n. m constitution of a, is obligatory, 270 —272 suspended, 270 n. k for purposes of trade, whether can sue a corporator, 1271 not compellable to declare dividends, 272 how to recover statutory debts, 271 n. r how compelled to appear, 271, 275 only can appear. 271 n. It served with writ of summons, 274,275 waiver of service by a, 275 n. r head of, need not be named in writ, 275 n. o notice to any member not notice to the body, 275 n. r for what may be indicted, 275 when not bound by bills, promissory notes, &c, 276 action on case lies against, 277 right of, to stop for debts due to them out of dividends, 276 n C may hold an office, 277 n. f be inhabitants and occupiers, 285 u-hen linn/ sue u member, -76. 277 cannot do wrong, except, Src, 278 n. // when liable for tort of their agent, 27S in ejectment, 278—280 for poor rates, 2S5 how to be indicted, 284 whether can enter into recognisances, 284 n. e when not accountable in equity, 2S1 not liable for certain acts done by majority, id. how to proceed against persons claim- ing to be a, 281, 282 whether assuming to ad as an, is an offence, 280 n. p, 282 dejacto, effect of bond by, 2S."5 fine on, how leviable, 284 n. convey lands for sites of schools, & nd to accept grants of lands for edu- cation, id. obliged to compensate misappropria- tion of charity funds, 561 cannot contract with their visitor, 576 mvey lands, &c, to guardians, 61(> n. k CORPOR VI'IONs SOLE, definition of a, IS, 6' origin of, 626 creation of, by implication, 632 when fee simple passes to, 110 how to plead seisin in, 136 n. r to state name in demise in ejectment, 146 n. b, 189, 190 Chancellor of Oxford seems to be a, 515 n. d constituted by grant of advowson to senior fellow of a college, ."> 13 lands, how to be granted to, 632 exchange of advowsons by, 635 instances of, 594 presentations to livings by, G32 n. o cannot be copyholders, 630 licence in mortmain to, id. bond given to, and his successors, &c, 589, 590, G29 and n. q cannot take goods in succession, 626, G30 erection of, by letters-patent, G2G a queen regnant a, 627 the king a, 626 has two capacities, 627 may take, &c, lands in natural capacity, G27 n. u how said to be invisible, G27 n. / may take chattels in succession, 629 demise of, 630 grant of lands to, 630, 631 in frankalmoign, 632 a bisbop a, 629 grant of lands to, 630, fi.'Jl an office to, 631 a parson a. 636 an archdeacon a, 656 corporate sea] of, how might be enfeoffed in free alms, 632 ii. i grant to, when not lobe made in time of vacancy, (KJ2 divests an in!' t I, 63 1 resignation of. i disclaimer of, 63 3 wbethei may authorize entry, &C, by parol. 63 I CORPORATIONS SOLE— continual. grant of an otliee by, •!.".."> cannot grant. &c, to themselves, id. mode of trying right to be a, 635, 638 s by, 6 1 1 how to prescribe, G3G whether may exist though deprived of lands, id. restrictions on disposal of lands, G38, G39 there must be a rent reserved, 642 n.« chargeable with annuity, G3G n. c arrears of annuity when go to execu- tor, 639 waste by a, G37 injunction against, (i 1 1 prohibition, id. how to sue, 635, 636 to be sued, 635, G3G n. ?/ abatement of suit by death of, G.'iT will be presumed duly appointed, id. effect of excommunication of, id. whether may appear in person in ac- tion, 636 instance of appearance in person, G3G n. « effect of judgment against, G39 acceptance of rent by successor, 640, 642 n.y debt for rent by, 'i 1!' when lands not let at ancient rent, 651 cause of deprivation, 641, 645 effects of it, 631 may take, &c, lands to charitable uses, (i is cannot make leases without reserving rent, (> 12 n, '/ consent of patron, &c, 643 except of what objects of demise, 649, 652 renewals of leases by, 652 — 654 liable for dilapidation to successor, 64 1 and n. k successor of, shall not be impoverished, 645, 646 when bound by covenants, &C, 6 16 n. c not bound by grant of new office, 617, 61s' cannot permit usurpation, & 7 Will. •1, c. 20, not bound to pay rent, 65 1 building leases by, 655 when void, id. a h \ c, in London, id. n. c CORPORATIONS SOLE— continued whether to be executed by cor- porate seal, 655, 656 may grant land for sites of schools, 656 rector a corporation sole, 656 n. s perpetual curate one when, 657, 658 whether within Statutes of Mort- main, 657, 658 may take by devise, 657 n. e what constitutes a, 658 ministers of district churches, 659 Chamberlain of London, id. resignation of, and effect, id. CORPORATORS, interest of, in goods, &c, of corpora- tion, 2 in real property corporeal, 3 aggregate of, not the corporation, id. not liable for corporate acts, 5 who may be, 5 who not, 6 have the option to accept a new char- ter, 13 first corporators how may be named, 14 majority of, must accept charter, 18 necessity of proof of acceptance of incorporation by, 20 what is such proof, 23 cannot plead ignorance of their char- ter, &c, id. inhabitants cannot be obliged to be- come, 26 n. b have no inchoate right to be, id cannot be forced to be a corporation by the crown, 33 claims to exemptions, how proved, 33, 34 inspecting charters, 38 consent of all, when necessary, 46 number of, 48 naming all the, in bill in equity, 53 criminal proceedings, id. signature of majority to a resolution, 55 information against, when lies, 64 concerned in affixing common seal, when protected, 64 objecting to bye-laws, 78 disfranchising a, 262 — 267 causes of same, 265 — 267 duty of, to attend corporate meetings, 265 n. s suspension of a, 267 resignation of a, 267, 268 release of his right, 268 whether may be sued, &c, 271 disputes between, will not be settled by the Queen's Bench, 272 when may maintain suit in equity against the corporation, id. when not suable by them, 276, 277 when liable to information, 281 costs of wilful delay, id. quo warranto, 2S2 n. s INDT'.X. 685 CORPORATORS— continued for contempt in non-payment of rates, 2 may be responsible for misdeeds of a former generation, 547 n. c of hospital, how nominated, 571 n.p, 576, 577 classes eligible to be, 81, 82 what does not confer right to be, 89 evidence of deceased, DO, 91 exemption from tolls of, 97 n. e may take leases from corporation, 119 when may enfeoff their corporations, id. n. y whether may distrain without autho- rity, 151 summons to, 155 — 157 bound to attend corporate meetings, 155 as to privilege from arrest, 156, 157 when responsible for corporate acts, 157, and n. / may be witnesses for corporation, 166 n.^ corporation may take a grant for their, 184 prescribing in their corporation, 1 85 n.y how to claim exemptions from juries, 193 remedy for breach of, 200 indictable, &c, for refusing office, 193, 221 kindred to, cause of challenge of juror, 193 n. q may sue in equity, when, 200 admission requisite to constitute, 203 n. p non-attendance of, at corporate meet- ings, 204 n. d bound to know their bye-laws, &c, 207 n. k times of the corporate meetings, 211 and n. u [NDEX. CORPORATORS -continued. bound to know of their election to offices, 21 7 ment of bribery !. 235 indictment against, 2 residence of, presumed, 263 a. <, 205 when coqiorators liable for, 157 n. / of indictment by corporation, 190 - ' corporation suing qui turn may have, IDS disobedience to mandamus, 227 n. u of return to mandamus, 2'28 n. x, 240 in debt for bribery, 2." In.r of feigned issue to try title, 259 n. u relator's costs in quo warranto, 259 and n. u, 2G0 defendants in same, 200, 202 of mandumus to restore, 2 07 to proceed to election, 415 n. h compensation, jury, &C, 27.5 delay, I'M parties joined in discovery, 287 n.g a charity suit, 289 prosecuting indictment in a county of a city, 351 out of one, 352 of constables, when sued for act done as such, 369 of maintaining propriety of acts done to enforce public duty, 373, 374 of application for mandamus to insert name on burgess lists, 405 n. z of resisting mandamus, Sec, 40S, 1<>9 of application for quo warranto against councillor, 111 plaintiff compellable to give security for, in action for penalty against mayor, &C, 41S when mayor to pay, of disobeying writ of mandamus, 121 n./?j when to be indemnified from, 127 of indicting for assault of mayor, 429 under 5&6 Vict c. 97, s.2, 429,430 of amoving, &c, order of council, 137 of witness, how to be paid, of prosecutions, &c, 153 n. c, 151 — 456, is i how to be estimated, 455 of court of recorder of united di 15 7 n. to be recovered in action against person for thing done under .Municipal Corporations Act, 503 of application to be admitted to free- dom of borough, 508 and n. e bill to compel college to grant new lease, when dismissed with, 517 of recovering against corporation for misappropriation of funds, Nc, 54S n. fc, 561 n.y cannot be released by one church- warden, 604 in actions against churchwardens, 605 n. / of churchwardens and overseers, 615 n. i. COUNCIL, the, in municipal boroughs, &c, "~>~> is the agent of the corporation, id., 357 as to disobedience to mandamus. 355, n. a how to elect mayor, aldermen, &c, 355, 356 ' whom to consist of, id., is not a corporation, nor the corpora- tion, .'!."> 7 now the governing body, id., n. g minutes of, how to be entered, 357 and n. k interested councillor cannot vote in, 357 n. i adjournment of meetings of, 357,358 casting vote of chairman of meetings, 357 who to preside at meetings of, id. notice of meetings, when neo 357 359 power of calling together, 358 summons to attend meetings of, id. quarterly meetings of, id., 359, and n. <> power to delegate functions to com- mittees, 359, 360 why cannot appoint borough gaoler, 359 n. r regulate fees of Court of Requests, [NDEX. 68*; COUNCIL— coniijiiu (I. when not responsible to third per- sons, 359, 360 orders of, for payment of money, re- movable by certiorari, 360 so resolutions for same, id. n. u to appoint trustees, &c, 360, 361 statutory powers of paving, lighting, &c, 361, 362 passing bye-laws, 362 — 365 how to enforce bye-laws, 364, 365 powers of executing securities for debts, &c, 365 restrained from selling, &c, lands, &c., id. approbation of Lords of Treasury, when necessary, to enable to dispose of real property, id., 366 what leases may grant, 366, andn.g, 367 may determine to have a police ma- gistrate at a salary, id. must provide a police office, when there is a separate commis- sion, &c, id. must appoint a watch committee, id., 368 what ordinary and extraordinary offi- cers may appoint, 378 how may compensate officers, 379 — 382 how to elect treasurer, &c, 378 may adopt Baths and Washhouses Act, 385, 386 take gift, &c, for support of museum, 386 powers as to nuisances removal, id. acts of, how to be pleaded, id., 387 not a continuation of any former body, 386 what contracts with, disqualify to be councillor, &c, 397 must admit councillor de facto, when, 401 giving notice of vacancy of office, 407 excluding councillor when elected, 408, 409 aldermen members of, 415 liable for costs of mandamus to proceed to election of aldermen, id., n. h how to declare vacancy in office of alderman, &c, 417 n. s, 426 within what time to fill up such va- cancy, 417 n. s when to appoint substitute to mayor, 419 to elect mayor 9th November in each year, 421, and n. c mayor to preside at, convene, adjourn, &c, when, 423 power to allow salary to mayor, 424 effect of their laying a borough rate without authority, 428 must supply vacancy in mayoralty, how, 430 COUNCIL- continued. must take security from town clerk, 433 minutes, how to be drawn up, 435 may remunerate town clerk, when, &c, 436 how to appoint and fill up vacancies in coronership ofborougb, &c , 111 how to obtain a grant of separate quarter sessions, &:c., 1 16 how to pay expenses of prosecuting, &c, prisoners, 151 — 456 to have an account of expenses, &c, from county treasurer, 456 may contract with committee of dis- trict prison, id. and contingently, 182 n. k may hire, &c, room for holding petty sessions, 474 n. t may contract for prisoners, &c, though they have no gaol, &c, 482, 483 and for building, &c, a district prison, 483 agreement to contribute to such ex- penses need not be made at quarterly meeting of, id. n. m may appoint committee of justices to treat for these objects, id. n. m may borrow for building, &c, district prison, 484 may make gaol rates, id. purchase land for providing a prison, id. contracts of, for maintenance of pri- soners in county gaols, id. powers of the, as to building, &c, the gaol and house of correction, 485 n. d. cannot spend the principal, &c, of monies, &c, 487 n. i cannot carry proceeds of sale of real property to the borough fund, id. what expenses mav charge upon the borough fund, 487, 483 when may defend quo warranto, id. cannot defend information against allowance, &c, id. nor show cause against rule for man- damus, &c, when, 489 majority of, when personally liable for expenses, &c, id. n. s how to pay a fine set upon the corpo- ration, 489 cannot pay out of borough fund costs of "petition to Lord Chancellor, &C. ill. what law expenses may defray, id. for what purposes, and bow to lay a borough rate, 190, and n y powers of levying a rate, id. obliged to pay debts of corporation, &c, 490—1:).'! form of order of, for a borough rate, 490 n. a, 491 INDEX. ( OUNCIL— continued. must sell church patronage, 192 how to convey it, id. apply proceeds, id. when not to present to Irving, id. may augment stipend of priests, &c, id. n. r must live upon its income, 193 to appoint overseers, when, id., 1**1 may impose district rate, 193 — 195 when may levy museum rate, 495 baths, &c, rate, id. may require account of trust funds, &c, .'.1 1 ( OUNCILLORS, fine for refusal to become mayor, 225 showing cause against rule for man- damut, 356 n. d interested cannot vote, 357 n. i by whom elected, 387 who qualified to be a, 397 how many go out each year, 387 disqualification to be, 397, 398, 401 exemptions from being, 401, 402 bankruptcy of, 398 mode of election of, 39S — 400 thrown away votes at elections for, 399 n. r publication of list of elected, 401 iiuitidumus to take office, in case of refusal, 401 and n. e when a person becomes councillor dc facto, 401 to make declaration, &c., id. elections of, when borough divided into wards, 101' — 404 numbers of, in each ward, 402, 403 when one elected in more than one ward, 404 extraordinary vacancy in office of, id., I'd.", how long to hold office, id. put oil' the burgess roll for non-pay- ment of rates, id. mandamus to proceed to election of, wh< n goes, id. mayor to preside at elections of, 423 when mandamus to permit to exercise office proper, 10.') to proceed to election, id. may not lie clerk to justices, 173 election of, when not a nullity, 105 n. I penalty for acting without having declaration. &c, I 1 8 at extraordinarj vacancies, 105 bankruptcy of, 406, 407 exempt from serving on juries, 180 line for absence of, 106, l"7 compounding with creditors, insol- vency, iVe. &C., 107 notice of vacancy of office of, id. office of, when i I, id. what contracts not to be interested in, id. what decimations to make, id., 408 ( 01 NCILLORS— continued. difficulty as to making them, 10S when to make, id. if excluded alter election, id., 409 amotion of, 409, 410 election of, within what time to he questioned, 109 in wards, 119 quo warranto against, when granted, 410 costs of, when must pay, 1 1 1 evidence of acceptance of office of, 410 duly elected, id. n. x resignation of, 114 office of recorder, incompatible with, id. ii. /' election of, to be alderman, 410 mandamus to receive vote of, 189 when personally liable for a proceed- ing of the council, id. COUNTY, the inhabitants of, cannot be incor- porated, 18 corporation must not be named of a, 53 n. k prima J'ucie liable to repair bridges, 500 corporation, when liable to repair county bridge, 501 master of hospital, when has not vote for member for, 567 n. k COUNTY OF A CITY, rateable to repairs of bridges, &c, 283, 284 may extend beyond the city, 2S3 n. c as to executing criminals in, ."5121 n. // what evidence of jurisdiction of, 345 n. ft compensation jury when summonablc from, id. limits of a, 3 16 qualification of jurors in a, 4S0 venirejac., id. a. x, lo\"> n. k guildhall of a, whether within the county at large, &c. &c, .'J 17 11. 71 felony committed in precinct added to, 317, 348 may be erected by the crown, &c. id. trial of quo warranto against alder- man in a, 420 there must he a shcriffi or sheriffs of, 348 treasurer of, removable on quo war- ranto, 1 1 1 act of parliament required to disunite any part of a, '.'> 18 power of recorder of a, 1 10 n, i boundaries of, whether identical with those of the city, 3 is alteration of, judicially noticed, 349 mayor not returning officer of, 427 judicially noticed, 319 INDEX. G89 COUNTY OF A CITY— continued. when trials to be had in, &c., 349 — 352 inquisitions and indictments removed from, 351 changing venue in, 352 and n. y appointing case to be tried in adjoin- ing county, 480 place of holding assizes for, 352 sheriff of, 353— 355 process in, when to be directed to elisors, &c, 354 right of voting for members in, 411, 412 n.o, 465 n. k challenge to array for unindifferency of sheriff of a, 481 specialjuries in, id. COUNTY OF A TOWN, rateable to repairs of bridges, &c, 283, 284 Vid. County of a City. COURT, effect of new grant of a, 33 tearing, &c, records of, 420 n. I franchise of holding, cannot be lost, 34, 35 persons before whom to be held, 34 n. s right to be sued in corporate, 3G waiver of, id. of revision, when, &c, held, 431, 436 superior, 87 obligation to hold, cannot be waived, 378 n. a Pie-Poudre, 181 ; vid. Addenda et Corrigenda. in a corporate town, 1 95 of quarter sessions, 449 — 458 of requests, 359 is to judge of reasonable cause of amo- tion, 241 n. o of record, quo warranto for holding, 262 judgment in, 300 n.f how corporation to take advantage of want of jurisdiction in the, 294 evidence of ancient, 324 n. d of recorder of an united district, 457 and notes charges of, at which district prisoners tried, how defrayed, 483 of Chancellors of Universities, 516 n. i, 519—526 of Lords High Stewards of Universi- ties, 519 n. b COURT-HOUSE, contract of council for building, &c, of a, 483 loan of money for, 484 COURT OF RECORD, of a borough, how established, 459 for the trial of what actions, id. of what not, 460 who eligible to be judge, 459 how often to be held, id. COURT OF RECORD— continued. how far jurisdiction of, reaches, 459, 460, 464 practice in, &c, 459 and n. i, 461, 462, 464 and n. t pleading in, 460 n. m writ of trial to recorder sitting in the, 460 not a king's court of record, 468 writ of error admits its being a, 460 , n. o fees of registrar of, and appointment, 460 r\.p attornies practising there, 460, 461 new trial in, 462 when granted, cannot be laid aside, id. non-user of, id. quo warranto for acting as judge of, id. information on penal statute does not lie in, 464 attachment against judge of, 463 and n. i writ of error in, 460 n. o, 463 n. / removal of causes from, 463, 464 and n. t may fine jurors, &c, 465 mandamus to restore officer of, 465 n.g incidents to, 465 mandamus to compel obedience to order of, 465, 467 judgment cannot be given in, before appearance of defendant, 465 pleading in, id. and n. k, 466 process out of, 465 n. k direction of writ of error, &c, 466 style of the court, id. venire de novo, id. scire facias on judgment of, id. removing a record of, id. writ of error, &c, id. and n. u debt on judgment of, 466, 467 whether witnesses, &c, privileged while attending, 467 mandamus to judge of, to hear and determine, id. customary process in, 468 custom to try by six jurors, id. in the Cinque Ports, 476 n. d liability of officers of borough courts for escapes, id. juries in, 479, 480 COURT ROLL, corporation aggregate cannot hold by copy of, 109, 1S7 n. z nor corporation sole, 630 COVENANT, against dean and chapter, 588 n. t action of, by corporation, to exempt from toll, 184, 191 sole executors, 629, 630 officer in a corporation not bound by Ins predecessor's, 196 by hospital for renewal of leases, 575 churchwardens and overseers cannot make a, 280 Y Y 690 INDIA. COVENANT— continued. when equity interferes on breach of a, 289 custom to sue on covenant made ore tt nu~ action of, for damages only, may be tried bv an University Court, 522 in deed i.f annexation, 512 n. I churchwardens cannot make, Go3 ( OVENANTS, of municipal corporations, 140, 141 for renewal of leases, 1 13 of sole corporations, fii'7 what covenants bind their successors, 646 COVENTRY, sheriff of, 353 CRANAGE, what, 1G4 CRIER, custom that public, should have the crying of all sales of goods to be sold by auction, 331 CROWN. power of, in granting charters, &c, 13 dividing corporations, 8 uniting, id. not the only source of incorporation, 11 cannot obtrude a charter, 13 may delegate power of naming first corporators in a new corpora- tion, 14 may grant power to admit others, to certain individuals, 14, 15 may grant to an individual power to incorporate pro liuc vice, 15 erect a guild or fraternity, 15 at common law cannot incorporate for a limited period, 15, 16 is now empowered by statute to do so, 1G powers of, in granting charters of municipal incorporation, 1G, 17 may delegate power of appointing the first members oF a newly erected municipal corporation, 17 unrestricted in grant of incorporation as to size of the place, 17, 18 grant of, how avoided, 21 n. q when bad. L'2 how limitable, 22 n. y what cannot grant by charter, 2.'