THE LAW MUNICIPAL CORPORATIONS ; TOGETHER WITH A BRIEF SKETCH OF THEIR HISTORY, AND A TREATISE ON MANDAMUS AND QUO WARRANTO. By J. W. WILLCOCK, Esq. OF THE INNER TEMPLE, BARRISTER AT LAW. ' "The institution of cities into communities, corporations, or bodies politic, and granting them the privilege of municipal jurisdiction, contributed more, perhaps, than any other cause, to inti-oduce regular government, police, and arts, and to diffuse them over Europe." Robertson's Chaklks V. LONDON: WILLIAM BENNING, LAW BOOKSELLER, 52, FLEET STREET. 1827. London: Printed by Litllewood and Giecu, 15, Old Bailey. nisi oalB 9YBfi ' ' ^--^'rii 11018 PREFACE, A Collection of the Cases relative to the Law of Corporations has been long wanted : upwards of thirty years have elapsed since the appearance of the last work which professed to treat generally on the subject. Under the genius of Lord Mansfield it began to assume the regularity of system ; but had not attained its perfection when Mr. Kyd's work came before the public. I at one time entertained thoughts of republishing it, introducing the modern decisions in the form of notes : but an uniform and original work appeared to pre- sent so many advantages over a text loaded with annotations, that I abandoned the inten- tion. This Treatise is more limited than that of Mr. Kyd, being confined to Municipal Corporations; whilst his professed to embrace the consideration of all Corporate Bodies. I have also refrained from entering upon the law relative to the property of Corporations. This I have done to avoid the prolixity and confu- sion from which the former work is by no means free ; and it is my intention, should this A 2 I'Jtoxu IV PREFACE. volume be favorably received, to supply both these deficiencies, together with the law relat- ing to inferior Courts. My only claims on the Profession are founded on a laborious investi- gation of cases from the most remote period of legal authority, and an endeavor to render the work useful by arranging it in an analytical form. To effect this a degree of repetition was necessary, which might have been avoided by offering a mere abridgment of cases. That there are not many errors in the work I am not vain enough to suppose ; but if in the main the Profession shall esteem it useful, I shall not consider the labor I have devoted to be without its reward. 7, King's Bench Walk, Temple, June, 1827. TABLE OF CONTENTS. Historical Sketch of Municipalities, page 1. PART I. CHAPTER I. CONSTITUTION, page 21. Tit, Sect. I. Creation 1 I. Corporation hy Prescription 2 II. % Statute 10 III. By Charter 13 Sect. II. Name 35 Sect. III. Form 54 Sect. IV. Corporate Assembly 58 I. Notice 63 II. Time 86 III. Place 88 IV. Persojis 90 1 . President 94 2. Classes 115 Tl TABLK <)l (ONTENIS. CHAPTER 11. ORDINANCES. Tit. Sect. I. Cvstoms 140 I. Valid Customs 142 II. Void Customs 172 in. Customs Enforced 182 IV. Customs Pleaded 188 V. Custo7ns Proved 200 Sect. 11. Regulations by Charter, page 95. Regulations by Statute 226 Sect. III. By-laws, ;?floe 99. 1 . Who may make By-laws 229 IT. Who are Bound 244 ill. What By-larvs are valid or void, p. 107. 1 . By-laws concerning Powers 253 2. By-laws concerning Offices 293 3. By-laws concerning Admission 310 4. By-laws concerning Freemen in Par- ticular 318 5. By-laws concerning the government of the Place 332 Penalty 330 IV. By-laws in affirmaru:e of a particuiar Custom 361 Penalty of By-law on Custom 368 V. fioto By-laws shall be construed. ... 381 VI. How Enforced 396 VII. How Pleaded 423 Vni. Other methods of enforcing By-laws 443 TABLE OF CONTENTS. Vll CHAPTER III. ELECTION, &;c. page 182. Tit. Sect. I. Inchoate Right of Admission.... 456 Sect. II. Who are eligible as Freemen or Officers, ^fifge 188. I. As Freemen . UA^-^ifiof^M^H^iU* • • • • 472 e . II. As Officers . . i^ •:«k*5i> • *^5 480 Sect. III. In whom the Right of Election IS vested 513 Sect IV. Essentials to a valid Election. I. Vacancij 526 II. At what Time 529 III. Elective Assembly 540 IV. Form of Election ; 544 Sect. V. Admission , 555 I. When admission may he 559 II. Who are to admit 565 III. Form of Adm ssion 575 Sect VI. Refusal OF Office 587 Sect. VII. Appointment of Ministerial Officers ...., 598 ;; CHAPTER IV. y." AMOTION, Seepage 237. Sect. I. Resignation. 610 Sect. II. Forfeiture 625 viii TABLE OF CONTENTS. Tit. Sect. III. Formal Amotion, page 245. I. Who mai/ amove "29 '' II, When they may amove 636 III. For what cause 648 1. Sufficient Cause 649 2. Insufficient Cause 669 IV. In xvhatform 691 V. Effect of an Amotion 704 VI. Restoration 705 Sect. IV. Disfhanchiskment 709 CHAPTER V. CORPORATORS, page 277. Sect. I. Their Title 719 I. How consummated 720 II. How investigated 728 III. Conjirmation of Title 731 IV. Duration of Title 755 Sect. II. Their Powers, Privileges, Duties, Acts, &c 769 CHAPTER VI. CONFIRMATION, page 319. I. % Statute 836 II. By Charter 841 TABLE or CONTENTS. IX Tit. CHAPTER VII. DISSOLUTION, page 325. I. Bj/ Loss of Integral Part 853 II. Bi/ Surrender 861 III. Bj/ Scire Facias 864 IV. By Quo Warranto 869 CHAPTER VIII. REVIVAL, page 33'. PART II. CHAPTER I. CORPORATE DOCUMEXTS, p. 3i3. I. Evidence r/. ...\ . 1 II. Custody 8 III. Production 13 IV. Inspection 15 CHAPTER 11. MA NDA MUS, page 364. Sect. I, Application for the Whit 36 I. To Elect 45 It TABLE OV CONTENTS. Tit. II. To take Office 71 YU. To Admit ,.. 74 IV. To Amove ..♦.'• 1 . .' .*. •''• ' 92 V. To Restore 96 VI. Miscellaneous 110 Sect. II. Rvlg and Writ. I. Rule Nisi 117 II. Rule Absolute , 123 III. Form of Writ .\. . i'i; . . . . 128 Sect. III. Proceedings before Return ... . 161 Sect. IV. Return, jsaje 401. I. General Remarks 175 II. To Elect 196 III. To Admit 200 IV. To Restore 216 Sect. V. Subseqent Proceedings 247 Sect. VI. Amendments 272 Sect. VII. Action for False Return 280 Sect. VIII. Criminal Information 298 Sect. IX. Peremptory Mandamus 302 Sect. X. Attachment 317 CHAPTER III. QUO WARRANTO, AND INFORMATION IN THE NATURE OF QUO WARRANTO. Sect. I. Quo Warranto 331 Sect. II. Information in the nature of Quo Warranto ., 332 TABLE OF CONTENTS. XI Tit. Sect. III. Information by the Attorney General 335 Sect. IV. Information at Common Law.... 339 Sect. V. Information under the Statute 352 Sect. VI. Proceedings on the Informa- tion. I. Before plea 428 II. Plea 441 III. Replication, S^c 466 IV. Trial 479 V. Judgment 482 VI. Amendment 500 VII. Costs. 1. Prosecutor's 510 2. Defendant's 514 3. Of either Party 523 ERRATA. Part I. tit. 42. line 9. for Lime rearfLynne. 94. 2. read " corporate assembly." 102. * 2. fl/ifer " elected" write " where there was no power of holding over. 115. in the head line, dele " Definite." 283. line 8. for " burgesses" write "aldermen." Note (751) add R. v. Hughes, ^ B. C. 892. INDEX OF CASES. N. B. The numerals refer to the Part, and the figures to the Paragraphs. Acherley v. Bell, II. 31. Adley v. Reeves, I. 245. 396. 446, 447. Amherst's, 11.44. 114. Argyle v. Hunt, I. 201. Ashby V. White, I. 819, 820. AsthiU V. Clarke, I. 20. Atesley v. Bell, II. 31. Atherford v. Beard, II. 2.5. Attorney General v. Farnham, I. 36. Gower, I. 858. Liverpool, I. 327. — — TrinityHouse, 11.503. Austin v. Osborne, I. 524. Awdley v. Joy, II. 34. 75. Ayray, I. 42. Adams a. Prigge, I. 247. Alexander a. Harrison, I. 417. Alport a. Chute, I. 23. Archer a. Player, I. 189. 331. 373, 6. 380. 402, 7. 450. 775. Atkinson a. Hodgson, I. 206. Atkis a. Hodges, II. 25. Aylmer a. Roe, II. 29. B. Bab V. Clarke, 1. 448. 452. 4. Bagg's ca. I. 188. 634. 680, 6. 690, 2. 700. 709, 710. 717, 718. II. 2'23. 280. 315. Ballard v. Bennett, I. .331. 376. 402, 5, 6. Banbury, I. 853. Barber v. Bolton, I. 290. Surgeons v. Pelson, I. 300. 396. 425. Basset v. Barnstaple, I. 726. II. 181. Baston's ca. I. 619. 623. Bateman v. Phillips, II. 22. Bates V. Winstanley, I. 773. Bath V. Glazby, I. 185. 352. 375. Baxter's ca. II. 75. Beard v. Webb, I. 417. Bedford v. Fox, I. 218. 235. 242. Bernardistou's ca. II. 97. Berwick v. Johnson, I. 182. 211. 219. 228. 341. 371. Blacquire v. Hawkins, I. 200, 5, 6. Bodwick V. Fennel, I. 143. 182, 4, 6, 7. 350. 371, 4, 8. Bolton V. Throgmorton, I. 159. 168. 171. 348. Bonham's ca. I. 223, 4. Bosworth v. Budgen, I. 151. 169.354. 365, 8. 401. Hearne, 1. 337. 359. Braithwaite's ca. 1. 633. II. 75. 188. 236. 241. Bret's ca. II. 75. Bricklayers and Plasterers, I. 360. Bridgnorth ca. II. 318. Brigg's ca. 430. Bright v.Eynon, 11.481. Britton v. Gradon, 1. 49. Broadnax ca. I. 153. 359. 403. 412. Brown v. London, I. 800. 80?. XIT INDF.X OF CASES. Kiuce's ca. I. 625, 9. 6S8. 710. II. 9X 223. 396. Buckley V. Palmer, II. 306, 9. Biiller V. Palmer, I. 239. 861. 877. Butchers v. Bullock, I. 431. Morey, I. 249, 250. 340. Butler's ca. I. 864. V. Palmer, 1. 289. 877. V. Rews, II. 287. Baldo a. Fazakerly, I. 412, 13, 17. 421, 2. Barfoot a. Palmer, I. 159. 171. Barlow a. Horners, I. 248. Barnstaple a. Basset, I. 726. II. 181. Bartrum a. Pierce, I. 244, 6, 7, 8, 9. 336. Beard a. Atherford, II. 25. Beaufort a. Tooker, I. 24. Bell a. Acherley, II. 31. Atesley, 11.31. Bennett a. Ballard, I. 331. 376. 402, 5, 6. Bentham a. Plummer, I. 200. Bernardiston a. London, I. 331. 368,376. 402. 436. Berry a. Parry, I. 128. 2.35. 343. Blamire a. Carlisle, I. 36. 43. Bolton a. Barber, I. 290. Jeffs, 1. 139. 327. 404. 777. StalTord, I. 44, 6. Williamson, I. 162. Braddock a. Hesketh, I. 145. 178. 182, 4, 6. 205. 350, 2. 368. .371, 3, 6. 798. 800. Williams, I. 178. Brown a. JoUie, I. 158. Herring, II. 434. Weavers, I. 148, 9. 184. Budgen a. Bosuortli, 1. 151. 169. 3.54. 365, 8. 401. Buller a. Scarborough, I. .39. 8.59. Bullock a. Butchers, I. 431. Bury a. Phillips, I. 513. ^ Bin-nit; a. Schuldam, II. 20. Cambridge v. Herring, I. .308. York, 1. ?£. Cameron v. Gray, II. 254. 291. Canterbury ca. I. 795. Trinity Col. II. 118. 174. Carlisle v. Blamire, I. 36. 43. Cart V. Mogg, 1. 417. Chapman v. Wish, I. 641. Chaunt v. Smart, II. 324. Chute V. Alport, I. 23. Child V. Hudson's Bay, I. 231. .328. Clack V. Dickson, 1. 410. Clarke's ca. 1. 176. 318, 19. 443, 8. 452, 4. II. 75. V. Tucker, I. 387, 8. 443, 5. 450. Claridge v. Eyelyn, 1. 504. II. 381. Clifton's ca. II. 343. Clithero, II. 77. Colchester ca. 1. 260, 7. 800, 7. V. Godwin, I. 3. 5. 44. 143. 169. 211. 353, 5. 365, 6. 371, 2. 383. 429. V. London, I. 839. V. Lowther, 1. 327. V. Seaber, I. 3. 39. 41. 55. 856, 9. 870. Colt V. Coventry, I. 526. Commins v. Oakhampton, 1. 804. Corporations' ca. I. 258. 427.441. 764. Cotton V. Davis, 1. 135. Coventry ca. H. 321,2. Craig V. Norfolk, I. 24. 723, 4, 5. Crawford v. Powell, I. 736, 7. II. 86. 11.1. 295. Cross v. Smith, I. 772. Cudden V. Estwick, I. 153. 181. 246, 7. 364, 9. 370, 1. 380. Cursey v. Smith, II. 114. Chandler a. Horn, I. 189. Chippenham a. Dummer, I. 831 . Clarke a. Asthill, I. 20. Bab, I. 448. 4.52. 454. Exeter, I. 349. Gabriel, I. 617. Vintners, 1. 152. 163. 412, 15. Qerke a. Guilford, I. 252. 386. 440. 581. Watson, I. 207. 411. 2, 7, 9. Coates a. London, I. 164, 5. 193. INDEX OF CASES. 'IT Colchester a. Lucas, II. 245. Cole a. Green, I. 407. Compton a. London, 1. 158. 168. 182. 347, 8.351.361.413,4,8. Cookson a. Gray, I. 461. Cotterel a. Wells, I. 173, 4. Coventry a. Colt, I. 526, Cross a. Gay, II. 481. D. Da Costa v. Russia Comp. II. 167. 171, 3. Darby v. Foxley, I. 50. Davenant v. Hurdis, I. 334. 394. Davidson v. Moscrop, 1. 177. Davis V. Humphries, II. 19. Day V. Savadge, I. 178. 186. 193, 9. 200, 5, 6. Denning v. Norris, I. 811. Dighton, 1. 650, 3. 766. II. 75. 224. Dodwell V. Oxford, I. 240. 250. 384. 404. 641. Doe d. Maiden v. Miller, I. 50. Doggerel v. Pokes, 1. 379. 453. Dorrington v. Edwin, I. 409. Dublin ca. II. 493. V. Dowgate, II. 269. 270. 312. V. Regem, II. 269. 270. Dungannon ca. I. 19. 852. Dutch West India Company v. Moses, 1.37. Dummer v. Chippenham, I. 831. Durham (Mayor of), I. 755. II. 103. 154. Davis a. Cotton, I. 135. Feltmakers, I. 350. 396, 7. 424, 5. Green, I. 621. 787. Dennis a. Piper, I. 492. II. 470. Deering a. Strode, I. 455. Dickson a. Clack, I. 410. Dowgate a. Dublin, II. 269. 270.312. Drewry a. Wcatherhead, I. 779. 789. Droghedaa. Pippard, I. 18. II. 364. Dairhaiaa. Green, I. 128,236.310. 325. 11.77,8.261, s8 Earle's ca. I. 680. 713. . Eaden's ca. I. 189. 192, 8. 412. 418. 429! Edward v. Vesey, II. 17. Enfield v. Hills, II. 276. 285, 8, Evesham ca. I. 70. Exeter v. Clarke, I. 349. Clyde, I. 656. 694, 6. II. 228.^ — Starre, I. 428. 597. Edwin a. Dorrington, 1. 409. , Estwick a. Cudden, I. 153. 181. 246, 7. 364, 9. 370, 1. 380. Evans a. Harrison, I. 252. 440. Evelyn a. Claridge, 1.504. II. 381. Eynon a. Bright, II. 481. Fazakerley v. Baldo, I. 412, 3, 7. 421, 2. Wiltshire, I. 5, 148. 1.53, 8. 181, 6, 8. 243. 251. 357. 364, 8, 9. .^71. 389. 437. 837. Feltmakers v. Davis, 1. 350. ,396, 7. 424,5. Femes, I. 138. Foot V. Piowse, II. 286. 308. Foxwhist v.Tremaine, 1.49. Framework Knitters v. Green, 1. 154. 319. Franklin v. Green, I. 249. Freemantle v. Silk throwsters, 1. 333. Farnham a. Attorney General, I. 36, Fawcett a. Wright, II. 191. 201. 210. Fell a. Gun makers, I. 429. 447. Fennel a. Bodwic, I. 143. 182, 4, 6, 7. 350. 371, 4, 8. Fox a. Bedford, I. 218. 235. 242. Foxley a. Darby, I. 50. Francis a. Lord, I. 492. II. 291. Newling, I. 255. 263. 270, 6. 861. G. Gabriel v. Clarke, I. 617. Gay V.Cross, II. 481. Getrish v. Rodman, 1. 426. Gibbon, II. 1. XVJ INDEX OF CASES. Gilby V. Lockyer, 1. 584. Grafton ca. I. 16.1, 5. 305, 6. Gray v. Cookson, I. 461. Green v. Cole, I. 407. Davis, I. 621. 787. Durham, I. 128. 236. 310, 325. II. 77, 8. 261. Pope, II. 268. 282, 6, 7. Griffith V. Williams, 1.191. Guilford V. Clarke, I. 252. 386.440. 581. Gunmakers v. Fell, I. 429. 447. Gibbes a. Windhurst, I. 190. Glazby a. Bath, I. 185. 352. 375. Gledfaill a. Innholders, I. 432, 3. Gloucester a. Taylor, I. 6.38. 666. 698. 706, 7. II. 136. Glyde a. Exeter, I. 656. 694, 6. 11. 228. Godman a. Harrison, I. .351, 8. 361, 3. 413. Godwin a. Colchester, I. 3. 5. 44. 143. 169. 211. 353, 5. 365, 6. 371,2. 383. 429. Gooden a. Smedley, I. 461. Gower a. Attorney General, I. 858. Gradon a. Britton, I. 49. Gray a. Cameron, II. 2.54. 291. Greaves a. Southampton, II. 22, 5. Green a. Framework Knitters, 1. 154. 319. Franklin, I. 249. London, 1. 186. 371. Groscourt a. Robinson, I. 181. 313, 4. 362, 412, 3. H. Haddock's ca. 1. 39. 630. 644. 667. 844. Hamburgh comp. I. 141. 172. Harman v. Tappenden, I. 702. 817. Harris v. Wakeraan, I. 145. 169. 186. 398. 798. Harrison v. Alexander, \. 417. Evans, I. 252. 440. Godman, I. 351, 8. .361, 3. 41.3. Williams, I. 852. II. 23. Harscott's ca. I. 453. Hartop V. Hoare, I. 200, 1, 6. 412. Harwood's ca. I. 161. Hastings ca. I. 767. Hawley's ca. 1. 660, 2. II. 97. 227. Hazard's ca. I. 612, 13, 15, 16. 678. Hereford ca. II. 201. Herring v. Finch, I. 819. 822. Brown, II. 434. Hesketh v. Braddock, I. 145. 178. 182, 4, 6. 205. 350, 2. 368. 371, 3, 6. 798. 800. Hoblyn v. Regem, I. 128. 233. 255. 262. 275. II. 488. Hodges V. Atkis, II. 25. Hodgson V. Atkinson, 1. 206. Hollingsford v. Hungerford, I. 350. Holt I. 706. II. 138. Horn V. Chandler, I. 189. Ivy, I. 222. 602. Horners v. Barlow, I. 248. Hurscott's ca. I. 137. Hurst's ca. II. 75. Hyde v. Thrastout, II. 129. Hastings a. Moore, II. 83, 4, 5. 145. Hawkins a. Blacquire, I. 200, 5, 6. Hearne a. Bosworth, 1. 337. 359. Herring a. Cambridge, I. 308. HiUs a. Enfield, II. 276. 285, 8. Hoare a. Hartop, I. 200, 1, 6. 412. Holmes a. Wigan, II. 260. Hudson's Bay Comp. a. Child, I. 23J.328. Humphries a. Davis, II. 19. Hungerford a. Hollingsford, I. 350. Hunta Argyle, 1.201. Hurdisa. Davenant, I. 334. 394. I. Innholders v. Gledhill, I. 432, 3. Ipsleyv.Turk, I. 811. Ipswich Taylors' ca. I. 225. 346. 381. 394, 5. 869. Ipswich Clothworkers, I. 344. v. Johnson, I. 8. 44. 147. 192. 208, 9. Idle a. Woolly, 1. 143. 184. 352. 368.371, 5. .396. Ivy a. Horn, 1.222. 602. INDEX OF CASES. xni James v. Tutney, 1. 4:5(i. Jay's ca. 1. 680. 704. 713, 714. Jeffs V. Bolton, I. 139. 327. 404. 777. Jennings' ca. I. 612, 13. JoUie V. Broad, I. 158. Jones V. Williams, I. 20. 770, 8. 781, 2, 3. II. 79. Jackson a, Phips, I. 196. James a. Pits, I. 50. Jenkins d. Marl in, I. 739. Player, I. 337, 8. 358. Jocara a. Whit wood, II. 163. Johnson a. Berwick, I. 182.211.219.228. 341. 371. Ipswich, I. 8. 44. 147. 192. 208, 209. Workingham, I. 382. Jones a. Player, I. 153. 359. K. .Kerby v. Wichelow, I. 5. 7. 33, 6. 47. Kirk V. Nowill, 1. 12. 224, 6. 449, 450. Kuightv. Wells, I. 37, 9. 43. 858. II. 175. Kjmaston v. Shrewsbury, I. Gi, 8. 798. II. 259. 270, 1. 280, 4. Kingston a. tlie Protector, I. 190. 710, 12. L. Lamb v. Mills, 1. 455. Wiseman, I. 814. Layton's ea. I. 786. Leathley v. Webster, 1. 322. Lee V. Willis, 1. 294. 388, 9. .396 443, 5. Leyfield's ca. I. 24. Lidlestone v. Exeter, II. 193. Limerick v. Attorney General, 831. London City's case, I. 143, 4, 5. 150, 8. 178. 217. 221, 3. 368. 435. 443, 8. 458. 471.525.622.722.837.852. London, Chamberlain's ca. I. 182, 6. 246. 335.350.371.394.417. London v. Bernardiston, I. .331. 368. 376. 402. 4,36. London v. Coates, 1. 164, 5. 19."i Compton, 1. 1.58. 168. 182.347 8. 351. 361. 413, 14. 18. Estwick, II. 75. Green, I. 186. 371. Lyme Regis, U. 1. Markwick, I. 774. — Vanacre, I. 169, 170. 243. 251. 299. .301, 2, 4, 7. 335. 365. 434, 9. 588. 591.846.867. Wood, I. 186. .3.50. 376. 40], 5, 7. 417. 438. 443, 8. 452. Lord V. Francis, I. 492. 11. 291. Lucas V. Colchester, II. 245. Lyme Regis ca. 1. 42, 4. 50. Leeds a. Pees, 11.135, 9. I Lc\fes H. Sherborne, I. 44. Vaughan, I. 3. 168. 626. 656, II. 289. 293, 6. Lincoln a. Shuttle worth, I. 528. II. 60. 75. 102. 106. 153. Liverpool a. Attorney General, I. .327. London a. Swallow, I. 413, 16. 420. Wannel, 1.313. 361. II. 78. Wood, I. 186. .350. 376. 401, 5, 7. 417. 438. 443, 8. 452. Long a. Manley, I. 610. Lowten a. Colchester, 1. 327. Lyme Regis a. London, II. 1. M, Machell v. Nevinson, I, 77, 8. 80, . Maidstone ca. II. 432. Malmsbury ca. I. 46, 8. Manaton's ca. IL 175. 186. 201. 280. Manley v. Long, I. 610. Marriage v. Lawrence, II. 1. 6. Martin v. Jenkins, I. 739. Mellor V. Spateman, I. 5. Middleton's ca. I. 331. .376. 650. 683. II. 41. 75. 97. MiUs'ca. n. 317. Milward v. Thatcher, I. 617, 19. 623, 4. II. 75. Mitchell V. Mitcheson, 1. 410. Moir V. Monday, 1. 146. 157. 166, 7. 2JJ3, will INDEX OF CASES. Moore, 11. 1. ■ -i H ^ < V. Hastings, II. 83, 4, 5. 145. Afusgrave v. Nevinson, I. 77, 8. 80. 11. 2o7. 442. 481. Maine a. Piddington, 1. 202. Markwick a. London, I. 774. Miller a. Maiden, Doe dem. of, I. 50. Mills a. Lamb, 1. 455. Mitcheson a. Mitchell, 1. 410. Mogg a. Catt, 1. 417. Monday a. Moir, I. 146. 157. 166, 7. 213. Morey a. Butchers, 249, 50. 340. Moscrop a. Davidson, I. 177. Moses a. Dutch West India Coinp. I. 37. N. Neville v. Paine, II. 484. Newling v. Francis, I. 255. 263. 270, 6. 861. Norris v. Staps, 1. 229. 344, 5. 381. Norwich ca. II. 292. Newel a. Ruding, II. 312. Nevinson a. Machell, 1. 77, 8. 80. Musgrave, I. 77, 8, 80. II. 257.442.481. Stevenson, 1.805. Tufton, I. 735. II. 256. 463. Nowill a. Kirk, I. 12. 224, 6. 449, 50. Norfolk a. Cragg, I. 24. 723, 4, 5. Norris a. Denning, I. 811. North a. Potter, 1. 610. O. Oldknow V. Wainwright, 1. 570. Owen V. Saunders, I. 586. 605. Stainoe, I. 526. Oxford ca. I. 796. V. Wildgoose, I. 386. Oakhampton a. Commins, I. 804. Osborne a. Austin, I. 524. Oxford a. Dodwell, I. 240. 250. 384. 404. 641. Palmer V. Barfoot, I. 1.59. 171. Papilion and Dubois, II. 140. Parker's ca. II. 75. Parry v. Berry, I. 128. 235. 343. - ^ Partridge's ca. II. 442. i a 3a"»/o-;S Peat's ca. II. 143. Pees V. Leeds, II. 135, 9. Pcnryn, II. 103. Pepys' ca. 650. Phillips V. Bury, 1. 513. Smith, II. 503. Phips V. Jackson, 1. 196. Physicians v. Salmon, I. 37. Piddington v. Main, I. 202. Pierce v. Bartrum, I. 244, 6, 7, 8, 9. 336. Pierson v. Ridley, 1. 157. Piper V. Dennis, 1. 492. II. 470. Pippard v. Drogheda, 1. 18. II. 364. Pits V. James, I. 50. Player v. Archer, I. 189. 331. 373, 6. 380. 402, 7. 450. 775. Jenkins, I. 337, 8. 358. Jones, I. 153. 359. Vere, I. 186. 326. 358. 387. 839. Plumer v. Bentham, I. 200. Pope v. Vaux, I. 417. Potter v. North, L 610. Powell V. Price, II. 176. 193. Regem, I. 317. 849. Prigge V. Adams, I. 247. Protector V. Kingston, I. 190. 710. 712. Prowse V. Foote, I. 758, 9, 76(K '"* - Pullen V. Palmer, II. 294. Paine a. Neville, IL 484. Pdraer a. Buckley, II. 306, 9. Buller, L 239.861.877. Pullen, II. 294, Parkhouse v. Smith, d. Dormer, 11.481. Passey a. Vintners, I. 284. 29i8. 300. 319. 382.434,9.767. ' Pelson a. Barber Surgeons, I. 30o. 396. 425, Ferryman a. Tredymmock, 1. 180. Phillips a. Bateman, II. 22. Pilkington a. Rich, II. 280, 8,'9i'9d'. Plasterers and Bricklayers, 1. 360. Pokes a. Doggerill, I. 379. 453. Pope a. Green, II. 268. 282, 6, 7. INDEX OF CASES. XIX Powell a. Crawford, I. 736, 7. 11.86. 113. 295. Price a. Powell, 11.176. 193. Prowse a. Foot, U. 286. 308. R. Ravenshill ca. II. 76. R.v. AbeU, I. 845. Aberystwith, II. 58. Abingdon, I. 430. II. 48. 60. 131, 2, 7, 8, 9. 176, 9. 204. 212. 223. 299. 301.323. Albans, St. II. 79. Aldborough, I. 581. 11.246. Amery, I. 6, 7. 16. 20, 3, 6, 8. 30, 1, 2, 3. 480. 633. 870, 5. II. 30. 308. 479, 480, 8. 497. 509. Amos, I. 773. Andover, 1.652, 4. 665. 713. II. J42. 151. 287. Armstrong, II. 503. Ashwell, 1.237.255,264. 271,8. 285, Askew, I. 27. 391. 470, 8. 480. Atkyns, I. 69. 94. 755. 769. 778. 823. Autridge, II, 443. Axbridge, II, 97, 100, 303. Babb, II, 15. 17. 22, 8. 352. Bankes, II. 57, 8. 66. 116. 263. Barber Surgeons, I. 292. 313. 841. 850. Barker, 11.41,87. Baron, II. 300. Barzey, I. 34, 11.375. 501. Bedell, II. 14, ,, ', Bedford, 1.571.588.606. 768.811. II. 54, 7. 71,2. 102. 339. 346. 427. Bell, 11.24,8. 481. Bellringer, 1. 115, 17. 125, 7. Bennett, II, 481. Bernard, I, 590. Bettesworth, II. 150, 171, 3. Biddle, II. 439, 490, Bipigbam, IL 343. Binsted, II. 371, 409. Birch, II. 453, 4. 503. R. V. Bird, I, 255, 7. 272, 9. 286. 8. 456. 471,2/3,7. Blagden, 11,441, Blatchford, 11.504. Blunt, II. 481, Bond, II, 379. 414, 19. 423, Boston, I. 448. Bosworth, I, 107. 479. 575, 6. Bower, I. 117, 18. 125. 133. 298, 587. Boyles, II, 343. 463. Bray, I. 802,3. Breton, I. 286. 471, II. 348, 9. 350, 1 . Bridgewater, I. 862. II. 153. Bristol, I. 627. II. 147. 190. 217, Brooke, II, 516. Brown, I. 738. II. 72, 3. 386. 402. 470, Buller, I. 103, 4. II. 355. Butler, 11.391. Cambridge, I. 26. 459. 465. 503. 650. 727. 773. II. 45, 55, 7, 8, 112. 133. 190,91,2,6,232,5. 249.302. Campion, I. 631. II. 75 104. 231. 303, 5. Canterbury, 1. 21. 650. 703. 11.41,75. 244. CarUsle, I. 11. 83. 632, 3. 641, 11. 2.39, 40. Carmarthen, I. 60. II. 340. 360. 488. Carpenter, I, 801. 11.498.520. Carter, I. 95. 505. II. 381.395, Castle, 1, 266. 289. 517. 813. Chalke, I. 610, 11, 12. 637. 643, 6. 663, 4. 679. 685. 764. 792. II. 238. 242. Chalice, II. 193. 288. 293. Chester, I. 23. 603. 651. II, 15, 22. 36, 44, 142. 201. 243. 264. 432, Chichester, II. 277, Clapham, 1, 608, II. 79. 185. 208, 9. Clarke, II. 335. 379. 408. 416. 489 . 520. Clerke, 1. 432. 726, 795. Clithero, II, 175. 274. Colchester, II. 87. Cornwall, II. 201. a2 XX iNDKx oi i;ases. K. V. Corry, I. 94, fi. lOf). Coventry, 1. 651, 2. II. 181, 5. 227. Cracker, II. 494. Cripland, I. 828. Courtnay, I. 503, 5. .'J/O, 71. 11.381. 488, 9. Croke, I. 38. Cudlipp, 11.413, 14,15.422. Cusack, II. 336. 488. Cutbush, 1.261, 8.274. Cutlers, II. 108. Dartmouth, I. 472. Davie, I. 826.8.30. Davies, 11. 365. Davis, I. 834. Dawes, 1.97.730. Deane, II. 41. Debenham, II. 1. (>. Denison, I. 595. Derby, I. 640, 1, 3, 4, (J, 7. 667, 8. II. 152. Devizes, II. 148. Devonshire, I. 115, 19. Dicken, I. 749. 11.421. Doncaster, I. 62. 629. 634, 5, 7. 655. 663, 9. 673. 710. 716. 7.58. 11.223, 26.241. Dover, II. 160. Dovvnas, I. 722. II. 512. DubUn, 1. 150. 220, 21. 309. 424. 726. II. 41. 113. 128. 159. 269. 488. Dummer, I. 826. Durham, I. 6. 766. Edgar, II. 429. Edyvean, II. .326. Ellames, II. 273. 481. 50.'?. Ely, II. .36. 44, 8. En{?land (Bank of), 11.40. Esham, II. 328. Everet, II. 40, 6. Evesham, 11.61. Excise (Commissioners), 11.35. Exeter, I. 612. 677. 696. II. 161. 237, Eye, 1.467,8.-390. R.v. Faversham, I. 64,5. 329. 387, 9. 629. 695. 702. II. 2.32. 240, 41. Filewood, II. 516. Foster, II. 426. Fowey, I. 56. II, 47. 50. 162. 314. 320. 325. Foxcroft, II. 525. Francis, II. 481. Gaborian, I. 69. 77, 8. 94. 103, 4, 5. Gaskins, II. 235, 8. Ginever, I, 134. 277. 287. 297. II. 4.37, 8. 468. Glamorgan, I. 405. II. 267. Gloucester, II. 1.35, 8. Clyde, II. 237. Godwin, I. 617. 620. Gordon, II. 7. 385. Grainpound, II. 47. 273, 9. Grant, II. 412. Gravesend, I. 608. 780. II. 79. Green, I. 833. Grey, I. 773. 861. 872. Griffith, II. 303. Grimes, 1.67.120.696. 11.474.504. Grosvenor, I. 265. 305. 442 594. 299. 517. 869. II. 488. Guilford, I. 715. II. 75. 82. 101. Guise, 11.206. Gwyn, II. 5. Halford, I. 648. II. 157. Hall, II. 361. 510. Hare, II. 38. Harper, I. 495. 572, 3, 4. Harris, 11.90. Harrison, 1.313. 361, 3. 413. II. 78. 121. Hart, II. 420. Harvey, II. 341. Harwood, II. 201. ,3.55. 367, 8. Haslemere, II. 61, 7, 9. Hawkins, I. 508. 745. II. 86. Hawley, II. 227. Haythorne, I. 11. 216. 227. 292. 500. 794.861,6. 11.41.454. INDEX OF CASES. XXI R. V. Head, 1. 128. 233, 5. 255. 262.9.275. Hearle, I. .523. 755,6. II. 103. 269. 487, 8, 9. Heath, 1. 480, 2. Heaven, 11.93. 396. Hebden, 1. 97. 101. 727. 730. 11.442. 472,4.483. Helstone, II. 372. Hereford, 1.456, 7.472. II. 131, 9. 181. Hertford, II. 337. 348. 430. 487, 8. , 516. Heydon, 11.26.68. Higgins, I. 799. Highmore, II 345. Hill, 1.59.61,2,4,9.70,2,4, 8.115. II. 378. 455. 471. Hoare I. 289. Hodge, II. 403. Holland, I. 255. 277. 861, II. 457, 9. Hollister, II. 28. Holmes, II. 172. 193, 5. Holt, II. 439. Hoskins, II, 176. 323. Howell, II. 516. Hoyte, 1.122,4. II. .520. Hughes, I. 53. 729. 11.31, 3. 474, 5, 7,8. Hull, II. 200. 489. Hulston, II. .343. Hunger ford, I, 593. Ilchestcr, II. 181, 5. 302. Ingram, I. 682. II. 12. Ipswich, I. 39. 45. 96. 135. 169. 638. 658. 661. 682, 8. 693, 4, 5. 701, 7. 810.11. 9. 10. 113. 131. 141. 184. 231.305.313,5,6. John II 33. Johns est.) 11.92. 117.193. Jones, II. 440. 481. Joliffe, 1. 156. 210. Jotham, I. 725, 6. II. 42, 4. 91. 109. Kingston, II. 130. 141, 2. 151. 163, 4,5.265. Knight, I, 188. 630, 764. 792, 3. II. '1(;9. R.V.Lambert, II. 201.246. Lancaster, II. 298. Lane, L 612, 13. 646, 7. 680. 713. II. 220, 374, Langley, I. 769. 778. Larwood, I. 440. 515. 596. 841, 2, 3,8. Latham, II. 383. 390. 469, Lathrop, I. 115. II. 383, 390, 2. 469. Lawrence, II, 446, Leicester, 1, 672. 697. Leigh, II, 442 482, 6. 506, 512. Lenthal, I. 605. Lewis, II. 520. Leyland, 1.439. H. 71,2,3. Lincoln, 1.479. Lisle, I. 64. 101. 726. 812. II. 175. 461. Liverpool, I. 62, 4. 75. 639. 640, 6. 681. 692, 4. IL 49.^ 116, 19. 142. 151. 180. 223. 233. * Locke, I. 127. London, 1. 176. 448. 454. 499. 607. 685. 713, 5. 801. 839. 8.52, 9. II. 36,9.89.97. 101, 7. 124. Love, I. 507. Lucas, II. 16. 111. Ludlam, II. 78. Ludlow, I. 361. II. 214. Lyme Regis, I. 424. 629. 655. 669. 696, 9. 710. II. 179. 185, 7, 8. 202. 230,248.278. 281.452. Lynne (King's), II. 183. 235. Maidstone, I. 229. 253, 5. Maiden, I. 496. 572. II. 182. 203. Mallet, I. 488. March, I. 576. Margate, II. 41, 3. 164, 5. Marriott, II. 178. Marsden, 11.361. Marshall, 1.311. 459. 465. 618.11. 410. Martins (St.) II. 49, 50. Mary's (St.) 11.479. Maurice, 1. 479. INDEX OF CASES. R, V. May, I. 6-1. 70, 6. 88. Mears, II. 55). Mcillicot.JI. 34a. Mein, I. 729. II. 345. 363. 378, 9. 474. Merchant Tailors, I. 163. 448. II. 72. 149. M'Kay, II. 59, 345. 363. 510. Middlesex, II. 126. Miles, I. 669. 670. Miller, I. II, 115. 133. 216. 227. 292.441.518.841.850,6.861. Mitchell, I. 487. Monday, I. 125, 7. 133. 481. 508. 735,6,7, 8.745. 811. 11.86. 113. 52.3. Monmouth, II. 197. Montacute, II. 141. 287. Morgan, I. 111. 530. II. 198. 397. 516. Morris, I. 115, 17. .576. 856. II. 155. 407. Mortlock, II. 418. 520. Mothersell, II. 2, 3, 4, 13. Nance, I. 129. 130. 496. 511. 572. II. 482. Netherthong, I. 806. Newcastle, I. 181. 316. 321, 4. 394. 430.465.11. 15, 16.22. 110. 143. 6. 254. 291. 327. Newdigate, I. 451. Newland, II. 443. Newling, II. 83. Newsham, II. 57, 8. 67. 137. Nicholas (St.) I. 460. Norris, I. 104. Norwich, I. 726. II. 131, 9. 163. 176. 191,2.302. Nottingham, II. 11. 27, 8. 128. 148. 156, 7. 166. Osborne, I. .521. 861. II. .380. Owen, 11.41. 11,3. 158. Oxford, I. 66. 582. 634. 680. 710. 713. II. 53. 70. 205. 231. 254. 291. 305. R.v. Paine, II. 359.411. Parkyns, 1. 84, 5. 829. Parry, I. 508. 745. II. 86. Pasemore, I. 3. 16. 25. 30. 480. 853, 6. 860, 4, 5, 8. 870, I, 3, 4. II. 488. Pateman, I. 617, 9. 620, 3. 703. II. .394. Peacock, 1.510. 749. II. 414. 520. Penrice, II. 208. Penryn, 11.400.474. Pettiward, II. 298. Phillips, I. 851. II. 463. 