> and n. (i power to vary constitution of a sta- tutory corporation, 21 n. k 'Miction of grant of, 25 — 27 cannot derogate from, 33 make a man a corporator, id. grant a monopoly, '■> 1 CROWS— continued. pleas of the, :! 1 n. s. right to repeal a charter, 42 bound to allow sci.j'a., 42 n. e consent to try tci. J'u. at nisi prius unnecessary, 45 n. o what franchises may exist in, 45, 303 n. r acceptance of surrender by, 4G n. a cannot incorporate a county, 48 may constitute a city, 52 power to grant licence in mortmain, 98 escheat to, on grant in mortmain, 100 right to enter for mortmain when accrues, id. 103 waiver of, 101 grant of lands rendering rent by, 107, 108 not bound by statute of quia empto- res, 108 n. u right of, on grant to superstitious uses, 124, 125 when may create a port, 1G1 right of market, &e., of, 1G5 n. h what toll cannot grant, 1G7 prerogative to distrain, 1G8 whether can grant exclusive market, &c., 176 might grant exemption from tolls, 1 82 n. d; compare, 183 n. i whether can grant an escheated fish- ery, 187 n. r pardon by, 235 ejectment will not lie against, 279 to assume corporate powers a con- tempt of the, 281, 282 pleads double, Sec, in quo warranto, 299, 300 cannot derogate from its own grant, 301 n. it, 302 dissolve a corporation, 302 franchises revert to, on dissolution, 303 as to personalty, 304 when may revive a corporation, id. commands the services of the subject, 354 how, G27 how takes, &c, lands, id. and grants them, G28, G29 chattels, &c, G27 and grants them, 029 acceptance of rent by, in vacancy of bishopric, G42 n. y when may demand removal of con- viction, 452 might give power to tax by charter, [''it n. z, c cannot impose new statutes on the l'ni\ ersitii ,519 cannot pardon offences against Uni- versity statutes, 515 nor college, 530 n. z whether can grant inheritance of visi- tatorial power, 529 n. s INDEX. G91 CROWN— continued. patron of all deaneries, 581 n. y presentation by, 593, 594 when visitatorial power results to, 529, 530 n. « as founder's heir, may dispense with college statutes, 530 mode of visitation by the, 531 n. a costs thereof, 53G n. a how to determine a question between, and a subject, as to visitatorial power, 534 how to visit when founder's heir, 540 is visitor where no special visitor is appointed, 540 consent of, when necessary to accept- ance by college of increase to endowments, 542 n. q grants to senior fellow of a college, 543 appointment to mastership of school in patronage of the, 557 n. y visitor of dean and chapters, 582 grant of patronage by, to dean and chapter, 584 when visitor of deanery, 586 CURATE, cannot take to charitable use, 115 presentation of a, 492 obligation of maintaining, &c, id. CUSTOM, of foreign bought and foreign sold, 28, 29,85 origin of customs, 29 and n. I all that parliament might enact not good by way of custom, 29 n. t requisites of, 29 perception of forfeiture under a, 56 for grounding a bye-law, 78 return of, to writ of habeas corpus, 79 may extend to new offices, 239 what, 176 of lien for wharfage rates, 8 for guild to create guild, void, 12 certifying a, in courts at Westminster, 63 to found a bye-law, 82 once reasonable, whether good al- ways, 82 to take ballast, &c, 82 n. d good in a borough, but not elsewhere, 82 bye law cannot annul a, 83 how abrogated, id. to restrain trade, id. might be sued upon, id. to imprison, 84, 85 not judicially noticed, 85 n. y what evidence of custom to exclude, 90 to devise in mortmain, 112 n. g to take fine on alienation, &c, 135 n. k tolls originating in a, 163 n. g of toll-traverse, 1 64 to demand unreasonable toll, 169 CUSTOM— continued. unreasonable, 169 and n. o to exclude from selling out of market, &c, 176 claim piccage, 177 n. x how abrogated, id. to fowl in a warren, 187 n. z venue local in action on a, 192 n. s to be judge and officer, 197 as to corporate meetings, bad, 212 elections, good, 218 to defranchise for words, 264, 334 n. e refusing to pay sums due by, 265 falsely certifying a, 277 n. g of London, how certified, 288 as to noticing customs once certified, id. in a corporation, how proved, 317 must be pleaded, 320 proof of, id. when not good, id. may be inconsistent with the common law, id of a city or town not judicially no- ticed, id. n. e need not be conformable to law, 328 who not good witness to disprove a, 321 originating since Ric. 1, id of exclusive trading in London, 322 n. d to bind, not to sue out of the borough, 328 n. t when not abrogated by statute, 322, 323 origin of, 328 legal commencement of, presumed, 328 nr to elect by ballot, 322 of foreign bought and foreign sold, 322, 323, 329 cannot be prescribed against a sta- tute, 323 acceptance of inconsistent charter up- sets a, 323 to enrol grants of lands, &c, id. sell by other than statutory weights, &c, 323 for inhabitants to enjoy rights, &c, in alieno solo, 326 and note a, 327 to have estovers, 327 n. b to cut rushes, 327 n. c. take sand, 327 differs from prescription, 327, 328 infraction of custom not indictable, 32S n. o to seize goods forfeited, 329 of foreign attachment, 329, 330 to demise by parol, &c, 330 demise gavelkind lands, id. every custom to be construed strictly-, id. that all leases for more than such a time should be void is bad, id. n. s Y Y 2 INDEX. CUSTOM— continual. for bellman to have a pint of grain, no custom of market overt for pawn- ing, id. exclusive, not necessarily bad, id. not to employ, hire, &&, any but freemen now abrogated, 332 not objectionable for extending be- yond liberties of a city, id. for innkeeper to sell a borse that eats bis value, &c, id. of tanestry, id. remedy against corporation for neg- 1, ct ol duty imposed by, id. to prevent any person, not free, keep- ing shop, &c, for putting to sale wares, &c, now illegal, 332, to distrain, &c, 333 seize unserviceable goods, Src, 333, 334 in defiance of reason, 334 to imprison, id. seize, &c., tainted victuals, id. may be enforced against a corpora- tion, id. by same, 335 enlarge an estate, id. in opposition to law, when good, id. repugnant to justice bad, id. contrary to rules of pleading, id. to sue on covenant made ore tenus, 336 concessit solvere, id. assumpsit solvere, 337 must be stated in pleading, id. bow, id. whether can be set up by statute, 338 n. z to bring dower by plaint, 338 try by six jurors, in borough, extends to affect other corporations in it, id. of lien, id. how to be tried in a county of a city, 35 1 might give power to appoint consta- bles, of London, as to election of alder- men, 120 to disfranchise or amove for speaking opprobrious words of an alderman, had, 130 to hold Pie l'oudres Court, 167 customs may be time out of mind, and yet not coeval, 168 of the Cinque Porta, 176 n. d to rate inliahit.u n. c for mayor, &C, to appoint OV( of part of a pariah, • to repair highways 501 to rate inhabitants to bridge rate, id. ise watercourse, 502 as to oath of admission of freemen, 507, n. u for freemen being inhabitants, &c, to have common, 510 CUSTOM— continued. of University Courts to arrest out of jurisdiction, 521 process in such case, id. n. r to distrain, &c, 522 n. b of a manor, hinds successor of a cor- poration sole, (J50 n. h, and 651 CUSTOS, of a corporation, when put in, 20< n. ;i, 302 DATE, of a charter, 31 and n. t DEAN, a corporation sole, 581, 588 — 590 who the founder of, 5S1 and n. a cannot be presented to a church by the chapter, 584 n. s everv, is appointed by the crown, 585 separate property of, how vested, 581, ,")S,") n. z, 588 right of, to bis portion of the aggre- gate revenues, 587, 5S8 is a dignitary, 585 n. a patronage of, 590 when has the freehold, 585 n. b, 591 is head of the corporation, 585 cannot be joined with them in action of trespass, 591 has a life estate, 585 (juare impedit to try right of, 58G crown when visitor of, id. has no negative voice, 586, 587 casting vote, 592 n. n cannot divest an interest out of the corporation, o s ti voidable lease may be set up during time of same dean, &c, 587, 590 agreement for lease by, when binds the body, 580 n. / rights of successor of a, 5S7, 5S8 bond given to, and his successors, 588—590 effect of attainder, deprivation, &C, on acts of the corporation, 591 acts of de facto, 591 n, - effect of installation of, 591, 591 obligation given by, 591 cannol lease to the chapter, id. ntation of, 591, '>'■>- what acts may do by deputation, 597, 59 how to sue, 035, G3G DEAN AND CHAPTER, of Christ Church. Oxford, 529 n. n definition of a, 581 a spiritual corporation, 582 n. c style of members of, 581 n. % must be in holy orders, id. rate estates of, where vested, 581 nature of their incorporation, 5S9, 590 , ity in, 59 1, 595 charter of exemption, &C, to, 595 how founded, 5S1 and n. a INDEX. &X DEAN AND CHAPTER— continued. founders' statutes of, 582, 583 alteration of, 583, 584 whether have force of law, 583 n. r, 594 how to prescribe, 581 n. b when liable on implied contracts, 597 n. z cannot impose oath by a bye-law, 594 n. d gift to, when good, 581 when bound by parol executory con- tract, 597 parol agreement for renewal of lease, 596 how to accept surrender of lease, 597 n. y general visitor of, 582 appeal from, id. grant to, for superstitious uses, 598, 599 bishop as visitor of, 582—585 common seal of, 597 as to depriving by vote of, 582, 584 great seal, 583 acts of, how long bind, 597 patronage held by, 584, 591 the corporation cannot present the dean to a church, 584 n. s, 591 may appoint minor canons, 593 trusts vested in ecclesiastical com- missioners in property, 581, 585 n. z chapter house of, where may be, 598 dean the head of, 585 effect of his death, 587—590, 597 attainder, &c, 591 mandamus, when lies to, 586 state of, in vacancy of headship, 586 —588 members of, when may vote by proxy, 595 act of parliament, when not presumed against, 586 n. d scire facias on judgment recovered by, 592 dean has no negative voice in, 586, 587, vid. 592 n. x deed of, how to be executed, 591, 595, 596 how must accept rent, 586, 588 n. s demise, 586 n. / voidable lease of, how set up, 587, 588 when may avoid lease, 587 covenant in bad lease, 588 n. t specific performance, &c, by, 586 n. I cannot lease to dean, 591 deed of, where may be made, 598 bailiff of, 586 n. I they are not impeachable of waste, 592 how to convey lands sold under rail- way act, 586 n. / produce of sale, 596 how many canons in each, 593 DEAN AND CHAPTER— continued. how to present to a living, 587 bring an action, id effect of surrender of lands to crown, 596 power of sale, &c, of lands, &c, of, 588 n. x what building leases may grant, 655 n e challenge of juror, in action by, 589 administration bond to, 590 when bound by acts of dean, &c, 591 DEBT, a, must be paid, though borough fund deficient, 490 statutory mode of recovering, when to be followed, 271 n. r by a corporation, for duties, 159 petit customs and port dues, 160 n. c primage, 164, 165 market tolls, 167 stallage, 175 amerciament, 189 n. p fine for contempt, 422 in. x penalty, 198 not taking declarations, &c, 418 value of lands taken by railway company, 273 on a bye-law, 88, 97 lease of market tolls, 170 n. s bill of exchange, 276 when lies by corporation against its officers, S7 members, 72 not against corporator after dis- solution of the body, 64 against a corporation, on bond, &c, 276 n. z, 227 n. e for a penalty, 276 n. z common seal, when presumed in, 62 for rent on lease of tithes, 649 on concessit solvere, 336 bond and writ of inquiry, &c, 339 for bribery, 234 n . r on judgment of a borough court, 466, 467 for escape out of borough gaol, 465, 466 lies not for a bridge rate, 501 DECLARATION, what, to be taken by corporate offi- cers, 224 n. e sheriff, 353 n. e councillors, &c, to make what, 401, 407, 408 must be taken, 408 n. h, 425 by Quakers, Moravians, &c, 408 n. k when to be made, 408 INDEX. D EC L A RATION- continued. as to to aldermen administering, -117 renewal of, with respect to estate, id. when may he refused to be adminis- !. /'./. neglect to make, &C, how punishable, -lis and n. / what to be made and subscribed, 418, 11!) when, lis refusal of, equivalent to refusal of office. 11!» n. r , 122 and . e. 17.. 419, 12,5,433 Bsora, 131, 132 town clerk, 433 borough justices, 4G9 head of a college, 539 1 not be tendered, 133 n. z substituted for oath in Universities, n.a ED, presumption as to, GG n. c when not necessary to be proved against a corporation, 148 whether necessary to authorize a dis- tress, 150 of annexation. Vid. College, and 5 13 n. ,r, 5 19 signing a, 147, 148 for settling identity of lands, Sec, of a college, "> 1 9 bv hospital located in one county and sealed in another bad, 576 hospital pleading prqfert of, 579 how to sue on, if made to corporation in wrong name, 51 n. /, et vid. 146 n. b of dean and chapter, 591, 595, 597, 598 guardians of poor, G19, G20 corporations sole, G'.)'.}, Goi resignation by, 208, 414 DEGREES, nature of power of conferring, 51 G, n. i mandamus to admit and restore to, 528 DELIVERY, of deed dispensed with by affixing common seal, ('/■> lease, id. scaling deed by common seal, equiva- lent to, 147, 148 DEMISE, by a hospital, 5G9, 580 how made by a corporation, 56 and n. h, 6 1 what corporation may take by, 127 —129 by corporation, 1 £3 by c(.I]i ge, 5 10, 5 17 n. a in ejectment, 1 16, n. I> from year to year, I 19 by 'Kan and chapter, 586 n. I to churchwardens and overseers, 612 DETINUE, for books of a coqioration, 242 against a corporation. DEVISE, to corporation, as to its name, 51, 52 of beneficial estate, 109 n. b bv master of a college, 110 n. s custom of devise in mortmain, 112 n.g. 337 corporations may take by, 112, 113 to a corporation to charitable use, lilt/ scq. to a college, 114, 115 to charitable use, when void, though use good, 115 n. u to private use, good, 1 1G to charitable corporation for its own objects, id. void in part, id. terms on which made, enforced, 117, 120 of money realized out of lands, 119 which mav be construed two ways, 120 to poor of a place, id. instances of, within statutes of mort- main, 121 of personal estate, when bad, 121 n. r of money to be laid out on land, 122 to such charity as testator had for- merly directed, id. when to take effect, 123 to Downing College, id. a non-existing corporation, id. college, when not good, 1 2 1 when good, 545 an University, id. of advowson to a college, 544, 54G misnomer in devise to a college, 545 n. o of college lease, 546 to master, &c, of a college, 545 n. n of a debt and for foundation of school, 558 rents and profits, 559, 5G0 surplus rents, &c, 50 1 to a hospital, 570, 571 governors of a hospital, 577 perpetual curate augmented, G57 n. t DINNER, bye-law ordering the giving of a, when bad, 80, 81 DIRECTORS, i ffect of contract by, ."..') when may contract, &C., without common seal. 56 bill in equity against, 291 whether quo warranto lies against, 307 DISCLAIMER, of office, &c, 258 n. / corporate character, '2G'J, '2'.)'.) efiect of, in DISTRINGAS, cannot be awarded by University Court, 521 n. p to compel an appearance, 274, 286, 496 enforce decree in equity, 289 repairs of a bridge, 500 n. o DIVIDENDS, of stock, proceeds of sale of real pro- perty, &c, how to be disposed of, 487 n. i 096 INDEX. DOWNING COLLI!. devise to, 123 DRUNKENN1 good cause of amotion, 241 D. o Dl RATION, of a corporation, what, 3, 1 may be for a limited pe- riod, 10 of an of K porations, 143 — 145 of otlice of mayor, 121 DURHAM, the city of, how incorporated, 1 1 DURHAM AND SADBERGE, rights of incorporating exercised by bishop within the county pala- tine of, 11 DUTIES, where corporations may sue for, 159 ECCLESIASTICAL COMMISSION- ERS. I'iil. Dean and Chapter. E( CLESIASTICAL CORPORA- TIONS, whether aggregate or sole, public bo- dies, 9 antiquity of, 1 1 n. e granted their lands in fee farm, 129, 130. I'iil. Dean and Chap- ter and Corporations Sole EJECTMENT, corporate name in demise by a cor- poration, 52 D. a demise in, how proved, 57 by the king, 02S n. b as to name of head in demise in, 140 n. b, 189, 190 need not execute power of attorney, 189 aver the demise to have been under seal, 189 sci.J'a. by successor of a corporation sole, in, 038 against a corporation, 278 — 280 rule for judgment, 279 consent rule, id. against what bodies docs not lie, 279, churchwardens and overseers, 280 by donors in ease of dissolution, 305, 306 evidence of corporator in, 310 laying demise in borough court. 165 d. k parson when cannot bring, 649 D. g cannot be tried in University courts, 522 amotion or deprivation by visitor may be tried in, 532 n. k against master of a free school, 556 n. n. 56 I, 557 n. .r .nt from year to year of dean and chapter, 5!<7 for canonry, hot: 13 n. I EJECTMENT— continued. by churchwardens, 005 n. m and overseers, 612 n. void when incapacitated person cho- sen, 410 of addition to an indefinite body, 208, 209 when compelled, 209 r\. y validity of, bow decided, 211, 214 summons for an, 211, 212, 217 n.f meeting for an, 211 n. n precedes all other business, when, 212 n.y municipal, 212 n. y disturbance of an, 212 n. d, 214, n. p, 220 n. / presiding oflicer at an, 212, 213 what not a due election, 213, 216 n. a of municipal officers, how questioned, 215 n. s personating an elector at, 214 n. /> to an office, must be taken notice of by corporator, 217 as to delegating power of, 21 S, 219 n. c casting voice at an, 219 equality of votes at an, 219 n. e right of approval of an, 219 by a definite body of which A. and B. are to be two, 220 and n. / rt /n at an, 220 Chancery no jurisdiction as to, 221 n. p ' when mandamus to proceed to, goes, 226 n. u, 227 n. x bribery at corporate, 232 — 230 parliamentary, 413 INDEX. 697 ELECTION— continued, when votes are equal, 232 n. a votes by ballot in, 256 illegal in, 256 n. q proxy, id. of officers, when to be held, 379 of councillors, 398, 399 when borough divided into wards, 402—404 within what time questionable, 409 duty of returning officers at elections of councillors, 398 n. p presiding officer, id. thrown away votes at, 399 n. r in case of extraordinary vacancies, in boroughs, &c, 404, 405 new election of councillors, when, 405 mandamus to proceed to election of councillors, id. for members of parliament, 41 1 — 413 if void by statute, quo warranto must be had, 421 n. g disturbance of, ground for informa- tion, 421 n. c mayors duties as to taking poll at, 423 arranging for parliamentary, 423 n. a publication of result of, in boroughs, &c, 423 secession of presiding officer at, be- fore business completed, 423, 424 returning officer of parliamentary, in boroughs, &c, 424 refusal of poll at, good ground of ac- tion, 425 of assessors, 431 expenses of, payable out of borough fund, 487, 488 contrary to college statutes, 530, n. z in colleges, 531, 532 n. I visitor's power over, 532, 538, 539 of head of a college, 543 master's single negative, 75 n. e in hospitals, 577, 578 ELEGIT, ejectment to enforce an, 279 on judgment for salary, 433 n. x available, though lands held for pub- lic purposes, 489 to execute judgment on bond of cor- poration, 382 n. t ELISORS, when process to be directed to, 354 form of writ to, 354 n. o ENTRY, on lessee for condition broken, 151, 579 n. I how to plead, 151 n. k, 5S8 n. s as to tolls, 178 n. / churchwardens cannot sue for, 600 pleading entry as servant of church- wardens and overseers, 612 n. q ENTRY— continued. whether corporation sole by parol may authorize, 03 1 ETON, college of, 124, 558, 565 n.f identity, &c, of lands, &c, of, 549 statutes of, 565 EVIDENCE, what prima facie, of incorporation, 50 prescriptive corporation, 51 n. e common seal, when presumed, 02, 63 of charter, 38, 39 bye-law, 90 deceased corporators, 90, 91 as to name in demise in ejectment, 146 n. b of tenancy from year to year, 149, 150, 547 n. a right in corporation to take port dues, &c, 161, 162 place being a port, 162 n. q toll-traverse, 164 n. o franchise of a market, &c., 165 corporator may be witness in action for tolls, 166 n. e of assent to remove market, 168 n. c right to inspect books on question of tolls, 169 n. n of user of a market, 1 79 incorporation of foreign corporation, 200 n. q being a candidate at elections, 20 i n. a judgment of ouster, when is, 215 and its effect, 260 of writ of mandamus coming to hands of head of corporation, 228 on return of, " not duly elected," 230 of bribery, 233 n. p, q. 234 n. r on quo warranto information, 255, 256 what, of user, 256 n. u of disfranchised corporator, 268, 269 disfranchisement and release for pur- poses of, 268 of certificate of a corporation, 288 foreign corporation, 288 n. o costs of suppressing evidence, 289 inspection of corporate books, 298, n. r deed of grant evidence of name, 310 of an aggregate corporation, id. of seal of a foreign corporation, 310 n. p common seal proves itself, 310 inspection of entries in books, &c, 311,312,314 charters, 311 n . x in action for tolls, 312 n. e corporation not obliged to disclose their own, 313 rule to inspect, 313, 315 effect of admissions by corporators, 315 notice to a corporation, id, 60S INDEX. EVIDENCE— -continued. admissibility of corporators as wit- nesses, 315—317 books, entries, &c, 317—319 of custom, 320, 321 of custom to take tolls, &C, 321 of immemorial usage, 321 and n. q,y, 327 »./ ancient Court, 32 \ n. d custom anil prescription, 328 of locality of a borough, ;!15 n. h jurisdiction of a county of a city, 345 n. Ii usage after a statute, evidence of what usage before, 047 n. o boundaries of a town, &c, 345 n. h an appointment to office, 357 n /;, 379 n. g acceptance of office of councillor, 410 on issue of, "duly elected councillor," 410 n. * of conviction, 427 and n. i intentions of founder or donor, 5G0 and n. q in respect to chanty claims, 565 what not sufficient evidence of ap- pointment of town clerk, 433 presumption arising from want of common seal, 5GS of declaration of use, 570 n. q what evidence on not guilty against clerk of peace, 1 1 ; that a court is a court of record, 459 n. h of corporators when admissible, 502 n. b, 500 n. o, et vid. Corpo- ratohs proof of residence in University, 520 n. e of servants. 522 of acceptance by college of a grant, 544 as to heirship of founder, 544 n. d that corporation was known by a cer- tain name, 570 n. d of propertv belonging to a parish, 009" n./ what, of induction of a parson, 040 D. i EXCHEQUER BILLS, the commissioners of exchequer bills loans may lend to councils, when, 184 n. o EXECUTOR, a corporation aggregate may be, 202 rights of, in case of corporation sole, 629, 638, 639 EXEMPLIFK \1 ION, of royal charter, 38, 39 EXEMPTION, grant of, to corporations, 2 n. m from | I ii. '« how construed, 3 from being sued out of corporate li- 36 EXEMPTION— continued. what not an, 37 what a void grant of, id. how to trv right to, 37 n. u from tolls, 97 n. e, 174, IS 2— 1S4, 595 crown might grant, 182 n. d; com- pare, 1S3 n. t from serving on juries, claim of, 1S5, n. V, 193, 200 and n. m as to establishing in equity an, 200 from serving in municipal corpora- tions, 225, 226 quo warranto for claiming a franchise of, 261 from toll, 327, of freemen, &c, 505 otlices in municipal corporations, 401,402 jurisdiction of county justices, 477 serving on juries, 470, 479 n. p, 480 EXETER, customs of, 79 established by statute, 330 foreign attachment in, id. custom of selling horse that has eaten his value, 332 sheriff of, 353 FACULTY, to occupy a pew, &c, may be had by corporation, 198 FAIR, definition of, 165 as to tolls at a, 166 FEE-FARM, rents, property of corporations in, 107 grants in, by corporations, 130, 131 FEE-SIMPLE, in corporation lands, &c, 109, 110 whether corporation can grant in, 130 n. /. 135 in lands, &c, of a parson, 636, 637 of a bishop, 636 n.f FEIGNED ISSUE, to try right to office, 215 n. y, 238 n. q, 248 n. m, 622 elect, 218 n. t a return, 228 n. a right of nomination to fellowship, 543, 544 ; and form of it, 514 n. d to advowson, 220 n. o of stranger to appoint, 219 n. < right to parish honks, 602, 603 tight to be churchwarden, 600 n. m costs in, 259 n. u FELONY, by corporator of University, how tri- able, 519 n. b FEOFFMENT, how made by corporation, 56, 139, I K) INDEX. G99 FEOFFMENT— continued. as to making to a corporation, 107, 570 n. d, 597 n. z to parishioners, GOG FERRY, when may be set up, 186 remedy for interference with, 192, 193 neglect to keep boats, &c, 192 FINE, definition of, 221 n.f, 3G2 n. n under bye-laws, 97 for refusal of office, 221, 222 payment of, 223, 224 for contempt, 422 on resignation of office, 225 refusal of office, 225, 401 customary, 109 x\. g on alienation, 135 n. k how levied on a corporation, 284 n. d, 489 limit of, in municipal bye-law, 3G2 for absence from office, 406, 407 corruption, &c, 413 in lieu of service, 419 and n. y for neglect of duty in revising burgess lists, 423 n. h not returning a writ, &c, 464 on jurors for non-attendance, 465 by borough justices, 470 always payable to borough fund, 487 and n. k on corporation for non-repair of a bridge, 500 n. o payment of, on renewal of lease, &c, 140—142, 144 n. t for renewal of hospital leases, 577 lease by corporation sole, 646, 655 n. h FISHERY, several, &c, 186, 187 FOREIGN ATTACHMENT, custom of, 329, 330, 339, 340 FOREIGN BOUGHT, &c. custom of, 28, 29 where good, 85, 322, 329 where obtains, 322 FOREIGN CORPORATION, when may sue here, 50 certificate of, 288 n. o FOREIGNERS, who, 6 inspecting charters, 38 books, 169 n. n when may question validity of char- ter, 41 bound by bye-laws, 77 custom to exclude, 83 evidence of it, 90 FORFEITURE, of goods cannot arise by bye-law, 84 directly or indirectly, 85 of charter, 295 when good, 85 of the corporation, 89, 90 of shares, 292 FOUNDER, statutes of, how must be accepted, 19 n. e will, how observed as to leases, 111, 115 equity compels production of copy of will of, 293 when is visitor of his foundation, 517 who is, id. king, when founder, 517 and n. I how may dispose of visitatorial power, 529, 530 and n. u semb. cannot alter his statutes, &c, 530 his will to be followed, id. if his heir a lunatic, id. n. a effect of his reserving part only of the visitatorial power, 530 n. u consent of heir of, to alteration of his rules, 543 n. n heir of, how ascertained, 543, 544 how far can restrain legal powers of a visitor, 530 n. v number of corporators fixed by, can- not be increased, 511, 542 king bound by statutes tending to perform will of a, 530 n. y cannot add to original number of his foundation, 543 as to pleading that power given by him to visitor is unreasonable, 530 n.y inquiry to discover heir of a, 531 n. a, 539 of a college, foundership incident to blood of a, 531 is not subject to forfeiture or es- cheat, id. cannot alter his endowment, id. when equity will not interfere with his rules, &c, &c, 543 n. n may alien right of nomination, 531 how ought to frame statutes, 532 n. m will of, to be observed, 53G effect of lapse of time as to departure from it, 565 what grant by a, docs not make a visitor, 537 meaning of founder's kin, 539 n. s crown, how to visit, when founder's heir, &c, 540 of additional fellowships, 542 of a school, will of, to be observed, 552 n. a cannot exempt from payment of poor rates, 552 n. 6 when his will, &c, vests surplus funds in corporation, &c, 552 n. d, 559, 560 his intentions as to school, &c, 555, 560 and n. q surplus of estates granted by a, 559 —561 when has been appropriated by corporation with his know- ledge, 561 devise by, of surplus to his executors, &c, id. 700 INDEX. FOUNDER— continued. of a hospital, intention of, 567 who the, his name mostly introduced into name of the bos] JG9 nominates the inmates, ."'71 n. /< by what words may found, 57 1, 572 statutes of, 572 n. f, may he looked at to explain charter, ■ should he enrolled, 57G n. q cannot alien estates of hospital, .'.7.') iept under Land Tax Acts, 575 how to appoint a visitor, 57G endow, 57G n. q may reserve appointment of inmates, 576 declaration of use by, 57G n. q if omits to name a visitor, 57G n. r whether can grant a w to, &c, to the master, \c, &C, 578, 579 of dean and chapter, who, 5S1 andn.a statutes of, 582- 58 I altering, 583, 5S4 whether have force of law, 583 n. r interpretations of, id. may appoint bishop visitor of, 585 n. x of bishoprics, who, 631 n. k, G3S n. t FOUNDERSHIP, of a college, &c. Vid. Founder. FRANCHISE, effect of non-user of, 33, 37, 1G8, 1G9 n. i loss of, 37 which may exist in the crown and which not, 45 of fair, market, &c, 1G5, 1G8 ferry, 192 condition annexed to all, 1G9 n. i may he vested in corporation for use of members, 184 n. y more than one may he joined in one quo warranto, 25 I as to mandamus to restore from sus- pension of a, 2G7 effect of seizure of, 29G— 298 of being a corporation, 298 n. r what claimable by prescription, &c, 299 n. v. disclaimer of a, 299 quo warranto only lies for claim of what, 300 n./ 307 n. i revest in the crown, on dissolution, 303 and how, 303 n. p otretorna brt vkan, 3 W a. g, 46S n.g of burgesssbip, 393 u.J' freeman, 50 1 n. m of voting for members of parliament, 111—413, 50G, 7,1)7 PRATERNITY, custom for one to create another had, 12 a corporation may create a, id. u. I how restrained, 91, 92 FREE GRAMMAR SCHOOLS, account of funds of a, 5 17. 5 18 n. k mandamus to admit usher of a, 238 n. r restore same, 250, 53S n. o definition of, 552 effect of usage on, id. and n. b equity not competent to alter general constitution of, 57)2 n. a as to devoting funds of, to other ob- jects, &c, id. statutory powers of equity over, 552, 558 do not extend to surplus of school funds, 552, 557 n. y what schools, eVc, do not extend to, 57,7, 558 mode of applying for remedy re- specting, 553 n. e when governors refuse to act, 557 n. p object of the new enactment respect- ing, 553 power of visitors, where adequate, left untouched, 557 amotion of one of corporators of a, 554 n. e, 5G3 governors of, 554 n. e, 557 n. r, 5G3 errors of college as trustees of a school, 554 n. e improvement in plan of education in, 554 n. ef uniting, 556 who to be eligible to exhibitions in, 554 n.g, 556, n. p, 566 statutes of, 554 — 556, 557 n. y, 56 1 power of establishing new statutes, 555, 556 revenues of, 555 what number may constitute a corpo- ration of a school, 558 sites of, id. when exempt from Charity Commis- sioners Acts, id. n. z devise for foundation of, 558, 559 fund given to members of a college in trust for, 5G0 n. y surplus of profits of estate granted to, 559—7.01 equity did not interfere where there Was a visitor of, 5G2 new distribution of revenues of, id. setting aside leases, &c, of, 563 form of petition to great seal respect- ing abuses in, &c, id. lease of school lands to governor of school, bad, id. how relief given in equity as to, id. statutes of limitations, 8 e., 564, 565 taking an account in favour of, 565 gifts for maintenance of, good as a charitable use, when, id. 43 Lliz. c. 4, applicable to, exclusively, id. appointment, of masters of, 556 n. q, 7)57 ii. 1 1 qualification of masters of, 555, 556 a by masters of, 555 n. k FREE GRAMMAR SCHOOLS-con- tinued. patronage of mastership of, alienable, 577 n. s removal from mastership by dean and chapter, 584 generally, 557 FREEMAN, of a company, mandamus to admit a, 238 n. r FREEMASONS, lodge of, judicially noticed not to be a corporation, 65 FREEMEN, admissible to prove what custom, 335 how to allege custom of taking ap- prentice, &c, 337 how corporation to prescribe for their freemen having common, &c, 346 n. k claims to be upon vol] of, examinable by mayor, 423 roll of, how kept, 435 made up, 507 list of, how, 507, 508 copy of, how procurable, 435, 507, 508 lists of freemen, how to be published, &c, 435, 436, 508 n. z claimants objected to, 508 when cannot be jurors, 481 reservation of rights of, 504 — 506 whether undue admission of, be a cause of forfeiture, &c, 504 n. I quo warranto to try right of being, 504 n. /, m or remove from roll, 504 n. m servitude entitling to freedom, id. widows and kindred of, 504 cannot be disfranchised at pleasure, and why, 504 n m cannot be created against their will, id. have a freehold, id. mandamus to admit, id. ante-dating admission of, 508 fees for admission of, 505 application for, 508 oath on admission, 507 n. u exemptions of, 505 costs of application for admission, 508, 509 not admissible by gift or purchase, 506 residence of, how necessary, 506 and n. s, 508, 509 action by, against corporation, to en- force rights of, 506 reservation of parliamentary franchise, 506, 507 what not disqualification of, 506 n. s duty of returning officer as to, 507 n. u no stamp duty on admission of, 507 n. x by marriage, cannot vote for members of parliament, 507 n.y INDEX. 701 FREEMEN— continued. posting notices of objections to claims to be, 508 n. « of London, 508 n. a, d of Turkey Company, 509 n. f rights of common of, 509, 510 plea in bar by, to avowry, &c, 510 avowry by, id. prescription by, 327, 510, n. i, k FREEMEN'S LIST. Vid. Freemen. FREEMEN'S ROLL. Vid. Freemen. FRIENDLY SOCIETY, treasurer of a, a quasi corporation sole, 661 GAOL, of a borough, contracting for build- ing, &c, disqualifies from be- ing alderman, &c, 417 n. s who keeper of, in borough, 197, 424 and n. u, 485 gaoler, 485 chaplain, id. where prisoners committed from a, may be tried, 451 may be committed to another borough gaol, when, 456 order for contract for maintenance of borough prisoners in a county gaol, 473 quarterly gaol sessions, 475, 4S4, 485 appointment of surgeon of, 475 council to make contracts for convey- ance, maintenance, &c, of prisoners to, 482 new gaol, how to be erected, 482 n. i when erection of, once commenced, borough not liable to costs of county gaol, 482 n. I one appointed to every borough hav- ing separate quarter sessions, 482 except where there is a contract, &c, id. rates for building, &c, 484 powers of council as to building, &c, 485 n. d indictment for neglecting to repair, id. recorder's certificate as to repairs, id. county gaol within a borough, 1S6 GATESHEAD, the Barkers and Tanners' Company of, 11 GIFT, of chattels requires common seal, 65, GG of rents and profits to a corporation, 559, 560 when good to schools, 565 dean and chapter, 581, 586 GILD A, gilda mcrcatoria, meaning of, 30, 31 n. gildate and incorporate synonymous, 31 n.g ;o2 iM>r.\. GL0UCES1 custom of the honour of, 135 n. A toll-traverse at, 101 sheriff of, 353 GUAM) JURY, the, of a borough, 8fcc, 179 (Hi ANT, of charter of municipal incorporation, 16, 17 is still common law prerogative, 16 statutory limit thereon, 17, 18 when nugatory, 22 n. t illegal, 22 and n. y with non obstante clause, 23, n.r once made cannot be resumed, 13 to mayor and all other corporators, effect of, 2 n. A of t lie crown, intent of, 26 how avoided, 21, n. q to enure, 79 import of words in, 21 n. q question as to, id. what a condition of every, 22 n.y of forfeiture of goods, bad, 85 a port, 161 and n. h port duty, 1G0 n. e, 161 exemption from toll, 182 n. b, vid. 2 n. m unreasonable toll, 109 to senior fellow of a college, 543 to the men of Islington render- ing rent, 107, 108 city of Carlisle, 116 may make a place into a city, 52 to a corporation by a new name, 571 n. n not yet in existence, 573 tcnerc plucita, when bad, 2G n.u of fair, &c., 31 of a market, 167, 168, 176 repeal of this, 168 its forfeiture, 169 Fxidcnce, of acceptance of charter as fresh grant, 23 by college, .1 1 1 of grant of ferry, 192 n. y presumption of a, ](il n. /, 162 in favour of a, 39 of increase to endowments not binding on corporation, 18 n. b as to repealing part of a, 12 and n. b in mortmain, not void, 100 in remainder, 101 not according to 9 Geo. 2, c. 36, when void, 1 1 U of right to lav chains in river, &C, I I'd by corporations, as to their name, 51, 52 of next avoidance of advowson, 55 liccn incorporeul hereditaments, 110 (ill A NT— continued. by corporations, for church endowment, 106 n. n by municipal, 1 10 of annuities, 146 n. d to their mayor, bad, 426 of realty, 99 n. m, 129—143 in vacancy of bead, 110 not in existence, 111 to corporations, as regards name, 51, 52 what good words of, 31 n. / designation of grantees, 26 n. s custom more effectual than, 29 usage not to cripple a, id. how to be taken, id. when incidents pass by, id. must be certainty, 31 of " town with all its appurte- nances," 32 omncs piscarias, &c, id. all mines, id. market, id. toll, id. u. n fair, id, liberty of holding a court, 33 felon's goods, Sec, id. conusance of pleas, 36 power tenere plucita, id. exemptions, 37 of lands for education, &c, 558, 560 whether corporation may grant, Sec , realty, 129— 1 43 does not destroy prescription, 301 n. n, ct vid. 323—325 whether implied in a prescription, 324 n. a how to be pleaded, &c., 299 by and to hospitals, 570, 571 college out of rectory impropri- ate, 548, 549 as to repealing part of a, 42 and D. b by and to corporations sole ; vid. Corporations Sole. GREAT SEAL, the, what is now, 628 GUARDIANS OF THE POOR, election, appointment, duties, &c, 616 n. k how far a corporation, 616, 617 may sue and be sued, &c, 616 n. A, 617 power of majority of, 616 n. A - , 619, 621 what lands vested in, 616 and n. A, 617 may have and use common seal, 616 indictment by, 617 liabilitv of, on contracts not under seal, 617, 618 when individually liable, 618 legal estate in parish property, 623 where cannot contract, 618 "• m - equity will not interfere in con- tracts of, 619 INDEX. 