503, 5, 6, Pickerill, II. 513. Pigram, II. 8. Pindar, II. 489. Plymouth, II. 133. Plympton, I. 828. Pomfret, I. 676. II. 192. Ponsonby, I. 625, 9. II. 93, 5. 354. 396, 9. Pool, II. 382. Portsmouth, I. 657. 696. II. 93.. PoweU, I. 475. II. 359. 443, 4. 520. President des Marches, I. 608. II. 81.99.185. Pugh, I. 795. Purnell, If. 26. Purshouse, II. 355. Pyke, II. 474. Radnor (New) II. 359. Ragsden, II. 347. Reeks, II. 489. Richardson, I. 122. 629. 634, 9. 640, 6. 674. 692. 710. II. 361, 2. 445. 510. Richmond, 1. 486. II. .383. Rippon, I. 610, 11, 12, IS. II. 219. 276. 288. 290. Robins, I. 802. Robinson, II. 323. Rogers, I. 155. 160. 175. 400, 1. 715. Routledge, I. 795. Rowe, I. 462. Rowland, II. 456. Rye, II. 8. 123. 329. INDEX OF CASES. XXIU R. V. Sadler, I. 634. Sainsbury, 1. 773. Salop, 11.318, 19. Sandys, I. 698. II. 389. Sargcant, I. 484. II. 367, 9. Saunders, I. 858. 869. II. 338, 9. 362. Scarborough, II. 53, 6, 8, 69. Scoldeu, I. 485, 9. II. 373. Scott, I. 113. 498. II. 358. 395. Serle, II. 200. 489. Severn and Wye, II. 41. Shakespeare, I. 49. Sharpies, I. 212. SheUey, II. 15. 21. 2. 8. 9. ill. 352. Shrewsbury, I. 64, 7, 8. 74. 696. II. 14. 229. 233, 4. Slatford, I. 582, II. 205. 305. Smart, I. 96, 9. 100, 2. Smith, I. 97, 9. 121. 502. 527. 721, 9. II. 131, 2, 3, 5, 7, 9. 164. 386. 406. 451, 8. 460. 472, 3, 4. Soley, I. 823, 4. Sparrow, I. 520. 832. Spearing, I. 97. II. 472. Spencer, I. 261, 8. 273. 294. 315. 387. II. 524. Spotland, II. 298. Stacey, I. 97. II. 28. 378, 9. 412, 413, 16. Stafford, II, 44. 260. 275. Sterling, II. 179. Stevens, II. 186. Stokes, I. 738. 748, 9. 750, 1. II. 399. Suddis, II. 189, Surgeons, I. 312. II. 298. 301. Surry, II. 27, 8. Symmons, II. 371. 422. 502. Tappenden, I. 294. 315, 16. 465. II. 304. Tate, II, 355, Taunton, I. 703. Taylor, I, 512, 666. 687. II. 200. 490. R.V.Thame, 1. 218. 650. 703. II, 224. 244. Thatcher, I. 582. II. 87. Theodrick, I. 62, 4 74, 7, 8, 9, 80, 2,3. Thetford, 1. 520. II. 3, 56, 370. Thornton, 1. 56. 96, 8, 9, 100, 2. 115.756.763.790, Tidderley, I. 615, 6. II. 75. 104. 221. Tintagel, II. 58 Tiverton, 1. 668. 827. Tomlyn, I. 255, 266, 427. 441. 517. Tooly, II. 325, Totness, II. 93. Tower, II. 15, 111. Tregony, II. 45. 134. 163. 196. Trelawny, 1.622.11.331,9. Trevanion, II. 15, 22, 9. 352. Trevenen, II. 335. 379, 398. 404, 5^ 413, 17, 19. Trew, I. 94, II. 376, 7. 393. Trinity House, I, 22, II, 331, 430. 441, 498, Truboy, I, 655, 7, 696, Truro, II, 57, 68, Tucker, I, 74, 7, 266. 517. II. 30. 384, 8. Turkey Comp. I. 479. Turner, II. 87, Twitty, II, 206. Varlo, I, 125,7. 133,518, Vaughan, I. 828. Vicars, I. 690. Wake, I. 79. WaUis, II. 363. 510. Ward, II, 41. 79. 150, 164. 201. 213. Wardroper, II, 520, Warlow, II, 359, 426, Water Eaton, II. 115. 129, 130. 142. 151.165.274. Waterworks CGovernors of) II. 97. Watson, 1. 825, 831. vxiv INDl'^X Ol' CASKS. U. V. Wolls, 1. 6n8. 6(il. 675. 68!). II. 7:'). Westminster, 1. G07. 725. II. 42. 75. West Looe, I. 4.^(5, 7, 8. 472, 3, 4. .^77. II. 59, 80, 4. ;«. 123. 140. West Ruling, II. 122. 189. Westwood, I. 2(5. 128. 233, 4, 5, 7. 2r)5, 7. 280, 1,2,3, 5. 427. 441. 844, 850. Weymouth, 1. 295. 491. II. 478. Whaley, II. 1«3. Whiskin, 11. 143, 4. 215. Whitechurch, II. I(i3. 387. 480. White, 1.505. II. 100. .381. Whitstable, 1.725.11.42. 101. WhitvvcU, II. .354. Wigiui, II. 59. 70. 139. Wilchnan, II. 129, 130. 157. Ifio. Williams, I. 103, 4. f)71. 11. 4(i. 65. 199. 339. 3-12. 356, 9. 3G0. 495, 6. 510. Williamson, II. 300. Willingford, II. 163. Willis, II. 63, 4. 125, 9. 199. Wilton, 1. 694, 5. II. 75. 226. 238. 240, 2. Winchelsea, II. 35. 181. Windham, II. 41. Woodman, II. 376. Woodrow, I. 592. II. 56. Worcester, I. 405, 6. 808. Wygorne, II. 430. Wyllyams, I. 117. Wynne, I. 515, 7. 632. 842. 868. II. 424. 502. 520. Varmouth, 11.266.430. York, I. 97. II. 112. 180. 190,2. 203, 207. 226. 230, 2. 474. Rich V. Pilkington, II. 280, 8, 9, 290. Hippon ca. I. 318. Robinson V. Groscourt, 1.181. 313, 14. 362. 412, 13. Roe's ca. II. 75. Roc V. Aylmer, II. 29. Rubers V. .I'incs, II. In. Riuling V. Newel, 11. 312. RiisEcl V. Succlen, II. 254. 291. Reeves a. Adley, I. 245. 396. 446, 447. Ridley a. Pierson, I. 157. Rodman a. Gerrish, I. 426. Rous a. Warden, I. 522. Russia Company a. Da Costa, II. 167. 171,3. S. Sackville College ca. I. 225. 864. Sarum (New) ca. II. 319. Scarborough v. BuHer, I. 39. 859. Schnldam v. Burnis, II. 20. Shaw's ca. 1.821. Sherborne v. Lewes, I. 44. ShtUtleworth v. Lincoln, I. 528. 11.60. 75. 102. 106. 153. Smedlcy V. Gooden, 1. 461. Smith's ca. I. 3. 852. 868, 9. II. 488. 492, Smith d. Dormer v. Parkhouse, I!. 481. Southampton v. Greaves, II. 22, 5. Spink V. Tenaut, I. 195. 412. Stafford v. Bolton, I. 44, 6. Stamp's ca. II. 75. 97. Starling's ca. II. 159. Starling v. Turner, I. 820. Stationers v. Salisbury, I. 301. 394. Steavenson, I. 744. Steven's ca. II. 75. 175. 201. 302. Stevenson v. Neviuson, I. 805. Strata Marcella, I. 200. 860. II. :«I. 431, 2.441.462.487,8.498. Stratford upon Avon ca. I. 650. Strode v. Deering, I. 455. Sutton's Hospital, I. 13, 14, 15, 19. Swallow V. London, 1. 413, 16. 420. Symmers v. Regem, I. 669. 704,7. 710. 727. 749. 765. II. 232. 399. 426. 474, 6. 486, 8, 9. 505, 6. Salisbury a. Stationers, 1.301. 394. Salmon a. Physicians, I. 37. Sandwich a. Verior, I. 614, 17, 19. II. 222. Saunders a. Owen, II. 41. 113. 158. SavHdge a. Day, I. 178. 186. 193, 9. 200, 205, 6. 1 INDEX OF CASES. XXV Seaber a. Colchester, I. 3. 39. 41. 55. 856", 9. 870. Searl a. Wood, I. 356. 367, 8. 444, 8. 455. Sharpe a. Wright, 11.310, 11, 12. Shrewsbury a. Kynaston, I. 64, 8. 798. II. 259, 270, I. 280, 4. Silk throwsters a. Freemantle, I. 333. Smart a. Chaunt, II. 324. Smith a. Carsey, II. 1 14. Phillips, II. 503. Spateman a. Mellor, 1. 5. Stainoe a. Owen, I. 526. Staps a. Norris, I. 229. 314, 15. 381. Starre a. Exon, 1. 428. 597. Succlen a. Russel, II. 254. 291. T. Tanistry ca. I. 181. Taverner's ca. I. 319. 684. II. 75. 211. Taylor's ca. II. 75. V. Gloucester, I. 638. 666. 698. 706, 7. II. 136. Thetford ca. II. 193. Tooker v. Beaufort, I. 24. Townsend's ca. I. 463, 4. II. 75. Tredymmock v. Ferryman, 1. 180. Tufton and Ashley's ca. II. 508. Tufton V. Nevinson, I. 735. II. 256. 463. Turner's ca. II. 280. Tappenden a. Harman, I. 702. 817. Tenant a. Spink, 1. 195.412. Thatcher a. Milward, 1. 617, 19. 623, 4. II. 75. Throgmorton a. Bolton, I. 159. 168. 171. 348. Tremaine a. Foxwhist, I. 49. Trinity College a. Canterbury, II. 112. 174. House a. Attorney General, II 503. Tucker a. Clarke, I. 387, 8. 443, 5. 4.50. Turk a. Ipsley, 1.811. Turner a. Starling, I. 820. Tutncy a. James, I. 436. Vaughan v. Lewis, I. 3. 168. 626. 656. 11. 289. 293, 6. Verior v. Sandwich, I. 614, 17, 19. II. 222. Vintners v. Clarke, I, 152. 163. 412, 15. Passey, I. 284. 298. 300. 319. 382. 434, 9. 767. Virginia comp. ca. II. 488. Vere a. Player, I. 186. 326. 358. 387. 839. Vanacre a. London, I. 169, 170. 243. 251. 299. 301, 2, 4, 7. 335. 365. 434, 9. 538. 591. 846, 867. Vaux a. Pope, I. 417. Vesey a. Edwards, II. 17. W. Wannel v. London, I. 313. 361. II. 78. Ward V. Brampston, II. 287. Warden v. Rous, I. 522. Warren's ca. 651, 3. Watson V. Clarke, I. 207. 411, 12, 17, 19, Weatherhead v. Dre^vry, I. 779. 789. Weavers v. Brown, I. 148, 9. 184; Wells V. Cotterell, 1, 173, 4. Whittacer's ca. I. 40. Whitton V. Westran, I. 858. Whitton V. Jocam, II. 163. Widdrington's ca. II. 194. 277. Wigan V. Holmes, II. 260. Williams v. Braddock, 1. 178. Williamson v. Bolton, 1. 162. Wilton v.Wilks, 1. 141,8. 183, 9. 242. 375. Winchelsea ca. I. 318. Windhurst v. Gibbes, I. 190. Windsor v. Webb, I. 858. Wood V. London, 1. 371. 399. 400. Searl, 1. 356. 367, 8.444, 8. 455. Woolley V. Idle, I. 143. 184. 352. 368. 371, 5. 396. Workingham v. .Johnson, I. 382. Wright V. Fawcett, II. 191. 201. 210. Sharpe, fl. 310, 11, 12. XVI INDEX OF CASES, Wakeman a. Harris, 1. 145. 169. 186.398. 798. Wainwriffht a. Oldknow, 1. 570. Webb a. Beard, 1.417. Windsor, I. 858. Webster a. Lealhley, 1. 322. Nevesley, 1. 322. Wellbank a. York, 1. 141, 5, 182, 6.375. Wells a. Knight, I. 37, 9. 43. 858. II. 175. White a. Ashby, I. 819, 20. Wichelow a. Kerby, I. 5. 7. 33, 6. 47. Wildgoose a. Oxford, I. 386. Wilks a. Wilton, I. 141, 8. 183, 9. 242. 375. Williams a. Griffiths, I. 191. Harrison, I. 852. J I. 23. Jones, I. 20. 770, 8. 781 , 2, 3. Wiltshire a. Fazacherley, I. 5. 148. 153,8. 181, 6, 8. 243. 251. 357. 364, 8, 9. 371. 389. 437. 837. Winstanley a. Bates, I. 773. Wiseman a. Lamb, I. 814. Wish a. Chapman, I. 641. York V. Wellbank, I. 141, 5. 182, 6. 375. Custom of, I. 158. 167, 8. 188. York a Cambridge, I. 38. TABLE OF STATUTES, Magna Charta, c. 9 I. 835. 6 Ed. I.e. 1 II. 297. 331. 18 Ed. I. sts. 2, 3 II. 331. 1 Ed. III. c. 2. s. 9 I. 836. 7 R. II. c. 35 I. 839. 8 Hen. VI. c. 9. s. 6 I. 785. c. 26 I. 784. 1 Ed. IV. c. 20 I. 136. 19 Hen. VII. c. 7 I. 330. 392. 22 Hen. VIII. c. 4 I. 320. 27 24. s. 6 I. 782. 28 4 I. 323. 5 I. 578. 32 30 II. 272. 33 27 I. 136. 13 Eliz. 29 I. 840. 18 14 11.272. 37 c. 5 II. 272. 4 Jac. I. c. 3 II. 297. 21 13 II. 272. 13 Car. II. St. 2. c. I. 8. 1 II. 205. 10 I. 580. 12 1.606. 579. 16 & 17 c. 28 II. 272. XXviii TABLE OF STATUTES. 2 W. M. St. 1. c. « I. 839. 4 & 6 W. M. c. 18. s. 7. II. 465. 2 11.514. 6 II. 515. 7 & 8 W. III. c. 34 , I. 479. 4Ann. c. 16 11.272. 9 20. s. 1 11.168. s. 2 II. 248. 262, 3, 8. 8. 3 II. 283. s. 4 II. 353. 425, 8. 436. 466. s. 5 11.485.511.517. 8. 6 II. 169. 435. s. 7 II. 272. s. 8 I. 113. 497. II. 358, 385. 1 Geo. 1 . St. 2. c. 6 I. 479. 13. s. 4. I. 479.481. 5 4. s. 2 I. 501. 816. 6. s. 3 I. 508. 579. 734. II. 197. 8 6 1.479. U 4.8.1. 1.108.853. 2 I. 71. 109. 11.52. 3 I. 71.132. 11.62. 4 I. 791. 854. 5 I. 131. 6 I. 114. II. 198. 7 I. 854. 8 I. 855. 9 II. 170. 9 Geo. II. c. 26 I. 741. 12 13 I. 479. 13 18. s. 7 I. 788. 16 30 1.741. 22 46. s. 36 I. 479. 24 23. s. 1 I. 86. 3 Geo. III. c. 15. s. 3 I. 585. 4 11.20. 6 I. 585. 12 c. 21 1.479. s. 1 II. 262. 32 Geo. 111. c. 58. s. 1 1.747. II. 197.445.518. TABLE OF STATUTES. XXIX 32 Geo. III. c. 58. s. 2 I. 752. II.4r>7. 519. 3 1.754.11,472. 4 II. 18. 38 1 11.255. 43 c. 46. s. 5 II. 267. 6 or 7 Geo. IV. c. 3. s. 1 1.508.741. 4 I. 742. 6 I. 583. 7 I. 743. HISTORICAL SKETCH OF MUNICIPALITIES. HISTORICAL SKETCH MUNICIPALITIES. The institution of Municipal Corporations is said by Dr. Robertson to have conduced more than any other circumstance to the emancipation of Europe from the thraldom of the feudal system. That it did conduce much to this great event cannot be denied, but the germs of liberty had long been sown, and they had already made some growth, when municipalities were incorporated. Their establishment was the effect of that spirit of liberty which had gone abroad, and a considerable de- gree of power and independence already existing in the cities and tov/ns to which charters were granted. They were already become influential and wealthy associations. Their traffic not only brought them riches, but gave them a maritime power not inconsiderable in those times. Their increasing wealth and commerce established among them the burgher watch and ward, and voluntary asso- sociations for the protection of property, not efficient at all times against the rapacity of marauding barons, IMS l()i;iC \ 1, SKF.T( II but capable of repelling those bands of outlaws and disciplined robbers with whose predatory excursions the annals of European history are frequently stained. The danoers to which their property was exposed taught them the necessity, and they soon learnt the power of union. While the barons were wasting their revenues and retainers in wild wars, and weakening each other with mutual conflicts, the towns were gradually and silently accumulating wealth, popidation and power. At a very early period of our history they were defended by walls. With Italian merchandize they imported the institutes of Venice and Genoa ; and commerce with the Hanse towns, 'then also in their infancy, introduced a similarity of inter- nal arrangement. The grants of privileges contained in the charters were in fact confirmations of privileges already existing. This sanction gave confidence and firmness to the municipalities, with little loss or concession of the lords. It requires no historical document to convince us, that had they not been already powerful, they would not have been equally favored by the barons and princes, each desiring the as: 1 stance of allies in the struggle be- tween prerogative and privilege. The statesmen of those times had little idea of calling new powers into existence ; the utmost extent of their policy was to avail themselves of those which they found at hand. Some towns having attained this power, and given great importance to the princes or barons within whose territories they were established, operated as a strong inducement with other nobles for encouraging similar institutions. The walled towns became gradually more formidable than the royal or baionial castles, until the latter altogether disappeared among the martial nations of Europe. While the royal or baronial banner was followed only by its feudal retainers, who owed but a temporary and ren- dered but an unready attendance, the towns, defended by OF Ml'MCIPALlTIES. 6 walls and garrisoned by the burghers, assumed a far more formidable attitude than they could have ever presented under a more regular and permanent military establish- ment ; till at length little remained to the lord besides a titular superiority and an inconsiderable tribute, rendered to secure his countenance in the council and the field. In England many towns were enfranchised and incorporated by the greater barons, and many more by the crown. It appears that at first the right of doing so was in the immediate lord, and not in the king by virtue of his prerogative, for the earliest incorporations by the kings of England were of towns held in de- mesne or by tenure in capite, and that every great baron who had towns within his barony incorporated them at will. The earls of Cornwall incorporated many towns : West Looe, Truro, Launceston, Liskeard, Bodmin, Lost- withiel, Grampound, and others, with franchises similar to those bestowed by the crown ; the baron of Villa Torta constituted Saltash a corporation ; the earl of Devon in- corporated Plympton ; John earl of Moreton and Lancaster (afterwards king) incorporated Bristol and Lancaster ; and John duke of Britain and lord of Richmond bestowed on Richmond a charter of incorporation and privileges. * It does not indeed appear that any regular municipal corporations, with exclusive jurisdiction f, existed among * Brady on Boroughs, 45. f Merchant guilds certainly did exist before the Conquest, of which one or two instances may be sufficient proof; and these were doubtless the earlier models of corporations, although perhaps not acknowledged to possess municipal and exclusive jurisdiction. Guildan is a Saxon word, and signifies to pay ; that is, that all of such fraternity shall be subject to pay scot and lot. 8 Co. 125. We find that services were rendered by some towns, as Associa- tions, acknowledged by the law, and necessarily invested with the power of arranging their internal concerns. Burgenses de Walingford faciebant servitium Regis cum equis B 2 4 HISl'ORUAL SKETCH the Anglo-Snxons. But the division of their judicature into to\\nsliips and hundreds, under the authority of a class of olHcers distinct from the nobihty, together with the comparative importance to which some towns had arisen, what time the feudal dominion was first imposed, conduced greatly to the early and general establishment of them throughout this nation. The commercial disposi- tion of the Anglo-Saxons, who still composed the bulk of the people, tended to advance the importance of their towns more rapidly than that of towns established in nations of a more military character. The municipal incorporation of St. Riquier by Louis the Sixth, in France*, so frequently referred to as the earliest Tel peraquam usque ad Blidberiam. Reddinges' Sudton' Besentone et hoc facientibus dabat proposit' mercedem non de censu regis sed de suo. Modo sunt in ipso burgo consuetudines ut ante fuerunt. Domes, f. 56. a. 2. Dovere, T. R. E. — Burgenses dederunt 20 naves (regi) una vice in anno ad 15 dies et in unaquaque nave erant homines 21. Hoc facie- bant pro eo quod eis perdonaverat sacam et socam. Quando mis- satici regis veniebant ibi dabant pro caballo transducendo 3 dena- rios in hieme et 2 in estate. Burgenses unum inveniebant stireman- num et unum alium adjutorem et si plus opus erat de pecunia ej: conducebat. Domes, f. 1. a. 1. In civitate Cantuaria sunt 212 burgenses super quos habet rex sacam et socam et molend' reddt' 108 sol' theoloneu' redd' 68 sol'. Ipsi (juoque burgenses habebant de rege 33 acras terra; in gildam suam. Domes, f. 2. a. I. Exonia ci vitas non geldabat nisi quando Anglia' London' et Eborac' et Winton' geldab' et hoc erat dimid' marca argenti ad opus milit'. Quando expeditio ibat per terram aut per mare serviebat hsec civitas quantum 5 hidse terrae. Burgenses Exon' urbis habent extra civitatem tra' 12 cariic' quae nuUam consuetudinem redd' nisi ad ipsara civitatem. Domes. 100. a. 1. Dovere — quicunque manens in villa assiduus reddebat regi con- suetudinem quietus erat de theoloneo per totam Angliam. Domes. 1. a. 1. * I introduce the following extract from Boulainvillier's Letters on the Parliaments of France, as not only giving a short view of the establishment of these communities on the Continent, but tending ^really to support my opinion as to the origin of the exclusive right to OF MUNICIPALITIES. on record, shows only that there were so many important towns so well constituted and established, that the French incorporate, claimed by the Crown, applicable as well to this country as to France : — " L'on commenca sous le regne de Louis le Gros k aflfranchir les grosses villes, c'est a dire k accorder a leurs habitans en general des chartres de liberte et des coAtumes accompagnees de la remise du droit d'imposer des tallies k volonte de celui de la morte taille par ou l'on consentoit que les enfans succedassent a leurs peres en heritages et en meubles ; et enfin de la remise du droit de suite, qui parroissoit le plus important en ce qu'il mettoit les hommes en liberty de choisir un autre domicile. On ne sauroit bien dire par qui commenca cette grande liberalite : toutefois le plus ancient titre qui en reste est celui de la loi de Vervins, que les auteurs attribuent a Thomas premier sire de Coucis et de Vervins sous le regne de Henri I. et que l'on pent rapporter par consequent au milieu de I'onzieme siecle. Cette loi qui fut adoptee par Baudouin de Lille Compte de Flanders et par lui donnee k quantite de lieux qu'il affranchit, fut aussi par lui remise k la garde des habitans de la Bass6e, pour y avoir recours en cas de besoin. Les coraptes de Hainaut, les seigneurs de Liege, d'Avesnes, de Lille, de Douay, les comptes de Rhetelois, les princes ou seigneurs de Poix la donnerent pareillement a leurs sujets. La charte et la coiitume de Louis vint ensuite et paroit etre la premiere accordee par nos rois, si toutefois l'on pent compter avec certitude sur un passage du continuateur d'Emond, qui dit, en parlant de I'abandon ou delaissement fait de la seigneurie du Gatinois au roi Philippe I. par Foulques Rechin compte d'Anjou, que ce prince en jura les coutumes ; les barons ne I'ayant voulu reconnoitre qu'^ cette condition. Cette loi s'est par- reillement fort etendue par imitation, ayant passe d'un cote, jusqu' en Picardie, de I'autre jusqu'a Chaumont en Bassigny et bien avant dans le Berry. La liberte des villes de Beauvais et de Soissons, a ete accordee par Louis le Jeune en I'annee 1144 et con- firmee par Philippe Auguste son fils sous les costumes differentes ; celle d'Orleans est de meme roi Louis le Jeune et de I'an 1147. Celle de la ville de Meaux de I'an 1149 accordee par Henri compte de Champagne, celle de Dijon de I'an 1187 accordee par Hugues III. due de Burgogne ; celle de la ville et compt6 de Blois de I'an 1195 accordee par le compte Thihaut S^nechal de France; celle de la ville de Troyes accordee en 1230 par Thibaut quatrieme compte de Champagne et enfin celle de Fauxbourg S. Germain de la Villa de Paris accordee en 1250 par Frere Tliomas de Mauleon Abbe de S. Germain pour la somme de 2000 1. seulement. " Je ne passerai pas k un grand detail, ce que j'ai dit cy devant suffit pour la preuve du fait. Mais il est necessaire de savoir que (5 Ul^TORlCAl. SKETCH monarchs, by calling them to their assistance, could soon humble the mightiness of their nobility, the most power- ful and turbulent of any feudal nation. This implies not the infancy of such institutions, but their having advanced to great power, although without any direct legal sanction. To the early importance of towns and their almost exclusive possession of commerce, with the assumed au- thority of establishing rules for their own government, anterior to charters of freedom, is to be assigned the origin of those customs, which we call customs against common rioht.* les peuples n'eurent pas plutot commence k goAter la liberie que le disordre, la hardiesse, et I'insolence les souleva en line infinite d'en- droits centre leurs seigneurs. Les habitans de Vezelay, soutenus par le compte de Nevers, dresserent eux mfimes une loi de com- mune et pretendirent en jouir malgre I'Abbee du lieu qui en etait le seigneur, ils furent juges et condamnes en la Cour du Roi en 1164, et Louis le Jeune marcha lui meme pour les faire obeir. Mais peu apres quelques prelats du royaume et particulierement I'Arcbeveque de Sens pretendirent qu'il etoit d'obligation de con- science d'accorder la liberte a tous les Chretiens se fondant sur le decret d'un concile assemble a Rome par le Pape Alexandre III. Cette maxime fut toute-^-fait contredite en France 6u les seigneurs demeurent en possession d'affrancliir ou de conserver leiir droit en entier ainsi qu'ils le jugerent h propos. Cependant plusieurs de ceux qui avoient paru les plus eloignes d'accorder la liberte a leurs hommes s'y determinerent dans la suite, au moyen des grosses sommes qu'ils en tirerent, ce qui produisit peu apres I'usage de faire confirmer par les prelats et ensuite par les Rois, ces sortes d'affranchisments. Les peuples qui avoient achete leur liberte a prix d'argent, approliendant que les seigneurs n'usassent envers eux de violence ou de niauvaise foi pour s'en faire donner d'avantage, eurent recours a I'intervention des Rois qu'ils offrirent meme avant qu'on la requit parcequ'ils en connurent d'abord la consequence, i la quelle les seigneurs firent, suivant la coiitume Francoise, trop peu d'attention ; et cette intervention donna dans la suite lieu aux Rois de se rendre juges entre les seigneurs et leurs sujets et par ce moyen de dtpouiller les premiers de la plus grande partie de leur autorite. • Such as tliat none but freemen shall sell by retail or practise any trade or occupation, or that nothing shall be sold by a foreigner to H foreigner Tvitliin the citv. Of MliMClPALlTlES. / About the time of Edward the First the franchise of re- turning members to parUament was conferred upon a great number of towns, for the most part incorporated. The writs being executed by the bailiff or other chief officer, attracted them more within the sphere of regal authority, and they began to assume additional importance in a political point of view. Soon after the crown endeavoured to strengthen its control over them by introducing the writ of quo warranto, by which the judges in their iter were empowered to en- quire by what warrant all who claimed any franchise, in derogation of the crown, maintained their title. This was doubtless no inefficient weapon in the hands of an active and vigilant monarch. In the 18th year of his reign another statute was made, to render them more immedi- ately dependent upon the crown.* From that time appli- cations from towns incorporated by the barons, for a confirmation of their former, or a grant of new charters became more frequent. Hence, as I apprehend, grew up the doctrine sufficiently agreeable to the king, and readily * " Concerning the writ that is called quo warranto, our lord the king at the feast of Pentecost, in the eighteenth year of his reign, hath established, that all those who claim to have quiet possession of any franchise before the time of King Hichard, without inlerruptiou, and can show the same by a lawful inquest, shall well enjo}' their possession, and in case that such possession be demanded for cause reasonable, our lord the king shall confirm it by title. And those that have old charters of jjrivileges shall have the same charters adjudged according to the tenor and form of them: And those that have lost their liberties sith Easter last past by the aforesaid writ, according to the course of pleading in the same writ heretofore used, shall have restitution of their franchise lost, and from henceforth they shall have according to the nature of this present constitution." In conformity with this statute, it is laid down in 9 Rep. 28. that a grant of fr', 1 T. R. 588. (29) Id. Ibid. 32 CONSTITUTION. charter by a majority of an assembly duly convened, and consisting of a majority of each of those classes, is sufficient. This I imagine to be an observation not sustained by reference to the principle of municipal Corporations ; for it is permitting certain nominees of the crown, at their will, to take upon themselves the government of their fellow-citizens without the general consent, and would tend greatly to support the charters granted in the latter part of the reign of Charles the Second, which are regarded by modem Judges with a suspicious eye, insomuch that it has been frequently said by the Bench, that they will require very strong evidence of their acceptance. It is also contrary to principle, because, although select classes alone are nominated, if they be invested with local jurisdiction, all the people of the place are within the provisions of the charter ; and the rule, that the charter is not valid without the assent of those to whom it is granted, is flagrantly violated. Where the King incorporates cer- tain persons only, I apprehend that he cannot empower them to make by-laws obligatory upon any who do not become members. Unless, therefore, under such an in- corporation, the majority at least of the inhabitants come in and be admitted to their freedom, however binding the conditions of the charter may be upon the select classes who have accepted it, they must be wholly inoperative as to the rest of the people of the place. By new Corpora- tors and Freemen. 30. If, after a Corporation has been suspended or dissolved, a new charter be granted, incorporating as well others as also some members of the ancient Cor- poration, it must be accepted as though it were a (30) R. V, Pasmore, 3 T. R. 242, R. v. Amery, 2 T. R. 584. CONSTITUTION. 33 Charter of creation; and the assent of the majority of the classes, duly convened, is sufficient, although all the ancient Corporators dissent. 31. But this Corporation is liable to be dissolved on When the revival of the former Body, and such acceptance of temporary, the charter cannot be construed an acceptance by the former Corporation of a charter of confirmation, al- though all the re-incorporated members of the former body may have acquiesced. 32. It has been stated that the charter can be ac- Cannot be . . renounced, cepted neither conditionally nor partially ; so also it cannot be accepted for a limited time. If it be received for one moment, it is obligatory for ever ; unless after- -i wards altered by equal authority. 33. It is not necessary for him who pleads the con- Constitu- * 1 A • 1 tionplead- stitution of a modern Corporation to shov\r all the ed. charters which it has received. If a recent charter be in its form creative, and sufficient to support the case, it is proper to avoid showing the pre-existing Corporation, a^d throw the proof of its legality upon the opposite party, who, if he rely upon it, must set it forth in his pleadings ; and then it will be necessary either to show its dissolution, or acceptance of the new charter. 34. Whenever a charter is pleaded, it is necessary Acceptance / / of Charier to aver its acceptance, or to show such usage as could aveired. not have prevailed unless it had been received, and from which the Court may necessarily infer accept- (31) 1 Chest. Ca. 22. R. v. Aniery, 1 T. R. 584. (32) R. v.Amery, 1 T. R. .^85. (.33) Kerby v. \^'ichelow, Lutw. 1502. R. v. Amery, 1 T. R. 589. (.34) 2 Chest. Ca, 555. 