703 GUARDIANS OF THE J>OOR~contd. chairman has casting vote, G19 distinctions between guardians of an union and of a parish, G19 n.t mandamus to pay money, 622, G23 name, 619, 620 when rateable to poor, 620 dissolution of, id., 621 quo warranto not proper to try right to be guardian, 622 GUILD, how constituted, 11 n. c custom of London, 12 how restrained, 91, 92 HABEAS CORPUS, cum causa, return to, 79, 428 punishment for not returning, 463 n. i removal of causes by, 463, 464 HAMLET, meaning of, 341 n.t HARROW SCHOOL, lease of lands of, &c, 563 and n. n HAVERFORDWEST, sheriff of, 353 HEAD, distinction between, and integral part, 25 n. q duty of, as to contracts, 62 concurring in acts, 68 heriot due on death of a, 109 and n. h grant cannot be made to a corpora- tion in vacancy of, 110, 586 cannot devise to the corporation, 123 as to meaning of, in a lease, 146 n. b cannot take a lease, when, 149 bond, id. n. y be presented to a living by a college, id. as to demand of, and acquittance for rent, by, 150 n. b, 549 n. r evidence against, on return to man- damus, 228 during vacancy of, corporation can- not be sued, 286 n. z cannot bind college by his acquit- tance, 544 name of, need not be mentioned, 529 n. o, 286 n. z omission to elect on the proper day. 303 when integral part of a college, 550 when visitor of college becomes head, 531 n. a cannot be compelled by visitor to set seal to an answer in Chancery, 532 n. p. when required to have a property qualification, 543. separate visitor of a, 536 n. x devise to the college by, bad, 545 deprivation of, how to be pleaded by college, 537 n. g benefice annexed to office of, 550 how entitled to revenues, &c, 538 HEAD — continual. cannot be sued in trespass along with the corporation, "/f»l has not a sole seisin in his office, 538 to subscribe declaration at his admis- sion, 539, 540 mandamus to compel him to affix common seal, &c, 541 exempt from penalty for non-resi- dence, 550 HEIR, when takes by descent, 115 consent makes devise good, 112, 119 stands seised to use of devisee, 115 cannot alter terms of devise, 117 lands when revert to, 117, 559 of founder, how ascertained, 531, 539, 543, 544 consent of, 543 n. n mandamus to, &c, 543, 544 HEREFORD, punishment of a mayor of, 464 n. b HERIOT, when payable on death of head of corporation, 109 as to common seal to authorize seiz- ing an, 189 not reckoned part of an ancient rent, 651 n. o HIGHWAY, corporation, how rateable to repair a, 283, 501 indictable for obstructing, 284 non-repair of, 501, 502 accounts of expenditure, &c, on, 436 liability of corporation to repair, 501 HOLY ORDERS, persons in, disqualified for municipal offices, 226, 416 HOMAGE AND FEALTY, corporation could not do, 107 yet held by tenure of, id. HOSPITALS, power of erecting, 12, 15 leases of, 74 power to hold lands, 106 devise to poor of, 120 when may take money arising from sale of real estate, 122 colourable, 125 cannot present masters to livings, 149 n. y mandamus to restore officer of, 250 quo warranto does not lie for head- ship of, 299 n. x what does not constitute a visitor of a, 537 the same in nature as colleges, 567 and n. i definition of, 567 not necessarily connected with medi- cine, &c, id. 701 INDEX. HOSPITALS— conth common seal essential to, 567 are local corporations, 50S name, 5GS — 57n not nuisances, 5GS how founded, 56S, 571, 572 who the founder, 568 how may he incorporated, id. notice to General Board of Health as to, id. license to found, id. meaning of domus as applied to, 568 n. n misnomer of a, 569 n. b when may be known by more than one name, 570 essentials of a, id. local bodies, 576 nomination of corporators of, 571 n.p how forfeited, id. incorporation precedes endowment, 572 when complete, id. amotion of corporators, &c, of, 572 n. s visitor, when to be applied to, id. charters of, how explained, 573 39 Eliz. c. 5, as to erecting, 573, 574 leases by, 574, 575, 580 setting aside, 576 n. o renewals of, 574 n. b, 575 n. g, m, 577 of houses, 574, 575 when bind, 575 aliening in fee, 574 and n.f rent. 570 land-tax, id. may improve the estate, &rc, id. judgments contrary to founder's sta- tutes, id. cannot contract with visitors, 576 present master to a living, id. how to be endowed, 576 n. q visited, 576 and n. r spiritual, how visited, 576 n. r royal, how, id. common law, id. right of appointing masters of, 576, 577 limitation of patronage of, .177 lands of, id. elections in, 577, 578 in debt against, what no plea, 577 n. s majority in, to do acts, 578 advowson of, how Dominated to, id. statutes of, semblc imposed, 578, 57!) ofiicers of, 580 n. u iits of, id. may consist of two persons only, 578 n.d judicial notice of. how to plead right of way, 579 rateable to poor, 580 n. u land-tax, id. property tax, id. prqfcrt by, 579 avowry by, 579 n. / HOSPITALS— .-, INCORPORATION, what prima facie evidence of, 50 operates as a new, 52 not proof of, 07 INCORPOREAL HEREDITA- MENTS, corporation how to take, 110 INDENTURE, sealing counterpart, when suffices, 110 of annexation to a college, 543 n. x by a hospital, 570 INDICTMENT, whether corporation can institute, in absence of common seal, G2 n. k lies for affixing common seal, when, 04 n. i not for breach of bye-law, 84 whether lies for violating Municipal Corporations Act, s. 94, 140 n. p against corporator, 157 n. / not a ground for refusing mandamus that indictment lies, 159 when lies against owner of a port, 161 n. p, 162 corporation for non-repair, 164 n. s breach of duty as to keep- ing a market, 168, 180 n. b lies against corporation for misfeas- ance, 180 n. b, 213 n.g by corporation, how authorized, and as to costs, 190 n. g for misapplication of tolls, 192 n. t negligent keeping ferry, 192 libel, 193 not taking office, id. disturbing and slandering, &c, their officers, 197 election, 212 n. d, 214 n.p, 220 n. I personating municipal elector, 214 n. p riotously meeting without due summons, 217 n.J' lies against corporator, 235 when not necessary for amotion, 242 n. r for disfranchisement, 265, 266 against corporation must be re- moved, and why, 275 n. s, 284 may be against two corporations, 277 one and an individual, 278 n. n for breach of charter, 277 putting common seal to surrender, &c, 306 n. h non-performance of public duties, 283 not repairing a bridge, 283 and n. x, 284 words said of the mayor, 429 INDICTMENT— continued. for disobedience to a statute, 284 false return to mandamus, 428 obstructing a highway, 284 to compel treasurer to pay money, 439 breach of sect. 91 of Mu- nicipal Corporations Act, qiuere, 366 refusing to serve as con- stable, 369 of constable for neglect of duty, 370 words against mayor, &C, 429, 430 not repairing a gaol, 277 n. g, 485 n. d sea banks, 277 n.g amendment of, by quarter sessions, 451 n. m assaulting the mayor, 429 obeying order of quarter sessions, 285 removed by certiorari. 374 n./, 151, 452 personating a voter at elec- tion of councillors, 400 riot at election, 416 n. // when found by grand jury of county of a city, 351 against mayor for absence from duties, 423 what kind of, lie against corporations, 284 n. d when restrained, 288 n. n lies not for breach of custom, 328 n. o venue in, when to be laid in county of a city, 347 n. n, 349, 350 when to be tried in adjacent county, 349—352 constable's expenses of defending in- dictment, 374 of corporation for refusal to pay poor rates, 496 removal of and appearance to, id. for non-repair of bridge, 500 not building a bridge, id. n. g result of, against corporation, 500 n. o for non-repair of highway, 501, 502 form of such indictment, 502 n. c for neglect to cleanse watercourse, 502 by guardians of poor, 617 venue, &c, in, against person acting under Municipal Corporations Act, 503 and n. g for admitting freemen contrary to the Municipal Corporations Act, 504 n / against member of an University for treason, &c, 519 n. b college, for removing on a sen- tence of expulsion, does not lie, 53S n. n against schoolmaster, &c, 55S n. z by churchwardens, &c, 601 n. t against them, 602 n.g Z Z 706 INl;i:\. INFANTS, when cannot be corporators, churchwardens, 600 n. m excluded from municipal corporations, 122 members of railway corporations bv ie\ .211 n. o whether may be town clerks, 133 n.s clerks of peace, 1 13 a. >/ masters of hospitals, 577 n. s [NFORMA1 [ON, on penal statute does not lie in borough court, 464 for libel against a guilty majority, 28] mayor, 129; alderman, 430 refusing office of sheriff, 353 constable, 309 n. a misconduct as judge of borough court. 163 bribery at election of member of parliament, 113 acting as alderman, &c, with- out making certain declara- tions, 118 n. t refusal of office, 119 n. y bribery at corporate election, 421 n. c against justice for absence, &c, 47S disturbance of election, 421 n.c maliciously refusing spirit li- cense, 122 absence from duty, 423 false return, 428 n. .r assault of mayor, 429 against town clerk for miscon- duct, 438 what may be tried at borough quarter sessions, 167 n, / costs of defending an, against alder- man, not payable out of bo- rough fund, 188 against corporation for non-repair of a bridge, 500 n. /// privilege of University, when allowed in an, 522; as to plea of it, 523 ii. n in equity against visitor, 533 election of a fellow, 539 for surplus rents, &c, 56] against churchwardens and overseers, 615 INHABITAN1 S, effect of grant of lands to, 8, 9 a portion of the, of a town or borough, may be incorporati d, 16, 17 effect of incorporating the, 26 mine of, in a charter, 26 u. cannot be obliged to become corpo- rator-, 26 n. b in old charters called burgesses, 31 ! "■ " how explained by usage, 31 to take advantage of corporation COUI'i [NHABIT ANTS— amtinutd. of a county, cannot be incorporated, 48 ' use of the word in a bye-law, SO n. y cannot claim exemption from tolls, 171 n. ( effect of charter incorporating, 203 n. p, 200 notes of county of a city, &c, how liable to repairs of bridges, &c., 283, 284 liable in quo warranto for assuming to be incorporated, 300 as to their prescribing, &c, 320, 327 what not evidence of grant to, 327 n./ claiming exemption from toll, 327 custom to tax or rate, 190 n. c when corporations are within poor laws, 496 and n. n may be rated for repair of a new- bridge, 500 n. k means of levying such rate on, 501 liable to county bridges on dissolution of corporation, id. n. y right of voting for members of bo- roughs, 507 n. ;/ custom for inhabitant freemen, &c, to have common, 510 INJUNCTION, applying to dissolve an, obtained by a corporation, 38 n. y against surrendering charter, 15S repairing to a market, 171 n. /' Betting up a market, 179 n. s suing for petty customs, 182 n. z a trespass, 287 action against a corporation, 2SS n . /; indictment, id. using parliamentary powers, 289 pursuing undertakings, 290, 291 surrender of charter. 293 soliciting act of parliament, &c, 488 n. o, 499 ringing morning bell of church, &c, 60 1 n. a when operates like a mandamus, 293 does not go to restrain from amalgamating, 199 n. c goes to restrain parson from waste, 637, 64 I not to restrain publishing college sta- tutes, 293 n. b levying a borough rate, &c, 493 whether goes to ;i visitor, from Queen's Bench, 535 on instance of single shareholder, - " S ilomons v. Laing, 19 L.J. (N. S.) Ch. 291 INNS OK COURT, the, not corporations, 58 n. a INSIGNIA, mandamus to give up the, 121 mayor not to attend Nonconformist place of worship in, 120 INSOLVENCY, as to amotion for, 242 n. p, 407 disqualification by, 106, 407, 417 n. s INSPECTION, of voting papers, &c, 433 and n. d fees for inspection of burgess rolls, 436 refusing, in case of burgess lists, 406 of roll of freemen, 508 n. b of University archives, 527 corporate muniments, 37, 38 of books, &c, in quo warranto, 527, 169 n. n of documents of dean and chanter, 595 INTEGRAL PART, corporation, whether suspended by loss of, 25 cannot take lease, 149 presence of majority of each, 155 dissolution by loss of, 302, 304, 580 and n. s apprehended not objection to granting quo warranto, 304 n. z which are integral parts of a college 550 & ' INTENT, the, to be observed in construing charters, 26 and n. * ISLINGTON, grant to the men of, 107, 108 JEW, cannot be churchwarden, 600 n. m whether can be candidate, &c, 207 n. i may be mayor, &c.,425 admission of, as freeman, &c, 507 n. u JOINERS, the company of, 92 JOINT STOCK CORPORATIONS, how erected, 625 n. s nature of, id. effect of complete registration on, id. contracts of, id. name of, id. bye-law of, 93 license to, for holding lands, 106 n. p service of writ on, 275 bills and notes of, 276 n. d JOINT TENANT, corporation cannot be, with corpora- tion, 109 nor with individual, id. as to joint tenancy between corpora- tion sole and individual, 631 JUDGE, who cannot be, 87 and n. /, 281 punishment of a mayor for sitting as, in his own cause, 464 n. b 07 INDEX JUDGMENT, of forfeiture, effect of, 11 on writ of scire facias, 43 n. o, 1 1 of seizure or ouster, 15 n. u on debt for bribery, 2.)\ n. r on mandamus, 229 n. i in quo warranto, 217, 235, 255. 258 259, 261 form, 259 n. s of capiantur pro fine, 282 n. s 2'M n. m of ouster, 296 n. m for holding court of record, 300 n 'f in a borough court, 337, 338, 354 n. o, and error thereon, 338 elegit to execute, 382 n. t, 433 n. x evidence of conviction, 427 n. i removing proceedings to enforce a, '163 n.w in court of record, 465 pleading recovery of, in court of re- cord, 465 n. k writ of error on, in a Borough Court, 466 scire facias on, in the same, id. contrary to founder's statutes, 575 scire facias on, by master of hospital, 577 successor of corporation sole, &c, 638, 639 of quod capiutur against corporation sole, 638 by default, against the same, 639 JUDICIAL NOTICE, is taken that " A. B. & Co." is not a corporation, 50 n. b, 65, 569 n. x a lodge of freemasons is not, 65 of number of sheriffs, &c, in county of city, 355 a chamberlain, &c, 86 limits of powers of Borough Court, 461 n. u extent of a port, 161 n. i jurisdiction of University Courts, 524 n. z statutory corporation, 202, 310 n./) already certified custom of London, 328 n. t municipal corporation, 343 county of a city, 349, and al- teration of its bounds, id. style of a corporation. 3 19 is not taken that a body is not a cor- poration, 310 n. /) of customs of towns or cities, 320 n. e that sheriff was a corporate officer, 355 of practice of a Borough Court, 161 n. a of towns being Cinque Ports, 176 n. d z z 2 INDEX. JUDICIAL NOTICE— tonfmutd. of the incorporation of a hospital, 569 n. x that no such corporation exists, 580 of jurisdiction of visitor, when, 5;>2 notes k, q but is of the term visitor, 536 n. y what taken of practice, &c , by Court of Error, 62S n./ .11 in REGALIA, holders of, might incorporate, 11 instances of this, 11, 12 JURISDICTION, of equity, as to charities, 562 n. b of visitor. 532 n. fc, 53 1 n. ft, 536 Courts of Universities, 519 — 524 of equity over borough property, 488 —490, 493 of justices of the Cinque Ports, 476 n. d all capital, &c , abolished, 449 n.r, but not equitable, 465, 468 of countv justices, 452, 453, 469, 475—177 borough justices, 453, 469, 470, 475—177 borough court of record, 159, 460 quarter sessions, 449, 457, 458 an united district, 157 JURORS, who to be, in boroughs, &C, 479 how summoned, id. under District Courts, &c, Act, 479 n.p ' jurors' book, id. exemptions, 179 n. p, 470, 480 when may be summoned a second time in the same year, 480 "'/ . , .. qualification of, in counties of cities, 4S0 quashing panel of, 480 n. x suggestion to try issue by men of county, &C, 480 and n. x venire fuciut, &c, 465 n. fc, W0 n. x challenge of array of, ISO n. r, 181 where corporation parly or interested, freeman cannot be, 481 nor kin of a corporator, id. challenge of the polls, |sl n. y when may be interested, 481 list of special jurors, id. challenge of juror as akin to one of (Kan and chapter, 589 n g JURY, of the borough on writ of trial, 460 compensation, where to be taken from, 3 15 n. // a visitor cannot summon a, 5 1 I from cmntv of city when to try fe- lony, \c, 3 I" action on case, 348, 405 n. fc JURY— continued. <]iti> warranto, 34S n. o grand jury of county of city, 351 when trial to be by jury of county adjoining, 352, 35 1 one of them related to sheriff, 354 n. ;/ special jury, 481. VH. Challenge. summoning and fixing jurors on, 165, 479 custom to try by six jurors, 468 justices exempt from serving on, 470 chartered and customary exemptions abolished, 479 n. p other exemptions, 480 KEELAGE, what, 163 KEY AGE, bill in equity for, 181 prescription for, 329 KING, not the only origin of corporate bodies, 1 1 empowered by statute to incorporate for a limited period, 16 powers of municipal incorporation, 16, 17 his grant, how avoided, 21 n. q what cannot grant, 23 power to vary constitution of a statu- tory corporation, 24 n. fc construction of charters of, 25 et seq. when may have scire facias to repeal charter, 40 cannot prejudice the interests of sub- jects, 101 n. a grant to him, 110 only, could order imposition of oath, 210, n. g his courts of record, what, 333 n. v may erect a county of a city or town, 348 cannot grant hie prerogative impliedly, 477 when is founder, 517 and n. / when visitor, how to exercise visitato- rial power, 529 how visits hospitals founded by, 576 n. r the, a corporation sole, 626 has two capacities, 627 how must command, id. takes, &C, lands, id, n. u a surrender, 627 may present to a benefice, id. n. .r license an absence, &C., 628 how must divest an interest, id. retain a chaplain, id. cannot be a copyholder, id. demise in ejectment by, id. n. /' when to grant under the great seal, 628, 629 sign manual, 628 how to dispose of chattels, 629 his rights as founder of bishoprics, 631 n. fc, 638 n. t INDEX. 700 KINGSTON-UPON-IIULL, early charter of, 31 n. g Trinity House of, 1G2 sheriff of, 353 LADY MARGARETS READER, a corporation sole, 196 n. b, 518, 594 LANCASTER, mode of incorporating by charter in the county palatine of, 9 n. s of appointing to free grammar school in, 557 n. y LAND CHEAP, what, 187 LANDS, effect of grant of, to men of Islington, 8, 26 n. u lease of, to inhabitants, 9 n. grant of, in mortmain, 100 without reservation, 107 n. u what extent of, may be bought by municipal corporations, 108 what estate in, corporations have, 109, 110, 136 devise of, to charitable uses, 114 whether corporations may grant in fee, 129—135 covenants, &c, respecting, how to be made by municipal corpora- tions, 140—142 fine on letting, 142 and n. t out of England, how to lease, 147 n. h revert on dissolution, 303, 305, 306 of municipal corporations, how may be sold, mortgaged, &c, 365, 366 purchase of, for site of prison, &c, 484 proceeds of sale of, by corporation, 487 n. i not exempt from execution, 489 purchase, &c, of, for site of a mu- seum, &c., 495 granted to municipal corporations on charitable trusts, 511, 512 of a college, how annexed to a church, 549 identity of lands within manors, See., of colleges, &c, id. reverter of lands devised on illegal condition, 559 of an hospital, 577 dean and chapter, 586 — 588 and n. x what, may be held by churchwardens and overseers, 608, 609 conveyed by any corporation to guardians of the poor, 616 n. k how the crown may hold, &c, 627 n. u LAND TAX, redemption of, by corporations, must LAND TAX — continued. be reserved in parson's, I lease, 107, 121, 140 a.p, 650 n. / corporation when liable to, 285 college, how rateable to, 51 1 n. A hospitals, when may alien under acts for, &c, 575 rateable to, 580 n. u LEASE, by corporation, not avoided for defect in name of latter, 51, 52 delivery of, 63 when avoided, 63 n. I parol promise to renew a, 65 what, not objectionable as being mort- main, 127 husbandry lease to corporation, id. what, corporation may take, id. how must surrender a, id. concurrent, how, 128 municipal corporation, how to make a, 140, 141 for years, lives, &c, by municipal corporations, 111, 142 collusive, 142 counterpart of, when producible, 142 covenant for renewal of a, 143, 144, 152 for lives, 1 43 of charity property, 144andn./c of master of a school, 555 n. k, 563 for 999 years, 144 by hospitals, 574 — 577 as to setting aside, 144 n. i, 563 founder's will as to duration of, 144, 145 lessee, when made to account, 145, 563 form of corporation leases, 145 — 148 error in name of corporation, 1 16, 569, 570 how must originate, 146 when cannot be made, id. reddendum in, id. how to be made of lands beyond the seas, 147 n. h sealed with agent's seal, bad, 5 46 n. z agreement to execute a, 147 n. e name of lessee, 147 n. h attorney to deliver a, 147 n. k as to signing a, 147, 148 commencement of, 148 effect of, when not sealed with com- mon seal, id. void and voidable, 149, 519 n. r may be made to a corporator, 1 19 but not to a head, & r c, id. when not to a corporator, id. n g in mortmain, by corporation, 150 for years, how determined, 151 erasure in, id. n. g surrender of, to a corporation, 152 to clean and chapter, 597 n. g of tolls to and by a corporation, 170 dean and chapter, 5S6 and n. /, 590, 591 10 INDEX. LEASE — continued. renewal of, when not compelled by mandamus, 252 n. r avoided on a dissolution, 303 n. q, 306 n. /' what terms of yean may be granted by lease by municipal corpo- rations, .'iiJij and n g by corporation to mayor, bad, 1L' n. t, 574, 030 of schoolmaster, 556, 558 n. I to found hospital, 568 li ase to parson, 640 LICHFIELD, custom at, 331 sheriff' of, 353 LIMITATIONS. of prosecutions of offences under Mu- nicipal Corporations Act, 17.'