549. R. v. Barzey, 4 M. S. 255. D 34 CONSTITUTION. ance ; but it is not necessary to aver that it continues to be the constitution of the place, for that will be pre- sumed until the contrary is proved. Section II. NAME. 35. Every Corporation has at least one name by which it may be identified ; this may be either derived from usage, or conferred upon it by the statute or charter of creation. Several names by usage. Only one name. 36. A Corporation by Prescription, deriving its deno- mination from usage, may have more names than one ; for if it be equally well known by one as by the other, it were difficult to find a criterion for ascertaining that which is the more proper ; and, since whichever is adopt- ed, there can be no possible doubt as to the identity of the Corporation, the law permits them to be used in- differently ; bu oth names must be prescriptive, one cannot be acquired by usage within time of memory. 37. A modern Corporation can have only one name for the same purpose ; this arises from ihe circumstances of its being called in the charter by a particular name which is as unchangeable as the Christian name of a man conferred upon him at his baptism. If the charter do not declare that the body politic shall be called by a cer- tain name, it obtains a name by implication ; which is formed of the denomination of each class of which it is (36) Com. Dig. Fran. F. 9. Carlisle r. Blamire, 8 East, 492. Attorney- General V. Farnham, Hard. 504. Kerby v. Wichelow, Lutw. 1502. (37) Knight v. Wells, 1 Ld. Ray. 80. Physicians v. Salmon, 3 Salk. 102. Com. Dig. Fran. F. 9. Dutch West India Company v. Moses, 1 Str. 614. Anon. 1 Salk. 191 CONSTITUTJON, 35 composed prefixed to tlie name of the place incorpor- ated ; as if the inhabitants of Dale be incorporated with power to elect a Mayor, the name acquired by implica- tion is that of Mayor and Commonalty of Dale : so the citizens of Norwich, incorporated to be a Mayor and Sheriffs, have by implication the name of Mayor, She- riffs and Commonalty of Norwich. 38. An existing Corporation may be empowered, by sta- Name to tute or charter, to do a particular act, by a name differ- purpose? ent from that by which it was constituted or is usually known. If in the execution of that act, it use the constitutional name instead of that newly conferred, it is as much a misnomer as if it had used a name by which it was never before called. 39. A Corporation, whether ancient or modern, may Change of change its name as often as it accepts a new charter, conferring upon it a new appellation. A distinction has been introduced, as to what name may be used after such an alteration. It is said that if the constituent parts of the corporation be not essentially altered, the old name remains together with the new; but that if the constituent parts of the corporation be essentially altered, as if a mayor be introduced where before there was none, the old name is lost, and that the use of it is a misnomer. But I apprehend that whenever a new name is received, that must be invariably used. The differ- ence seems to have arisen from a doubt, whether the Corporation continued the same after such an alteration; but that remains no longer, for it may proceed in its new name to enforce rights acquired in the former, and (38) Cambridge v. York, 1 Kyfl,2.'}6. R. v. Croke, Cowp. 26. 30. (31)) Knight v. Wells, 1 Ld. Ray. 80. R. v. Ipswich, 2 Ld. Ray. 1239. Haddock's Case, T. Ray. 439. Colchester v. Seaber, 3 Bur. 1870. Com. Dig. Fran. F. 9. 1 Lntw. 519. Scarborough v. Butler, 3 Lev. 238. d2 36 CONSTITUTION, the same remedy is open to those who had claims upon it before the change. Several 40. It is said, that a prescriptive Corporation may re- names. ^^-^^ -^g ancient name, after acquiring a new one by acceptance of a charter, but I apprehend that this obser- vation may be referred to the two preceding rules. Revived by 41. A Corporation which has been dissolved (or more new name. , i ix i i i /> i correctly, suspended) by the loss ot the governing mem- bers, may be revived by a name different from that by which it was formerly known, still preserving its iden- tity and ancient rights. Grant by, in 42. If a Corporation make a grant or do an act which different . . * , ® ^ ,._ name. imparts an interest to another, under a name dmerent from that which ought to have been used, it shall not avoid it by setting up the variance ; for this were per- mitting it to do injustice to strangers, who may not be acquainted with the true name, which is possibly con- fined to the knowledge of members of the Corporation. In one of these cases the name was Mayor and Bur- gesses "■ of Lime Regis," instead of Mayor and Burgesses " of the borough of our Lord the King of Lime Regis :" in the second, indeed, it seems that no one knew precisely the proper name of the Corporation ; therefore the court construed it to support the deed. Grant to, in 43. If a stranger do an act by which he imparts an interest to a prescriptive Corporation, denoting them by a name different from that by which they are usually (40) Whitacre, 11 Mod. 67. (41) Colchester v. Seaber, 1 W. B. 591. S. C. 3 Bur. 1870. (42) Lyme Regis, 10 Co. 126. Ayray, 11 Co. 20. (43) Carlisle v. Blamire, 8 East, 492. Knight v. Wells, 1 Ld. Ray. 80. different «ame. CONSTITUTION. 37 known, yet if the identity of the Corporation can be ascertained, he shall not be allowed to avail himself of the error to avoid it; but the Corporation shall be jjre- sumed to have been known by such name. 44. For the purpose of preserving regularity in legal Variance of proceedings, perhaps a slighter variation will be deemed pleading. suflScient to sustain a plea in abatement, which only puts the party to the necessity of proceeding again in a more accurate manner, than that which would be held necessary for the purpose of allowing a grant or other act to be avoided by the party who would derive advantage from setting it aside after having probably received a good consideration. And the court allows a variance to be taken advantage of upon plea in abatement, which it will not admit as sufficient ground for a non- suit. It was held, that using the name of Mayor and Burgesses of the "borough of S." where the charter in- corporated the place by the name of the Mayor and Burgesses of the " borough of S. in the county of S.," to be called the Mayor and Burgesses of " the borough of S. in the county of S." might be taken advantage of on a plea in abatement; but that a Corporation averring that it was incorporated by the former name, would not be sub- ject to a nonsuit, though the latter appeared to be the true name, upon showing the charter; for this is an error in addition, and not in substance, and the defendant cannot say there was no such corporation. 45. If the name of a Corporation be erroneously set out Misnomer in a writ of Mandamus, the manner in which the defen- mus.'' "^ dant may take advantage of it, is by returning positively (44) Lyme Regis, 10 Co. 126. StalTord v. Bolton, 1 1?. P. 41. Sher- borne V. Lewis, Goulds. 121. Colchester v. Goodwin, Carter, 69. Ipswich V. .Johnson, 2 Barnard. 120. (45) R. V. Ipswich (Gippi), 2 Ld. Ray. 1231). S. C. 2 Salk. 435. sa CONSTITUTION. that the Corporation is not known by the name in the writ. It is insuflicient to state the misnomer merely in the conclusion, after making a general return professedly in execution of the writ, particularly if it admit that the Corporation has been known by different names without setting them forth. Misnomer pleaded. 46. If the name of a Corporation be mis-stated in pro- ceedings on an information in the nature of Quo War- ranto, or any other form of action, it must be taken advantage of by a plea in abatement in all cases where, if the name of an individual had been mistated, there might be a similar plea. If the defendant plead " no such corporation," that is a plea in bar, to which the Corpora- tion may reply by setting forth how they were constituted, and if found against the defendant, he is concluded. Replication bota names. 47. If a Corporation have more than one name, to a plea of misnomer it may reply, as well known by the name in the declaration as by that in the plea. Amend- ment. 48. When the name of a Corporation has been mis- stated, the Court will allow an amendment after a plea in abatement, or in the entry of a judgment. Misnomer 49. If a Corporation plead a misnomer, it must be by a Corpora- an attorney appointed by a special warrant on a special ^°"" application made to the Court for that purpose. (46 J Com. Dig. Pleader, 2 B. 2. Stafford v. Bolton, 1 B. P. 41. Malms- bury Case, cited 7 Mod, 221. (47) Com. Dig. Fran. F. 9. Kerby v. Wichelow, Lutw. 1498. (48) Midmsbury Case, cited 7 Mod. 221. Cro. Car. 574, (49) Foxwhist v. Tremaine, 2 Saund. .309. b. 1. c. Bro. Corp. 63. Brit- ton V. Gradon, 1 Ld. Ray. 118. R. v. Shakespeare, 10 East, 85. note. CONSTITUTION, 39 50. As this work is confined to Municipal Corpora- Misnomer, tions, it does not appear to me necessary to introduce all the nice distinctions between substantial and imma- terial variances in setting forth the names of Corpora- tions of a different character. A long list of them may be found by reference to Comyn's Digest, and Broke's and the other abridgements ; but it is more than pro- bable that many of them would not be considered au- thority at the present day. Indeed, though not ex- pressly overruled, they have been severely denounced by Coke, as well as by Hobart, whose indignation is rather entertaining-. If the name be the same in sub- stance, the addition or omission of one or more words is immaterial. On this ground, the following variances have been held insufficient to sustain a plea of Misno- mer : — " In" Carlisle, where it should be " of " CarUsle — " of Exeter, instead of " in" Exeter— Mayor, " Baihffs" and Burgesses of D., instead of " Mayor and Burgesses," when in fact Bailiffs were a class of the Corporation — Mayor and Commonalty " of the borough town of Mal- do«," instead of Mayor and Commonalty " of Maldew," the Charter having taken notice that it was a boroughs 51. If the name of a Corporation occur collaterally Namecoi- in the pleadings, the same accuracy is requisite as if mentioned, the Corporation were a party. 52. It is unnecessary to introduce the name of the head Name of officer as part of the name of the Corporation, but if ^er? introduced erroneously it may be pleaded in abatement. (50) Com. Dig. Corp. B. 5. Doe d. Corp. Maiden v. Miller, 1 B. A 703. Lyme Regis, 10 Co. 126. Pits v, James, Hob. 125, Villa de Darby V. Foxley, 1 Rol. \VJ. (.■jl) Com. Dig. ricader, 2 B. 2. (52) Com. Dig. Pleader, 2 B. 1, 2, 40 co^fsTIT^JTIoN. Title under 53, jf tlie defendant in an information in the nature of erroneous name. Quo Warranto, plead an admission by A B. the BaihfF, when in fact tlie Bailiff's name is C. B., this is a fatal variance, but leave will be granted to amend, although the information is at issue and carried down for trial. Section III. FORM. 54. Corporations consist of officers in various grada- tions, who form the governing part, and in whom the powers of election, amotion, and making by-laws are very frequently vested by the prescription or charter, to the exclusion of the freemen who form the subordi- nate order. The several classes of officers, and the class of freemen, generally called the Commonalty, are deno- minated integral parts of the Corporation. Each class of officers usually consists of a definite number, which is ascertained by the prescription or charter. The Common- alty is generally an indefinite body. Corpora- 55. To the completion of the Corporation it is neces- lion com- , • /» 1 plete. sary that a majority or each class of officers be in exist- ence, except where the charter has otherwise expressly provided. There is usually one head officer, called a Mayor, Bailiff, or Portreeve. There are sometimes two Bailiffs, head officers, holding distinct offices, and some- times the two persons constitute but one officer. For- merly, if there had been a vacancy of the chief officer, and no power remaining in the Corporation to elect ano- ther, the body was considered to be dissolved, and the King had the right of appointing a new chief officer, and re- modelling the Corporation. Jealous of this authority, the (53) R. V. Hughes, cited 7 Mod. 221. (55) Colchester v, Seaber, 1 ;V. B. 591. CONSTITUTION. 41 Legislature, by the statute 1 1 Geo. 1 . declared that such vacancy should not be a cause of dissolution, and con- ferred on the Corporation a power of supplying the office under the directions of the Court of King's Bench. Still, if there be not in existence a majority of each integral part, whose votes are necessary in electing the officers and members of the Corporation, the functions to the exercise of which such class is necessary are sus- pended ; and by some the Corporation has been considered to be ipso facto dissolved. This point will be treated more amply under the title Dissolution; but I deem it well to show the complete state of a Corporation for the pur- pose of explaining the nature of a Corporate Assembly. 56. It is not often that any difficulty arises upon the Definite words of the charter, as to the number of persons of each class. whom each definite class is to consist ; yet sometimes the provision is not very clear. If the charter name a Bailiff, and empower the Corporation to choose twelve Aldermen, and out of them annually to elect a Bailiff, the corporate number of Aldermen is twelve, and not thirteen, as may be imagined from the circumstance that the Corporation would seem to possess the right of electing twelve Aldermen during the year for which the Crown had nominated the first bailiff, and that, as all future bailiffs must be Aldermen, the first is created an Alderman by implication. If the charter empower the Corporation to elect as many as they think proper to be of a particular class, and subsequently name five to be members of it, there is no implied restriction in the nomination of the five. 57. During the vacancy of the Mayor, the Corpora- Corpora- tion can do no act but that of electing another, the body pigte. (56) R. V. Thornton, 4 East, 307. R. v. Fowey, 2 B. C. 594. (57) Year Book, 21 Ed. 4. 58. 42 CONSTITUTION. being incomplete. This observation, I imagine, can extend only to business which requires the concurrence of the whole Corporation or that which must be done by a select body, of which the Mayor is a necessary member ; and that it does not apply to acts which an integral part is empowered to do without the concurrence of the Mayor. Section IV. CORPORATE ASSEMBLY. Corporate 58. All Corporate affairs must be transacted at an as- business sembly convened upon due notice at a proper time and place, consisting of a majority of the persons of each class, to which the prescription or charter has confided the power of performing that particular business, and under the superintendence of the proper president. On Charter 59. All Corporators are presumed to know what days and times are appointed by the usage, statute, charter, or by-laws for the transaction of particular business ; and, therefore, no notice is requisite for assembling to transact the peculiar business of such days. There is in all Corporations one day appointed for the election of the chief officer, on which it is the duty of each Corporator to attend. And when there is a day periodically ap- pointed for the election of officers or new members, no particular notice is necessary ; but if there be a notice usual on such days, the omission of it renders the elec- tion void. 60. Courts periodically held may be adjourned for reasonable cause : if the whole business of the day cannot (59) R. V.Hill, 4 B.C. 441. 443. (60) R. V. Carmarthen, 1 M. S. 702, Anon. 2 Rol, 87. CONSTITUTION. 43 be transacted during the same, the court may be adjourn- ed to a convenient hour of the next. So a court held every Monday may be adjourned, if it happen to fall on Christmas-day. 61. But if a court be periodically held, at which the burgesses, being for that purpose assembled, "have" made elections, this cannot be considered a court for the express purpose of election, and, therefore, a particular notice is necessaiy. 62. Where a day is periodically appointed for one par- Unusual ticular business, although no notice is necessary when that alone is to be transacted, or the mere ordinary affairs of the Corporation, yet if they intend to proceed to any other act of importance, a notice is as necessary then as at any other time. I. NOTICE. 63. The election or amotion of an officer, a by-law, or 'When. any act of similar importance, if made without notice ** on any day" which is not expressly set apart for that par- ticular transaction by the constitution of the borough, is illegal and void. 64. A particular notice must be given to " every mem- To whom. • 1 -Jill -1 Select ber who has a right to vote, whether the act is to be classes.. done by a body consisting of all the definite classes, or of one of them only. (61) R.v. Hill, 4 B.C. 441. 443. (62) R. V. Liverpool, 2 Bur. 734. R. v. Doncaster, 2 Bur. 744. R. v. Hill, 4 B. C. 442. R. v. Theodorick, 8 East, 545. (64) R. V. Liverpool, 2 Bur. 731. R. v. May, 5 Bur. 2682. R. v. Shrewsbury, C. T. H. 151. R. v. Lisle, Andr. 173. Kynaston v. Shrews- bury, 2Str. 1051. R. v. Faversham, 8T.R. 356. R. v. Theodorick, 8 East, 546. R. v. Hill, 4 B. C. 441. 44 CONSTl'lUTlON. Indefinite class. 65. Similar notice must be given to every member of an " indefinite" body who has a right to vote, as in those cases where the incidental powers of the Corporation have not been taken away by charter or by law, but are still exercised by the body at large. Diet, per Kenyon, C. J. Partial wa- ver. Who not entitled to. Service of. 66. But if some of those who have a right to vote are assembled upon due notice, and every one of the others who has a right to notice attends without it, and con- sents to the proceedings being entered upon, the waver of the notice is legal, and the act of the assembly cannot be impeached for the omission of it. 67. If a Corporator entirely quit the Municipality, neither retaining a house nor leaving his family within its limits, he is not entitled to personal notice to attend at any meeting where he has a right to vote. And if every member of the Corporation have so abandoned the borough, an election may be made by a sufficient ma- jority convened in a proper place, and at a seasonable time, although no one member have received notice. — It seems, however, that if others than those who were present happened to be within the Municipahty at the time of the meeting, a notice ought to have been given them to avoid the suspicion of surprise. — And I appre- hend that an election on an ordinary day under these circumstances is not legal, where certain days are peri- odically appointed for filling up vacancies in the body. 68. The notice must be served personally upon every resident member, or left at his house. In case of his (65) R. V. Faversham, 8 T. R 35C. ((56) R. V. Oxford, Palm. 453. (67) R. V. Grimes, 5 Bur. 2601. R. v. Shrewsbury, C. T. H. 151. and the authorities in support of paragraph 64, (68) R.V.Shrewsbury, C.T.H. 152. Kynaston v. Shrewsbury, 2 Str. 1051 . CONStITUTIO?C. 45 temporaiy absence, it must be left with his family or at his last place of abode : it is no sufficient reason for omitting to summon him, that the officer had heard and believed that he had quitted the borough, and therefore returned him without reach of summons. And it is necessary, to support the validity of corporate acts, that each member be actually summoned : it is not suffi- cient that the proper officer was ordered to summon all the members ; for the Court will not presume that he did his duty, through jealousy of the contrivances and surprise which may be effected under this pretence. 69. The summons must be issued by order of some By whom one who has authority to assemble the Corporation for that particular purpose ; but the want of authority may be waved by the presence and consent of all who have a rioht to vote. 70. It must be given a reasonable time before the When hour of meeting, to prevent surprise. On this the Court ^'^^°' will decide from consideration of all the circumstances. If it were usual to give the summons a certain time, before the hour of assembling, that interval will at least be required : but if it do not afford a sufficient oppor- tunity to those who are willing to attend, usage will not justify so unreasonable a practice. Where the cus- tomary summons is sufficient for the residents, as if it require a notice of twenty-four hours, for the election of a capital burgess, in granting a Mandamus, the Court will not, on the application of the defendant, appoint a particular time for executing the writ, nor require a (69) R. V. Hill, 4 B. C. 444. R. r. Sir R. Atkjiis, 3 Mod. 23. 2 Show. 238. S. C. R. V. Gaborian, 11 East, 86. n. (70) R. V. Hill, 4 B. C. 442. R. v. May, 5 Bur. 2682. Evesham Case, 2Stra. 949. 46 CONSTITUTION. notice of six days to be given contrary to the constitu- tion of the place, and for the conveniency of one party. Notice un- der the sta- tute. By parol, &c. 71. Six days' notice is required to be given of elections to be made under the direction of the Court, in the particular cases to which this statute refers. 72. It is not necessary that the notice should be in writing ; and if a bell which may be heard throughout the borough, is used for no other purpose than that of convening an assembly for the particular object of elec- tions, it may perhaps be considered that sufficient notice may be given by ringing it at a certain usual and conve- nient time before the body is to meet. Notice of time. 73. The notice must state the time at which they are to assemble, and the place, if different from that where such meetings are usually held. Of the busi- ness. 74. It is not necessary to state what business is to be transacted, when it relates only to the ordinary affairs of the Corporation ; but when it is for the purpose of election, amotion, or making ordinances, some intima- tion of it must be given, for such members as may think their attendance unnecessary for the usual routine of business will, perhaps, feel it their duty to attend upon such occasions, to counteract the spirit of party, and preserve the fundamental principles of their constitu- tion. To a neglect of this notice alone, can be attri- buted those unconstitutional innovations which have crept into corporations, by which the body at large has in most cases been stript of their incidental rights, and the power of election, amotion, and disposing of cor- (ri) 11 Geo. I. c. 4. s. 2,3. et vid. Mand. to elect. (72) R. V. Hill, 4 B. C. 442. (74) R. V. Tucker, 1 Barnard. 27. R. v. Shrewsbury, C. T. H. 151. R. V. Theodorick, 8 East, 546. R. v. Hill, 4 B. C. 441. CONSTITUTION. 47 porate property, vested in them by their incorporation, have been arrogated to themselves by the select classes, until at length the antiquity of the usurpation has given them a semblance of right, and the determina- tions of the Courts have conferred upon them a legal title under the pretext of lost by-laws duly made, of which there is no trace, and which common sense bids us be- lieve had never existence. When several affairs are to be transacted, although of an ordinary nature, it seems that the principal should be mentioned. 75. It was said, that when an amotion is intended, the Of amo- notice should not only mention the purpose of the meet- ing, but state the name of the- person to be proceeded against, and the offence with which he is charged, that the corporators may come better prepared to the discus- sion. — This I apprehend is not requisite, for a general statement will answer all purposes of justice. 76. If there be a customary notice by ringing a bell Customary an hour before the assembly ought to convene in the Guildhall, this cannot be dispensed with, even by the presence and consent of all the members after personal notice except two ; and although these are not entitled to particular notice on account of residing out of the municipality. But there was a greater irregularity in this election : it was made in the midst of banquetting at an Inn, instead of being at a Council in the Guildhall. And I imagine that the case turned on the latter point, 77. If the Corporation be duly assembled either on Waver of *■ "^ notice by Corpora- (75) R. V. Liverpool, 2 Bur. 375. (76) R. v. May, 4 Bur. 2682. {77) R. V. Tlieodorick, 8 East, 543. 545. R. v. Tucker, 1 Barnard. 80. R. V. Gaborian, 11 East, 86. n. 87. n. Musgrave v. Nevinson, 1 Str. 584, S. C. 2 Ld. Ray. 1359. Machell v. Nevinson, 2 Ld. Ray. 1357. R. v, Car- liale, 1 Str. 386. tion. 48 CONSTITUTION. the chatter day for the particular business for which it is set apart, or at another time, being specially con- vened for the discussion of some particular affair in which they are all interested, and every Corporator is present ; they may imanimously agree to wave the ne- cessity of notice, and proceed to transact any other busi- ness in which they have all a right to join ; but if any one person, having a right to vote, be absent or refuse his consent, all extraordinaiy proceedings are illegal. By select 78. And when the whole Corporation is assembled classes se- . . . „ parating. to treat of their affairs in their general capacity, if every member who has a right to join in the deliberations of a select body be present and consent, they may separate themselves from the rest, and proceed to the exercise of their exclusive powers. But if one who is entitled to pre- side at their meeting be absent, or do not acquiesce in the adjournment, although he have no right to vote, or have only a casting vote, all their acts are void. Select class 79, So if every member of a select body be present entering on . . other busi- either at a meeting on the charter day, or specially ncss. convened, or even by accident at a proper place and time, they may, by unanimous consent, dispense with notice, and transact any extraordinary business within their pe- culiar province. What dis- 80. But if at any of these assemblies any one member who has a right to act in the proposed business be ab- sent or dissent, the others have no right to proceed with- (78) R. V. Tlieodorick, 8 East, 543. R. v. Gaborian, 11 East, 86". n. R. V. Hill, 4 B. C. 441. Musgrave v. Nevinson, 2 Ld. Ray. 1359. Machell V. Nevinson, Id. 1357. (79) R. V. Theodorick, 8 East, 546. R. v. Wake, 1 Barnard. 80. (80) R. V. Theodorick, 8 East, 545. Musgrave v. Nevinson, 1 Str. 584. S. C. 2 Ld. Ray. 1359. Machell v. Nevinson, Id. 1357. CONSTITUTION. 49 out special notice. And when all are present, it ought to appear plainly from their conduct that they are unanimous. 81. Their unanimity is only necessary for entering Whatuna- •' •' "^ , ^ nimity ne- upon the business ; and after that has been manifested the cessary. new business may be transacted in the same manner as if the assembly had met upon proper notice. 82. These rules are subject to some exceptions. If the Exceptions, . Notit!6 r6" Charter require a special notice, this cannot be dispensed quired by . , , . ^ Charter. With, even by unanunous consent, 83. Nor ought an amotion to be made at such an assembly; Cases of ° amotion. but after the business of the day has been transacted, the person charged with an offence ought to have reason- able notice to appear and defend himself at a future as- sembly to be specially convened for enquiry into his conduct ; but he may of course wave this advantage, and if he allow the charge to be brought forward and enter immediately upon his defence, there is no good reason why the amotion should not be considered legal. 84. On the charter day for the election of the Mayor, At election •' . of Mayor, the Corporation, although by unanimous agreement, can- not proceed to any extraordinary business until they have completed the election. Semb. 85. When the Corporation is assembled on the Charter day, if it be the duty of a select body to separate and choose certain persons of whom another body is to (82) R. V. Theoflorick, 8 East, 543. (83) R. V. Carlisle, 1 Str. 28(i. R. v. Theodorick, 8 East, 545. (84) R. V. Parkyns, 3B. A. 674. (85) R. V. Parkyns, 3 B. A. 674. £ ^Q CONSTITUTION. elect one to be the Mayor, after they have separated they cannot proceed to any other business until they have made their nomination, notwithstanding an usage of one hundred and fifty years to this effect. II. TIME. According 86. " All courts and all meetings and assemblies of any CafemiT bodies, politic or corporate, either for the election of any officers or members thereof, or for any such officers entering upon the execution of their respective offices, or for any other purpose whatsoever, which by any law, statute, charter, custom or usage are to be holden or kept on any fixed or certain day of any month, or on any day depending upon the beginning or any certain day of any month, except such courts as are usually holden or kept with any fairs or marts, shall be holden and kept upon or according to the same re- spective nominal days and times w^hereon or according to which the same are now to be holden, but which shall be computed according to the new calendar." Proper hours. 