> n. c, 503 of actions by corporations, 202, 203 against same, 29 1 against justices, 17."> their officers, &c, 37 1 operation of statutes of, for and against corporations, 305, 56 1 and n. .r against mayor, 430 n. bye-law regulating a franchise in, 79 n. / customs of, excepted out of Muni- cipal Corporations Act, 83 to imprison, 84 — 86 Court of Equity in, 468 n. k custom of, as to recovering penalty in bye-law, 86 87 at to trying actions on bye-laws in courts of, 87 validity of live law of, how question- ' able, 89 bye-law founded on custom of, 92 • custom of, to devise in mortmain, 1 12 INDEX. 711 LONDON— continued. scavage and other duties in port of, 163 wharfage, &c, in, 104 and notes i k market days in, 1GS n. c mayor, &c, of, liable for false certi- ficate of a custom, 277 n.g how certify a custom, 288 form of certificate, 329 n. t power bf imprisonment in, 370, 371 parson and churchwardens a corpo- ration in, 005 n. m, 279 judicially noticed as a county of itself, 349 indictments removed from, amend- able in the Queen's Bench, 284 n. d indictment against slanderer of alder- man of, 430 judgment of capiantur in case of, 29S n. q for mayor, &c, of, respecting conservancy of Thames, 299 n. v election of aldermen in, 420 freemen of, 508 n. a, d, 510 custom of exclusive trading in, 322 orphanage money in, 629, 659, 660 foreign bought, &c, 322 attachment, 329, 330, 339 as to election of aldermen, 420 market overt, 331 innkeeper selling horse, &c, 332 to disfranchise for words, 334 n. e commit, Src, id. in debt on bond, 336 and n. a ancient lights, 327, 337 n. p bringing dower by plaint, 33S resignation of office in, 414 n. c parsons, &c, in, may grant building leases, 655 n. e LORD HIGH TREASURER, a quasi corporation sole, 661 LUNATIC, expenses of removing a pauper to a lunatic asylum, 450, 451, 499 contribution of municipal corporation to county lunatic asylum, &c, 499 LYNN REGIS, custom of, 82 n. d custom of foreign bought and foreign sold at, 322, 329 MAIDENHEAD, women corporators of, 387 n. x, 6 and n. x MAJORITY, corporations act by, 68 especially when, 263 n. h effect of signature by majority to a resolution, 55 assent of, by parol, to a presen- tation, 56 n. c MAJORITY— continued binds the minority, 68, 263, 272 of whole, when must meet, 69 what is a legal, id. n. u at elections, 70, 71 pleading a, 70 n. e absent, 70 n. h votes of a, when thrown away, 71 how to be made up, id. relieved against in equity,?, 71 — 73 considered there, 199, 200 in judicial acts, 75 n. (/ of 'a select body, 80, 155 abstaining from voting, &c, 201 — ■ 209, 231 of integral part, 218, 219 refusal to act according to law, 271 and n. m agreement of, cannot set up a void act, 272 inserting a libel on corporation books, 281 concurring do not render valid acts beyond the competence of the corporation, 291, 292 what of municipal council necessary to pass bye-laws, 363, 364 at election of councillors, 399 of council, when liable personally, 189 n. s in colleges, 531, 532 n. I acting beyond competence of corporation personally liable, 547 in hospitals, 578 when guilty of illegal act, per- sonally liable. 579 as to leases of, 74 in dean and chapter, 595 of churchwardens and overseers, 280, 607, 610 what is, 280 of guardians of the poor, 616 n. k MALDON, dissolution of corporation of, 304 n. z MALMESBURY, incorporation of, 30 not within Municipal Corporations Act, 509 ti.f MANCHESTER, how incorporated, 9 n. s MANDAMUS, principle on which writ of, issues, 159, 225 may go, though indictment lies, 159 how directed,' 208, 132 to a municipal body, 355 n. a tested, 213, n. h who to be joint relators of, 22S n. /> peremptory, 22!), 230 rule for, &c. 406 n. z returns to, generally, 228—210, 249 whether must have common seal, 57, compared with, 63 12 INDEX. MANDAMUS— continued. writ of, admits the body to be a cor- poration, 228 n. : but must use its correct name, 51 when proper remedy to determine rignt to an office, 216 when mayor not compellable to de- liver writ, &c, i30 when goes to proceed to an election, 204, 208, 209 n. y, 213, 219 n. i, 'I'll n. i return to such writ, 211 n. u ministerial officers bound to obey, 385 n. e to swear in, cannot issue, when office is full, 409 when the proper remedy, 251, 252, 257 in cases beyond the competence of the corporation, 272 does not go to compel renewal of lease, 152 try right to a deanery, 586 remove judgment of quarter ses- sions, 150 what no answer to, 269 when goes to permit holding court leet, 1S8 n. i how expedited in cases of municipal corporations, 226, 227 who may prosecute a, 226 n. u to admit or swear into office, 210, 213 n. i, 214 generally, 236—238 examples of, 238 n. r to freedom, under a custom, 335 to ministerial offices, 384 n. c councillor de facto, 401 to freedom of borough, 50 1 n. m costs, 508, 509 to freedom of trading company, 509 n. /' to degrees in University, 515 n.e close fellow, 544 return to same, id. n. e churchwarden, 600 n. m clerk to board of guardians, 622 to affix common seal, 67, 71 common seal to appointment of officers, 378 n. c University seal, &c, 517, 518 to administer declaration, &C, 221 n e return to same, 1 1 7 to K store, 1 1 9 and good return to it, 217, 420 ... / pi . -mi unjustly excluded, 384 D. c to burgess roll, 393 n. d to degreea in University, 515 n. r, 528, generally, 211- 248, 2.;: returns to, 248, 2 19 a mayor, 127 town clerk, 137 clerk of the peace, 1 13 MANDAMUS— continued, one who was bannitut, 515 n. c master of school, when refused, 53S n. o when granted, 556 n.O fellow of a college, when re- fused, 538 sister of a hospital, 572 n. s rule niti for, where there is a visitor, 532 n. q that fact to be returned, 536 n. y but not the cause of deprivation, 537 n. (/ for what offices goes, 249 — 251, 267 constable. 369 n. e freeman, 509 n. / whether lies in case of suspen- sion from office, 267 officer of Borough Court of Re- cord, 465 n. g what sufficient return to, for office held at pleasure, 437 n. u to give compensation bond, 382 up documents, &c, 384, 385 n. c insignia of mayoralty, 121 to guardians to pay over money, 622, 623 to amove, 243 affidavits for, 416 action against mayor for false return to, 428 fellow of a college, 539 a Lollard from a scholarship in the University, 515 n. e to proceed to election generally, 204, 208, 209 n.y, 213, 219 n. e, 'I'll n. .r of sheriff, 354 assessors, 431 aldermen, 415, 41 6 councillors, 105 to receive vote of a councillor, 4S9 levy a rate, &c, 490 n. g inspect books, entries, &C, 313 n. o remove nuisances, 372 n. t reimburse expenses of constables, 372 n. ij University Court to proceed, &C, 520 insert a name on burgess roll, 132 and how to direct it in such case, id. deliver up books, &c, 433 n. k in pass a bye-law, 22 1 permit to exercise an office, 215 justices to sign poor rate, 411 take on him the office, 419 n. y insert his name on burgess list, in:, u. z permit to exercise office, 10.",, Ids, 10!) enrol on burgess roll, 392 n. c, 388 n. b INDEX. 713 MA NDAM US— continued. and good return thereto, 388 n. d relieve against improper conduct of the members, 72 master of a college, &c, 541 heir of founder, to appoint, &c, 534, 544 enrol on burgess roll, 392 n. c, 388 n. b enforce a church rate, GOG n. t proceed to elect clerk to guar- dians, G22 compel alderman to serve as mayor, 225 performance of duties of an office, 239, 250, 251 of a corporation, 269 — 271 mayor, 424 mayor to put a question to a corporate meeting, 423 n. y election of assessors, 431 mayor to sign table of fees, &c, 443 n. g quarter sessions to give judg- ment, 450 hold borough court, 462 obedience to order of Court of Record, 465 judge of it to hear and deter- mine, 467 payment of fees of clerk to jus- tices, 474 payment of money not an- swered by showing a retro- spective rate required, 491 college to perform contract, 532 visitor to appoint presentee, &c, 532 n. n complicated bod, 227 n.w cross writs of, 227 n. X costs of showing cause against rule for mandamus on behalf of councillor, &c, 356 n. d to councillor to take office upon him, 401 to council to allow him to act as alderman, &c, 419 to declare vacancy, 426 to restore mayor, 427 costs of, 267 judgment on, 229 n. k writ of error on, 230 to corporation to pay town clerk's salary, 433 n. x direction of a, 230 — 232 and return to writ, if to a col- lege, 540 damages on traverses to return to, 240 n. h demandable of right, 251 does not issue to a suspended corpo- ration, 270 n. k for benefit of individuals, 27 1,272 to private corporations, 272 trading corporations, when, 272, 273 MANDAMUS— continued. Bank of England to compel to pay dividends, 277 n.g levy a rate, 2*~> n. ?t to compel treasurer to pay wit- ness's costs, 439 to declare fellowship vacant, &c, when refused, 539 n. r to dean and chapter, 586. to swear in a canon, 593, 594 to visitor to restore canon, 593 churchwardens to deliver up books, &c, to successors, 602, 603 MANOR, corporation aggregate may be lord of, 187,188, 549 remedy for wreck, 188 n. c how to appoint steward of, 188 n. k settle identity of lands within , &c, 549 corporation sole may be lord of, 650 his successor bound by the cus- tom of the manor, 650 n. k, 651 tenants of, in a vacancy, 650 n. k MARKET, grant of, what conveys, 32 n. n and r, 173 right of removal, 32 n. n contract to let a, 55 n. s definition of, 165 — 168 kinds of toll in a, 1 66 stallage in, 167 n. /, 172 — 175 effect of grant of market, 167, 168 when may be held, 168 n. c where, 168 and n. d where not, 1G8 n. b demise of a, 1G9 n. h goods in a, not distrainable, 171 selling by sample in a, id. ownership of soil of a, 172, 173 correction of a, 172 what extortion in owner of a, 175 fraud on a, 175, 176 clerk of the, 175 n. k. custom to prevent selling out of a, 176 condition in every grant of a, 176 n. o cleansing market place, 177 corporation may lease a, 177, 178 have remedy for erection of a new market, when, 178 evidence of user of a, 179 and n. u who may hold a, 180 n. b parliamentary, 180, 181 forfeiture of a, 181 quo ivarranto for holding, 299 n. v but not for selling out of market, 300 n./ no market overt for pawning, 331 action for slander of wares in, 167 n. d corporation liable to be rated for tolls of, 198 1! I\ DEX. MART, definition of, 16G n. A. MASTER, of a college or hospital not present- able to a living by them. 149 "• ■" office not the subject ol quo warranto, 299 n. x has not a sole seisin in his office, when. lid. Hi u>. of a fret grammar school, when made to account. 5 17 as to removal of a, 5 17 n. e, 556 n. o qualification of, &c, 555, 550 of a. 555, D. k vicar may lie, 556 n. o license of, 550, 558 n. : a public officer, 556 n. o grounds of dismissal of, id. mandamus to restore a, id. boarders of, when not to be eligi- ble, 556 n. /), oGG right of nominating, 556 n. q, 557 n. y retiring pension of, 556 n. x premises, and how recoverable from dismissed master, 557 n. .r, 564 action by-, for nuisance, Sec, 558 n. e for setting up another school, 558 grant to corporation for support of a, 562 petition respecting appointment of, 563 if appointed contrary to statutes will be removed, 56 1 power of appointment of, can- not be delegated, 56 1 given to vicar and church- wardens, how to be exe- cuted, 56 1 and n. r by corporation, 564 n. r validity of appointment of, when cannot be questioned, id. appointment of, to schools under municipal corporations, 565, 566 of a hospital, renewals of leases by, 57 1 n. h where succeeding, bound by lease, 575 estates, how vested in, &c, 567 n. k cannot be presented to church by the hospital, 576 ri^'lit of appointing, 576, 577 his estate in lands, &c, "'77 quart impedit, when lay for, id. n. s quo warranto when, 577, 57s oiliee of. not grantable in reversion, ."77 nonage <>t\ id. claim of tit . . n. y when may take in suco -ion, 577 MASTER— continued. to refund fines for granting re- newals of leases, 5 7 7 how to sue, &c, id. cannot have a nto on acts of the cor- poration, 578 how compelled to affix common seal, id. his concurrence with majority, when unnecessary, id. MAYHEM, by member of University, how triable, 5 7'.) n. b MAYOR, as to acquittance for rent by, 150 n. b signature of contract of sale by, ' 152, 153 corporation may sue for assault on, Sec, 190 and n.J] 193 whether may be judge in a cause in which interested, 195 might be gaoler, lf)7, 42 I 9 Ann. c.^20, as to, 216 n. d liability of councillor on refusal to be- come, 225 punishment of, for disobeying manda- mus, 227 n. u evidence of false return by, 228 punishment of, for false return, 2 10 libel upon, 211 n. r voting at election of, 256 and n. r need not be named in writ of summons, 275 n. o may take recognisances, 338, 339 to preside at council meetings, 357, 423 powers of calling meeting of council, 358 to be elected 9th of November, id. before other business, 121 and n. c fine for refusal to serve, 362, 122 mandamus to compel to inrol on bur- gess roll, 3S7 n. b duties in revising burgess lists, 392, 393 as to burgess roll, 393, 394 power to insert on burgess lists per- sons omitted, ',)'.>'■'> n. g duties at election of councillors, 399 — 101, 101 as to mistake in list of elected, 401 mandamus to insert name on burgess list, 105 n. r punishment for refusing to revise bur- gess li>ts, in.'), (06 mandamus to insert on burgess roll, 406 n. „ proceed to election of successor, 121 n. m bankruptcy of, iog r disqualifications, 8rc, 422 fine for absence of, 406, 407, 126 ible, when, 426 compounding with creditors, insol- vency, Src, 107 INDEX. 15 MAYOR — continued. how to give notice of vacancy of office, 407 declarations to be taken by, 407, 408, 425 casting voice in election of aldermen, 415,424 penalty on, for acting without having made, &c, the declarations, 417—419 to appoint substitute to alderman, when, 419 substitute for the, id. charging mayor with subornation of perjury, when not good cause of amoving alderman, 420 outgoing alderman may be elected, 421 in case of vacancy in office during the official year, id. in case of irregular election, id. withholding insignia of, id. outgoing, may be re-elected, id. new office of, essentially same as the old, id. exemptions from serving as, id. n. e, 426 duration of his office, 421 and v..f adjourning meetings, &c, 421 \\.f may be escheator still, 421 n. I authority same as chief officer under old corporation, 422 n. I what sufficient acceptance of office, 422 refusal of same, id. who not ineligible to be, id. malicious refusal to grant spirit li- cense, id. infant cannot be mayor, id. duties of, 423—425 means of enforcing, 424 when indictable for absence, 423 finable for neglect, 423 n. h not compellable by mandamus to put a question to corporate meet- ing, 423 n. y expenses of parliamentary elections, 423 n. a as to returning himself member of parliament, id., 427 designedly hindering election of his successor, &c, 423, 424 disobeying mandamus to proceed to election of successor, 424 n. m how may act under the Statute of Forcible Entry, 424 n. n casting vote of, 424 returning officer at parliamentary elections, 424, 427 penalties to be sued for before him, when, 424 keeper of borough gaol, id. to have precedence within theborough, id. salary of, id. writ by corporation does not abate by his death, id. MAYOR — continiu d. refusing to grant a poll, liable to ac- tion, 425 has right of action for words said of him as mayor, (fee, / n. q MAXIMS. a man cannot do an act to himself, 197, 550, 570 commonalty cannot create common- alty, 12 contemporunea expositio fortissimo, in lege, 27 cui licet quod est majus, quod minus est mugis licet, 537 ecclesia melioruri uon deteriorari potest, 652 expedit reipublica ut sit finis litium, 036 Jbrtior et potentior est vulgaris con- suetudo quani rtgulis concct>sio, 29, 85 in co quod pecait, in eo puniatur, 181 judicium reddilur in invilum, 207 D.j leges posieriores priorcs contrurius abrogant. - 1 lex neminem cogit ad vuna, 2 15 //( mo potest esse tenens et dominus, 149 xi.y nihil J'acit error nominis cum de cor- pore cons/at, 1 10, 540 non potest esse judex .">7. 358 MEMBERS OF A CORPORATION, who may be, 5, 10, 17 who not, succession of, 20 when not personally responsible. 64 eligibility to be, 89 when to be summoned, 155 — 157 MERCHANT TAILORS, the company of, 80 n. c school of, 558 master, Src, of, 190 MERTON COLLEGE, Oxford, heriot due to, 109 n. h MESNE PROFITS, action for, in case of corporation sole, 038 n. q METAGE, claim for, 160, 104 n. m, 327 n. b extent of claim, 332 MIDDLETON SCHOOL, incorporation of, 558 n. d MILES, measurement of the " seven miles" in the Municipal Corporations Act, s. 9 . . 387, 389 n. f in the Reform Act, 506, 507 n. t MINEHEAD, dissolution of corporation of, 301 n. % MINISTERS, of district churches, &c, corporations sole, 059 MINORITY, bound by majority, 68 when not, 07 at elections, 70, 71 affixing common seal, 71 how protected in equity, 73, 199 when may have an injunction, 290 MINUTES, of the council in municipal corpora- tions, 357 and n. k copying entries of, 357 n. / of council, how to be drawn up, 435 MONEY HAD AND RECEIVED, when lies against corporations, 01 n.g MONOPOLY, words in a charter conveying a, 34 MOORAGE, what, L63 MORAVIANS, declarations by, los n. k, 507 n. u MORTGAGE, how to lie made by municipal corpo- ration, 111 n. t, 305, 3GG INDEX. 