87. Concerning; the time at which elections of the Mayor or head officers ought to be made, or other parti- cular business done, something will be said in the sub- sequent chapters : it is only necessary to observe in this place, that if business be transacted at an inconvenient hour, or when the members are engaged in some other ob- ject, particularly a banquet, although every person neces- sary consent to enter upon corporate business, and wave the omission of notice, the Court will severely censure such conduct, and admit eveiy consideration which will (80) 24 Geo, II. c.2;?.s. 1. (87) Musgrave v. Nevinson, 1 Str. 584. S. C. 2 Ld. Ray. 1359. CONSTITUTION. 51 tend to avoid their acts. It has not been so decided, but I apprehend that the impropriety of the time would of itself be held sufficient to vacate an election. III. PLACE. 88. The Guildhall is the proper place for transacting Guildhall corporate business ; or if there be none, some place in particular should be appointed. All acts done at another than the usual place bear the stamp of contrivance, secrecy and fraud, aijd the Court v^^ill suspect an im- proper motive. A meeting held at an inn instead of the Guildhall, particularly when partaking of an entertain- ment can scarcely be regarded as a corporate assembly, although all the members be present. Their conduct at such a place, and under such circumstances, has little the air of gravity and deliberation which should attend the discharge of offices of confidence and authority. On this ground I apprehend the case reported in Burrough was mainly decided. 89. Whenever the meeting is held at an unusual Notice of n 1 • place, place, intmiation oi that circumstance must be con- tained in the notice, to prevent fraud or surprise. IV. PERSONS. 90. In this respect, according to the ancient law, there Two kinds were two kinds of Corporate Meetings : the one consist- bly. ing of the body at large, or those of them who thought proper, or were considered by their fellow-freemen most (88) Musgravev.Nevinson, 1 Str. .584. S. C. 2 Ld. Ray. lHoJ). R. v. May, 5 Bur. 2682. Vide tit. 76. e2 52 CONSTITUTION. proper to attend. This is still, in legal supposition, the Common Council ; but as in fact the Common Council is now in almost every instance a Select Body, in which the freemen have little or no interest, to avoid the am- biguity of words, I will denominate this a Corporate Assembly. The other, which consists of one or more of the governing classes, and of which the largest is the modern sort of Common Council, I will call a Select Assembly. Corporate Assembly. 91. To constitute a Corporate Assembly, there must at common law be present the head officer, a majority of the members of each select class, and some of the commonalty, and of each of the other indefinite classes, if there be any. Select As- sembly. 92. To constitute a Select Assembly, there must be present according to the common law, a majority of each of the select classes of which it is composed, and of course if only one class, then a majority of them only is required. Maiority of each class. 93. The law presumes that a Corporation will always what. ' keep up the number of members which the prescription or charter has assigned to each definite class, and, there- fore, a majority of each definite class means a ma- jority of that number, of which by the regulations of the constitution each definite class ought to consist. This principle of law has uniformly received the liberal sup- port of the judges, and they will not allow it to be in- fringed, except by the express provision of the charter, or unavoidable inference from the other reaulations. The contrary doctrine would tend to multiply the grie- vances in Corporations, which already require frequent correction, and to facilitate the practice already too i CONSTITUTION. 53 general, of holding municipal franchises in very few hands, and directing them to unconstitutional purposes. These rules will explain the subsequent decisions. V. PRESIDENT. 94. The legal Head Officer, although not required Head Offi- by the charter, must be present, or the assembly is incomplete. This is the common law privilege at- tached to his office, that no corporate act done in his absence is vahd. It has been objected that it empowers him to abuse his authority, and prevent the Corporation in the discharge of their duties, whenever it is for his private advantage to interfere with their designs. But it has been determined that this is no sufficient objection, and however obstinate he may be, or whatever private purposes he may wish to effect, in refusing to convene the assembly, or sanction it with his presence, yet that it can neither be legally summoned by another, nor can it proceed to any important business in his absence. Indeed, to convene and to elect a princi- pal officer in his absence, and without his permission, is an offence indictable at common law. This doc- trine may be sustained on the following grounds : — if the presence of the mayor were not necessary, there would be no corporate superiority in the office, and the very purpose of creating such an officer, is to prevent the confusion which would follow from leaving it in the power of every corporator to call together the assembly at pleasure. And as to the abuse of power, the law will not presume that any, in whom the Crown reposes a public trust, will be guilty of that temerity, in con- tempt of the supreme authority of the Court of King'^ ('J4) 11. V. Sir R. Atkyns, ."5 Mod, 23. S. C. 2 Shower, 238. Tremayne, 2:W. R. V. Gaboriiin, II East, 87. n. 1 Rol. Abr. .514. 20. R. v. Corry, T 80. R. V. Trow, 2 Bsmard. .'^70. CONSTITUTION. Bench, which will not only compel a mayor to con- vene the Corjjoration at any time when a sufficient cause is shewn, by issuing the writ of Mandamus, but will chastise him when his abuse of office tends to the hindrance of the administration of justice in the Municipality, or is otherwise detrimental to the public interest, by allowing a criminal information to be filed against him. Preside. 95. Not only must the Head Officer be present, but he must attend in his office and preside. The as- sembly can do no valid act, though the legal mayor be present, if he attend and act in the capacity of an alderman, imagining that he is really such by the de- termination of his superior office, on account of the person who actually presides having succeeded him ; when in truth the new mayor is merely an officer de facto, from some disqualification, and his mayoralty is still undetermined. Two Head OflScers. 96. If there be two Head Officers, or two persons constituting one Head Officer, as if there be two bai- liffs who may be elected separately and in a different manner, in which case they hold distinct offices ; or if there be two bailiffs elected together, and treated by the charter as holding one office, in which case they constitute one officer, as the two persons who are She- riff of Middlesex ; both these persons must be pre- sent and preside : and if either of the persons holding the place of bailiff be merely an officer de facto, the assembly is incapable of any valid transaction. (95) R, V. Ciirter, Cowp. 59. (!K;) R. v. Smart, 4 Bur. 224:5. R. v. Thornton, 4 East, ;i08 . S. C. 1 Smith, 1 1 1. R. V. Corry, 4 East, 'AJ'J. R. v. Ipsvvicli, 2 Ld. Ray. 1237. CONSTITUTION. 65 97. The person who presides, must be the legal Legal Pre- officer. If an officer de facto, usurp the place, and be afterwards ousted in quo warranto, all the corporate acts which have been done under the sanction of his office are voidable ; and in an information in the nature of quo warranto, it is open to the prosecutor not only to pro- duce in evidence a judgment of ouster against the mayor, under whom the defendant was elected, but even to give evidence to impeach the mayor's title, although he is no party to the proceeding, or, it seems, although he have died undisturbed in the enjoyment of his office. 98. If the Mayor be elected for a year, and until Who is the another shall be elected, perfected, and sworn, if A. be ccr. legally in office, and at the expiration of the year, B. comes into the office, but is only an officer de facto, on account of some disqualification or irregularity, A. con- tinues to be the legal Mayor, and no assembly is suffi- ciently constituted unless A. preside. He equally con- tinues the legal officer, through a succession of years, although with each year a new officer de facto have come in ; and after a series of such successions, the only method of restoring the Corporation to the capacity of legal action, is by A.'s resuming the office of Mayor. For all the corporate and ministerial acts of the inter- mediate assemblies are void. 99. If the two bailiffs constitute but one officer, and A. and B. are duly elected, and become legal offi- (97) R. V. Hebflcn, Andr. 391. R. v. Dawes, 4 Bur. 227'). R. v. Smith, h M. S. 279. R. V. York, 5 T. R. 72. R. v. Stacey, and R. v. Spearing, 1 T. R, 4. n. contra. (98) R. V. Thornton, 4 East, 308. (99) R. V. Thornton, 4 East, 308. S. C. 1 'Smith, 111. R. v. Smart, 4 Bur. 2243. 6^6 CONSTITUTION. cers, if after the expiration of the year, where there is a similar power of holding over, C. and D. be elected and admitted, and it afterwards prove that C. is only an officer de facto, from some disqualification or irregu- larity, but that D. laboured under no such objection — yet both A. and B. continue the legal officer, the elec- tion being vacated as to C. : the election of D. is void also ; for the office cannot bedivided. But it seems that if E. had the next majority of votes to C, and laboured under no disqualification, by the admission of E. tl;i€ election of D. may be sustained and the office supplied. 100. But if the two bailiffs hold distinct offices, as is the case if one be called senior bailiff, and the other junior, the senior bailiff, ehgible out of the aldermen in a particular manner, and the junior eligible from among the burgesses in a different form, and if these have a like power of holding over, no corporate assem- bly is legal unless the last legal senior bailiff, and the last legal junior bailiff both preside ; although they may have been elected in different years, the one hav- ing held over perhaps five years, and the other one only, or though he came into office on the last charter day. What acts void under president de facto. 101. The legal officer must preside not only at the transaction of those affairs which are merely voluntary or convenient, such as the election of new members into the Corporation, or an indefinite class, but at those which are of the utmost necessity, as the filling up of vacancies in the definite classes, however much re- duced, or the election of the annual officers, even the Mayor where there is no power to hold over ; and al- (100) R. V. Smart, 4 Bur. 2213. R. v. Tliornton, 4 East, 308. S. C. J 1 Smith, 111. ■^ (101) R.v. Lisle, Andr. 174. R. v. Hebden, Andr. 392. CONSTITUTION. 57 though at common law, by omitting such election the Corporation had been dissolved. What judicial acts are valid, though done by a president de facto, will be alluded to in another place. 102. At common law if on the charter day a sole No legal President, Head Officer was not legally elected, the Corporation was suspended for want of a legal president ; and this was also the case where of two distinct head officers there was only one legally elected, or where only one person of two who ought to compose one head officer had an unimpeachable title; for the deficiency of the other in both cases suspended the functions of the Corpora- tion. But this has been remedied by act of parlia- ment. 103. The Mayor must not only be present and pre- Who may ■' . . propose the side, but must either propose the particular busmess, business, or acquiesce in the proposal of another. And if several distinct affairs are to be transacted, a similar sanction is essential to the validity of each, whether the members are convened for that particular act, or proceed to the discussion of it by general consent. Although it be an election to fill up vacancies, usually supplied on that day, or a nomination of candidates to be proposed to other electors, or the election of one of the candidates so nominated, which is an affair wholly distinct from the nomination, and requiring a distinct acquiescence on the part of the Mayor. This consent is implied from the Mayor's continuing to preside, and permitting the business to be regularly entered upon ; but it cannot be (102) R. V. Smart, 1 IJur. 2243. R. v. Thornton, 4 East, 308. V. tit. Dis- solution. (103) R. V. Gaborian, 11 East, 86. n. 87. n. R. v. Hnllor, 8 East, 3!/2- 1 Rol. Abr. 514, 20. R. v. Williams, 2 M. S. 141. 144. 58 CONSTITUTION. presumed, when the electors adjourn to another room, although that is the usual practice, if the Mayor refuse to accompany them, particularly if he prevail on others not to go. Must con- tinue to preside. Exception. 104. The Mayor must acquiesce by presiding from the beginning to the conclusion of each distinct transac- tion ; and if he quit the assembly before the election is complete and the majority ascertained, all further pro- ceedings are void. I apprehend that the doctrine will not be carried to this length, if there appear no other irregularity in the transaction than the misconduct of the Mayor ; and if his departure were inadvertent, it would not perhaps be considered a withdrawing of his sanction from their acts. There is a case in which the contrary doctrine was carried beyond this exception. The Mayor had held an assembly for admitting freemen ; he had ad- mitted some, and a list of names of other claimants was delivered in, after which the Mayor left the as- sembly and would not admit them. After his departure they were admitted, and this act was held legal, and their admission good. It is true, that this was a mere ministerial and formal act ; but it was considered a case of doubtful authority in R. v. Buller, and R. v. Gabo- rian. Otlier Pre- sident. 105. In some instances, either by the immemorial usage, or by the terms of the charter, the presence and presidcnce of the head officer are dispensed with, and (104) R. V. Buller, 8 East, 393. R. v. Gaborian, 11 East, 87. n. R. v. Williams, 2 M. S. 111. 1 14. R. v. Norris, 1 Barnard. 385. (lO.i) R. V. Gaborian, 11 East, 86. n. R. v. Corry, 5 East, 381. S. C. I Smith, 543. CONSTITUTION. 59 an alternative substituted. In such cases, of course, a corporate assembly may be held by the substituted legal officers when the head officer is absent ; but if he be present, the other cannot assume to preside. In such cases all the requisites of legality must exist in the office of the person substituted, and if he hold by delegation from the head officer, he must not only be the legal deputy, but appointed by the legal principal. 106. The presence of the Mayor is not necessary at a Select As- ' •' sembly. select assembly, whether composed of one or more classes to whom a particular kind of business is delegated, imless it is expressly required. Therefore, if there be Mayor and a definite number of Aldermen and the charter declare that *' the said Aldermen" shall yearly elect the Mayor, the presence of the Mayor " as Mayor" is required neither by the form of the charter, nor at common law, for this is an assembly of that integral part only and not of the Corporation. 107. The power lodged in the hands of the head offi- Alteration ^ ° .... ^y the sla- cers had been so greatly abused, in still retaining the tute. office after the expiration of their year, which was effected by avoiding to hold a corporate meeting on the charter day, at which alone successors could be elect- ed, that the Legislature has interposed to introduce both a remedy for the omission, and to inflict a punish- ment on the offenders. 108. " Incaseuponthedaynextaftertheexpirationofthc Remedy — time within which the election ought to have been made, ^ unless such day shall happen to be Sunday, and then upon the Monday following, the Mayor, Bailiff or Bai- (106) R. V. Corry, 5 East, 37y, .'^80. S.C. 1 Smith, 543. (108) 11 Geo. I. C.4.S. 1. 60 CONSTITUTION. lifts, or other proper officer or officers who ought to have held the court or presided at the assembly for such elec- tion, or doing any other act necessary to be done in order to such election if the same had been made or done on the day fixed or within the time limited by charter or usage Next Pre- f^j. ^-jj^^^^ purpose, shall be absent ; then such other per- son having- a right to vote, being the nearest then pre- sent in place or office to the person or persons so ab- senting himself or themselves, shall hold the court or preside in the meeting or assembly hereby appointed, and shall have the same power and authority in all re- spects therein as belongs to the Mayor, Baiiiff'or Bailiffs, or other Chief officer or officers of the same city, borough or town corporate, at any court or assembly for the elec- tion of officers for such place, or for doing any other act necessary to be done in order to such election." Under 109. Where an election is had by virtue of a Manda- an dmiis. ^^^^^ under this statute, " such officer or other person re- spectively shall preside in such assembly as ought to have presided at the election of such Mayor, Bailiff" or Bailiffs, or other chief officer or officers, or at the doing any other act necessary to be done in order to such election in case the same had been made or done upon the day hereinbefore prescribed for that purpose." Mayor's HO. If the Mayor begin to preside at an assembly adjourn- i i n/r i i i • nient convcued by Mandamus under this statute, and pretend consent of to dissolve it beforc the election is complete, the elec- ty^ "'•'j"ri- ^^^^^ -^ ^j^^y g^^g notice before either he or any of their fellow-electors have departed, may proceed to appoint the next in place or office president, and to complete the election; although they had not proceeded beyond the nomination of the candidate when the Mayor went (10 CONSTITUTION, Court will relax the rule ; but no case has yet appeared sufficiently strong to be sanctioned by a direct deter- mination in favour of this position. Exception by custom. 124. In a prescriptive corporation, the customs explain tlie terms of the supposed charter, and if the custom be clear to elect at an assembly of less than a majority of the constitutional number of members, of a definite class, such an election is valid. Such a custom may be supported by an uncontradicted usage of forty years, that is, such usage will be admitted as prima facie evidence of the custom. In which case it may be con- troverted by showing a general practice to the contrary at a more remote period. Common- a'ty and in- definite classes. 125. To complete a corporate assembly, some mem- bers of each indefinite class must be present. There are few corporations in which there is more than one inde- finite class, and this consists of the common freemen sometimes called burgesses ; but in general burgesses are members of the lowest definite class, and the in- definite body is usually called the Commonalty. This class, for whose advantage we may presume that Muni- cipal Corporations were at first principally intended, has grown into low repute in Courts of Justice, and their corporate rights have for a long while received little consideration. It is said, it matters not how few of the plebeians are present. Indeed, we are not fond of popular bodies ; for^ as Boulainvilliers has remarked, when they taste a little liberty " le desordre, la hardi- esse, et I'insolence les soulevent contre leurs seigneurs." (124) R. V. Hoyte, 6 T. R. 432. X125) R. V. Varlo, Cowp. 250. R. v. Monday, Cowp. 539. R. v. Bower, 1 B. C. 498. S. C. 2 D. R. 770. R. v. Bellring:er, 4 T. R. 822. 2 dies. Cas. 5. coNSTnurroN. 67 When the number of common freemen is very great, their presence at corporate assemblies would be found very inconvenient, and their votes would generally out- number those of the select classes ; for which reason in prescriptive corporations, there generally exists a Com- mon Council to represent them, who are sometimes, and always ought to be, a certain number of the common freemen periodically elected by the remainder. Other devices have been resorted to, for the purpose of con- trolling the popular assembly. One of these is the suppositious by-law to which I have already referred ; by this a similar sort of Common Council has been in- troduced into modern corporations. Another is a more open invasion of their incidental rights ; the provisions in some charters, which have saved them the trouble of leg-islatino- for themselves, and created a Common Council to act in their name ; a body sometimes as permanent as any other of the select classes, and of which they compose a principal part. Where there is a Common Council consisting of a definite number, tlieir assemblies are of course regulated by the forego- ing rules. 126. Where a Common Council exists, an assembly of Common "' Council, them, though a select class, must be considered a Cor- porate assembly, and the presence of the legal pre- sident is necessaiy, although not required by the charter. 127. Where the Corporation consists of the head Inaefuiite body only. officer and indefinite classes alone, there ought to be no extraordinary business transacted except on particular (127) R. V. Locke, Vin. Abr. Corp. G. 3. 8. R. v. Varlo, 1 Cowrp. 250. R. V. Mondav, Cowp. 5:». Lane, 21. R. v. Bellringer, 4T. R. 822, r 2 08 CONSTITUTION. (lays, appointed by usage, charter, or by-laws.. And on such days it must be done by a majority of those who are assembled, although not a majority of the body, or of the particular classes if more than one. It would be very inconvenient to resort to a personal no- tice in such cases, on account of the uncertainty and number of persons ; and it would be permitting all man- ner of contrivance and surprise, if business could be transacted by a majority of those who might happen to convene at any other time. Under particular circum- stances a general notice mipht be held sufficient. Unneccs- 128. It may be unnecessary to add, that whenever a must not particular business is delegated to a select body, if others join in the performance of it, the act is void ; as if the mayor, aldermen and commonalty join in making a by-law which is directed to be made by mayor and aldermen. For if others are allowed to vote, a by-law might be established, although all those to whom the power is specially delegated should be in the minority. Alteration 129. The Only alteration as to the persons of whom li Geo. I. a corporate assembly is to consist, which the statute of 11 Geo. has introduced, is that it dispenses with the attendance of the head officer ; for the same persons and classes must concur, whether it be in an election under that statute, on the day after the charter day, or under the directions of a writ of Mandamus issued in pur- suance of it ; and that it allows the presiding officer to have a double capacity, in as much as he is one of the aldermen or capital burgesses. Therefore, if where the constitutional number of such officers is eleven, there (128) Parry V. Berry, Comyns, 26y. R. v. Head, 4 Bur. 2521. Hoblyn V. Regem, 6 Bro. P. C, 520. R. v. Westvvood, 4 B. C, 799. 818. Green v. Durham, 1 Bur. 131. (129) R. V. Nance, 7 Mod. M2. CONSTITUTION. (J9 are five present besides him, it is a sufticient majority, which is not always the case when the Mayor presides. 130. If, previous to the election, it is the office of the Double ca- aldermen to nominate several candidates, the alderman {^resident who presides in the room of the mayor, may join in the statute."^ nomination as an alderman, although the mayor, had he presided, could not have joined in it. And the presi- dent occupies characters so entirely distinct, that after joining in such nomination, if there were a power in the mayor to strike out the name of one of the candidates, before the election was entered upon, he may do the same, as representing the mayor ; for there is no incom- patibility between his permanent and temporary offices. 131. " No election under the directions of this act, nor Persons. any act done in order thereunto, shall be valid unless as great a number of persons having right to be present and vote therein shall be present at the assembly holden for such purpose, and concur therein as would have re- spectively been necessary to be present and concur in such election or act in case the same had been made or done upon the day, or within the time appointed for that purpose, by the charter or usage of such city, borough, or corporation, saving only that the presence of the mayor, bailiff or bailiffs, or other chief officer or officers who ought to preside shall not be necessary." 132. " Where the nomination of persons in order to the election of any mayor, baiUff', or other chief officer or officers is to be made at a court-leet or other court, in every such case, after such nomination (130) R. V. Nance, 7 Mod. 342. (131) 11 Geo. I.e. l.s.5. (132) Id. ibid. S.3. 70 CONsriTl TION. made, all and every other act and acts necessary to be done in order to such election, shall be had, made, and done at such assembly and in such manner and form as the same ought to have been had, made, and done in case such election had been made upon the day next after the expiration of the time prescribed for such election, by the charter or usage of such borough or corporation according to the directions herein-before mentioned." General 133. When the corporate assembly is duly convened, majority of . . i i i ■ -. r ii voices. it IS not necessary that there be a majority oi any or all the select classes in favour of the measure, but the votes of mayor, alderman, burgess, and common freeman, or whatever persons have the management of the affair, are of equal account, and the proposal must be carried or rejected by a general majority of the aggregate as- sembly. Casting 134. And neither the mayor nor any other member ffatfve!^"*^' has a casting vote, much less a negative upon the general opinion, unless especially conferred by the charter or custom ; for it cannot be given him by any by-law, and whenever such a vote is relied upon, it must be shown in the pleadings. Votes of the 135. If the charter provide that the election shall be Quorum i • i ■ a^ i i i i i unnecessa- by the two bailiiis, two aldermen and burgesses or the major part of them, of whom " we will that one of the bailiffs and one of the aldermen be two" — it does not require that a bailiff and alderman, or either of them (133) R. V. Varlo, Cowp. 250. R. v. Monday, Cowp. .538. R. v. Miller, 6 T. R. 280. R. V. Bower, 1 B. C. 498. S. C. D. R. 770. (134 ) Anon. LofFt. 315. R. v. Ginever, 6 T. R. 735. (135) Cotton V.Davis, 1 Str. 54. R. v. Bal. &c. de Gippo, 2 Ld. Ray. 21.3(i. ly- ( ONSTITUTION. 71 vote for the person who is elected by the general ma- jority. The election is good, although all the bailiffs and aldermen vote in the minority ; for the charter requires only that the assembly be sanctioned by the presence of one of each of those classes, which is indeed less than the common law would require ; for were there not this provision, both bailiffs and both aldermen must be present to complete the assembly ; and so of the mayor, his presence but not his vote is necessary. 136. " All and every peculiar act, order, rule, and es- Nonegativc •^ » vote can be, tatute, heretofore made or hereafter to be made by any given, founder or founders of any hospital, college, deanry, or other Corporation, at or upon the foundation of any such hospital, college, deanry, or Corporation, whereby the grant, lease, gift, or election of the governor or ruler of such hospital, college, deanry, or other Corporation, with the assent of the more part of such of the same hospital, college, deanry, 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 or course of the common law, shall be from henceforth clearly frustrate, void, and of no effect." This statute was made to facilitate the assumption of the church lands ; but it \\o\x\& possibly extend to Munici- pal Corporations, and is for that reason introduced. At least, it is a rule which, in all probability, the Courts would use as a criterion in construing a charter or by- law of a Municipal Corporation, if such should ever fall under their consideration. (i;36) .WH. 8. c. 27. CONSTITUTION. given 1 37 . If thcoiiginal Constitution empower a less number than a majority of the whole body to do a certain act; and a l)y-law be made requiring a majority for the va- lidity of such an act, the by-law is void. Votes, !io\v 138. Each member who intends to vote must be present in person, for he cannot give his vote by proxy ; and if ne- cessary to ascertain the majority, the votes must be given deliberately and in succession. 139. If a corporate or select assembly enter upon the discussion of business, over which they have no jurisdic- tion ; as if the Common Council of London, not having cognizance of an election, proceed to investigate its va- lidity, the Court of King's Bench will grant a prohibi- tion, but if their jurisdiction be shown, a consultation will go. The general business which is transacted by a Corporation as a court of justice, forms no part of the pre- sent design ; for in that respect they are to be looked upon as an inferior Court, and not as acting in a corporate ca- pacity. The last case has been introduced because it is of an equivocal character: something will, in another page, be said concerning courts for corporate purposes^. (137) Hiirscot's Case, Comb. 203. (138) Dean and Chapter of Femes, Davis, 47, 48. (139) Jeffs V. Bolton, Fortesc. 349. S. C. 11 Mod. 386. CHAPTER II. ORDINANCES. A Corporation is governed by certain regulations What, which I include under the general term of Ordinances. These are of three kinds : — The first comprehends that Customs, class of customs which prevail in a Municipality, and are so intimately connected with the Corporation, that at its dissolution they would necessarily cease ; for other customs, which are rather local than corporate, such as relate to the descent, distribution, and disposal of property, the forms of legal procedure, and personal rights of the people who dwell there *, and which would continue to prevail although the Corporation were ex- tinct or the franchise abolished, fall not within the range of this treatise. — The second kind includes the Regula- regulations prescribed to the body politic, by the statute or charter of incorporation, and those to which they have subsequently submitted by acceptance of new charters, or which have been imposed by subsequent acts of parliament. — Those of the third kind are the By-laws. rules commonly called by-laws, a word on whose ety- mology lawyers differ, but that which inost corresponds with their character is to be traced in Coke's definition * Such as the custom concerning orphans ; the peculiar and ancient rights of devising land and granting in mortmain ; and the custom of foreign attachment in London. What connection these have with the municipal franchise will appear from reference to title Dissolution, where the earlier principles nf incorporation will be developed. ORDINANCES. of the word Bye, which signifies an habitation, and thence Bye-law maybe defined the law of the inhabitants of a particular place, made among themselves in contra- distinction from the general law of the realm. Section I. CUSTOMS. 140. Certain customs prevail in prescriptive Corpora- tions, which, being of very ancient usage, and their origin unknown, are presumed in legal phraseology to have existed time out of mind. These are either regard- ed in the light of regulations prescribed by an ancient charter, in the same manner and of the same force as similar regulations imposed by modern charters, or as powers and privileges conferred by similar authority. Of the former kind it will be unnecessary to treat in this place, as they fall under the same rules of construction as similar regulations in modern charters. And of the latter kind, I shall seldom notice such as are similar to those which may now be conferred, for they are within the general rules, but proceed to point out such of them as, from their antiquity, the Courts allow to continue in consideration of the plenitude of regal power at the time the places in which they prevail were incorporated, and the necessity of yielding encouragement to commerce, at that time almost exclusively confined to corporate towns, although they will not tolerate the exercise of similar usurpations under pretence of concession by modern charters. These are frequently called customs against common right, and principally relate to the exclusion of all except freemen, from carrying on their trades or occupations within tlie municipalities ; or to the OUDlNANCliS. 75 exercise by corporations of the power of imprisoning the persons, or seizing upon the property of those within its jurisdiction, for misconduct in their trade or corpo- rate capacity. 141. These customs have not experienced much favor Notfavorcd in Westminster Hall, because they are incroachments Courts. upon the rights and liberties of the subject. Holt, Chief Justice, entertained great doubt whether antiquity was a sufficient sanction for their continuance, and was very de- sirous of restricting them to London, in which their legality had been established by former decisions, and where they derived a greater semblance of authority from confirmation by parliament. But it being resolved that the Act of Parliament extended only to the confir- ination of such as were originally legal, the claims to similar customs in other prescriptive Corporations rest- ing on the same basis must be equally allowed, or those of London declared contrary to law. And now it is firmly established that such customs are legal ; but the Courts will expect them to be incontrovertibly proved. I. VALID CUSTOMS. 142. The first class of customs comprehends those Excluding „ . . . „ . foreigners, which exclude foreigners, (a term signifying persons who have not been admitted to the freedom of that Cor- poration) from trading or following their occupation within the municipality ; of which kind the following have been held good. (141) Wilton V. VVilks, 2 Lrl. Ray. 1133. 112'), Hamburgh Coinp. 1 Mod. 212. in notis. York v. WcUbauk, 1 B. A, 410. 76 ORDINANCES. From trade 143. That no forcionor shall use any trade, art, mys- or occiipa- . " , • i • i • • i- tion. ^^^'Jy occupation, or crait withni the numicipaiity, al- though it do not except practismg his art for his private use, for this is implied. Unless af- 144. Or that 710 one shall exercise his trade there un- ter appren- , , , , . , . i , i ticeship. less he has served an ap})renticeship to such trade. Keeping 145. Or that no foreigner shall keep shop, either by sl'op, &c. ^ ^ „. f -1 • • open exposure of goods, or by sellmg by retau in private rooms, generally called keeping shop, either directly or indirectly, or keeping outward or inward shop, although it do not except fairs or markets, at least the Court will not take notice that there are any. feirs^&^'^ 146. Or that no foreigner shall expose goods to sale, except on fairs or market days, although it do not except victuals. Without h- 147^ Or exercise any particular trade or open shoiJ cence of the _ *' *^ r i Corpora- either directly or indirectly, until he shall have com- pounded with the Corporation. Manual oc- 148. Or that no foreigner shall use a manual occupa- cupation. . , _ . • r tion, though a restraint on the exercise of bodily labour ; as that of a corn porter or weaver; and that the right of porterage from ships and meterage of merchandize be- longs to the Corporation within certain bounds. (143) City of London's Case, 8 Rep. 129. a. Colchester v. Goodwin, Carter, 118. Bodwic v. Fennel, 1 VVils. 237. Woolly v. Idle, 4 Bur. 1951. (144) City of London's Case, 8 Coke. 129, b. (145) City of London's Case, 8 Co. 128. York v. Wellbank, 4 B. A. 440. Harris v. Wakeman, Sayer, 255. Heskcth v. Braddock, 3 Bur. 1853. (146) Moir v, Munday, Sayer, 181. (147) Ipswich V. Johnson, 2 Barnard. 120. (148) Weavers of London v. Brown, 3 Cro. El. 803. A. Fazakerley v. Wiltshire, 1 Str. 4()8, 469. A. Winton v. Wilks, 2 Ld. Ray. 1 129. D, ORDINANCES. 77 149. A custom that none not free of the guild shall exercise the occupation of a weaver in London is not violated by one of Hackney coming to London, re- ceiving silk there, and returning with and weaving it at Hackney, and when Avove carrying it back again to London, and tlien receiving his salary'. 150. Or that no foreigner shall buy of a foreigner Foreign 1 , -1 bous'lit, &c. by retail. 151. Or that no freeman shall employer set to work Freemen at any manual occupation within the municipality or its pioy f^. liberties any foreigner to the freedom of the munici- ■■'^'?"^^^- pality — without saying for hire or gain. The next class of customs are those which give the Corporation a greater autliority over the freemen and inhabitants, than what they possess under modern institutions. 152. There may be a custom that certain companies, j.^ members of the Corpotation, have a hvery consisting of certain freemen appointed to the office ; that the free- men are liable to serve, and that the court of mayor and aldermen have j urisdiction over the livery. 153. Or that the Corporation shall have the regulation Carts. of carts or of porterage within the municipality. But (149) Weavers of London v. Brown, .3 Cro. El. 803. (150) City of London's Case, 8 Co. 125. a. Dyer, 279. p. 10. R. v. Dub- lin, Palm. H. (151) Bosworth V. Biidgcn, 7 Mod. 459. (152) Vintners v. Clerkc, 5 Mod. 157. .S20. S. C. Comb. 412. S. C. 12 Mod. 114. (15.3) Player v. .Jones, 1 Vent. 21. Broadnax Ca. 1 Vent. 196'. Fazaker- ley V. Wiltshire, 1 Str. 4G8. 78 ORDINANCES. this extends only to carts used for hire, and not those of private persons, used for their own business ; and so to pubhc porters, and not to a person employing his own servants. luiteitain- 154, Or that a steward of a company shall e;ive an entertainment to his electors on the day after his elec- tion. There is another class of customs, by which a Cor- poration or its officers are invested with more ample powers of punishing the violations of its privileges^ customs, or by-laws, than a charter can bestow. informa- 155. As that the common serjeant (of London) may file an information in the city court, against a freeman who has assaulted an alderman in the discharge of his office ; but such an information cannot be filed fo^ using disrespectful words to an alderman at that time. Jury. 156. Or for the steward of the manor to nominate the jury who are to serve upon the court-leet at the elec- tion of the mayor of the borough* Distress. 157. Or that the Corporation may distrain the goods of the offender, and detain them until he shall pay the fine, if he refuse to pay it on demand. But it must be a poW'Cr of distress according to the common law, under which enough may be taken to secure payment of the fine, and if there be but one article sufficient, that may be detained although of infinitely greater value, as a (154) Framework Knitters v. Grc<^n, 1 Ld. Ray. 113. V. Cro. Jac. 555. Lut. 1320. (155) R. V. Rogers, 7 Mod. 29. S. C. 2Ld. Ray. 778. (156) R. V. Joliffe, 3 D. R. 242. (167) Piersou v. Ridley, T. Ray. 204. Moir v. Munday, Say. 183. ORDINANCES. 79 diamond worth a thousand pounds, to secure a penalty of a few shiUings, if there be not sufficient besides. Yet the power of distress cannot be excessive. There- fore, if the custom be to seize all the offender's goods, exposed to sale, in violation of the custom, it is void. A custom to distrain must be clearly shown ; it can- not be presumed from a custom to impose a fine. 158. Or to seize as forfeited goods, foreign bought and Forfeiture foreign sold, or the goods which a foreigner offers for ers. sale within the municipality, in violation of a custom. — But quaere as to the former, for this would punish the buyer, who cannot know a foreigner from a freeman. 159. Or to seize as forfeited, all goods of a particular forfeiture ' ° ^ ot un sale- kind (as bread) fraudulently and improperly made. Or able goods. that the chief officer of the company to which the offend- er belongs, may seize goods so made and exposed to sale, and carry them to the Guildhall ; that a juiy shall be empannelled, and that the goods shall be destroyed if found to be bad and unserviceable. Under such a general custom, the chief officer of a modern company, member of an ancient Corporation, may search for and take such goods to be examined. 160. Or for the court of the Corporation (as that of Fine for as- sault on a mayor and aldermen in London) to fine a freeman for Judgeofthe an assault on a member of the same court, although he is one of the judges. That is, if he be one of several judges, as an alderman ; for the court is competent to try the charge, although the aldermen assaulted retire (158) Jollie V. Broad, 2 Rol. 202. Custom of York, Bendloe, 3.5. City of London's Case, 8 Rep. 126. Chamberlain of London v. Compton, 7 D. R. 597. Cudden v. E.stwick, 1 Salk. 192. S. C. 6 Mod. 123. Faza- cherley v. Wiltshire, 1 Str. 469. (159) Palmer V. Barfoot, 2 Lutw. 1375. Bolton v.Tlirogmorton, Skin. 55- (160) U. V, Rogers, 2 Ld. Ray. 777. 80 OT^DINANCES. from the Bench, which he must do, for he cannot be judge in his own cause. But it cannot try a charge preferred for an assault upon their head officer, Avhere his presence is necessary to constitute the court ; as if the mayor of London be assaulted, and the court in- complete without him, for he cannot preside there during the trial of his own cause. J'in-^ or-'^' ^^^- ^^' ^^^' *^^® mayor and aldermen (London), who phan ward. j^a.ve the Custody of orphans within the city, until the age of 21 years, or marriage, and who hold a court of record, called the Court of Orphans ; with power to give licence to marry their female orphans, or deny it upon a reasonable cause — to impose a reasonable fine (to be paid to the court) upon any one Avho marries a ward of the court, without their licence, and to commit him to prison, on refusal to pay or give security for the fine. And this custom binds a stranger beyond the city, who marries an orphan in a foreign county, although without notice that she is a ward of the court, for he ought to enquire. But where there is no disparagement in the marriage, the Court of King's Bench will discountenance their levying the fine. Imprison- IQ2, There may be a custom that one who has eloined ment. ■' an orphan, the ward of a prescriptive court shall be liable to imprisonment by order of that court, until he discover where she is concealed. Imprison- 163. Or that if a freeman of the company be chosen ment, re- . i /• i n^ ■ i fusing- live- of the livery, and refuse the office without a reasonable excuse, complaint has been made by the master and wardens of the company to the Court of mayor and (161) Harwood's Cas.e, 1 Vent. 179. S. C. 1 Mod. 77. 80. (162) Williamson v. Bolton, T. Ray. 117. (163) Vintners V. Clerkc, 5 Mod. 157.^20. S. C. 12 Mod. 114. S. C Comb. 412. R. v. Mcrcliant Tailors, 2 Lev. 200. Grafton's Caso, 1 Mod. 10. ORDINANCES. 81 alderman of the Corporation, and they have commanded the freeman chosen to take upon him the office ; and that if he then refused, the Court has used to commit him to the custody of their officer, until he has consented to undertake it. But the committal must be for con- tempt of the Court : there cannot be a custom for the company to commit their freemen who refuse the livery. — I have introduced this and the following paragraph, because, though every Court of record may commit for a contempt in disobeying its lawful commands, yet these committals seem to require the support of a custom. 164. Or that if a freeman forestall fish coming to any Forestall- 1 • ^"o> or ra- market in the city, the court oi aldermen on complaint, ther con- may after his appearance and confession, ordain that he &c. shall desist from such forstalling, and that if he wil 1 not promise to obey, but declare that he will not obey their order, the Court may commit him (for the con- tempt of Court) until he signify to them that he will conform himself. In such case it is not necessary that the complaint should be upon oath. 165. Or to commit one elected to be sheriff, if he re- Refusing shrievalty, fuse to take the usual oath, or one elected alderman tor &c. refusing the office. 166. A custom by which a foreigner incurs a penalty Penalty, of 6s. 8d. for trading in the municipality contrary to a custom of exclusion, is reasonable, although dispro- portionate to the value of the goods which were the sub- ject of the offence. (164) London v. Coates, 1 Vent. 115. (165) Id. 1 Vent. 116. Grafton's Case , 1 Mod. 10. (166) Moir v. Munday, Say. 182. G 82 ORDINANCES. To whom. 167. The fine for breach of a custom, may go to the bailiff, and if the name be altered to mayor, he may re- cover it in the new name. Only in 168. Customs Can exist only in a prescriptive Corpo- prescrip- • i i i t • c \ live Corpo- ration ; but they do not cease on an alteration or the name : as long as the prescription continues, a custom may be laid in the municipality ; but when the prescrip- tion ceases, the custom is determined. But a custom of a prescriptive Corporation may extend to franchises newly acquired by companies recently incorporated into it. To liberties 169. If there be a custom in a city, it extends to the and sub- . . _ "^ urbs. liberties and suburbs of the city. At least the Court will not presume that the liberties and suburbs are be- yond the city; for although they take judicial notice of counties, they take no notice of the extend of cities and towns otherwise than as they appear on the record. New fran- 170. If a new franchise (as the shrievalty of Middle- chise. sex) be conferred upon an ancient Corporation (as Lon- don), and they are bound to find a proper officer to ex- ecute the duties belonging to it, the customary power of levying a fine for refusal of the office of sheriff of the municipality may be exercised to compel a freeman to undertake the office in the new franchise. So also may they make by-laws for the regulation of such office by vir- tue of their customary power to make by-laws for the city. (167) Moir v. Munday, Say. 183. Custom of York, Bendloe, .3.5. (168) Vaughan v. Lewis, Cartb. 228. Custom of York, Bendl.35. V. tit.3. 4. Bolton V. Throgmorton, Skin. 55. Sed vid. Chamberlain of London v. Compton, 7 D. R. 602. V. tit. 171. (169) Colchester v. Goodwin, Cart. 122. Bosworth v. Budgen, 7 Mod. 459. R. V. Ipswich, (Gippi') 2 Ld. Ray. 1240. Harris v. Wakeraan, Say. 255. London v. Vanacre, 12 Mod. 272. (170) London v. Vanacre, 12 Mod. 272. S. C. 1 Ld. Ray. 499. ORDINANCES. 83 171. Where in a prescriptive Corporation the masters NewCom- of the companies have power to seize unmarketable ^^^^^^' goods exposed to sale by their freemen, and carry them before the corporate court to be examined, and if proved > unmarketable, destroyed, this custom will extend a similar power to masters of companies newly incorpo- rated into the ancient municipality. II. VOID CUSTOMS, 172. But customs in themselves unreasonable and in Not saved • 1 • /. 1 -1 • 1 ^y * gene- violation of the common law, without appearmg to have ral confir- had their origin in public policy, will not be allowed to statute. continue on account of their antiquity, or although an act of parliament has in general terms confirmed the customs of the place ; for such a confirmation cannot be construed to extend to the establishment of usages derogatory of public rights. 173. On this ground a custom is void which empowers Fine on 1 1 • • town levi- the imposing of a penalty on a township, and making it able on in- leviable upon any individual who inhabits within it. 174. So is a custon for the steward of a manor to Steward to , make by- make by-laws with the consent of the homage; tor the laws. homage alone have the right of making laws for their own government. 175. Or a custom to proceed against a freeman, who informa- has spoken opprobrious words of an alderman by infor- slander, (171) Palmer v. Barfoot, 2 Lutw. 1375. Bolton v. Throgmorton, Skin 55. (172) Hamburgh Comp. 1 Mod. 212. in notis. (173) Wells V. Cotterell, 3 Lev. 49. <174) Id. 3 Lev. 48. (175) R. v. Rogers, 7 Mod. 29. g2 84 ORDINANCES. mation filed by the common serjeant in the court of the mayor and alderman ; because the common law does not permit such a proceeding for such an offence. Punish- 176. Or a custom to disfranchise and commit for such slander. an offencc ; for the punishment is unreasonable : a fine is sufficient for which there may be a good custom. It is said, it may be to fine and imprison him. Present- ment by leet jury. 177. Or that the jurors of a court-leet shall enquire of offences at one court, and present them at the sub- sequent court ; for the purpose of such courts is the ex- peditious remedy of minor offences, which is inconsist- ent with this manner of proceeding. Certificate of custom. 178. Or a custom by which a Corporation would be made judges in their own cause ; as that the Corpora- tion of London may certify to the Courts of Westminster Hall, by their recorder, a custom which is in issue be- tween the Corporation itself and a stranger, or even "one of its members," in a cause where there is a disputed claim between them, such as a toll claimed by that cus- tom ; or where the issue concerns the Corporation, though not directly a party to the suit. According to this rule, although the Corporation returns a custom to ex- clude strangers, it ought to be tried by a jury, and not by certificate. Judgment 179. Or a custom for the Court to proceed in a man- before ap- pearance, ner inconsistent with natural justice and the common (176) R. V. London, 2 Lev. 20L Clark's Case, 1 Vent. 327. (177) Davidson v. Moscrop, 2 East, 63. (178) Day v. Savage, Hob. 86. City of London's Case, 8 Rep. 123. Hesketh v. Braddock, 3 Bur. 1857. Doc. & Stu. c. 10. p. .34. (179) Williams v. Bagot, 3B. C. 786. ORDINANCES. 85 law. As, by issuing a summons and attachment at the same time, returnable at the same time, dispensing with personal service and allowing the declaration to be filed and judgement to be obtained by default, before an ap- pearance has been entered. 180. Or to try an action by six jurors instead of twelve, jury. ' 181. It was said by Holt, Chief Justice, that the Cor- Create poration of London may create a company ; but he seems Company. to have treated a company as little more than a volun- tary association, for he defines it " not to be a Corpora- tion, but a brotherhood or club to meet and drink, and talk together, that's all." But in a case long anterior it was held, that the custom of London to create Corpo- tions is void, and this opinion has been recently con- firmed. In another case it was held that they could create such a company as that of the free porters, and there is no reason to doubt this power, for such a com- pany is a mere association of their servants, without power to make by-laws even for their own government, and which the Corporation may again modify or dissolve without their assent. III. CUSTOMS ENFORCED. There are two methods of enforcing customs for 0/^1°^. the exclusion of foreigners : the one is by bringing an action on the case founded upon the violation of the custom ; the other by making a by-law in pursuance of (180) Tredynimock v. Perryman, Cro. Car. 259. (181) Robinson v. Groscott, Comb. 373. Cudden v. Estwick, Salk. 192. 143. Fazakerley v. Wiltshire, 1 Str. 462. Case dc Tanistry, Davis. .'53. R. V. Coopers of Newcastle, 7 T. R. 548. S6 OKDINANCES. the custom, and bringing an action to recover the penalty imposed by the by-law. The latter is the more general practice, but the former is preferable. Action by 182. If the custom be general that no foreigner shall ration. ^ exercisc any trade or occupation, or that no freeman shall employ any foreigner in his trade or occupation within the municipality, the violation of this custom is an injury to the whole Corporation, and the action on the case may be sustained in the name of the Corpora- tion, or of their treasurer or chamberlain for their benefit. But it cannot be sustained by any others,, whether members of the Corporation or strangers. By an an- 183. If the exclusion be that no one shall exercise tient Guild. i i /. r- • -i i i trade, etc. except he be free oi a certani guild, the ac- tion can be brought in the name of that guild only, and not of the municipal Corporation, unless the declaration show the identity of such guild with the Corporation. By the 184. If the custom be that no foreigner shall exercise particular any particular occupation^ as that he shall not use the art or mystery of a weaver, merchant-taylor, or shoe- maker within the municipality, if there be guilds of weavers, merchant-taylors, and shoemakers, the action against a foreigner for using the art of a weaver, mer- chant-taylor or shoemaker, must be brought in the name of the guild whose art he uses, and cannot be sustained (182) Chamberlain of London's Case, Co. 63. Bodwic v. Fennel, I Wils. 235. 237. Hesketh v. Braddock, 3 Bur. 1847. Berwick v. John- son, LofFt. 337. Chamberlain of London V. Compton, 7 D. R. 597. York V. Welbank, 4 B. A. 438. ( 183) Wilton V. Wilks, 2 Ld. Ray. 1134. S. C. 6 Mod. 21. (184) Weaversof London V. Brown, Cro. Eliz. 803. Bodwic v. Fennel, 1 Wils. 235. Hesketh v. Braddock, 3 Bur. 1847. Woolley v. Idle, 4 Bur. 195 L inB.R. 7 Geo. 3. trade. ORDINANCES. 87 in the name of the Corporation or its chamberlain or treasurer. 185. Directly contrary to these cases, however, was Contra. decided, the case of the Taylors of Bath, in which it was held that the company of taylors could not maintain the action, but that it must be brought in the name of the municipal Corporation. The circumstance in which it differs from some of the former cases is, that none could follow the trade there unless free, both of the Corpora- tion and the Company, which is still stronger against it, and assimilates it more to the case of the Weavers of London. 186. If the action be brought by the municipal Corpo- When can- ration, it cannot be tried in their court ; for they would Corpora- in such case be botli party and judge, and empowered to notice the validity of a custom, the establishment of which is for their own advantage. When such a cus- tom comes in question, I apprehend that the Court of London cannot certify it, but that it must be tried by a jury, and, therefore, that they are not competent to de- termine on it at the suit of the chamberlain, for the right of the Corporation itself is adverse to that of the defendant. But it is impossible to reconcile the cases upon this point ; the last which has come to my notice is against allowing the Corporation to judge of the custom. In Hesketh's case it was determined that sheriffs who are freemen cannot empannel a jury, that (185) Taylors of Bath v. Glazby, 2 Wils. 266. in C. B. 5 Geo. 3. (186) Chamberlain of London's Case, 5 Rep. 63. London y. Green, 8 Mod. 212. Harris v. Wakeman, Say. 255. Player v. Archer, 2 Sid. 121. Andr. 104. Day v. Savadge, Hob. 86, Bodwic v. Fennel, 1 Wils. 235. Hesketh v. Braddock, 3 Bur. 1853. Player v. Vere, T. Ray. 293. 328. Fazakerley V. Wiltshire, 1 Str. 469. City of London v. Wood, 12 Mod- 689, York v. Wcllbank, 4 B. A. 438. 88 ORDINANCES. freemen cannot be jurors in a suit on such a custom, or witnesses in support of it. And justice is clearly in favour of excluding these suits from the Corporation court, as well when the chamberlain, as when the Cor- poration is plaintiff. Yet it has been the constant prac- tice, when such customs have been allowed and the by- laws held good, to award a procedendo to the courts of London. On this point Lord Mansfield observed, in Hesketh v. Braddock, that it was " the first case where the objection had been taken upon the record." It was, however, raised on argument in the case of Player v. Vere, where perhaps the Court did not consider it ten- able ; for though the " by-law made the penalty reco- verable in the City Court," it was declared to be good in all respects except the reservation of a rent, on which the case was decided ; but the argument from cases of procedendo is inconclusive. In the case of the City of London v. Wood, it was observed by Holt, C. J. that if such an exception be taken in Westminster Hall, '* it does not hinder a procedendo, because it is an error in the proceeding ; for the habeas corpus is only to know the cause of detainer of the party in custody, and what is then to be judged of is only the return of the by-law ; and if that be good we must remand : for to enter into an examination of the proceedings would be to preclude the plaintiff before his time." When it ^^^' ^^ ^^ action be brought in the name of a company may be in on the violation of a custom which excluded foreigners Corpora- » tion Court, fjom following their trade, the injury being to the com- pany alone, and not to the municipal Corporation, the suit may be properly entertained in the courts of the municipality, which has cognizance of its own customs. (187) Bodwic V. Fennel, 1 Wils. 235. cited. ORDINANCES. 