717 MORTG AG E— continued. may be made for money borrowed to build district prison, 484 of rates, &c., id. as to payment of a, 487 whether churchwardens and overseers can execute a, 614 MORTMAIN, meaning of, 133 and n. s Magna Charts, earliest statute of, 98 license in, wbat, 98, 101 — 103 statutes of, 98 and n. A-, 99 grant in mortmain not void, 100, 101 gives no right of action, 100 title to enter, 100 and n. q when that accrues, 100 in remainder, 100, 101 grantee of lands forfeited in, how held them, 101 who may grant in, 102 wbat alienation is, 104 as to grants for building churches, 104, 105 church endowment, 106 custom to devise in, 112 n. g, 337 devise in, 120 more land not to be brought into, 122 land granted to build with is, 123 license in, wbat implies, 1 26 what leases are not in, 127, 614 and n. e in mortmain, are good, 150 grant of advowson must contain li- cense in, 493 n. s license to hold in, 572 wben dispensed with, 573, 574, 630 how made to corporation sole, 630 lease of lands already in, 574 n. b churchwardens and overseers taking in, 611 corporations sole within statutes of, 633 except perhaps perpetual curates aug- mented, &c, 657, 658 MUNICIPAL CORPORATION, powers of the crown to grant charter erecting a, 16, 17 charter of, when valid, 17 cannot be two co-existent in the same place, 18 constitution of a, how determined, id. cannot abandon the corporate func- tions, 45, 46 name and style, 52 cannot make promissory note, 61 bye-laws in, 87, 88, 95, 96 what land may buy, 108 hold their property in trust, id. may take in trust and for private pur- poses, 116 hold what property in trust, 136 n. t how to mortgage, 141 n. s demise, covenant, &c, 141 MUNICIPAL CORPORATION— con- tinued, restrained from selling, &c, real pro- perty, 1 U) under the statute, not a new creation, 186 cannot try actions in their own court, 194, 195 how to pass bye-law affixing fines for non-acceptance of office, 224, 225 bribery at elections in, 233—236 retain power to disfranchise, 263 how bound to repair bridges, &c, 283, 500, 501 liable to poor rates, 285, n. i act for the regulation of, stated and commented on section by sec- tion, 341 etseq. have no power to imprison, 370 indictable for not repairing gaol, 485 n. d bridge, 500 when mav establish a museum, &c, 495 the new identified with the former, 342, 343 must sell church patronage, 492 remaining liable to maintenance of priest, &c, id. precincts exempt from authority of, 344 n./ how far dives'ted of charitable pro- perty, 511, 512 has jurisdiction over whole of county of a city, &c, 346 jurisdiction of county justices in a, 469 as to judicially noticing the name and style of a, 349 successors in, liable for misdeeds of predecessors, 547 n. c, 548 powers and duties of the council in, 355 liability to poor rates, 496—499 other rates, 495, 500—502 may have action against sheriff of county at large, when, 353, n. e acts by the council, 355 and n. a not to be done on Sunday, 357 the council the agent of, id. responsible for acts of council, 360 powers of paving, lighting, &c, in, 361, 362 how to enforce bye-laws, 364 old debts of, how provided for, 365 how to sell, mortgage, &c, real pro- perty, 365, 366 what leases may grant, 366 and n. g, 367 whether indictable for breach of sect. 94 of Municipal Corporations Act, 366, 367 watch committee in, 367, 368 constables in a, 367 — 375 expenses of, 372 and 11.3/ 71S MUNICIPAL CORPORATION— con- tinued. expenses of prosecutions by, for pro- tection of borough constables, 372, 373 may be visitor of another corporation, 53 I n. c when to hold elections, &c, 379 bond of, how put in force, 382 n. t action by, against officers, 382—385 remedy to recover books, &c, with- held bv their officers, 383 — 385 nuisances in a, 386 parliamentary franchise in a, 411 — U3 " resignation of offices in, -11 I disqualification of aldermen in, 416, 117 contributing to county lunatic asy- lum, 199 action for tolls due to, where main- tainable, 464 may levy fines, &c, other than those given by the Municipal Cor- porations Act, 487 n. ft real pro]. city of a, not held by the treasurer, 439 how indictable for non-repair of high- way, 501, 502 neglect to cleanse water- course, 502 how to dispose of advowsons in their gift, 111) liable to bridge, church, sewers, &c, rates, 500, 501 account of expenditure, &c., of, to be sent annually to secretary of state, 111 when restrained from getting act of parliament, 499 cannot amove a recorder, 446 n. k prescribe to hold a court of equity, 4G8 capital jurisdictions, &C, abolished, 164, 1!»!) n. r obliged to account for charity funds, &c, 548 n. g grant of a court of record to, cannot be neglected, 462 appointment to schools formerly vest- id in, 565, 566 fining a, l(i 1 maintenance of gaol by, &c, 482 — 186 holds its property in trust, Mil; \fii;. what, :;i P. /, 177 how due, 1 77 NAME, an essential to every corporation, 13, 50 by implication, 13, 1 1, 26, 53 effect of cL what .in alteration of, L'.'. an additional, ul. [NDEX. NAME — continued. must be given by incorporating char- ter. 30 corporations must sue by their, 50 and be sued, id, unchangeable by the corporation, 50, 52 peculiar, id. * single, and not with alias dictum. 51 and n. i by reputation, 50 by grant and prescription, 50, 51 what essential in name of corporation by foundation, 50 when evidence of incorporation, id. several names, 50, 51 how may take by devise, 51 pleading, id. of foreign corporation, 50 what judicially noticed not to be the name of a corporation, 50 n. b in affidavits, 51 n. k, 53 declarations, 52, 53 statutes, 52 pleading*, 52 n. a bill in equity, 53 writs, 52 indictments by the corporation or others, 53 inquisitions, id. presentation to living, id. now may be changed, 52 as to stating, in a demise, 145, 146 maxim as to, 146 pleading the, 185 n. b in indictments, 190 n. g citation to spiritual court, 285 alteration of, does not defeat prescrip- tions, &c, 301 n. n, 323 what evidence of, 310 of municipal corporations, 3 12 how far judicially noticed, 349 place an essential part of, in hospitals, 568 founder's, id. nicety with respect to, in hospitals, 5G8— 570 addition to, not material, 571 in devise to hospital, id. effect of royal grant to corporation by a new, 571 n. m of guardians of poor, G19, 620 joint stock company, when not to be changed, 625 n. s of sole corporation, use of, in grants, 630, 632, 633 Buits, 635, 636 must be correctly stated, G3Gn. z NEWCASTLE-ON-TYNE, company of cooks of, 12 coopers of, id. custom of, 82 n. '■>'>. GlO parson de facto, 467 is a court of record, id. justifying under process out of, id. n. c may commit for contempt, 467 n. d prescribing for a, 467 n. c PISAGE, what, 165 n.j/ PISCA RIJE, grant of, 32, 186, 187 PISCATIONES, what passes under grant of, 32 PLACE, formerly every corporation must be constituted of some, 14, 53, 54, not now, 54 restriction as to, 48 geographical truth not necessary as to, 53, 54 of corporate meeting, 154, 211 n. x essential to name of a hospital, 568 not to existence of a spritual corporation, 598 PLEADING, how to plead a charter, 24 n. h, I corporator cannot plead ignorance of charter, 23 how to plead after change of name, 24 n. I usage explanatory of a charter, 27 in contravention of a charter, 28 n. o custom of foreign bought and foreign sold, 29 n s prescribing to discharge from tolls, 30 n. e have profit in alieno solo, id. burgesses to have gildum mercatoriam, 31 n. g prescription to hold court, 34 n. s exemplification of charter, 38 n. e charter with a profert, id. under what seal, id. oyer of a, when not demandable, 39 n./ nul tiel record, id. PLEADING— continued. non concessit, 39 n. f, 40 n. r where corporation has been differently named at different times, 51 n. d, e corporation may prescribe in several names, 51 deed made to them by a wrong name, 51 n. / true name must be used in pleadings, 52 n. a especially criminal pleadings and forms, 53 act done by corporation, 57 acceptance of assignee of lessee, id. by a stranger, a corporate act, id. n.p in trespass by a servant, justifying, &c, 59 n. k cognisance by bailiff, 60 n. s non est factum, 64 n. n majority, 70 n. e bye-laws, &c, 77 n. u to quo warranto information, 80 how to declare on bye-law respecting a corporate office, 82 founded on a custom, 85 n. y referring to former bye-laws, id. generally, 88 n. s how to justify and make cognisance under a bye-law, 88 n. s plaintiff, what to show in action on bye-law, 89 n. b how to plead a lost bye-law, 91 n. r when not necessary to show letter of attorney, &c, 110 n. p custom of London to devise in mort- main, 112 n. g how to plead seisin in a corporation, 136 n. r a lease by a corporation, 146 n. b deed of corporation, 147 n. / declaring on parol demise, &c, 149 n t entry for forfeiture, 151 n. k justifying same, id. declaring for duties, 159, 160 and notes, 161 toll-thorough, 160 n. a toll-traverse, id. port dues, id. and n. c. 161 tolls generally, 160 n. b petit customs, 160 n. c justifying for taking toll, &c, 161 n. i in action on case against a corpora- tion, 161 n. p, 162 n. x to action for tolls, &c, 162 who to be sued in such actions, 163, 164 corporation, how to justify seizing for port dues, &c, 163 n. a distraining for toll-thorough, 165 n. z prescribing for same, id. justifying for toll-traverse, 164 n. q making cognisance under prescription 3 a 2 724 INDEX. PLEADING— continued. to distrain for market toll, 1G7 n. r, 17<» D. V, 171 n. fl in assumpril for market tolls, 171 and n. 6 replying to allegation of prescriptive right to a tensary, 171 n. e in debt or assumpsit for stallage, 17"> case for defrauding of stallage, 175 and n. / setting up market, 179 n. t claim of exemption bv charter, 182 n. b in covenant to exempt from toll, 1 8 I n. p, 191 prescribing in a corporation, 1S5 n. y by a corporator, 185 and n. b name of corporation, id. by bailiff" in justification of distress for an amerciament, 188 and n. n, and in replevin, id. n. o in ejectment, 189, 190 quart impedit, 191 and n. m case for disturbance of ferry, 192 n. z right of way, 193, 194 in equity, 199 n./, 286 at law in case of a foreign corpora- tion, 201 n. s whether must show how incor- porated, 201, 202 to information for not serving office, 207 a.j in action for bribery, 233 n. o, 235 n. c office, 217 n. / in mandumus and quo warranto, 225 —250, 253 n. / custom, 249 n. z certainty in information in quo war- ranto, 258 n. //, i pleas in quo warranto, 258 replications, 259 declaring on promissory note of a joint stock company, 27G n. b on bond given by a corpora- tion, 277 n. e; plea, id plea in trespass against corporation, 280 a. g of iml tul corporation, when available, 2S2, 283 and 282 n. q precedents of indictments of corpora- tion^, 2S1 n. d alleging damage in action on the case foi breath of chartered duty, 284 n./ a record of a London court, 288 plea of privilege of University, idn. o customs of London, 2S8 n. {> Statutes of Limitation, 29 1 to the jurisdiction, l>y corporation, 29 1 nul. pins, demurrer, confession of plea, Sec, in quo warranto, 299 D. D, 300 n. / to a (Jim warranto information. 299 n. g plea of claim of liberties, 299 n. a PLEADING— continued, reiving on a charter which does Dot support it, 299 charter must not be pleaded as a grant and as a confirmation, id. crown how may plead, &&, in quo warranto, 299, 300 corporator, how to prescribe, &c.,320 and n. / prescribing for tolls, 321, 322 traverse of prescription, 325 a custom generally, 321, 326, 327 consideration for toll-traverse, 322 n. z where there are two distinct customs, 33 1 declaring at common law and reply- ing a custom is a departure, 335 custom contrary to rules of, not bad, 336 in concessit solvere, 336; assumpsit solvere, 337 covenant made ore tenus, 336 in a borough court. 460 n. m a custom in general, 337 particular customs, id whether borough court may be pleaded to be held by charter, &c, 339 statutes respecting municipal corpo- rations to be pleaded, 343 prescribing for common by freeman, &c, 346 n. k bye-law made by municipal council, 364 n.g acts of council, 386, 387 n. s acceptance of office, 410 declaration under 19 Geo. 2, c. 28, 412 n. o mayor may prescribe to be cscheator, 421 n. / plead general issue, &c, 429 application to the crown for grant of quarter sessions, 1 Hi commencement of declaration in su- perior court after removal from inferior, 463 n. o grant of conusance of pleas, 164 as to declaring in borough courts, 165 and n. k common counts in, 465 n. k pleas in. id, justification under process out of Pie Poudre Court. 107 n. c prescription for a court of record, &rc, 1H7, 168 Tie Poudre Court, 1U7 n. c 8 COUrl Of equity. 168 n torna brt vium, 468 n. >/ a briil 00 n. i to indictment for non-repair of high- way, 502 n. '/ in ieple\ in. by freeman, 510 custom of University to distrain, &c, 522 n. /' Crivflege of University, '>'-! — ■>'-'> ad pka of, 523 n. n INDEX. 725 PLEADING— continued. to the jurisdiction of University courts, 524 n. p to claim of conusance by University, 526 n. t as to names of head of college, 529 n. o unreasonableness of a visitor's power, 530 n. y power of visitor to decide elections, &c, 533 n. r deprivation, &c, by visitor, 53G n. y need not state in what power of a visitor consists, id.; nor the cause of deprivation, &c, 537 n. d deprivation of head of a college, 537 n.g, 538 n. n seisin of a college, 538 n. I expulsion, by a visitor, id. n. n to information in equity against elec- tion of fellow of a college, 539 entry of bailiff for condition broken, 541 n. m to bond given to a college, 544 18 Eliz. c. 6, 544 n. i in replication to plea of lease by a college, 547 n. a defect in stating name of a hospital, 569, 571 seisin of a hospital, 569 n. x names, &c , of a hospital, 570 addition to real name not material in, 571 when to plead non est /actum, &c, 571 n. n by hospital in debt, 577 n. s master of hospital, 577 acceptance of estate or right of way by hospital, 579 right of way, id. conusance by bailiff of hospital, id. n.l avowry by hospital, id. lease for years, &c, by dean and chapter, 598 n. h prescription by dean and chapter, 381 n. a reason for deprivation, 582 acceptance of rent by dean and chap- ter, 588 n. s entry for forfeiture by them, id. by their license, id. release by dean and chapter, 596 acceptance of rent by churchwardens and overseers, 612 n. q entry of their servant, &c, id excommunication of corporation sole, 637, 638 by successor to, in sci.J'a. 639 and n. b lease under exchequer seal, 628 grant of crown, id. seisin by parson, 635 in actions by corporations sole, 637 n. n stat. 1 Eliz. c. 19 . . 639 n. d in actions for dilapidations, 644 n. k PLEADING— continued. sentence of deprivation, 645 n. s resignation to ordinary, 645 n. z an office, 647 n. / by officer for arrears of annuity, 648 resignation, &c, 659 n. p PLENARTY, of office excludes mandamus, 252, 593 PLUMBERS, the company of, their power to im- prison, 86 n.J' POCKLINGTON SCHOOL, incorporation of, 558 n. d leases of lands of, 563 POLICE, of boroughs may be consolidated with the county constabulary, 368 n. s superannuation fund of, vid. Ad- denda et Corrigenda. POLICE MAGISTRATE, appointment and salary of, 367 POLICE OFFICE, where must be provided, 367 POA 7 E, attachment in the nature of, 284 PONE PER VADIOS, against corporation, 231 n. x PONTAGE, what, 164 PONTEFRACT, how incorporated, 9 n. s PONTES A RII, the, of Maidenhead, 6 n., 387 n. x POOLE, sheriff of, 353 POOR RATES, corporations when liable for, 285, 496—499 in district newly added to a borough, 347 n. I local acts for, 362 payment of, entitling to be on burgess roll, 387 n. y, 388 to vote for member, 411 and n k claim to be rated, 412 n. I rule to justices to sign, 477 n. I must be allowed by two justices, id. borough rate, when payable out of, 491 indictment for refusal to pay, 496 waterworks corporation, how, &c, liable to, 496, 497 corporation, when rateable to, for pastures, &c, common, &c, id. for tolls, 498 when for property not actually though potentially profitable, 497 n. p 726 IN'DEX. POOR RATES— continued. municipal property, when exempt from, 198 colleges, how rateable to, 541 n. k hospitals, how, 580 n. u founder cannot exempt lands from, 552 I), b guardians of union, when rateable to, 629 visitor and guardians, when, 620 n. x POPE, the, might formerly incorporate, 11 PORT, definition of, 1G0 n. c duties incidental to a, 160 n. h effect of grant of a, id. extent of a, 1G1 n. /', p evidence of a, 162 n. q PORT DUES, claim for, 160 n a, c, g when corporation may have, 160 n. e import consideration, 1G0, 161 whether extend to new articles of import or export, 1G1 n. o, 1G3 n.g, 170 tolls, customs, &c, defined, 161 n. o consolidating actions for, 162, 163 liable to the poor. 285 when liable to jurisdiction of equity, 493 PORTREEVE, ijuo warranto for, 262 POT WALLERS, votes of, in boroughs, &c , 41 1 POUNDAGE, of sheriff" of county of a city, &c, 354 n. o POVERTY, when cause of amotion, 241 n. o disfranchisement, 264 n. p PRECINCTS, exempt from municipal jurisdiction, 3 1 1 and n./ added to same, 346, 347 felonies committed in, 347 PRESCRIPTION, nature of, 301 n. n proof of; 320 diners from custom, 327 must be pleaded, 320 corporations by, 6, 7, 167, 516 n.f how to plead, 7 n. d, 2 1 n. / evidence of, 6 n. a to be exempt from tolls, &c, 30 to take toll. 32 n. n liow proved, notwithstanding a char- ter, 33 for port duties, 160, 161 toll-thorough, 165 toll of pigs, 167 n. t toll generally, 167 ■tallage, 171 n. t, b, 175 exemption from tolls, 174 PRESCRIPTION— continued fair m uliaio solo, 172 n. m market, 179 n. t common, 1S5, 510 n. i, k of estovers, 185 n. b right of fowling, 187 n. z using pew in church, 202 various franchises, 299 n. v to hold a court of equity, 468 tenerc plucitu, 329 retorna brevium, 468 n. g metage, 327 n. b common, &c, 327 n. d keyage, 329 by dean and chapter, 381 n. a corporation liable by, to repair bridges, &c, 500 Chancellor of Oxford a justice of peace by, 515n. d a, not abrogated by new charter, &c, 301 n. n grant of same thing, 301 n. n other custom, &c, 334 corporation by, how dissolved, 307 by city of London, 510 not destroyed by variation in thing to which it is annexed, 323 whether destroyed by subsequent grant, 323—325 implies a grant, 324 n. a contrary to common right, bad, 325 to levy money, 328, 329 when may be made, 325 by whom, 320, 327 a canon may be, by, 656 n. t by corporation sole, 036 parson charged by, 636 n. c with pension, 639 n. d PRESENTATION, to living, how made bv corporation, 56, 60, 5 10, 597 n. z mastership of hospital, 60 n. p by college to head, void, 119 n. y, 550 grant of presentation to vicarage, 644 PRIEST, corporation holding lands charged with stipend to a, may aug- ment it, 492 n. r obligation to maintain, 492 PRIMAGE, what, 164, 105 PRISAGE, what, 165 n. u grant of exemption from, 31 n. m, 182, n. a PRISONERS, expenses of prosecuting, iVc, 154 — 156, 184 order for payment of, 45 1 n. " treasurer to keep an account of, 455 trial at quarter sessions during assizes, 157 n./ INDEX. PRISONERS -continued. punishment for discharging out of borough gaol groundlessly, 463 contract for expenses of maintenance, &c, of, 473, 482—484 mode of calculating such expenses, 482 n. h when may be entered into, 483 trial of, from district prison, id. PRIVILEGE, of Universities, vid. Universities. PRIVY COUNCIL, effect of advice to the crown to grant a charter of municipal incor- poration, 17 appeal to Judicial Committee of, 520 PROCEEDINGS, Vid. Acts and Proceedings. PROCTORS, powers of the, in the Universities, 516 privileges, &c, of proctors' men, 522 n. d, 527 n. b PROHIBITION, to Chancellor's Courts in the Univer- sities, 520, 521, 524 n.s to visitor of a college, &c, 534, 535 rule for a, 535 n. m to suit for keeping school, &c, 558 n. z Ecclesiastical Court respecting church- wardens, 600 n.m, 602 PROMISSORY NOTE, only trading corporations can make, 60 they may make without common seal, 61 when corporation may make, 276 churchwardens cannot make, 603 by churchwardens and overseers, 609 n. a PROPERTY, power to take real, 98 license to hold, id. as to granting real, 99 and n. m in fee farm rents, &c , 107 and n q tenure in which held by corporations, 107, 108 of municipal corporations when trust property, 108 nature of property in lands of a cor- poration, 109,110, 128 held in trust for public, when, 116 n. I when may be granted, &c, 129 — 153 equity, when interferes in manage- ment of, 136, 137 of municipal corporations held in trust, 136 n. r how disposed of, &c, 140, 141 PROPERTY— continued. collusive sales of, 142 settled to charitable use, how may be leased, 144 municipal, held in trust, 489, 493 PROPERTY TAX, college, how liable to, 541 n. k hospital, how, 580, n. u PROTECTION, of persons acting in pursuance of Municipal Corporations Act, 502 PROXY, voting by, 256 n. q in dean and chapter, 592 n. n, 594 PUBLIC PURPOSES, to which borough fund applicable, &c, 488—490 QUAKERS, declarations by, 408 n. k, 507 n. u QUARE IMPED1T, against a corporation, 280 cannot be brought in an University Court, 521 for mastership of a hospital, 577 n. s deanery, 586 canonry, 593 QUARTERLY GAOL SESSIONS, Vid. Quarter Sessions; Gaol. QUARTER SESSIONS, the, of a borough, &c, held by re- corder, 449 who may appoint a second court, 449, 450 of what has cognisance, 449 — 451 of what not, 457, 458 cannot try an appeal against refusal to grant ale license, 449 n. s how to try legality of grant of, 450, 453 appeal against borough rate to, 490 notice of appeal to, 450, 490 n. a trial at, 451 action against recorder, if proceeds after certiorari, &c, 451 remedy for erroneous conviction at, 451, 452 practice thereon, 451 removal of indictments, &c, 451, 452 order of, how enforced, 452 juries at, 479, 480 as to expenses of maintaining, &c, prisoners sent from, 454 — 456, 484 order for payment of these, 454 n. o qui turn informations triable at, 457 prisoners triable at, during sitting of assizes, id. of an united district, 457 •28 END] \. QUARTER SESSIONS— continue/. adjournment of. 157 attorney must deliver signed bill, &c, for business at, 461 n. I quarterly gaol session-. 