89 IV. CUSTOM PLEADED. 188. In proceedino- upon a custom, it must be shown Prescrip- ^ * ^ . ,. t"'e Corpo- thatthe Corporation is prescriptive ; for a custom cannot ration, exist in any other. But it may be laid in the Corpora- tion " time out of mind" in its present name, without mentioning its former. 189. A custom against common right must be set forth Custom set ° . . , . forth pre- with the greatest precision, and fully; it is insufficient to ciseiy. state that there has been a custom that no person should exercise any trade or occupation within the place unless free of a certain guild, " or otherwise authorized accord- ing to the manner of the city ;" but it ought to set out particularly in what the other authority, according to the manner of the city, consisted. 190. But a custom may be set out in words which do Words not . asserting not assert usage. It may be averred that there is a usage, custom that infants " may" bind themselves apprentices, or that freemen " may" alienate in mortmain, without saying that they ** have vised and been accustomed" to do so. 191. It IS necessary only to declare upon or plead such How much • " • 1 r • Ti- 1 oftliecus- custom as will maintain or defeat the action. It there tom. be reciprocal customs, mutual actions will lie, and the party need only set forth that by which he is supported. (188) R. V. Knight, 4 T. R. 4:50. Custom of York, Bendloe, .'{5. Fa- zakerley v. Wiltshire, 1 Str. 4G5. (18J») Wilton V. Wilks, 2 Ld. Ray. 11.S5. Horn v. Chandler, 1 Mod. 271. Eden, 2 M. S. 229. (\'M) Windhurst v. Gibbc3, T. Ray. 4. (1!)1) Grillith v. Williams, Say. 57. 90 ORDINANCES. If, therefore, a custom be averred in the Corporation to keep the prisons in repair, and another for every in- habitant who is not a burgess in consideration of the former, to pay the Corporation twenty shilhngs, it is sufficient in an action, for the defendant, being an in- habitant and not a burgess, to traverse the latter custom without noticing the former; and if the traverse be found for him he must have judgment. Tiie cxcL'i)- 1 92. But the entire custom must be set forth, together be siicwn. with all the exceptions in it ; and if the evidence show exceptions not set forth with the custom, it is not proved as it is laid. other cus- toms shewn. 193. Where a custom is shown to commit for contempt, until the offender shall submit himself to the court, it should appear that it is a court of record, and that it is held frequently, and at what intervals, to show that he has an opportunity of making his submission. When not (ileaded in the Munici- pal Court. 194. In proceedings in the courtof the municipality, the custom ought not to be set forth ; for the judges of the court must take judicial notice of them, as the judges at Westminster Hall take notice of the common law ; for such customs are the lex loci, and the rule on which the court is bound to decide. On Error. 195. For this reason, on a writ of error, the Court of King's Bench will take judicial notice of all the cus- toms of the place from which the cause is brought up. (192) Ipswich V. Johnson, 2 Barnard. 120. Ex parte Eden, 2 M. S. 229. (iy3) London V. Coates, 1 Vent. 116. (194) Day V. Savadge, Hob. 86. (195) Anon. 11 Mod. 68. Spink v. Tenant, 1 Rol. 10^;. ORDINANCES. 91 196. In pleading a custom, the form of averment is Timeim- , ,t • J • • 5> «^ T*!, memorial, tempore "cujus contrana memoria non, &c. Ihe phrase " tempore quo non extat memoria" is nonsense. 197. An averment, m a return to a mandamus to admit, What need , , . not be that there has been a certam ancient court held m the shewn, city ; for such admission is sufficient, without show^ing at what time or in what part of the city ; for members of the city although not freemen, are presumed to know both the time and place at which their own courts have been accustomed to sit. 198. When a custom is set forth, it must be shown Must shew ... .p. i • p • ^^^ party that the party is within the operation of it ; and if it within it. relate to particular classes only, it must be shown that he is of one of them • for the contrary will be otherwise intended, and the Court will not allow a defect of this kind to be amended on a return to the writ of habeas corpus. 199. In proceedings in a municipal court, if a cus- Wlien issue „,,,-,,,, . ^ , not taken torn of the place be pleaded, the opposite party must on custom, demur, and not join issue upon it; for it is the lex loci. Indeed, it ought not to be pleaded. (1%) Phips V.Jackson, 6 Mod. 305. Co. Lit. 115. (197) R. V. Bosworth, 2 Str. 1112. (198) Ex-parte Eden, 2 M. S. 230. (199) Day v. Savadge, Hot), 8(J. V. tit. 191. 92 OIIDINANCF.S. V. CUSTOM PROTED. By certifi- cate. 200. The manner of proving a custom of London, in suits between parties within it, when brought before the superior Courts, and the Corporation is not a party, is pecuhar to this city. The court of mayor and aldermen are to examine the custom, and when they have found it, it is for them to direct their recorder, who with a certain ceremonial, as the organ of the Corporation, cer- tifies it verbally to the Courts of Westminster Hall, af- ter which, it becomes matter of record in the Court to which it was certified, and thenceforth they take judi- cial notice of it, and after it has been once certified, never allow a second certificate. Notice on motions. 201. Of some customs of London the Court will take judicial notice, on motions on affidavit, when disputed by neither party, although they have never been certi- fied. In Chan- cery. 202. If a question arise in the Court of Chancery, on a custom of London, the Chancellor issues an order to the Corporation, to enquire if there be such a custom, to which they make a return. Sufficiency 203. A return by the Corporation that they cannot ofcertiti- . n i cate. find any instances or the custom reierred to them, is sufficient, and amounts to a certificate that there is no (200) Strata Marcella, 9 Co. 31. b. Plummer v. Bentliam, 1 Bur. 248. Day V. Savadge, Hob. 87. Blacquicre v. Hawkins, Doug-. 365. Hartop v. Hoare, 2 Str. 1187. (201) Argyle v. Hunt, 1 Str. 187. Hartop v. Hoare, 2 Str. 1188. (202) Pidilington v. Main, Moseley, C. C. 6, 7. (203) Anon. Moseley, C. C. 7. ORDINANCES. 93 such custom. But a return that it does not appear whether there be such a custom or not, is insufficient ; and if a proper return be not made on a day given, the Court will impose a fine upon the city. 204. The chancellor will not inspect the books, to as- Court will not inquire certain whether there be such a custom, although sub- frombooks. mitted to his inspection, for the method of trying it is by certificate from the mayor and aldermen. 205. But in cases where the Corporation is a party. Customs of •r 1 • r 1 London it seems that the customs of London, if the gist ot the tried by a action, must be tried by a jury, as those oi any other place ; for if a certificate were allowed, the Corporation would be judge in their own cause. But that the Court will judicially notice them, in a suit against a foreigner, if they have been already certified by the recorder. 206. Customs and prescriptions can be tried only in Ofotber £• -1^7 . Municipali- the courts of common law ; and the courts ot VV est- ues. minster, will not take judicial notice of municipal cus- • toms, but they must be pleaded and put in issue, that their existence may be tried by a jury. 207. The Corporation of London on habeas corpus. Return on must return its customs as well as its by-laws. The pus. contrary doctrine was once asserted, but rejected by the Court, which will not notice the custom unless it appear upon the return. (204) Anon. Moseley, C. C. 7. (205) Day v. Savadge, Hob. 87. Blacquicre v. Hawkins, Doug. 365 Hesketh v. Braddock, 3 Bur. 1853. V. tit. 178. and 186. (206) Day v. Savadge, Hob. 87. Hartop v. Hoare, 2 Str. 1187. Blac- quicre V. Hawkins, Doug. 365. Hodgson v. Atkinson, Comyns, 603. (207) Watson v. Clerke, Comb. 139. V. tit. By-laws Enforced, post. 94 ORDINANCES. Proof by 208. Evidence that persons have been frequently fined ° ' for keeping shop without Ucence from the Corporation proves the right to such fines, on which an action may be sustained ; but perhaps it does not show an arbitrary power in the Corporation to exclude all foreigners from erecting shops in the municipality. As averred. 209. A custom must be proved precisely as it is aver- red, particularly if against common right. If it be laid without exceptions, and on the evidence it appear that there are exceptions, the averment is not sus- tained. Antiquityof 210. Evidence of usao-e for twenty years uncontra- usage. ^ , . dieted and unexplained, has been held suflicient when the custom was not contrary to public policy. Nodiscon- 211. Disuse for twenty or thirty years does not de- timiance. stroy or abolish a custom ; for it is not necessary to show its constant continuance, and frequent exercise. But by constant omission to enforce a custom or privi- lege granted by statute, of excluding foreigners from using their trade or occupation within the municipality, it may be released ; for being a privilege and advantage to the Corporation in particular, they have power to re- linquish it, and that they have done so, will be inferred from foreigners having long continued to use their trades and occupations in the place without molestation. ment on. No indict- 212. It is not an indictable offence, for foreigners to ti'ade or follow their occupations within a municipality, (208) Ipswich V. Johnson, 2 Barnard. 120. (209) Id. ibid. (210) R. V. Joliffe, 2 B. C. 59. S. C. 3 D. R. 242. (211) Colchester v. Goodwin, Carter, 118. Berwick v. Johnson, LoflFt. 338. (212) R. V. Sharpies, 4 T. R. 777. ORDINANCES. 95 contrary to a custom excluding them, although there be a by-law m affirmance of the custom. 213. If ffoods be distrained or seized by the officer of Trespass " . for seizure a Corporation, under pretence of a custom which is void, under void . • ^- r i • i. custom, the owner may maintain an action ot trespass against him who seized them ; for it is a trespass ab initio. So if the custom would have warranted a distress, but is void on account of the excess. The manner of enforcing customs by making a by- law, in affirmance of them, will be considered under the title By-law, as will also the manner of returning customs upon the writ of habeas corpus from the city of London. The consideration of such as relate to the powers of making by-laws, the rights of admission, election, and amotion, will fall more properly under these titles ; for which reason they are not introduced in this place. Section II. REGULATIONS BY CHARTER. The second class of ordinances, are those introduced by the charter of incorporation, confirmation, or re- vival, by which the king imposes upon the body poli- tic those regulations which appear to be expedient, and to which by acceptance of the charter they implicitly submit themselves. Nothing contrary to the common law, can be prescribed in this manner ; but any thing consonant with that and the nature of the municipal institution, may be so prescribed. (213) Moir v. Munday, Say. 183. 96 ORniNANCES. inciflenUil ]>owers. 214. The charter may therefore divest the body at large of its incidental powers, and confide them to select classes, created by the crown ; such as the rights of election, amotion, and making by-laws, of disposing of property, and transacting all business of the Corpo- ration, both as regards members and those who are stranpers to it. Subsequent retfiilations. 215. But municipal Corporations are not subject to any founder. The king may to a certain purpose, be considered their founder, in as much as he can pre- scribe ordinances on the incorporation ; but after the body is once incorporated, he cannot make any altera- tion in the existing regulations, or add any new, miless the Corporation assent by accepting a new charter, in which such reo;ulations are contained. It were quite vain to enumerate the regulations which a charter may impose ; but many of them will be necessarily alluded to in the following pages ; it is sufficient therefore, in this place, to point out some restrictions which the constitution has imposed upon the prerogative with regard to its power of incorpora- tion. Cannot alter reg'U- lations by statute. 216. A charter cannot introduce an alteration in the rules which have been prescribed to a corporation by act of parliament ; but it may introduce any kind of alteration in a Corporation existing either by prescrip- tion or charter, or by reason of both. (215) Anonymous, 3 Salk. 102. (216) R. V. Miller, 6 T. R. 277. R. v. Haythorne, 5 B. C. 425, ORDINANCES. 97 217. It cannot exclude foreigners from following their Foreigners, trade or occupation within a municipality, or empower to impose a penalty for doing so. 218. Nor ordain that no one shall practise his trade Appren- . . . ticeship. there, unless he has served an apprenticeship to it, or been approved by the Corporation or some of its members. 219. Nor that he shall not sell by retad withm a mu- Sale by re* .... tail. nicipahty. 220. Nor that a foreia'ner shall not sell to a foreigner. Foreign ^ ^ bought, &c. 221. Nor can it create a forfeiture of goods, foreign Forfeiture. bought and foreign sold, nor of the goods of those not free, trading in the place, although alien mer- chants. 222. Nor a forfeiture of the goods of one who vio* lates the privileges or ordinances of the Corporation. 223. Nor a forfeiture of goods improperly prepared within the municipality. If a grant be made to a mayor and commonalty, that the mayor shall have " plenum et integrum scrutinium, gubernationem et correctionem, omnium et singulorum mysteriorum," &c. without grant- (217) City of London's Case, 8 Co. 125. a. (218) R. V. Churchwardens of Thame, 1 Str. 116. Bedford v. Fox, 1 Lutw. 564. (219) Berwick upon Tweed v. Johnson, Lofft. 3;^8. (220) R. V. Dublin, Palm. 3. (221) R. V. Dublin, Palm. 4. 8. City of London's Case, 8 Co. 125. a. (222) Home v. Ivy, 1 Vent. 47. S. C. 1 Mod. 18. (223) City of London's Case, 8 Co, 125. a. Dr. Bonham's Case, 8 Co> 119. a. ment. 98 OllDINANCES. ing them any court in which legal proceedings may be instituted ; it gives a power of search to discover of- fences and defects, which may be punished according to law in any court : but it neither gives nor can give them any irregular or absolute power to correct or punish any at pleasure. Imprison- 224. Nor can it give a power to imprison any for vio- lating their privileges or ordinances. It is incident to every court created by letters patent or act of parlia- ment, and other courts of record, to punish any misde- meanor done in court, in disturbance or contempt of the court, by imprisonment. But they cannot by any im- plied authority for any such misdemeanor commit him to prison without bail or mainprize, until he shall be delivered by command of the president and censors. 225. If the charter give a power of making an unrea- sonable by-law, it is in this respect void ; and although it have not been repealed, advantage may be taken of the want of authority in an action upon the by-law. It may be proposed as a general rule, that what- ever can be introduced by a by-law may be prescribed by a charter. (224) Kirk v. Nowill, 1 T. R. 124. Dr. Bonham's Case, 8 Co. 119. a. (225) Tailors of Ipswich, 1 Rolle, 5. gackville College Case, T. Ray, 178. OKDINANCES. 99 STATUTE. 226. It is quite unnecessary to say what privileges may be granted, or regulations prescribed to a Corpora- tion, by an act of parliament ; for the power of the le- gislature in this respect, cannot be defined. A statute does not by implication invest the body with any extra- ordinary authority, if it be intended that any shall be given, it must be by express words to that effect. 227. The regulations prescribed by a statute can be altered neither by the Corporation themselves making a by-law for that purpose, nor by acceptance of a char- ter from the crown, affecting to introduce such altera- tion. This rule is so strict, that even the form of elec- tion prescribed by a statute is unalterable. 228. But the privileges conferred by a statute, may be waved by a by-law ; as if strangers are excluded from trading within the municipality, the Corporation may relinquish the privilege, and from long usage a by-law niay be presumed. Section III. BY-LAWS. The third kind of ordinances is that of by-laws, which every Corporation has an incidental power of making for the regulation of their municipal affairs. This power (226) Kirk v. Nowill, 1 T. K. 124. (227) R. V. Miller, 6 T. R. 277. R. v. Haythorne, 5 B. C. 425. (228) Berwick upon Tweed v. Johnson, Loflft. 338. V. tit. 211. h2 100 ORDINANCES. has been compared to the legislative authority of a re- public, or more quaintly to the reason of a man, by which he lays down rules for his own government : both these comparisons have more of imagination than rea- lity. The legislative functions of a Corporation are confined within a very narrow compass, the general laws of the kinodom havino; ascertained the rights of person and property of all individuals, and the form of their constitution, whether by custom or charter, having in most cases prescribed invariable rules for their con- duct in a corporate capacity. — The subject will be treat- ed under the following subdivisions : — I. Who may make by-laws. II. Who are bound by them. III. What by-laws are valid or void. IV. By-laws in affirmance of a particular custom. V. How by-laws shall be construed. VI. How enforced. VIT. And how pleaded. I. WHO MAY MAKE BY-LAWS. Body at 229. The power of making by-laws is incidental to a ° " Corporation, and it is unnecessaiy that the charter con- tain an express provision for this purpose. When no provision is made by the charter, as to the persons by whom this power is to be exercised, like every other incident, it belongs to the body at large ; and every member from the head officer to the common freeman has an equal right to vote. (229) Norris v. Stajis, Hob. 211. R. v. Maidstone, 3 Bur. 1837. Com. Dig. Fran. F. 10. ORDINANCES. 101 230. When the incidental power remains undisturb- Corporate • 1 1 1 11 assembly, ed, it can be exercised only by a corporate assembly consisting of every class duly convened. 231. If a charter expressly confer on a company a Power re 1 1 • • 1 • 1 • 1 strained power of making by-laws in particular case, it abridges charter, the incidental power and restrains their authority to the particular cases mentioned. But this was only an ob- servation made in the case, and not important to the decision.. It may be very doubtful, if this be the law, whether it will extend to a municipal Corporation. . 232. The charter may divest the body at large of this Selectbody. power, and repose it in a select class appointed by the king to exercise it. And in many prescriptive Corpora- tions, it is equally exercised by a select body to the ex- clusion of the commonalty. 233. When the charter vests the power of making Jfg^tX''' by-laws in all cases in a selectbody, the incidental right nested. , is taken away, and the other members of the body are ex- cluded. Except as to regulating any particular franchise which may still remain in them ; as if the Corporation consist of mayor, aldermen, and commonalty, and the general power of making by-laws is vested in the mayor and aldermen ; the commonalty are in all cases exclud- ed, unless the right of electing aldermen or freemen re- mains in them ; in which case as incident to the right of election, they have the power of making by-laws for regulating the manner in which that particular right shall be exercised. (2.'}!) Child V. Hudson's Bay Company, 2 P. Wins. 208. (233) R V. Head, 4 Bur. 2521. Hoblyn v. Regcm, (5 Bro. P. C. M'J. R. V. Westwood, 4 B. C. 7'M. 818. 102 ORDINAMCES. inparticu- 234. If the charter coiifide to a select class the power liir cases ,. > • , , • • • i i • only. or making by-laws in certain instances only, leaving others unprovided for, the power of the select body is de- rived wholly from the charter, and confined to making by-laws in these particular cases; the powerof doing so in all other instances remaining undisturbed in the bod)'^ at large, by virtue of their incidental right, particularly if the power of the select body is derived from a new charter, in derogation of the ancient right of the body at large to make by-laws in all cases. Who must 235. Where the power of making by-laws is in a se- lect class, if any others join them in the exercise of it, the by-law is void ; as if it be vested in the mayor and aldermen, and the burgesses or commonalty join them in making the by-law. For when others interfere, the by-law may be carried perhaps by a majority of the per- sons voting, contrary to the opinion of a majority of, or all the persons to whom the povv'er is confided. Select body 236. But where the select body, as mayor and aldermen, in name of . . body at is empowered to make by-laws *' instead, for, and in the name of the mayor, aldermen and burgesses," if a by-law purporting to be made by the mayor, aldermen and burgesses be found by the verdict " to be in due manner made," it will not be assumed that the bur- gesses joined in making this by-law, which would avoid it ; but that the mayor and aldermen alone, acting in pursuance of their authority, made it in the name of the mayor, aldermen and burgesses. (234) R. V. Westvvood, 4 B. C. 800. 813. (235) Parry v. Berry, Comyns, 269. R. v. Head, 4 Bur. 2521. R. v. Westwood, 4 B. C. 799. Bedford v. Fox, 1 Lutw. 5{i4. (236) Green v. Durham, 1 Bur. 131. ORDINANCES. 103 237. It may be observed that whatever body has fovrer to . repeal. power to make a by-law has equal authority at any fu- ture time to repeal it ; this is incident to the power of making it. 238. There is some difference in tne extent of the DiflFerence r. 1 , , 11/^ • 1 • inpowersof powers 01 a select body and the Corporation at large, in body at making by-laws, which will appear by reference to select body. by-laws made in relation to the power of election of offi- cere^nd members ; but this has arisen from a departure from the principle of law, that a Corporation cannot alter the form of its constitution. 239. When a new charter, which is void, assumes to Under new , - 1 . ■ ■ /-, ™^^ char- incorporate a place where there is an existing Corpo- ter. ration, and includes the members of the ancient Corpo- ration together with new men, if a sufficient number of the ancient corporators professing to act under the new charter, without any of the new men joining, make a by-law which they are capable of making under the ancient constitution, their act is referred to their genuine authority, and not to the new charter, and the by-law will be held good. I presume it is not valid, unless all the old members are reincorporated ; for otherwise the remainder are deprived of the right to be present, which would avoid any corporate act. But if any of the new men, although a minority, join in making the by-law, it is void ; for such act cannot be referred to the original authority, and their votes may have helped to carry the question against a ma- jority of the old members. (237) R. V. Ashwell, 12 East, 29. R. v. ■\\estwood, 4 li. C. 806. (239,1 BuUer v. Palmer, 1 Salk. l'.)!. 104 OKDIN AMCES. (iiiimiiiins 240. Guardians of the [^eacc by prescription, such as. icptac . ^j^^ officers of some Corporations anciently were, cannot, as such, make regulations imposing a penalty. Coil) panics. 241. The freemen of companies members of a Corpo- ration may make by-laws for the regulation of their own ) affairs, and when an authority is necessary which the companies cannot give, the Corporation may make re- gulations for them ; but by-laws made by the latter will bind only such members of the companies as are like- wise freemen of the municipality, except in cases where they derive force from the local jurisdiction. iLy custom. 242. A general custom to make by-laws does not em^ power to make any which are contrary to common right, or which would not be valid if made under the incidental power in all Corporations, or the power conferred by a modern charter. Concerniiif,' 243. A Corporation may make by-laws as well for the tVuncliise. regulation of any franchise conferred upon them, either at their creation or by subsequent grant ; as for the re- gulation of the municipality. And the same persons must join in making it in both instances. II. WHO BOUND. FieeiiicH. 244. With regard to the regulation of corporate fran- chises, lights, and liabilities, the freemen only can be bound even by ordinances of a municipal Corporation; (240) Dodvvell v. Oxford, 2 Vent. .T.. (242) Wilson v. Wilks, 2 Ld. Ray. 1131. (243) London v. Vanacre, 12 Mod. 270. S C. 5 Mod. 439. S. C. 1 Ld. Ray. 4!>8. Fazakeiley v. Wiltshire, 1 Str. 462. (244j Fierce v. Barirum, Cqwp. 270. ORDINANCES. 105 and perhaps in this respect, a Corporation by charter has little more power than a company created by the same instrument. But with regard to their conduct as Residents. people of the place, put under the superintendence of the Corporation, all those who inhabit or frequent a municipality, are liable to its by-laws. What must be confined to freemen, and what may be extended to the people of the place in general, will appear from the sub- sequent pages. How far residents and people frequent- ing a place may be affected by customs of a Corpora- tion, has been already in some measure shown. 245. All persons v/ho become members of a Corpora- Assent by •PI- 1-1 becoiKinar tion, by that act manifest then- consent to submit them- freemen." selves to all reasonable by-laws in force at the time of their admission, and to all such as shall be afterwards enacted by a majority of the body. This observation relates also to those who become members of a com- pany or guild. 246. All persons who come to reside or trade within a By becom- mg resi- municipality, by doing so subject themselves to all such dents. reasonable by-laws of the Corporation relating to the trade and good government of the place, as are then in force, and to such as shall be enacted while they conti- nue to reside. 247. Whoever submits himself to by-laws by becom- imijlied no- •' •' tice. ing a member of the Corporation or company, or by coming into the municipality, must take notice of them at his peril. (24;)] Adley v. Reeves, 2 M. S. 60. (24C) Chamberlain of London, 5 Co. (J3. Cudden v. Estwick, 6 Mod. 124. Pierce v. Bartrum, Cowp. 270. (247J Cudden v. Eslwick, 6 Mod. 124. I'riggc v. Adams, Skin. 330. I'ierce v. I5arlruni, Cowp. 270. 106 ORDINANCES. By-laws of 248. A Company can only make by-laws binding upon Company, . , t • r ■ i • ■ i i when bind- its members ; and it incorporated in a particular place, '""■ as the Homers' company of London, it cannot make by-laws binding, even upon its members, beyond the limits of that place. On whom. 249. A company of a particular trade within a munici- pality, having no local jurisdiction, cannot make by-laws binding upon any persons of that trade within the mu- nicipality, except their own freemen ; but where the charter incorporates all of a certain trade within a pre- scribed district with power to make by-laws in regula- tion of that trade, a reasonable by-law consonant with that power is obligatory on all those who exercise such trade, although they have not become freemen of the company. In what re- 250. A Corporation cannot bind any, except its mem- spects. _ ^ . . bers, without customer express provision by statute; for this reason, the university of Oxford cannot (unless perhaps by a particular prescription) make a by-law prohibiting the townsmen being abroad in the streets after nine o'clock at night. In a subsequent case it was observed that this case of Oxford was not decided on the ground of jurisdiction, but on that of public expediency. For though the jurisdiction were sufficient to support the by-law as restrained to the members of the university in preventing them from being abroad at night, it were most inconvenient to so limit the townsmen of a large place, on account of their trades and occupations. (248) Horner's Comp. v. Barlow, 3 Mod. 159. Pierce v. Bartrum, Cowp. 270. (249) Franklin v. Green, 1 Bulstr. 