171, 17"*, 484 Q\ .Is/ t ORPORATION AGGRE- GATE, the nature of a, GOO Etvid. Churchwardens; Church- wardens \no Ovbrsebrs; Barring Copartnerships; Ordnanc b, be. QUASI ( ORPORATIONS SOLE, instances of, 66] QUEEN'S BENCH, when interferes with a visitor, 532 the Court of, superintends corpora- tions, 225 n. m, 209 and London in some cases, 120 and how, 226, 227, 253 n. u on what principles, 271 when takes notice of customs in borough courts, 338 grants leave to file quo warranto, 109 QUESTIONS. to be asked at election of councillors, 400 QUO WARRANTO, to try right to an exemption, 37 n. u validity of a charter, 41 information, when allowed, 41 n. z effect of judgment of forfeiture in, 41 against corporations by prescription, -12 n. h when applicable, id. for levying tolls, &c, 10 1 holding market, 169, 170 and n. t, 180 setting up ferry, 186 claiming fishery, 187 when not required, 208 totrv right to office, 210, 211, 213 ii. ;, 21.'), 216 void election, 221) effect of judgment of ouster in, 217, 235,261, 2!»': n. m form of it, 259 n. I. judgment of quod capiantur, &c.,282 n. s, 200 ii. in form of, Sec, 297 n. n in case of London, 298 D.g, 200 n.y writ of error in, 262 judgment on a disclaimer, 25S n. /, 200, 309 for defendant, 209 n. v where corporation makes de- fault, 200 on usurpation, 255 n. o, 259 n. /. r, 260 bow expedited in case of municipal corporations, 22'i, 227 Ql WARRANTO— continued. for what offices lies, 238 and n.s, 253 n. t, and when, 252—258 under stat. it Ann. c.20 . .262 what necessary previous to granting, 243, 244 when officer turns out to be disqua- lified, 211 n. /" one writ against several persons, 253 n. / for several franchises, 25 1 rule for, when refused, 253, 25 1 user, not claim merelv, essential to, 254, 256 under Ann. c. 20, &c, 255, 256 6&7 Vict. c. 89.. 255 n. a consolidation of writs of, 256 time of applying for, 250, 257 vol pros, in, 250 n. u ex officio informations of, 261, 262 friendly, 268, 269 for claiming to be a corporation, 282 against corporators, 282 n. s by private relator, 282 when lies, and when scire facias against corporation, 295 — 298 instances, 207 n. n difference between writ and informa- tion in nature of, 298 inspection of books for purpose of, 298 n. r want of appearance in, 29S, 299 for holding market, 299 n. v to try right to be a burgess, 392 brought in the Court of Exchequer, 299 n. v when court grants to private relator, 299 what not within stat. of 9 Ann., 299 n. z plea and replication, 299, 300 n. e lies against persons assuming a com- mon seal, &c, 300, and how, id. does not lie to question a man's trade, 300 n. /' nature of remedy of, 301 n / what not objection to granting, 304 n. : lies against corporation which acts after having lost an integral part, id. whether ought to be brought on a dissolution, 306 against a parliamentary corpo- ration, 307, 308 sources of evidence in, 311 trial of a, .'! IS n. for oiliee of constable, 368 not for a merely ministerial office, i n./ ' vacancy in office, when to be ascer- tained by, 105 against councillor, 409 general rule as to relators of, 409, 1 1 discretion as to leave to file, id. INDEX. QUO WARRANTO— continued. affidavits for, against a councillor, 410 costs of, &c, 414 to amove alderman, 416,420 lies when statute declares election void, &c, 421 n. g to amove mayor on disqualification for bankruptcy, &c, 426 n. e, 427 the proper mode of amoving from a freehold office, 430 for office of treasurer, 439, 441 borough coroner, 445 recorder, 446 n. k registrar of Borough Court, 460 n. p judge of Borough Court, 462 justice of a borough, 475 freeman, 504 n. I master of hospital, 577, 578 defence to, by council, 488 does not lie to try right to fellow- ship, 539 cannot be brought in University Court, 521 right to inspect documents in a, 527 whether lies for breach of bye-laws, id. does not lie to amove churchwar- den, and why, 604, 605 ; nor guardian of poor, 622 against corporation sole, 638 appearance in, 636 n. a RAILWAY CORPORATION, mandamus to, compelling observance of their contract with the pub- lic, 159 as to injunction to restrain from amal- gamation, 199 n. c as to infants becoming members of, 211 n. o mandamus to compel to restore their line, 270 how to recover statutory debt, 271 n. r not compellable to declare dividends, 272 suit in equity by shareholder against, id. mandamus, when will not go to, 272, 273 will go to compel them to pay money, 273 statutory remedy against, to he ad- hered to, id. case against, for injury to houses near a line, &c. 277 n. g indictable for obstructing a highway, &c, 284 bill of discovery against, 287 to enable to defend action, 288 n. n when action against, will not be re- strained in equity, id. 729 RAILWAY CORPORATION— contd. when equity restrains from using their parliamentary powers, 289 ; from suing at law, 289 n. c their statute how in nature of a bar- gain with the public, 289, 290 may be restrained at the instance of single shareholder, 290 application of strangers against, 290 n. g cannotguarantee dividends of asteam- packet company, &c, 291 powers of Commissioners of Railways, 291 n. k forfeiture of shares in, 292 when not relieved against, id. when restrained, 292, 293 may be bound by contract made be- fore their incorporation, 294 when not by contract of agent, id. their contract, not under seal, will not be enforced in equity, id. evidence in actions against, &c, 314 n. r of proprietorship of shares, 319 and n. a when to have compensation jury from county of a city, 345 n. h when one of the sheriffs is interested in, 354 n. r sale of lands by dean and chapter to, 586, n. / when proceeds of such sale not ap- portioned between dean and chapter and their lessee, 596. Vid. Addenda et Corri- genda. RATES, for paving, lighting, &c, 361, 362, 388 n. d, 493, 606 publication of, 362 n. h summons for non-payment of, 362 n. k jurisdiction of equity as to, 493 publication of, 494 note c Bridge rates, 500, 501 remedy for, 501 Watch rates, 375—377 appeal from district watch rates, 450 n. d overseer to collect, where, 494 separate rate for, id. recovery of, 494, 495 accounted for, 495 Baths and washhouses rates, 385, 386, 495 Highway rates, 501, 502 District rates, levying a, 493, 494 how to try validity of a, 490 n. a imposition of, &c, 493, 494 amount of, 495 surplus of, id. what to be paid by burgess, 388 730 INDEX. RATES — con tin tied. voter for member of par- liament, 11 1 and n. ft Water rods application of, 1!>1 County rati I when borough, &c, exempt from, 152 Museum when leviable. 195 Hundred rahs, when borougb liable to, 453 Gaol n.tis, mortgage of, 484 bow to be made, id. READING, devise to poor people of, &c, 120, 12G, 127 RECOGNIZANCE, in quo warranto, 2G0 whether corporation can enter into, 28 1 n. r, 496 mayor may take, 339 forfeiture of, in a county of a city, 351 to pay costs of trying indictment, &c, 352 RECORDER, bow appointed, &'c, 1 1G to appoint inspectors of weights, &c, where, 446 n. i a new officer, 44G n. k cannot be amoved by the corpora- tion, id. nature of his office, id. quo warranto lies against, id. qualifications for, 1 16 his precedence, id. salary, 446, lis may be revising barrister, &c, 446 may appoint deputy, &c, 1 17 oath, id. may try appeals from borough rate, 447 n. p may reserve cases for the judges, id. 467 n./ is judge of the Court of Record, &c, •117. lis may make a deputy judge, id. Vid. QtAKii.K Sessions; Courts of Rlcokd ex officio a borough justice, 4G9 deputy recorder, 1 17, 448 not ix officio justice of peace, 469 I), m of united district, 456, 157 certifying as to repairs of gaol, 185 n. d REGISTRAR, of corporation <>f Bedford Level, quo warranto tor, 253 n. t of a borough, same, 262 REGISTRAR— continued. of Borough Court, his appointment and fees, 1G0 and n. p how to summon jurors, 17!) quo wan auto for otlice of, 1G0 n. /» RELATOR, of quo warranto information, who, 2:.:;. 25 1 RELEASE, of right vested in corporation, bad, though made by every one of the members, 3 of corporator's rights for purposes of evidence, 268 of rent due to corporation, 429 plea of, in Borough Court, 4G5 n. k RENT, effect of grant of lands rendering, &-c, 107, 108 issuing out of estate in tail male, 111 when a yearly, 110 n. r surplus rents of charity estates, 1 15 n. .i, 561 payment, &c, of, when evidence, 1-19 acceptance of, what it affords pre- sumption of, MS, 150, 5S7, 588 must be acceptance as rent, 149 n.u. how to demand, 150 and n. b acquittance for, id. release of, 12'J buying of rent charged on corporate lands, 489 on college leases, 5 I 1 conusance for, by college bailiff, id. acceptance of, by head of college, 549 n. r dean, 586, 587 grant of rents and profits, 559, 560 devise of surplus, &c, 561 lessee, when to pay arrears of, under void lease, 5G3 ordered to be paid under hospital lease, 5 75 dean, when cannot demand, 586 due to dean and chapter, and dean dies, 587, 588 whether corporation sole may accept by parol, 634 acceptance of, by successor to parson, 6 in ; and bishop 640 n. k right of successor of bishop to arrears of, 6 10 n. k apportionment of, against parson's successor, 643, Gil debt for, on lease of tithes, 619 parson rateable to the poor for corn nut, iVc, id. acceptance of, when does not bind corporation sule, the lord of a manor, 65 1 ancient, what, 65 1 and n. / heriol not part of, 65] n. o copyhold, whether apportionable, G50 INDEX. 731 RENT — continued. need not be paid by lessee under lease forbidden by 6 & 7 Will. 4, c. 20.. 654 RENT-CHARGE, due by a corporation, not determined by change of name, 24 cannot be entry on, 614 n. e by parson, when binds not successor, 639, 640 when does, 640 REPLEVIN, conusance by bailiff of corporation in, 189 n. o, 316 against a corporation, 280 plea in bar by freeman, 510 avowry by freeman, id. RESIGNATION, of office in municipal corporations, 223—225 how completed, 246 n. e, 268 quo warranto after, 255 n. n of an usurper, 259 n. y of corporate character, 268 for purposes of evidence, id. intended to be by deed, when, 268 n. s must be so, when, 268 of a corporation sole, 635, 656 n. s, 659 is breach of contract to de- mise, &c, 645 n. z , how to plead, &c., id. to one of two founders enures to both, 659 RESOLUTION, effect of resolution not under com- mon seal, 55, 57, 546 when void, 158 RETORNA BREVIUM, franchise of, 349 n. g, 353 n. e prescribing for, 468 n. g RETURNS, to writs of mandamus, 228 — 240 false, 228; punishment of, 240 and n. h demurring to, 228 n. y, 229, notes h, i of not duly elected, 230 when certainty in, less necessary, 239 damages on traverses to, 240 n. h REVERTER, possibility of, after a fee granted, 110 of lands, &c. 117 ROMAN CATHOLICS, donations, 99 n. whether devise for praying for souls, &c, good, 125 elected mayor, &c, 425 SALE, when municipal corporations may sell, &c, 140 SCAVAGE, what, 163 SCAVENGER, mandamus to admit a, 238 n. r restore a, 384 n. c SCHEDULE (A). (Municipal Corporations Act) England and Wales. Boroughs which are to have a Commission of the Peace. Section I. — Parliamentary Boundaries to be taken until altered by Parliament . 5 & 6 Will. 4, c. 76. [Sch. (A.), s. 1.] o 3 m F 3 s 3 BOROUGH. ■a B a BOROUGH. ■a a ctj -= 2 a •a 3 ? < o £ < o Aberystwith . 1 12 Chichester 2 6 IS Abingdon . 4 12 Colchester 3 6 IS Barnstaple 2 6 18 Dartmouth o 1 12 Bath .... 7 11 42 Denbigh 4 12 Bedford 2 6 18 Derby 6 12 36 Berwick-upon-Tweed . 3 6 18 Devizes 2 6 IS Bridgewater . 2 6 18 Dorchester 4 12 Bridport . 2 6 18 Dover . 3 6 is Bristol .... 10 16 48 Durham 3 6 18 Bury St. Edmund's . 3 618 Evesham . 4 12 Cambridge 5 1030 Gateshead 3 6 18 Canterbury 3 618 Gloucester 3 6 IS Cardiff .... 2 618 Guildford 4 12 Carlisle 5 10 30 Harwich . 4 12 Carmarthen . 3 6 18 Haverfordwest 4 12 Caernarvon 2 6 18 Hereford . 3 6 IS Chester 5 10 30 Hertford 4 12 :.;.' INDEX. SCHEDULE (A.) 5 & G Will. 1, c. 76-conthmcJ. BOROUGH. — 1 B _ s BOROUGH. — f . c c 5 ? ^ o U S3 O Ipswich 5 LO 30 Reading 3 (i is Kendal '■> 6 18 Etipoa 4 12 Kiddderminster . 3 G 18 Rochester 3 6 is Kingston-upon-Hull 7 1 1 42 St. Alban 's i 12 Kind's Lynn 3 6 18 Sarum, New . 3 6 is Leeds .... 12 16 is Scarborough 2 6 is Leicester . 7 14 42 Shrewsbury . . 5 10|30 Leominster 1 12 Southampton 5 lo;;o Lichfield . 2 6 18 Stafford 2 6 is Liverpool 16 16 48 Stamford . , 2 6 is Macclesfield 6 1 13 3G Stockport 7 1 1 12 Monmouth ■1 11' Sudbury 1412 ith 4 12 Sunderland . 7 1 l 12 Newark 3 6 18 Swansea 3 6 is N i \\ castle-undcr-Lyne . 2 6 is Tiverton :; 6 18 Newcastle-upon-Tyne 7 M 12 Truro 2 6 is Newport, Monmouth 2 6 18 Warwick 2 618 Newport, Isle of Wight 2 c> 18 Wells 412 Northampton :; (i 18 Weymouth, and Melcombc Norwich s 16 48 Kegis 2 fi'l8 Nottingham . ~ 1 1 12 Wigan :> 1030 Oxford r> 1030 Winchester . :; 6 18 l'nnbroke •2 6 18 Windsor . 2 6 18 Poole 2 6 IS Worcester 6 12 36 Portsmouth . 7 1442 Yarmouth, Great 6 1236 Preston 6 l2 | 36 Schedule. (A.) 5 & 6 Will. 4, c. 76, s. 2. Andover Banbury Beverley Bewdley Bideford Boston Brecon Bridgnorth Clitheroe Chesterfield Congleton Coventry . Deal . Doncaster . Exeter . Falmouth . Grantham ' u.ivesend (ii imsby Hastings . Kingston-up Lancaster . 4 12 (i 4 12 . 2 G 18 4 12 . . 4 12 3 G 18 . 4 12 4 12 4 12 4 12 3 G 18 . 6 12 3G •_• 6 18 3 6 18 6 12 3G <> I 12 1 12 2 G 18 o 1 12 3 6 18 n-Thamcs . 3 6 18 3 6 18 Lincoln 8 G 18 Liskeard . 1 12 Louth . 2 G IS Ludlow 1 12 Maidstone 3 (i 18 Maldon 1 12 Newbury Oswestry . Penzance 2 2 4 G 6 12 18 is Plymouth . G 12 36 Pontefract 1 12 Richmond 12 Komsey St. Ives . 4 4 12 12 Saffron Waldcn 1 12 Stockton 2 (i 18 Tewkesbury . Walsall . 3 1 G 12 18 Welchpool Welllock . 3 ■1 fi 12 18 Wisbech 2 fi Is York . 6 12 36 Arundel maris Cardigan Llandiloes Pwllheli Si asm u fB.j 5 & 6 Will. 4 ; c. 7G, g. 1. Ruthin T< oby . Tbetford Totness (1 1 12 1 12 1 12 1 12 4|12 4 12 I 12 4 12 112 INDEX. 733 SCHEDULE (B).— continued. 5 & 6 Will. 4, c. 76, s. 2. Berwick-upon-Tweed. Bristol. Chester. Exeter. Kingston-upon-Hull. Newcastle-upon-Tyne. SCHEDULE (C). Northumberland. Gloucestershire. Cheshire. Devonshire. Yorkshire. Northumberland. BOROUGH. ~L d 1 § M 5 c BOROUGH. 4 g 1 £ < o * 3 5 Basingstoke . 412 Launceston 412 Beccles 412 Llandovery . 4 12 Blandford Forum . 4 12 Lyme Regis 412 Bodmin 1 4 12 Lymington 412 Buckingham . 4 12 Maidenhead 412 Calne 4 12 Marlborough 4 12 Chard .... 4 12 Morpeth . 4 12 Chippenham 4 12 Penryn A 12 Chipping Norton . 4 12 Retford, East 4 12 Daventry . 4 12 Rye ... . 4 12 Droitwich 4 12 Sandwich . •1 12 Eye . 4 12 Shaftesbury . 4 12 Faversham . 4 12 South Wold 4 12 Folkestone 4 12 South Molton 1 12 Flint .... 4 12 Stratford-on-Avon 1 12 Glastonbury 014 12 Tamworth 1 12 Godalming . 4 12 Tenterden 4 12 Godmanchester . 4 12 Torrington 4 12 Helstone 4 12 Wallingford • 4 12 Huntingdon 4 12 Wycombe, Chepping 4 12 Hythe 4 12 SCHEDULE (D). No. 1. The list of burgesses of the borough of- , in the parish [or " township"] of . Christian Name and Surname of each Person at full length. Nature of the Property rated. Street, Lane, or other Place in this Parish [or " township"] where the Property is situated for which he is now rated. Ashton, John. Bates, Thomas. Shop. House. No. 23, Church Street, Brook's Farm. (Signed) A. B. > Overseers of the said parish CD J [or " township."] See ante, sect. 15. No. 2. Notice of Claim. To the town clerk of the borough of . I hereby give you notice, that I claim to have my name inserted in the burgess list of the borough of ; that I occupy [here describe the house, warehouse, counting- m INDEX. SCHEDULE (D.) -continued, house, or shop, then occupied by the claimant,] in the borough, and that I have been rated in the parish of , [fare state the parish, or several parishes, and the time during which the clai ma nt hus been rutul m each of them within the borough, nect ssary for l,ts qualification]. Dated the day of , in the year . (Signed) John Allen of [place of abode.] See ante, sect. 17. No. 3. Notice of Objection. To the town clerk of the borough of , [or " to the person objected to," as the cast iiiai/ be.] I hereby «ive you notice, that I object to the name Thomas Bates, of Brook's farm, in the parish of , [descrd; the person objected to as describtd in the burgess list,] being retained on the burgess list of the borough of . Dated the day of , in the year . (Signed) John Ashton, of [here stute the place of abode and property for which he is said to be rated in the burgess list.] No. 4. List of Claimants. The following persons claim to have their names inserted on the burgess list of the boroujrh of . Christian Name and Surname of each Claimant. Nature of the Pro- perty for which he is now rated. Situation of the Pro- perty fur which lit- is now rated. Parish [or " Parishc-"] in which he has been rated, as stated in the Claim. Allen, John. House. No. 17, High Street. Rated in the last year in Saint Mary's parish, in the borough, and in the two preceding years in Saint James's pa- rish, in the borough. (Signed) A. B., Town Clerk. No. 5. List of Persons objected to. The following persons have been objected to as not being entitled to have their names retained on the burgess list of the borough of . Christian Name and Surname of each Person objected to. Nature of the Pro- perty fur irhich he is now rated. Situation of the Pro- perty for which he i* laid to be dod rated in the Ovcr- i.ist. Parish in which is the Piopeity for which In- is huh saiil to at rated in the Overseer's List. Bates, Thomas. House. Brook's Farm. Saint James's Sec sect. 17, supra. (Signed) A. B., Town Clerk. INDEX. 735 SCHOLAR, of a college, mandamus for, 250 SCIRE FACIAS, to repeal charter, 40 — 45 form, 42 n. i part of a charter, 40 — 42 when a writ of right, 42 issues in, how triable, 4.3 n. o judgment in, 44, 295 n. k to repeal grant of market, 168, 178, 179 charter, when proper, 295 — 299, 306 when a writ of right, 295 n. h to repeal letters-patent granting office of recorder, 446 n. k court of quarter sessions, 450 — 453 on judgment of court of record, 466 recovered by master of a hos- pital, 577 dean and chapter, 592 and against corporation sole, 638, 639 SEISIN, definition of, 3 n. n of real property in the corporation and not the members, 3, 538 pleading, 136 n. r, 538 n. /, 569 n. x when livery of, necessary, 143 of parson, 635 SEPARATISTS, declarations by, 408 n. k, 507 n. u SEQUESTRATION, writ of, in equity, 286 for contempt, 289 SERJEANT AT MACE, mandamus for, 250 SERVANT, when corporation liable for tortious act of, 59 and how may bind them by contract, id. 61 command to, to cut trees, &c, 60 contract to pay wages of, 62 when need not be shown to be au- thorized, &c, 63 of University, privilege of, 522, 533 hospital, exempt from duty, 580 n. u entry of, pleaded, 588 n. s SEWERS, commissioners of, 279 n. t in the nature of a corporation, 640 distress for sewers rates, 284 n.f corporation liable to rates, 501 n. r SHAREHOLDER, proceedings by a single, 73, 286 and n. c, 290 when judge in the cause, 281 each must pay calls, &c, equally, 292 SHERIFF, not disqualified to be councillor, &c, 398 SHERIFF — continued. of county of city, &c, quo warranto for, 254 n. c executing criminals, &c, 321 n.y indispensable, 348 in what cities and towns constituted, 353 how long to hold his office, 353 and n. c, 354 information lies for refusing it, 353 what oaths must take, 353, n. e who exempt from office of, 353, 354 mandamus to proceed to election of, 354 when defendant, how process to be directed, id. in contempt, id. related to a juror, 354 n. n poundage, 354 n. o two sheriffs, and one interested in the cause, 354 and n. r, 444,445 dies, as to process, 355 escape, 355 n. u his right to execute process, 355 as to action for escape against, 355 n. u cannot be justice for the borough, 469 quashing panel for unindifferency of, 480 n. x as to changing venue for unindiffe- rency of, 481 when may be interested in the cause, &c, id. duty of, as to special juries, id. to some purposes a quasi corporation sole, 661 SHEWAGE, what, 163 SHOPS, exclusive trading in, abolished, 322 SIGN MANUAL, appointment under the. 122, 123 the, when grant under, good, 628 SISTERS, the, of a hospital, 580 SOUTHAMPTON, sheriff of, 353 SPECIAL CASE, validity of a charter discussed on a, 41 SPIRIT LICENSE, as to granting, 454 n. g STALLAGE, definition of, 174, 175 when passes by grant of tolls, 32 n. w, 166 n. /, 173, 174 who liable to, 171, 174, 175 prescription for, 174 n. z, b distress for, 176 STAMFORD, in what county the borough of, lies, 345 n. h, 350 n. k 73G INDEX. STAMP, on deed of appointment to a corpo- rate office, 58 D. /. 210 n. i to appointment of officer, 379 n. g none payable bv burgesses on admis- sion, fee., 392 nor freemen, 507 n. x STATUTES, of the realm, construction of, giving power to toll or tax, 7. B of Quia Emptort i does not bind the crown, 108 statute of Charitable Uses, 114, 115 9 Geo. 2, c. 36, 118 n. b, 133 instances, 120 — 122 titles of, 133 and note j- construction of, constituting cor- porations, 308, 309 affirmative, 322, 323 negative. .■i_ ) .'i n. n as to customs, 323 difficulty of construing Muni- cipal Corporations Act, 303 keeper of gaol under 2 & 3 Vict. c. 56, s. 15. .424 n. u annual indemnity acts, 425 of University, offences against, 519 whether new can be imposed, 515 dispensation with, 518, 530, n.z qf a founder, rid. Founder power of interpreting, 518, 519, 529 offences against, 519 power of altering, where resides, 518, 519 and n. u where not, 530 inspection of the, 527 of schools, 555, 556 and note q, 557 n.y, 564 hospitals, 572 n. s, sanb. im- posed, 578 dean and chapter, 583 of colleges, meaning of domus in, 529 n. I dispensation with, 530 n. z, a offences against, 530 n. z bill of discovery of, 539 construction of, 539 n. s, t as' to new fellowships, 5 12 Edw 1 Edw. l.stat. 2, c. 1 . .99, 132 13 id. c. 0. . 168 n. Edw a mi 3 ■1 Edw. 3, c. 15 .. 181 n. 9 id. stat. |, c. 1 .. 329 28 id. c. 10., 298 n. liicii \iti) 2 1 Kic. 2, c. 2 . . 353 n. c. 11 . .215 15 id. c. 5. .99, 115, 132, 133 Henky 6 8 Hen. 6, c. 9, s. 6, .424 n., 172 n. 27 id. c. 5. .168 n. STATUTES— continued, II INKY 7 12 lien. 7, c. 6.. 180 n. 1!' id. c. 7, s. 1 . . 92 c. S, ss. 1,2.. 163 n. Henry 8 22 Hen. 8, c.4,.78 n. c. 5, s. 3 . . 283 23 id. c. 3 . . 1 7 c. 10. . 124 25 id. c. 21, s. 20.. 576 n. 27 id. c. 16.. 104, 106 c. 28 . . 193 28 id. c. 5 . . 7S n. c. 11, s. 3.. 585 31 id. c. 13.. -193 c. 104, s. 3.. 492 32 id. c. 1 .. 112 c. 10. .516 c. 28, ss. 1, 4.. 658 c. 30, s. 1 . . 338 c. 3S . . 642 33 id. c. 13. .480 c 27. .74,531, 576 34 & 35 id. c. 5 .. 112 37 id. c. 21 . .493 Edwakd 6 1 Edw. 6, c. 11 . .124 5 & 6 id. c. 19, s. 1 . . 232 n. Mary 1 Mar. sess. 2, c. 8, s. 2 . . 469 1 & 2 Ph. & Mar. c. 7 . . 333 Elizabeth 1 Eliz. c. 19 . .642 13 id. c. 10.. 642 s. 2.. 646 s. 3 . . 574, 650 c. 14..15n. c. 29.. 19 n., 516, 526 14 id. c. 11, s. 17.. 568 n., 574, 641 15 id. c. 5, ss. 1,6. . 198 n. c. 6 . . 544, 549 27 id. c. 13 ..661 29 id. c. 4 . . 35 1 n. 31 id. c. 5 . . 198 n. 35 id. c. 4 . . 568 39 id. c. 5. . 12, 98 n., 106,568 43 id. c. 2 . . 285 s. 10.. 424 c. 4.. 113 Jami a 1 7 Jas. c. 5 ..429 21 id. c. 12. .369 s. ....430 c. 23, s. 2 . . 463 n. Charles 2 12 Car. 2, c. 12 .. 184 n. c. 20 . . 2 n. c. 21 . . 112 13 & 14 id. c. 4, s. 29 ..190,n. c. 5 . . 343 c. 12 ..98 n. 15 id. c. 17 . . 139 n. 17 id. c. 3 . .98 n., 493 c. 3, ss. 7,8.. 630 22 id. c. 2, s. 21 .. 104 n. INDEX. 737 STATUTES— continued. Charles 2 — continual. 29 Car. 2, c. 7, s. 1 ..lGSn. c. 8 . . 548, 98 n. c. 8, s. 2. .033 William & Maky 1 Will. & Ma. stat. 1 , c. 1 G, s. 3 . . Gil c.18,s. 1 .. 370 4 &5 id. c. 12.. 493 c. 18.. 260 c. 22 . . 33 s. 1 . . 24 n. 5 id. c. 29, s. 39 . . 65 5 &6 id.c. 11 ..452 c. 20.. 139 n. 8 & 9 id. c. 20, s. 26 . . 139 n. William 3 7&8 Will. 3, c. 25.. 412, 413, 508 n. s. 1 . .412 n. c. 36, s. 4 . . 24 n., 33 c. 37.. 98 8 & 9id.c. 11, s. 8.. 339 10 & 11 id. c. 5 . .49 c. 24 . . 1G5 Anne 2&3 Ann. c. 11 ..633 5 id. c. 20.. 179 n. 8 id. c. 14, s. 4 . . 143 9 id. c. 20 . . 299 n., 445. s. 2 . . 228 n., 260 s. 4 . . 253 n., 255 s. 5.. 259, 260 9 id. c. 23, s. 50 . . 527 10 id. c. 23.. 41 2 n., 508 n. 12 id. stat. 2,c. 7, s. 7 ..626 George 1 1 Geo. 1, c. 1 . . 627 n. stat. 1, c. 10.. 633 c. 13, s. 13.. 539 n. 3 id. c. 15, s. 21..353n. 5 id. c. 4, s 2 . . 426 9 id. c. 7.. 610 s. 3 . . 475 n. s. 4.. 607 11 id. c. 4, s. 6.. 423, 424 George 2 2 Geo. 2, c. 23, s. 11 ..461 c. 24, s. 7 . . 233 n. c. 29. .531 n. 5 id. c. 18, s. 2.. 469 7 id. c. 7 . . 4 n. 9«/.c.36,s.l . . 118,119,150,545 s. 3.. 125 s. 4.. 126 11 id. c. 19, s. 21.. 615 17 id. c. 28.. 285 18 id. c. 18, s. 1 ..412 n. 19 id. c. 28, ss. 4, 9, 10, 13 . . 412 n. 22 id. c. 46, s. 14.. 443 29 id. c. 19.. 465 31 id. c. 17 . . 368 c. 29.. 527 STATUTES— continued. George •'! 3 Geo. 3, c. 1 1 . . 527 c. 15, sb. 3, G..508 s. 7.. 507 ii. s. 8.. 508 n. c. 24 . . 348, 3 19 9 id. c. 1G. . 103 12 id, c. 21, s. 1 . .508,509 s. 2.. 4 33 n. 19 id. c. 23.. 122 c. 45, s. 1 .. 107 c. 91 . . 579 26 id. c. 13 . . 422 c. 87, s. 10.. 107 31 id. c. 39, s. 17. . 125 n. 32 id. c. 58 . . 301, 445, 433 n. s. 1 . . 258 s. 3. .257 33 id. c. 54, s. 11 ..661 38 id. c. 52, s. 1 . . 349, 350, 352 ss. 2— 10.. 351 s. 11 . .480 c. 60, s. 99.. 121 39 & 40 id. c. 41 . . 650, 549 s. 10. .652n. c. 88.. 627 41 id. c. 23, s. 9 . . 608 c. 109, s. 38.. 641 42 id. c. 116, s. 50.. 107 s. 69 . . 3G5, G51 s. 88 . . 651 43 id. c. 46, s. 4 . . 467 c. 55 . . 365 c. 95 . . id. c. 107 . . 657 c. 108.. 104 ss. 1, 2, 3.. 105, n. 44 id. c. 95 . . 365 45 id. c. 101 . . 126 n., 546 48 id. c. 73, s. 3 . . 628 n. 49 id. c. 126.. 232 n. 51 id. c. 115, s. 2.. 105 52 id. c. 101 . . 553 c. 155, s. 9. .3G8 n. g 53 id. c. 51, ss. 1, 12.. 490 n. 55 id. c. 147, s. 12 . . 104 c. 184, schedule, pt. 1 . . 240 n., 379 n. 58 id. c. 45 ..105 c. 81 ..558n. 59 id. c. 12, s. 7.. 611 s.l2..279n., 612 s. 17. .609 s. 18.. 279 n., 612 c. 91, s. 5.. 562 c. 94 . . 628 George 4 l&2Geo.4,c.23..641 c. 28 . . 304 n. c. 69 . . 624 3 id. c. 108.. 624 4 id. c. 64. .485 n. c. 95, s. 68 . . 284 n. 5 id. c. 85 . . 455 s. 1 . . 473 3b rss INDEX. STATUTES— continued. statutes- continued. Georgl 4 — continued. William i ■ coat iniitd. 5Geo.4,c.85,88.1&2.. 156, 182, 5&6W iU.4,c. 1 . . 353 n. 185 n. c. 20, s. 7. .641 G id. c. 7 . . 4 n. c. 28 . . 353 n. c. 10, b.46.. 197 n. c 53 . . 452 c. 50, s 36.. 481 c. 62, s. 8 . . 539 n. c. 97, 8. 3 ..516 n., 527 s. 9 . . 600 7 id. c. 22, s. 2 I . . 365 c 63, s. 33.. 424 c. 55 . . ul. c 69, s. 3.. 608, 616 n. c. G> . .454 s. 7. .616 s. )2. .503 n. s. 8 . . id. n. s. 20. .374 n. 5&6«/.c.7 6 (Municipal Cor- c. 77, s. !t . . ;iii.") porations A( i ■;. 7 & 8 ic/. e. 31, at. 2, 7.. 453 s. l..lln.,18,97, 9id.c. 1 7, s. 2.. 224 n., 401, 408, 233,341,312 419, 125 s. 2.. 85, 97, 183, s. 3 . . 419 185,186.263,504 c. 46 . . 625 s. 3 . . 506 c.«l,s8.1,2,3,7..454¬ea s. 4 . . id. s. 27 . . 453 n. s. 5 . . 435, 507 c. 85, s. 1.. 119 n., 508 n. s. 6 . . 241 n., 342, 10 id. c. 7, s. 2.. 125n. 387, 421 s. 25 . . 426 s. 7.-283,343, 3 11 c. 50, s 39 . . 489 s. 8. .346, 34 7, 486 1 1 Geo. 4 & lWill. 4, c. 70, s. 8. .262 s. 9 . . 6, 206, 387 William 4, s. 10.. 389 1 Will.l, c. 21, s. 3 . . 228 n. s. 1 1 . . id. s.4..215n.,248n. s. 12.. 389, 390 s.6..240n.,508n. s. 14.. 83, 192 c. 60 . . 4 n. s. 15.. 390, 435 c. 65 . . id. s. 1 6 . . 390 l&2id.c.41 ..374,375 3. 17.-390,391,435 c.42, s. 1 ..612n. s. 18.. 435 c.45,ss.3,4,5, 11, 12. .548 s. 19.. 423 s. 14.. 549 s. 21.. 224, 414 n. c. 58, s. 8. . 215 n. s. 22 . . 393, 435 c. 66, s. 28 . . 66 n. s. 23 . . 435 2 id. c. 39, s. 3 . . 274 s.25..241n.,355n., a. 13 . . 275 415 s. 21 . . 274 s. 26.. 356, 415 s. 22 . . id. s. 27.. 415 s. 23 . . id. s. 28.. 226, 417 c. 45, s. 27 . . 41 1 and n. e s. 30. .356 8. 32 . . 507, 508 s. 31 . .69, 356 s. 33. .411, 412 s. 33 . . 399 s. 58.. 412 n. s. 34.. 400 2&3u/.c.64,s.35..185n.,343n. 1. 35 ..400, 433 345 s. 86 . . 430 c. 69, s. 4 . . 88 s. 37.. 442 c. 71, s. 1 ..326 s. 39 . . 402, 434 s. 3 . . 337 D. s. 40.. 402 c. 80.. 549 s. 41.. 4 03 c-. 115.. 125 n. 8. 43 . . id. 3 & 4 id. c. 22, s. 24 . . 365 s.44 ..404 s. 47.. 625, 640 s. 45 . . id. c. 27. . 1 ii., 103, 565 s. 46 . . id. 68. 1, 2.. 203 8. 47 . . id. 405 c. 31, s. 1 ..213,379 8.48. .405,423 n. c. 42, s. 17. .460 i. 19 . . 421, 130 c. 71 ..4 n. ». 60.. 401, lor, c. 90 . . 362 417. 125 C. 105. . 1 n. s. 51 . . 96,97,362, c. 100.. id. 382 n., 101,408, 4&5 id. c. 27, s. 1 ,.349n. 119 ( . 69, s. 3 . . 270 n. a. 52.. 417 n. s, c. 115 ..In. 405, 406 INDEX. 739 STATUTES- continued. STATUTES — COIlt inued. William 4 — continued. William 4 — continued. 5 & 6 Will.4, c. 76, s. 5,3 ..417, 425 5&6Wi 11. 4, c. 76,s. 122. .441, 170, s. 54.. 233 ISO s. 55 . . 2.35 s. 123.. 37 n. u s. 56 . . 235 n. s. 124.. 44.3, 460, s. 57.. 424, 427, 171 469 s. 126.. 440 s. 58... 378, .398, s.l 27.. 4 75 n. 433, 439 s. 128.. 470 s. 60 . . 242, 382, s. 129.. 96, 471 434 s. 130.. 472 s. 62 . . 444 s. 1.31 ..id. s. 63 . . 445 s. 132.. 360, 451, s. 65. .434 463,471, 473 s. 67 . . 382, 488 n. s. 13.3 . . 369, 374, s. 69.. 415 n., 435, 475, 479, 503 357 s. 134.. 463 n. s. 70.. 359 s. 135.. 453 n., s.71. .511,513 463 n., 476, n. s. 72.. 361 n. s. 136. .453 n., s. 73.. 361 476 n. s. 75 . . 362 s. 139.. 440, 492 s. 76 . . 367, 368 s. 141 ..16, 17 s. 77.. 369 6& 7 id.c. 20, s.l.. 574, 643 s. 78.. 371 s. 2 . . 653 s. 79 . . id. s. 3 . . id., 654 s. 81.. 372 s. 4 . . 65 1 s. 82 . . 367, 372 ss. 5 — 9 . . id. s. 83.. 374 c 64 . . 574 s. 84.. 373 n., 375 c. 70.. 549 s. 86 . . 375 c. 71, s. 46.. 191 s. 87.. 362 c. 77, s. 26.. 492 s. 88 . . id. c. 96, s. 3 ..617 s.90.,95, 96, 362 c. 103, s.l.. 344 s. 92. .184, 487, s. 4 . . 362 488, 490 c. 104, s.l ..365 s. 93 . . 440 s. 2.. 365, 367, s. 94.. 140, 365, 141 n., 142 n. 366 s. 8. .223, 414, s. 95.. 141 427 s.€6..366 n., s. 105 ..447n. 141 n., 142 c. 105, s.l ..451 s. 97.. 366, 142n.M s. 2 . . id. s. 98 . . 469 s.4,.421 s. 99 . . 367, 440 s. 5 . . 353 s. 100.. 367 s. 8.. 387, 447 s.101 ..469,470 s. 9.. 183 ii., s.l 02.. 47.3 448, 461 n s. 103.. 414n,469, s. 11.. 453,476u 417, 443, 446 c 109, s. 9. .191, n. s. 104.. 447, 469 c 115, s. 31 . .641 s. 105.. 449 7 id. & 1 Vict. c. 19, s.l.. 41 s.l 06.. id. n. c. 26.. 102 s. 1 07 . . id. c. 73, s.26. .275, s. 108. .id. 278 s. 109. .351 c 78, s. 1 ..215 n. s. Ill ..453 s.3 ..445 s. 112. .452 s. 11 . .404n , s. 113.. 453 n., 405 454 s. 14 . . 209, s.l 14.. 440, 455, 399n., 415, 121 482 s.l 5.. 398 s. 11 7.. 440,452 n. s 18.. 398n. s. 11 8.. 459—461 s.22..357n. s. 1 1 9 . . 460 s. 23 . . 256, s. 121.. 443, 479 257 3 b 2 l<> INDEX. - I A NJTES— cotilim, Willi \m 4 — continued. 7 Will. l&lVict.c78,8.24 ..! 101 ".notes b.25 . 212n., 416, 121 s.2G .405n., 416n.,421 n. b. -J 1 -. .3 b.30 . 175 s. 31.. 362, 476 s. 33.. 401 35. .400 s. 30.. 405 s.37..108n, IN.', 11. s. 3S . . 485 B. 39. . 107, 408, 417 n.s, 426 3.40. .108n. s.41 ..486 8.43.. 440 n. s. 44 . . 3G0 s.45 .487n. b. 46.. 513 s.47..iV/. s.48..487n., 513 B. 1!». .10, 17,41,258 s. 50.. 176 c.Sl.s. 1 ..376, 490 n. s.3 ..377, 490 n. c. 45, B.2..494n. Yli TORIA 1 Vict c 73,a '20. . 10 2 id. c.5, 8.1 5.. 408 n., 41 In. c. 23, s. 5 . . 550 c.31,8. 1 ..492 s. 2 . . id. s. 3 . . id. n . c. 96. .275 11., 624 c.106.. 030 s. 37 . . 550 s. 73 . . id. s. 129. .389 n. c. 110, r. 18.. 461 n. ss. 11,2s. 163 n., 464 .; id. c. 14. .581 n. C. 27 . . 101 n. s. 1 . . 459 n. s. 2 . . i I. b. 3 . . id. c.28,8. 1 . .377 (.1!*. 105 B.2..659 c. 56,8. 15. . 12 1 ii., 1 35 8.21 ..485 d. c 72, . 1 ..352 3& 1 tf.c.28, ia.1,2. .377 c. 17. v. 1 . .216 a., 121 STATUTES— continued. \'n rum \ — continued. 3& lVict.c.60, s. 17 .. 100 c.77, s 1 . . 552, 553 . 55 1 s. 3 .. 555 B. 1 . . id. s.5,0. . id. 3, 9 ..556 .. 1 1. 15, 16, 17. L8, 19, 20, 21, 22 ..55 7 b. 24. . 558 c. 86. .582 s. 23 . . 583 c. 88, s. 14. .3GS n. c. 97, ss.8, 9, 10. . 94 c. 113,s. 1 ..581 s. 21 ..592 s. 25 . . id. s. 2G . . id. S.2S..588 s. 38 . . 593 s. 12. .632 b. 44.. 582, 584, 591 s 45 . . 593 s. 47.. 583 s. 50.. 581, 588, 033 s. 52. .588 s. 57.. 585 s.GS. .5S8 B. 69 . . 550 s. 71 . . id. n. 4&5 id. c. 58. .549, 550 s. . . 558 s. 7 . .100,558 ss. 17, IS. .564 n. c.39, s. G..585 s. 9. .050 s. 1 1 . . 593 B. 15.. id. s. 18.. id. n. B8.21, 22 . .635 c 4S . . 285 notes 5 til. sess. 2, c. 1 8, s. 2 . . 010 n. C 27.. 570, 011 5 & 6 id. c. 35.. 541 n. c.38,s. 1 .. 157 c 44.. 454 a. s. G . . id, c.50.. 150, 182, 183 s. 2 . .483 n. b. 5 . . id. B.6. .457 s. is.. 183 b.36. .157 88.37,38. 179n. 39, 10. . id; s. 12 . . 157 11. 13 . . 157 ,. :,:> . .291 n. c. 57,8. B . .022n. s. 10. .616n. s 17. . 022n. 6 id. c. 97, s. 2 ..369, 129, 015, n. INDEX. 711 STATUTES— continued. Victoria — continued. 5&6Vict.c. 97, s. 4..3G9 c. 98, s. 3 . . 484 s. 4 . . id. n. s. 5 . . 484 s. G . . id. s. 13 . . id. s. 14.. 482 n. s. 17. .315 n. s. 18.. 454, 456, 484 s. 19.. 454, 484 s. 22.. 484 s. 31 . .355 n. c. 104, s. 1 ..398 s. 2.. 357 n. s. 7. .417 n. s S.8..353, 398 c. 108.. 574, 570,055 s. 8 . . 052 n. c. Ill ..17n. s. 2.. 380, 381 c. 122, s. 12.. 198 s. 93.. 197 6 & 7 id. c. 18.. 411 s. 10.. 435 s. 13.. 411 n. s. 14 . . 508 n. s. 18.. 411 n. 508 s. 20.. 508 n. s. 23 . . id. s. 72 . . 349 s. 75.. 411 s. 76.. 387,507 s. 78.. 412 n. 507 s. 79.. 508 s. 100.. id. c. 37, s. 22.. 106 n. c. 67, s. 1 ..228 n. 229 n. s. 2 . . 228 n c. 73.. 461 s. 21 ..245 n. 277 n. s. 24 . . 469 n. c. 85.. 315 s. 1.. 166 n., 269,316 c. 89, s. 1.. 257,409, 427 s. 2.. 417 s. 5.. 213 n. 226, 255 n., 416 s. 6.. 378, 439 s. 8 . . 447 c. 112, s. 62.. 440 n. 7 & 8 id. c. 32 . . 276 c. 37.-558 s. 4 . . 605 c. 50, s. 1 . . 482 n. c. 76, s. 2.. 140 n. c. 94 (scried.), 106 n. c. 96, s. 28.. 198 STATUTES— continued. Victoria — continued. 7&8Vict.c. 101, s. 41 ..623, 624 s. 61 ..611 s. 70 . . 615 n. c. 102.. 125 c. 110.. 15 n., 106 n. s. 25 . . 59 s. 44 . . 625 s. 45.. 276 s. 47 . . 93 c. 113.. 276, 625 8 id. c. 16, s. 124 . . 93 s. 127 . . id. s. 135 . . 275, 278 c. 18, s. 15.. 365 8& 9 id. c. 4.. 541 n. c. 20, s. 109. .84, 94 s. 110.. 94 s. 111.. 95 c. 43.. 386 s. 1 . . 495 s. 2 . . 495 n. s. 4 . . id. c. 81, s. 4 ..491 n. c. 87, s. 96 . . 478 c. 89, ss. 5, 12, 13.. 201 c. 100, s. 7.. 58 n. «, 67 n. Ii c. 106, s. 2.. 140 n. s. 3.. 65, 279n. c. 110, s. 1..491, 493, 494 s. 2 . . 494 s. 4 . . 495 s. 6 . . 494 s. 8 . . 494 n. c. Ill, s. 23.. 452 n. c. 113.. 633 s. 1 . . 66, 310 c. 126.. 450 9& 10 id. c. 74.. 386 c. 95, s. 49 . . 484 n. c. 96 . . 372 c. 99.. 188 n. c. 105.. 291 n. c. 110.. 377, 450 n. 10 id. c. 14, s. 3 . . 4 n. s. 13.. 165,n./>, 168 n., 176 c. 15, s. 3 ..4 n. c. 1 6, s. 3 . . id. 10 & 11 id. c. 34, s. 192.. 372 c. 78, s. 1 . . 106 n. 11 & 12 id. c. 42 . . 367, 430 n., 454 n., 469 n. s. 6.. 477 s. 16.. 470 n. s. 17.. id. c. 43.. 430 n.,4G9 n. s. 27.. 472 n. s. 30.. 443 n., 474 n. 7 1.' INDEX. STATUTES — continued. Yu toki \ —continued^ ll&12Vict.c.43, s. :;i .. 177, ^. :;:: . .;;.;: c. 11 ..430 n., 469 n. s. 5 . . 450 i).. 175, 177. 178 c. 15 ..309 s. .'! . . 1 n. b. 5 .. 172 n. c. 63 . . i n. s. loi ..372 c 78, ss. I, 2 .. l."<7 n. c. 93 ..17 n. c. 123. .372, 386 s. 1 . . 3S6 n. q b. 2 . . id. 12 id. c S .. 12 1 ii. [2 v 13 id. c. IS, s. 1 ..367, 171 c. 31, B.6..450 n. s. 7 . . id. s. 10.. 47)1 n. c. 45, s. 2 . . 450 n. c. 19.. 558 s. 3. . . 550 c. 50, s. 7 . . 28 1 n. s C 64, s. 1 . .475 c. 82, s. 1..484 n. s. 2 . . 17)1 n. s. 3.. 451 c. 101, s. 2..484n. c. 10G, s. 164.. 197n. c. 1 08 . . 309 c. Ill ..372 c. 123, s. 8.. 568 STEWARD, tlie, of the Turners' Company, 87 of a borough, quo warranto for, 254 n. i compensation to, 382 ST. GERMAINS, 58 n. b ST. MARY MAGDALEN COL- LEGE, Oxford, heriot to, 109 n. h STRANGERS, who, 6 as to inspecting charters, 38 ; books, ) n. p, 311, 312 when may question validity of a charter, 11 bound by bye-laws, 77 penalty in bye-law must not be re- served to, 86 when not to be sued in corporation courts, 87 evidence against, 00 of custom to exclude, id. as to distraining, 151 applying to equity against a corporation, 290 n. /.■ cannot appeal to visitor-. 533 whether may receive deed ton colli ;_" ,"'11 SUBURBS, meaning of, 283 n. y, 3 1 1 n. / SUCCESSION, of members of a corporation, bow kept up, 26 effect of, 151 interruption of the, 302, 303 /'/ H n. i the liberties of a, 3 1 1 n. /' evidence of boundaries of a, ."515 n. // TOWN CLERK. effect of resolution to increase salary of a, 55 quo warranto for, 254 n. i must sign summons to council meet- ings, 358 duties as to bureess lists, 390, 391 roll, 393, 394 registering freemen, 50G, 507 voting papers, 101 freemen's roll, 507 freemen's list, 507, 508 particulars of numbers of coun- cillors in each ward, 403 neglect of these, 40G duty as to giving notice of vacancy of office, 407 voting papers for aldermen, 415 duration of office of the, 433 attorney may be, id. appointment of, id. office of, a new office, 433, 437 security for due execution of office of, 433 declaration to be taken by, id. office of, a ministerial one, id. duties of, 433 —436 his lien, &c, 434 actionable for breach of duties, id. cannot recover against corporation without retainer, 8cc, 433 n. m has no claim for payment for duties cast upon him by statute, 436 nature of his salary, id. resolution to compensate, must be under common seal, id, money appropriated in payment of his charges, &c., id. liable in equity for breach of trust, \c. i.; 7 not liable for costs on certiorari, &c, 127 what offices cannot fill, 137 what sufficient amotion of, 437, 438 mmdamut to restore, 137 resignation of, l.;s punishable for misconduct at election, id. exempt from serving on juries, 480 TOWN HAM,. notices to be fixed on, 435 TRADE, charter in hindrance of. void, 23 n. :; 1 of annexed foundation, 512 and n. I, t how to take an inquiry, 535, 536 citation by a, 530 whether may examine on oath, 535 action on the case against, .',:; l may inquire by commission, 535 how to frame this commission, 535, n. m prohibition of a, 534, 535 injunction to revoke sentence, 535 periodical visitation of a, 535, 536 question who is, how to be decided, 53 1 of head of college, 530 D. i his decision final, appeal from sentence of the ordinary visiting, 534, 558 n. z has no cognisance over matters where strangers are concerned, 530 cannot contract with the corporation, 570 may suspend or adjourn his court, 530 n.y not compellable by mandamus to re- store canon, 593 nature of his power need not be pleaded, 530 n. y but the fact of there being a, must be returned to a man- damus, id. power of, over annexed portions, Src, 542 costs of visitation, 534 n. c, 530 n. a when may charge expenses on the college, 536 may adjudicate as to letting rooms in college, 537 n. k of a hospital, 572 n. s, 576 n. r how to plead expulsion by a, 538 n. ?i. neither mandamus nor bill lies on an amotion by a, 538 n. o is to decide respecting internal dis- putes, &c, of a collece, 538, 539 of hospital, how appointed, .',70 mandamus in vacancy of office of, 538 empowered by crown to alter statutes, 578 d. h not competent to adjudicate on acts of parliament, &c, 539 nor on facts to be ascertained by a jury, 5 1 1 cannot ttiamon a juri/, id. crown is, when no special visitor ap- pointed, 5 lo - an and (In. the crown is, when, appeal from, id. may deprive, 583 the bishop, win when interested, Qneen'i Bench to be applied to, VISITOR AND GUARDIANS, of the poor, what lands may hold, 624 nature of incorporation of. rateability to poor, 020, n. jt VOTING PAPERS, for aldermen, how to be kept, &c, 399, n. r, 415, 433 for councillors, how, id. examination of, \c, l