12. Pierce v. Bartrum, Cowp. 270. Butchers v. Morey, 1 H. B. 370. (250) Dodwell v. Oxford, 2 Vent. 33. Butchers v. Morey, 1 H. B.375. ORDINANCES. 107 261. The by-laws made by a municipal Corporation, in aforel^ for the government of a franchise or liberty granted to them with local jurisdiction, beyond the limits of the municipality, are as binding on persons going into the liberty, as the by-laws of the city upon those who come within its walls. 252. Dissenters protected by the Toleration Act, al- Exception though freemen, are not subject to the by-laws which ersasto punish refusal of corporate offices, previous to the un- dertaking of which, the sacrament is required to be re- ceived by stat. 13 Car. 2., if they are disqualified by reason of conscientiously omitting to receive the sacra- ment according to the forms of the Church of England. III. WHAT BY-LAWS ARE VALID OR VOID. This subdivision is again divided into the follow- ing heads : — I. By-laws concerning the delegation of corporate powers. II. By-laws concerning offices. III. By-laws concerning admission. IV. By-laws concerning freemen in particular. V. By-laws concerning the government of the place. concernins The first of these minor divisions comprehends By-laws the consideration of the power which the Corporation po" at large, being invested with the right to make by-laws, possesses of delegating that, as well as the rights of election and amotion, to a select body constituted by themselves. (251) Fazakerley v. Wiltshire, 1 Str. 462. London v. Vanacrc, 1 Ld. Ray. 498. (252) Guilford v. Clarke, 2 Yent. 247. Harrison v. Evans, G Bro. P. C. 196. S.C. cited Cowp. .W.'i. n. .5.35. 108 ORDINANCES, Common Conncil to mjike by- laws, in- stead of Corpora- tion. 253. It has been said, that the Corporation at large may by a by-law constitute a common council, consist- ing of each of the definite classes, and certain persons periodically selected from the commonalty, and delegate to that body the power of making by-laws ; that such a body, being the representatives of the whole Corpora- tion, may possess a greater power of making by-laws than the king's charter can confer on a common coun- cil of its creation 5 indeed, that it may divest the Cor- poration at large of their right of electing both officers and members, and transfer it to a select body. It was also said, that of this nature are the select bodies, called the common council in prescriptive Corporations. But as the whole fabric is built upon the basis of legal presumption, I cannot imagine how a body thus con- stituted can possess greater powers than a body simi- larly constituted by the king's charter, to the terms of which, the law presumes that the whole Corporation have equally yielded their assent. Where such a com- mon council is annually elected by the votes of the commonalty, there is some semblance of representation. But under what form of constitution are representatives empowered to transfei- the greatest privileges of their constituents into other hands, or still more presumptu- ously to arrogate them to themselves ? To oJect. 254. The Corporation at large, may make a by-law, creating a select body, to whom they may delegate the power of electing officers and members of the Corpora- tion. . To the validity of which, the following circum- stances are essential. By whom made. 255. The by-law must be made by a corporate assem- bly, consisting of a legal majority of each definite class, (253) R. V. Maidstone, 3 Bur. 1837. 4 Bur. 2208. (2r)5) R. v.Tomlyn, C. andT. H. 31fi. R. v. Maidstone, 3 Bur. 1837. 4 Bur. 220y. R. v. Head, 4 Bur. 2521. Hoblyn v. Regcm, 6 Bro. P. C. ORDINANCES. 109 and a sufficient number of the indefinite class. This is necessary on general principle ; but as all such by-laws as have been recognized, have been admitted either upon presumption from ancient usage, although within time of memory, or upon a contest whether there were a body capable of making them, no question has ever been before the Court, as to the sufficiency of the assembly by whom they were actually made. Unless both the power of making by-laws, and When it maybepre- the right of electmg such officers or members, were sumed. in the Corporation at large, such a by-law cannot be presumed. It has been already shown, that when it has not been transferred by charter or usage, the general power of making by-laws is in the body at large. It has also been shown, that it is not divested by a grant to a select body of the power of making- by-laws in particular cases, or even by a grant to a select body of the general power of so doing. So that there always remains in the body at large, a power of making by-laws to dispossess themselves of the elective franchise if it have been reposed in them. Thus all the cases on the subject, decided by Lord Mansfield, and of which one was affirmed in the House of Lords, are in most cases reduced to a matter of pleading. For if it be averred that the by-law supposed to be lost, was made by the Corporation at large, and usage be adduced conforma- ble to it, the contrary cannot be proved by showing that the general power of making by-laws, is confined to a select body; which was formerly held sufficient to re- fute the averment. 519. Newling V. FranciS, 3T. R. 181). R. v. Holland, 2 East, 70. R. v. Ashwell, 12 East, 28. R. v. Bird, 13 East, 38.5. R. v. Westwood, 4 B. C. 800. 2. no OKD[NANCES. Not made by select classes. If however, the by-law is averred to have been made by a select body, in whom the power has been reposed, whether by prescription or charter, it must be held void, unless there be an express power for this purpose ; although that body be called a common council, and consist of a certain number of common councilmen besides the mayor, aldermen, burgesses, &c.; for this sort of common council created by charter, does not represent the body at large. The common council- men are as much a select class as the aldermen. Of whom this Com- mon Coun- cil must consist. 256. The select body to whom this power is trans- ferred must consist of each of the definite classes, and some of those who are members of the indefinite class. A doctrine restrictive of this rule also has lately been carried to the extreme. It was formerly held, that the definite classes, appointed by the crown, could not alone be invested with this power ; and that to the mayor, aldermen, burgesses, &c. being definite and select classes, some must be added from the conmionalty, who ought to be distinguished from their companions by a peculiar corporate character, such as having served temporary corporate offices, as that of clothing burgesses, or the livery, or by some other corporate distinction ; but that having served offices foreign to the corporate character, such as those of churchwarden or overseer of the poor, or even of recorder, if not a corporator but a mere legal adviser appointed by the mayor, was no pro- per criterion for forming a select body, to be invested with the incidental rights of the Corporation. The principle is plain both in the case of Corporations, and the whole series of cases from that time to the decision in 4 Barnewall and Cresswell, that some persons must be added by the commonalty to those who were nomi- nated by the crown, or appointed to hold a particular (25(j) All the cases last cited. ORDINANCES. HI office ; and the only ground upon which it was origi- nally advanced is, that to avoid popular confusion, the exercise of the franchise (for the right still remains in the body at large, and may at any time be resumed by repealing the suppositious by-law) was entrusted to certain of the commonalty appointed to represent the rest, in the manner of the lower house of parliament, who were to join in deliberation with the definite classes, a sort of aristocracy, and to control their corporate actions. But in a recent case, it has been held that the aldermen, though a definite class elected for life, are not in all cases an integral and distinct body from the commonalty ; relying upon the circumstance that they were not mentioned distinctly in the clause of the char- ter, granting the right of election to the " mayor, bai- liffs, and burgesses." Yet the doctrine that no inte- Abbot, C.J. gral part of the Corporation can be excluded from a Bayiey' j. voice in the election, is not expressly overruled ; and it *^°""^'"''" may still be laid down as law, that if the supposed by- law exclude from participating in the election the w^hole of the commonalty, affecting to transfer the right to the definite integral parts only, it is void. 257. It was formerly considered that the only power of The dec- election which could be transferred, was that of the mu- whom, nicipal officers, and not the election of members into the Corporation. But it has been determined in a recent case, Bayiey, j. that the power of electing burgesses mere freemen, may be transferred, as well as that of electing the officers of the body politic. It is not my intention generally, to introduce abridgments of the cases, but to refer only to the dif- ferent points as they come under their proper titles ; but the last upon this subject has so greatly extended (257) R, V. Weatwood, 4 B. C. 807. et seq. R. v. Bird, .1.3 East, 385. contra. 112 ORDINANCES. the rule laid down in the celebrated case of Corpora- tions, upon which all the subsequent determinations have proceeded, and as they contain nothing irrelevant to the preceding questions, an abridgment of them is here offered. Case of 258. In this term at Serjeant's Inn in Fleet Street — It tions."''^' '^^^ demanded of the Chief Justices Popham and An- derson, Periam Chief Baron, and the other Justices, that when divers cities, boroughs, and towns are in- corporated by charters, some by the name of mayor and commonalty, or mayor and burgesses, &c. or bailiffs and burgesses &c. or aldermen and burgesses. Sic. or provost or reve and burgesses or the like ; and in the said charters it is prescribed that the '' mayors, bailiffs, al- dermen, provosts, &.C." shall be chosen by the com- monalty, or burgesses, 8cc. ; if the ancient and usual elections of mayors, bailiffs, provosts, &c. by certain selected number of the principal of the commonalty or burgesses, commonly called the common council, or by such like name, and not in general by the whole com- monalty or burgesses, nor by so many of them as would come to the election, were good in law : for as much as by the words of charters, the election should be indefi- nitely by the commonalty, or by the burgesses, which is as much as to say by all the commonalty, or all the burgesses &c. — Which question, being of great import- ance and consequence, was referred by " the Lords of the Council," to the justices, to know the law in this case, " because divers attempts were of late, in divers Corporations" contrary to the ancient usage to make popular elections : and it was resolved by the justices upon great deliberation and conference had amongst themselves, that such ancient azid usual elections were good and well warjanted by their charters, (258) Case of Corporations, 4 Rep. 77. h. ORDINANCnS. 113 apd by the law also; for in every of their charters they have power given them to make " laws, ordinances, and constitutions for the better government and order of their cities or boroughs, Sec. by force of which" and for avoiding of popular confusion, they by their com- mon assent constitute and ordain, that the " mayor or bailiffs or other principal officers" shall be elected by a " selected number of the principal of the commonalty, or of the burgesses as is aforesaid," and prescribe also how such selected number shall be chosen ; and such ordinance and constitution was resolved to be good and allowable, and ag-reeable with the law and their char- ters for avoiding of popular disorder and confusion : and although now such constitution or ordinance cannot be showed, yet it shall be presumed and intended, in re- spect of such special matter of ancient and continual election (which special election could not begin without common assent), that at first, such ordinance or consti- tution was made ; such reverend respect the law attri- butes to ancient and continual allowance and usage, al- though it began within time of memory. The principal points of the case are : — 1. That the by-law may be made, when the com- monalty have the power to make by-laws, ordi- nances, and constitutions, for the better govern- ment and order of their cities, Sec. 2. That such by-law shall be presumed from ancient and continual usage of such special election ; for it could not begin without common consent. 3. That the mayor or baiUffs, or other principal officers shall be elected, — 114 , ORDINANCES. 4, By a select number of the principal of the com- monalty, or the burgesses commonly called the common council, or by such like name, and not in general by the whole commonalty, &.c. 1. By-law, 128. If by their charter the mayor and aldermen are made.'"'" to be elected by them (the commonalty), all this is not to be altered but by and with the general assent of the whole town, by this means to take away confusion. 129. The power of making by-laws, was in the mayor jurats and common council (that is, the mayor, twelve other jurats, and forty common councilmen) ; the by- law was averred to have been made by the mayor, jurats, and common council (who were officers for life). Held, that this by-law made by them was void, because they are a select class, and the assent of the common- alty cannot be presumed. 130. The power of making by-laws was in the mayor and aldermen ; the by-law was averred to have been made by the mayor and aldermen, with the assent of the commonalty. — Held that the power of making by- laws vested in the mayor and aldermen, excludes the commonalty ; so that this by- law made by the mayor, al- dermen, and commonalty is void. 131. In this case the by-law was by the Corporation at large, who had from time immemorial made by- laws for ordering the manner of election, and therefore valid. (260) Colchester Case, 3 Bulstr. 71. (261) R. V. Spencer, 3 Bur. 1837. R. v. Cutbusli, 4 Bur. 2208. (262) R. V. Head, 4 Bur. 2521. HobljTi v. Regem, 6 Bro. P. C. 519. (263) Newling v. Francis, 3 T. R. 189. ORDINANCES. 115 ^64. The by-law was made by the whole Corpora^ tion, and it would appear that the charter said nothing as to who might make by-laws : this was held to be valid. 265. It was held that within seventy years after the 2. Presum- grant of the charter, there could be no sufficient usage to raise the presumption of a lost by-law, vesting the right of election in a representative body. Several of the subsequent cases were upon by-laws extant and pleaded. 266. It is not sufficient that there be a very long usage to this purpose, when the Corporation is by char- ter, (it may be otherwise when it is by prescription ;) for no length of usage will establish a form of election, contrary to the charter, unless the jury expressly find that there was such a by-law. 267. This case speaks only of mayor and aldermen. 3. who to be elected. 268. The election was that of a common councilman, to which counsel contended that the rule did not apply ; but the Court made no remark on this point, the by-law being declared void on other grounds. 269. The election was of a burgess or common free- (264) R. V. Ashwell, 12 East, 22. (265) R. V. Grosvenor, 7 Mod. 198. (266) R. V. Tomlyn, C. T. H. 316. R. v. Castle, Andr. 124. R. v. Tucker, 1 Barnard. 27. (267) Colcliester,3Bulstr. 71. (268) R. V. Spencer, 3 Bur. 1830. R. v. Cutbush, 4 Bur. 2207. (269) R. V. Head, 4 Bur. 2515. 1 2 116 ORDINANCES. man ; but the by-law was held void on on another point, and this not noticed. 270. The question was of the election of a mayor: the by-law extended only to the choice of mayor, bailiffs, and councillors of the borough. 271. The office was that of an alderman. 272. The election was of burgesses common free- men ; but there was an inchoate right to freedom in cer- tain classes of persons. — Lord Ellenborough : " I see no reason why the rule is not as applicable to the elec- tion of burgesses at large, as of the higher orders of the Corporation." 4. By whom 273. The corporate name was "mayor, jurats and the election i ,, i /-. • • c is to be commonalty — the Corporation was to consist ot "mayor thirteen jurats (including the mayor), and forty common council men" (officers for life) — the right of election was in the mayor, jurats, and common- alty — this was transferred to the mayor, jurats, com- mon council, and such of the common freemen as had executed parochial offices in the municipality. The by-law confining the election to freemen distinguished by such offices is void, because they are not connected with the Corporation. "The charter having named the common council, shows that they were meant to be a distinct body or (270) Newling v. Francis, 3T. R. 189. (271) R. V. Ashwell, 12 East, 22. (272) R. V. Bird, 13 East, 384. (273) R. V. Spencer, 3 Bur. 1837. 1840. made. ORDINANCES. class. No by-law could have confined it to the com- mon council alone." Per Wilmot J. *' The common council named in this charter are plainly a distinct body from the commonalty. Per Yates J. " The common council, though part of the corporate body, are a distinct class from the commonalty ; they are part of the select body to whom the power of mak- ing by-laws is given. A by-law may narrow the num- ber of the same electors, but it cannot transfer the right of election to different persons." Aston, J. 274. This was the same Corporation as in the last cases. The by-law directed the election to be by the mayor, jurats, common council, and the " sixty freemen first in seniority of freedom." By Lord Mansfield and Mr. Justice Yates : This by-law is bad for altering the constitution of the Corporation. But note, it was a by-law recently made and in existence^ affecting to alter a recent charter on the granting of which there was a great contest whether the right of election should be in a select class, or the commonalty, and they declar- ed it bad on another ground, that is, because it was made by a select body. 275. The corporate name was mayor and common- alty, consisting of a mayor, four aldermen, and an inde- finite number of burgesses : the right of election in the mayor and commonalty, and transferred to the mayor and aldermen alone. In the King's Bench the case was (274) R. V. Cutbush, 4 Bur. 2208. (275) R. V. Head, 4 Bur. 2521. Hoblyn v. Rcgeiii, (i Bro. P. C. 51D. 317 118 ORDINANCES. determined on another point. In the House of Lords it was declared that the power could not be restrained to the mayor and aldermen alone. 276. The election had never been regulated by pre- scription or charter, but by various by-laws ; and the last directed it to be by certain of the commonalty ap- pointed by the commonalty according to an arrange- ment of their own. 277. In these cases Kenyon, C. J. intimated his opi- nion against by-laws limiting the number of electors appointed by the charter ; although made by the whole Corporation. 278. In this case the corporate name was mayor and burgesses, to consist of a mayor, two sheriffs, seven al- dermen (including the mayor), and an indefinite num- ber of burgesses : the right of election was in the mayor and burgesses : it was devolved upon the mayor, recor- der, aldermen, coroners, common-council-men, and those who had served or then served the office of chamberlain or sheriff, called the clothing burgesses. This by-law was held good, for the right is delegated by the com- monalty to a " select part of themselves, consisting of such of the burgesses as had served or were serving certain offices, and were called the livery or clothing- burgesses ;" and the qualification is proper ; for the offices of chamberlain and clothing burgesses appear to be corporate offices. (276) Newling v. Francis, 3T. R. 189. (277) R. V. Ginevcr, C, T. R. 7.55. R. v. Holland, 2 East, 74. (278) R. V. Ashwell, 12 East, 28. ORDliNANCES. 119 279. The name was mayor and burgess^es ; the Cor- poration consisted of a mayor, seven aldermen (includ- ing the mayor), and an indefinite number of burgesses : the right of election was not affected by the charter, and therefore remained in the mayor and burgesses ; it was transferred to the mayor and aldermen and eighteen of the burgesses chosen by the mayor and burgesses out of such burgesses as had served the office of sheriff or cham- berlain of the town, called the. livery or clothing bur- gesses, to be of the common council together with the recorder (if he should be a burgess and attend) and six burgesses chosen by the mayor and burgesses from amongst the burgesses (if they or any of them attend). It was observed by Lord EUenborough, that the Corpo- ration consisting of the mayor and burgesses, the alder- men are selected only as part of the burgesses. It was held, that the additional eighteen and six burgesses constitutes a body selected out of the commonalty, in ad- dition to the orders constituted by the charter, and that the by-law is good ; but it must be shown that the re- corder is one of the corporation, because the by-law is void if it attempt to introduce any person who had not a previous right of voting. Having collected the decisions prior to that of the King against Westwood, the following is an analysis of that case arranged under the same points. 280. The by-law was averred to have been made by i. By-laws, the mayor, bailiffs, and burgesses, being the Corpora- made!"*" tion at large ; and the question v/as whether the inciden- tal power were taken away by this chiuse. — The King (279) R. V. Bird, l;? Eust, ;^84. (280] R, V. Westwood, 4 B. C. 782. 71)8. 818. S. C. 7 J). R. 20!). 286.297. 120 ORDINANCES. granted to the mayor, bailiffs, and burgesses, that the aldermen and bailiffs should be called the common council, and that the mayor aldermen and bailiffs should have full power and authority, to make reason- able laws and ordinances whatsoever as to them should seem necessary for the government of the burgesses in- habitants of the borough, and for declaring in what manner and order the mayor, aldermen, bailiffs, and burgesses should behave in their offices and business, and otherwise for the good and public advantage of the borouo'h and for the mana2;ement of their lands and other matters and causes v/hatsoever, touching or in anywise concerning the borough or the state, right, and in- terest of the same. — It was held that the incidental power of making by-laws in cases unprovided for by this clause re- mained in the body at large, at least that the body at large, beingpossessedof the elective franchise, had an incidental power of regulating the manner in which it should be exercised. By Littledale and Holroyd Js., — Abbot C. J. doubting. For this clause appears to repose in the se- lect body, the power of making by-laws in all cases where it is necessary that they should be provided, and no other power is incidental to a Corporation. 2. Presum- ed. 281. The by-law in this case was not extant, but averred to have been made and lost with an averment of subsequent usage to the effect of it. 3. Who to be elcctetl. 282. The by-law was for the election of burgesses mere freemen. Held that the election of such burgesses is as much within the rule as the election of the prin- (281) R. V. WcsUvood, 4 B. C. 786. S. C. 7 D. R. 273. (282) Id. 80(i, 82'J. 833. S. C. 7 D. R. 292. 312. 31.5. ORDINANCES. 121 cipal officers — per Holroyd and Littledale Js., — Bayley J. contra. Because in the case of principal offices^ the se- lect body has only the power of appointing who shall fill an office which must be supplied, whereas in this case it not appearing that there is an inchoate right to freedom in any classes of persons, the select body may by such a by-law possess themselves of the power of limiting the number of which the Corporation shall consist ; which is contrary to the constitution erected by the charter, and involves an illegality in as much as, by restricting the number of freemen below the select class, it m.ay prevent the possibility of the by-law being repealed, and thus usurp that power in opposition to the will of every free- man who comes into the Corporation. :283. The corporate name was mayor, bailiffs, and 4. By whom burgesses : the Corporation consisted of a mavor, two to be made, bailiffs, twelve aldermen and an indefinite number of common burgesses — the right of election of burgesses was by the charted reposed in the mayor, bailiffs, and burgesses:* — this was transferred to the mayor and common council alone, which the charter declared that the mayor, bailiffs, and burgesses should be, and be called. Held that the aldermen and bailiffs, as to the business particularly entrusted to them, are dis- tinct integral parts of the Corporation — as to the right of election, they are not integral parts distinct from (283) R.v.Westwood, 801.820. S. C. 7 D.R. 2'JI. .304. 305. * The right to elect the mayor was by the charter reposed in the mayor, aldermen, bailiffs, and burgesses, from among the aldermen ; and that of electing the bailiffs, in the mayor, aldermen, and bailiffs, out of the bur- gesses — the election of aldermen in the mayor and such of the residue of the aldermen as should be assembled, out of the burgesses. 122 OUDlNANCliS. the commonalty, but a part of the burgesses at large* ; — . that had the right of election been conferred on the "mayor, aldermen, bailiffs and burgesses," it had been otherwise, for this had implied that they must act as distinct integral parts t ;— and that the by-law is good, for the burgesses at large are represented by the alder- men J, " although it is as little representation of them as one can well imagine." It is with the utmost humility, I venture to offer suggestions to the most learned men of the profession ; but I am so deeply impressed with the importance at- tached to this series of decisions, that I trust I shall not be thought to overstep the bounds of propriety, in commenting upon them. Considered in an abstract point of view, peihaps it were much more convenient, that the direction of the affairs of a municipal Corpo- ration should be in the hands of the select classes; than subject to the indiscretion or caprice of the mul- titude. Indeed, an investigation of the powers of municipal Corporations, merely in their corporate ca- pacity, induces a conclusion, that it is not very impor- * The effect of tliis doctrine would be, that supposing no by-law had been made, and the Corporation had proceeded to an election on notice, or on the charter day, if the mayor and one other burgess were present, though neither bailiff nor alderman, they would constitute a sufficient electoral assembly ; for if these are held to be in their elective capacities mere burgesses, they are, as such, members of an indefinite class, of whom ever so small a number is sufficient. f It may be remarked, that the clause giving the power to the mayor, bailiffs, and burgesses, bestows it on the body politic, in their corporate name. I Officers for life, in whose election the burgesses at large have no voice or influence. ORDINANCES. 123 tant in whose hands these disputed privileges are vested. And in this want of importance, history informs us that those usurpations, by legal presumption attributed to by-laws, in reality had their origin. While the affairs of the Corporation alone were to be managed, and the right of returning members to parliament, was regarded ra- ther as an inconvenience than a privilege, the supine- ness of the commonalty in general permitted the ad- ministration of corporate affairs, and among others, the right of election of their officers, to devolve upon the select classes. From the Case of Corporations this usurpation received its first legal sanction ; the franchise of parliamentary election had, at that time, begun to be considered of some importance, and though pecuniary influence had not been much resorted to, the eyes of government were turned attentively to the condition of corporate boroughs. The Case of Corporations was not one of ordinary occurrence ; it was not a contest for a seat at the bench of aldermen, or a dispute among the burghers of some paltry town ; but a case pre- pared in the privy council, and transmitted by the Queen's ministers, to the judges to receive that opinion which we know the crown was in those times wont to desire, when it had in view some affair of prerogative. That case is the basis of this superstructure, which is too ancient, it may be said, to be now subverted. At that time there was an influence possessed over the bench by the crown, from which our tribunals are now emancipated. The judges held their seats at pleasure ; and though they were manly enough to maintain that the right of voting in elections of representatives in parliament could not be surrendered by the freemen of Corporations devolving it upon the select classes, by means of a by-law ; yet by conceding the point as to 124 ORDINANCES. the election of corporate officers, they increased the in- fluence of the select classes, who were more under the direction of the crown than a larger body. But the influence which such classes derived from that case can- not be compared to that which they may obtain under the sanction of the last. A court of justice does not take judi- cial notice of the sinister motives of the parties, who come before them, and the precedent having been long es- tablished, it became wholly a question of analogy, and of the construction of words in a charter. Did those cases in truth affect only the corporate arrangements, they would be rarely heard of in Westminster Hall ; rarely has a quo warranto been prosecuted against an officer of a Corporation, who had no interference with the return of members to parliament; rarely has an alderman of such a body adopted the expensive pro- ceedings of mandamus, to obtain restoration to his precedence of place; It is in the breasts of the judges to determine the propriety of restraining or extending the rule established by a great number of precedents, and not to submit to the arbitrary opinions of their predecessors. Upon this ground, although the former cases have not gone to the exact extetit of the case of Westwood, it was as open to the judges of our day, to extend the rule if they considered it expedient, as it was to their predecessors, to lay it down under cer- tain restrictions. The effect of this determination, as one of the learned judges observed, is to throw the cor- porate franchise into a few hands ; and although in some places the inchoate rights of heritage and ap- prenticeship may in some measure counteract that effect, yet in others, it may be used to unconstitutional purposes. And even in boroughs where the number of freemen is great, it is in the power of a select body ORDINANCES. 125 to serve a present purpose in making a return to par- liament, by introducing at any time sufficiently long before an anticipated election, a sufficient number of their own party, to secure a certain majority. Or by this means, the number of electors of members of par- liament may be indirectly limited, which cannot be done by the express provisions of a by-law. 284. The power of making such by-laws is not con- Such by- fined to municipal corporations, but a prescriptive com- Company, pany, having a livery and power to make by-laws, may appoint that a select body of the company shall elect liverymen out of their yeomandry. 285. The same body which makes the by-law, has at Tliese bj-- 11 • -1 11 1 • 1 r> ^^^^ ^^7 all tmies a right to repeal it; but as they are an inden- be repealed, nite class, this can only be done, it would seem, on the charter day, or some day set apart for business of that nature ; when a general notice ought to be given, or on a by-day after a particular notice to all the freemen. But as this ought to proceed from the mayor, there may be great difficulty in effecting the repeal without the assistance of the Court. 286. A by-law that the mayor shall admit to the By-\a.wta freedom any person who will pay a certain sum of money, money is void, for this is a sale of the franchise. 287. When custom or charter has not given the head Givinpra .... caslinjf officer a casting vote, a by-law giving him a second vote. vote in case of equality is void, for it is against the form of the constitution. (284) Vintners v. Passey, 1 Kenyon's Cases, rnOO. (285) R. V. Ashwell, 12 East, 22. (372) Colchester v. Goodwin, Carter, 122. 15G ORDINANCES. name of bailiff and commonalty, the by-law should give it to the same body under their present name of mayor and burgesses, if so called by the last charter. 373. The by-law gave the penalty for trading against a custom excluding foreigners, to be recovered by the chamberlain, one third of it for the benefit of the pri- soners of the gaol, another third part for the informer, and the other third remaining undisposed of was for the use of the Corporation. No exception was taken to this distribution of the penalty, and it appears to be unex- ceptionable, for the division is subsequent to the reco- very, and no injury to the defendant. 374. The by-law gave the penalty to any one who would, sue and held void because it was an attempt to transfer the right of action. 375. If the injury be to a particular company, as where the custom excludes foreigners from the practice of a particular trade, or from the practice of the trade of a certain company, as well freemen as foreigners, un- less free of that company, the penalty of the by-law ought not to be given to the municipal Corporation or their officer, but to the company injured, or their treasu- rers in trust for them. Not suable 376. If the penalty be made recoverable by the Cor- in munici- . . , . . i i r pal court by poration, m their corporate name, it cannot be sued lor Corpora- tion. (373) Hesketh v. Braddock, 3 Bur. 1848. Player v. Archer, 2 Sid. 121 .J (374) Bodvvic V. Fennel, 1 Wils. 237. V. tit. 182. (37.5) Wilton V. Wilks, 2Ld. Ray. 11.33. V. tit. 184, 185. Woolly v. Idle, 4 Bur. 1951. York v. Wellbank, 4 B. A. 440. Sed vide Tailors of Bath V. Glazby, 2 Wils. 266. (376) London v. Wood, 12 Mod. 674. Ballard v. Bonnet, 2 Bur. 111. London v. Bernardiston, 1 Lev. 17. C. Player v. Archer, 2 Sid. 121. Hesketh v. Braddock, 3 Bur. 1858. A, Middlcton's Ca. Dicr, 333. a. ORDINANCES. 157 in the municipal court, for they would be both party and judge. If the by-law declare that it shall be reco- verable in that court, it seems that in so much it is joid, yet not void in toto, and that an action may be "prosecuted on it in the common law courts. But if the by-law declare that it shall be recoverable in the Corporation court and in no other, it is void altogether, and they have no remedy upon it ; but as it is in itself unnecessary, they are not precluded from maintaining their action on the case for violation of the custom in the Courts of Westminster Hall. 377. If the penalty be made recoverable by the cham- Nor of berlain, it seems that he cannot sue in the municipal iain'^&/. court ; for there is an interest in the judges, the sheriff, and the jury, to support the custom against the defend- ant. In which respect proceedings on by-laws founded on exclusive customs, differ from those which relate to freemen alone. 378. If the penalty imposed, be for violating a cus- But it is by torn to the injury of a particular company, and given to that company or its masters in trust for them, it may be made recoverable in the Corporation courts ; for the Corporation is no party, and has no general interest in the question. 379. The penalty may be enforced by the same and By what ,1 1 , • 1 1 1 means levi- no other process, as a penalty imposed under a general able. power of making by-laws, the consideration of this question is therefore referred to that part of the trea- tise. There is one case however, more particularly (377) Vid. tit. 186. and the authorities there cited. (378) Bodwic v. Fennel, 1 VVils. 237. (379) Doggerillv.Pokes, Moore, 411. V. tit. 316. 15^ ORDINAXCE?. apjdioable ta a custom. "Where there is a custom to exclude foreicnaei^ from exercising trades, a by-law that if a freeman take the son of a foreigner to be his ap- prentice, *• the bond and covenants shall be void,"' can- not be supported : for though it might have imposed a penalty on the freeman, it cannot avoid a contract be- tween him and another part}-. — But this by-law had be^i void even under a penalty. What ens- 380. It is not on everv custom, that a by-law can support*'' be supported; indeed, it appears to have been by a relaxation of the common law, that any by-law was h^-iaw. allowed to be made by a Corporation, which should levv a penaltv on foreisners for invasion oi their privi- kse. evaporations ought rather to have been left to their remedy at common law upon the custom, when a jury miorht assess the damage. But this principle was allowed to be trespassed upon, perhaps for two consi- derations. The penalties of the by-laws have been usually quite as moderate as the amount of the damages which in all probability a jury would have given in an action on the case, so that no injury has been done. And farther, s^ these by-laws affect only strangers, estaHishing themselves within the municipality, they may have be^i supposed to derive sanction from the sreneral jurisdiction vested in Corporations over the people of the plac*. It appears however, that when the custom is more properly a prescriptive right of property.-, althouffh a bv-law may be warranted by it, which ex- eludes as weU firemen as foreigners, from participating m the enjoyment of that right, it is warranted no fur- ther, and that a by-law is void which imposes a penalty on foreigners for non-payment of toll claimed by the Corporation, or for employing a porter within (380] Flayer v. Aidter, 2 Sid. 121. Cadden t. Ertirick, 1 Salk. 143 192. S. C. 6 Mod. 124. OEDINANCES. 159 a district, through which a Corporation has the fran- chise of free porterage. I apprehend such prescriptive rights in a body politic, in no circumstance differ from similar rights in an individual ; and though they may govern their own servants, their only remedy against those who contend against, or violate their right, is in the Courts, and according to the forms of the com- mon law. V. HOW BY-LAWS SHALL BE CO'STKUED. 381. A bv-law must be consonant with the law of Reason- able, the land, and if not so it is void, although the charter contain an express power of making such a by-law ; for in so much the charter itself is void ; and although it have not been repealed, the illegality of such clause may be taken advantage of, by plea to an action founded on a by-law made in pursuance of it. It has been already observed, that no unreasonable bv-law is warranted by a general custom to make by-laws. The rule may be laid down generally, that neither a power conferred by charter, nor a general custom tx) make by- laws, will sfive an ordinance anv grreater claim to vali- di^k', than if it had been made under the incidental power in even,' Corporation. As to by-laws warranted by special custom, they have been already discussed in so much as they exceed the ordinary rule. 382. A by-law shall have a reasonable construction, To be con- and its terms shall not be strictly scrutinized, for the rallj-. purpose of making it void. On this ground where there ;381} Taflors of Ipsi^ich, 1 Rol. 3. S. C. 11 Rep. 54. a. Nonis t. Sups, Hob. 211. 3Salk. ", 78. (382) Vintners v. Passey, 1 Bur. 239. Workingham v. Johcson,;C.T.H. 28S. 160 Of by-laws on custom. ORDINANCES. are two classes of burgesses, that is, capital and se- condary, the " former to be elected from among the lat- ter" and the " latter out of the inhabitants at large," a by-law was held valid, which imposed a penalty " on any inhabitant refusing to become a burgess." For al- though the word Burgess comprehends both classes, and on that ground, the by-law would be void, for incon- sistency, since inhabitants cannot become capital bur- gesses ; yet by a liberal construction, it was intended to refer only to secondary burgesses, to which office all inhabitants are eligible. 383. So a by-law (founded on a custom) that no foreigner residing within the place, should employ any non-resident journeyman, apprentice or boy, in his trade is good, for it shall not be construed to signify, that he shall not employ a non-resident barber or tai- lor in their occupation as his personal servants. When void ia toto. 384. If a by-law be entire, each part having a gene- ral influence over the rest, and one part of it be void, the entire by-law is void. As, if instead of being re- strained to those within the jurisdiction, it comprehends those also over whom there is no authority to legislate, it is void not only as to strangers, but also as to the free- men. 385. Of this kind was a by-law of the university of Oxford, that whoever is abroad in the streets, after nine o'clock, whether privileged or not privileged, shall be liable to a penalty. Semb. (383) Colchester v. Goodwin, Carter, 119, 120. (384) Dodwell v. Oxford, 2 Vent. 34. ORDINANCES. 161 386. So is a by-law that " if any person" duly elect- ed, shall refuse the corporate office, he shall forfeit, &c. for "any person" comprehends strangers who are in- eligible, as well as the citizens, who are alone liable to serve, and the word "duly" is applicable to the form of election, and not the qualification of the elected. 387. Of the same character is a by-law prohibiting a nuisance, and proceeding to impose a talliage for pri- vate emolument ; as that there shall be only a certain number of carts allowed, and for each cart licensed an annual rent shall be paid, to a particular Corporation for its private emolument. 388. For the same reason, if the by-law empower the levy of the penalty to be by distress and sale, where there is a custom to warrant the distress, but not the sale, being void as to the sale, it is void in toto, and the distress is a trespass ab initio. ' 389. But if a by-law consist of several distinct and Void in independent parts, although one or more of them may '^^^^' be void, the rest are equally valid as though the void clauses had been omitted. It was at one time consi- dered that this observation was applicable only to a body of by-laws, of which, although one or more of the distinct ordinances were void, the vahdity of the rest is unaffected. But it appears to be now well estab- lished, that the rule is applicable to the different clauses (386) Oxford v. Wildgoos,^, 3 Lev. 293. Guildford v. Clarke, 2 Vent. 248. (387) R. V. Feversham, 8 T. R. 356. Player v. Vcre, T. Ray. 328. Clarke V. Tucker, 2 Vent. 183. R. v. Spencer, 3 Bur. 1839. (.388) Clarke v. Tucker, 3 Lev. 282. Lee v. Wallis, 1 Kcnyon Ca. 295. (389) Fazakerley V.Wiltshire, 11 Mod. .35.3. S. C. 1 Str. 469. Lee v. Wallis, 1 Kenyon, 295. R. v. Feversham, 8 T. R. 356. M 162 ORDINANCES. of the same by-law; for when it consists of several particulars, it is to all purposes as several by-laws, though the provisions are thrown together under the form of one. Power Ki-anted by by-law leaves dis- cretion. 390. If a by-law empower a select body to do a par- ticular act, it is not imperative on them, but leaves a discretion, and does not communicate to those for whose benefit it might be exercised, a right to compel per- formance. For this reason it is not obligatory on a select body to admit certain classes of pei'sons, whom a by-law has declared that it " shall be lawful" for them to admit to the freedom at appointed times. Confers no right on those for ■whose be- nefit it may be exercis- ed. 391. If a by-law appoint a select body to examine and approve candidates for admission to the freedom, their examination and approval does not confer a right to be admitted, but the company is as free to refuse ad- mission as before the examination. Confirma- tion. 392. For die purpose of controlling fraternities and guilds, the misconduct of which, during that reign called for the frequent interference of the legislature, it was appointed that their ordinances should be submit- ted to the inspection of the judges. 393. "No masters, wardens, and fellowships of crafts, or mysteries, nor any of them, nor any rulers of guilds or fraternities, shall take upon them to make any acts or ordinances, ne to execute any acts or ordinances by them heretofore made in disheritance or diminution of (390) R. V. Eye, 4 B. A. 272. S. C. 2 D. R. 174. (391) R.v. Askew, 4 Bur. 2190. (392) 19 H. 7. c. 7. onniNANCEs. 1G3 the prerogative of the King, nor of other nor against the common profit of the people. But that the same acts or ordinances be examined and approved by the chancellor, treasurer of England, or chief justices of either benches, or three of them, or before both the justices of assize in their circuit or progress in that shire where such acts or ordinances be made upon pain of forfeiture of 40/. for every time that they do to the contrary." 394. This statute is confined to guilds and fraterni- ties, and does not extend to municipal Corporations : it was enacted to prevent companies from harrassing the poorer classes of tradesmen and apprentices, for whom the law offered but an unavailable and expensive remedy. Its beneficial effect has been frequently lost to the people, by the negligence of the judges, at par- ticular times, which has allowed by-laws to bear the ap- pearance of judicial sanction, in the eyes of the ignor- ant, and to be made the means of oppression. Holt C. J. observed, that reasonable by-laws need not that sanction, and that those which are unreasonable, derive no force from it, for they are brought to the judges on their circuits, and allowed as matter of course ; but Lord Kenyon used a language more becoming the cha- racter of officers, who constitute the supreme tribunal for the prevention as well as redress of civil injuries : he said that he had refused to allow them when they con- tained illegal provisions. (394) Chamberlain of London's Case, 5 Co. 63. b. Tailors of Ipswicb Ca. 1 1 Co. 54. b. Davenant v. Hurdis, Mo. 576. IJrownl. and Gould. 4S. 1 Rol. Abr. 363. 1. 35, Stationers v. Salisbury, Comb. 222. R. v. Coopers of Newcastle, 7 T. R. 548. M 2 |g4 ORPIN ANCKS. 395. But unless the by-laws of a company have been allowed, they cannot be enforced without incurring a penalty of 40/. IV. HOW ENFORCED. By debt or 396. The first and general method of enforcing a assumpsit. ^^_^^^ -^ 1^^ bringing an action of debt or assumpsit, to recover the penalty imposed by it. Who may 397. The plaintiif is that person or body politic alone be plaintiff. ^^ ^hom the penalty is given by the by-law. Therefore if the penalty be given to the master and wardens of a company, to the use of the masters, wardens and com- pany, the action cannot be sustained in the name of the master, wardens and company, but must be brought in that of the master and wardens alone, and they would probably declare both in their natural and offi- cial capacities. So where the penalty is given to the chamberlain for the use of the Corporation, the action must be brought in the name of the chamberlain, and not in that of the Corporation. Title of 398. If the chamberlain sue for the penalty, it is plaintiff. sufficient for him to aver generally that he is chamber- lain without setting out his election or appointment. tion. Corpora- 399. If the penalty be given to the Corporation, which must be in their corporate name, or to the mayor, (395) Tailors of Ipswich, 11 Co. 54. b. 1 Rol. Abr. 363. 1. 37. (396) Adley v. Reeves, 2 M. S. 60. WooUy v. Idle, 4 Bur. 1952. Bar- ber Surgeons v. Pelson, 2 Lev. 252. Lee V. Willis, 1 Kenyon, 295. Tidd Prac. 3, 4. Feltmakers v. Davis, 1 B. P. 98. (.397) Feltmakers v. Davis, 1 B. P. 101. (398) Harris v. Wakcman, Say. 255. (399) Wood V. London, 1 Salk. 398. S. C. 12 Mod. 672. 675. 687. ORDINANCES. 165 the action cannot be brought in the court of mayor and aldermen, or any other corporate court, in which the mayor presides either personally or by deputy, although the Court be held by the recorder alone, who repre- sents as well the mayor as all the other corporators enumerated in the style of the Court ; for he would ap- pear in the characters of judge and party, which is in- consistent with all rules of law. 400. But if one of several judges of the Court, as an One of the alderman of the Court of mayor and aldermen, bring judges. the action, it may be supported in the Court of the Cor- poration, because the alderman may retire, which, where the mayor and aldermen actually sit, is indeed necessary^ and the Court is still competent to proceed. 401, The chamberlain, treasurer,or other officer suing Chamber- forthe use of the Corporation, may institute the proceed- treasurer, ings in the Corporation Court ; for the Court has juris- diction over all those who are bound by the by-law, and is the proper tribunal for enforcing its ordinances for the welfare of the body politic, and the good government of the municipality. In these cases, freemen of the Cor- poration may either impannel or serve on the jury, or be witnesses to support the charge. This observation has no relation to proceedings on a by-law to enforce cus- toms against common right, of which I have already spoken. The distinction between the case of a by-law made under the general power and that founded on a custom is, that in the first instance the freemen are en- forcing against either a fellow-freeman or an inhabitant, (400) Wood V. London, 1 Salk. 398. S. C. 12 Mod. (i88. R. v. Rogers, 2 Ld. Ray. 778. (401 ) Bosworth v. Biidgcn, 7 Mod. 461. R. v. Rogers, 2 Ld. Ray. 778. London v. Wood, 12 Mod. (i86, 7. V. tit. 186. 166 OnUlNANCES. an ordinance to which they are equally liable, and may be a precedent for punishing themselves, and the interest which they have in the penalty is both indirect and too minute to influence their opinion ; whereas in proceed- ings on a by-law founded on a custom, they not only have an interest in supporting the custom which ex- cludes foreigners from competition in trade, but they are enforcing a law by which they are not themselves bound, and the punishment of the defendant can never be a precedent against them. 402. A by-law cannot declare that the penalty shall be recoverable in the Court of the Corporation, *' and not elsewhere ;" at least the restriction is void, and the superior Courts arc not excluded. Yet the by-law may make the penalty recoverable in the Corporation Court (though the provision is unnecessary), and also declare that no essoign shall be allowed ; for this is consonant with the general law. Custom not 403. When an action on a by-law founded on a cus- tom is brought m the Court of the municipality, the custom should not be set forth in the declaration ; for the Court must take judicial notice of the customs, for they are the lex loci. incompc- 404 When a Court entertains the cause without hav- tciit Court. inir. 777. 77\i. S. C. R. v. Cliauiberlains of Worcester, 2 Kenyon, 472. Tidd. I'rac. 399. 411, 168 ()|{|)!N A NCE- Certiorari, London. 407. No certiorari lies to the Court of mayor and aldermen of London, but a writ of error before com- missioners appointed to examine the errors, returnable before the king in parliament, from which error Ues in the House of Lords. Yet the case of Player v. Archer was brought from the court of aldermen upon certio- rari, into Westminster Hall, and it was there said, that if either of the parties were judge, the cause might be removed and tried in Westminster Hall ; and a proce- dendo was denied, for the by-law was made on a cus- tom by which the Corporation claimed a toll ; where- fore Glynn, Chief Justice, said, that it ought not to be tried in London, but in Surrey or Middlesex. Eisewliere. 408. From the Courts of other miinicipalities, the cause may be removed by certiorari, as other causes from inferior Courts. 409. But it seems that certiorari lies from the sheriff's court, into Westminster Hall, and also to remove from the court of mayor and aldermen, a cause removed into that court from the sheriff's court, by levata querela, accordino; to the custom of London. AVlieri made. 410. The body cannot be removed by habeas corpus, until the party is in actual or virtual custody ; for the Court below cannot obey the writ, until it has posses- sion of the body, which it has when common bail is filed, but not on mere entering of an appearance. And the removal is not perfected until the defendant has put in and justified bail above, when the plaintiff may re- (407) London v. Wood, 12 Mod. 686. Green v. Cole, 2 Saund. 2o2. \ Lev. ;nO. Player v. Archer, 2 Sid. 105. 121. (40!)) Dorrington v. Edwin, Skin. 244. (410) Mitchell v. Mitcheson, 1 B. C. .514. Clack v. Dickson, .3 M. S. IM. ORBINANCES. 169 linquish his proceedings, if he have not dehveied a de- claration in the superior court. 411. If the writ be dehvered before the plaintifFhasde- Return of . . . proceed- clared, he ought to put in his declaration immediately, ings. that it may be returned with the other proceedings, and the writ ; for it is necessary that all the proceedings appear before the Court, that they may see the cause of action. 412. If the plaint in the City of London, be founded Return ot 1 i J 1 custom. on a custom without any by-law, that custom must be returned with the cause to the writ of habeas corpus, in the same manner as a by-law. The contrary was argued by counsel, as being the practice ; but the Court required the custom to be set forth. This rule does not, perhaps, hold as to such customs as have been already certified into the same Court. 413. If it be founded on a by-law, which is good at Of by-law. common law, it is not necessary to set forth any par- ticular custom. But if on a by-law founded on a spe- cial custom, unless both the special custom and by-law be set forth in certain, the Court will not take judicial notice of the custom, and a procedendo will be denied. So if the by-law be founded on a private act of parlia- ment confined to the City, or to any trade in it, a bare (411) Watson V. Clarke, Carth. 75. S. C. Comb. 138. (4 12 J Watson v. Clarke, Comb. 138. S. C. Carth. 75. Robinson v. Groscourt, 5 Mod. 104. Ilartop v. Hoare, 2 Str. 1187. Broadnax Case, I Vent. 190. Spink v. Tenant, 1 Rol. R. 106. Faz.akerley v. Baldo, 6Mod. 177. Vintners v. Clerke, 5 Mod. 156. 320. Ex-parte Eden, 2 M. S. 228. (413) Swallow V. London, 1 Sid. 287. Robinson v. Groscourt, 5 Mod. 104. Fa/.rdvcrley v. Baldo, 6 Mod. 177. Harrison v. Godman, 1 Bur. 12. R. V. Harrison, 3 Bur. 1323. Chamberlain of London v. Conipton, 7 D. R. 601,602. 170 ORDINANCES. recital is not sufficient, but the act of parliament must be set forth. 414. This defect is not saved by setting forth a gene- ral custom to ordain fit remedy, where any custom is bad or defective, or any thing newly arising shall need amendment. Justiiica- 415. The return of a custom of London, to commit tion under. i i i i to their officer, must show that he who has the custody is their officer. If the return be made by the sheriff, the Court will judicially notice that he is the officer of the City, and it need not be averred ; but if it be made by the keeper of Newgate, the Court will not notice him as the city officer, unless it appear on the face of the return. Return— 416. The defendant cannot plead to the return, even no pica to. ^ _ , a privilege of exemption by prescription or charter, be- ' ing within the jurisdiction, but the Court will direct that a suggestion of sucii exemption shall be entered, and after the entry, a writ of privilege will be awarded, to which the city must make their return. If the re- turn is not insufficient on the face of it, it must be al- lowed, and a procedendo granted ; but the defendant may have his action for a false return. Formofthe 417. Upon habeas corpus, the record itself is nut '^^ "'^"' sent up as on certiorari, but the return must show the (414) Chamberlain of London v. Conipton, 7D.R. 601,2. (415) Vintners v. Gierke, 5 Mod. 157. S. C. Comb. 412. S. C. 12 Mod. 114. 5 Mod. 162. 320. (416) Swallow V. London, 1 Sid. 288. (417) 2 Rol. Abr. 69. Chamberlain of London's Case, 5 Co. 6,3. b. London v. Wood, 12 Mod. 686. Fazakerley v. Baldoc, 6 Mod. 178. Wat- son V. Clarke, Comb. 138. Harrison v. Alexander, Say. 156. Pope v. Vaux, 2 W. li. 1060. Beard v. Webb, 2 B. P. 93. Cart v, Mogg, Comb. 86. ORBINANCES. 171 cause of detaining the body, and contain a history of the proceedings ; and if upon investigation of the cus- tom or by-law, a good cause of detainer appear, a pro- cedendo is awarded, although the Court above might have entertained the action, and afforded ample remedy had it been originally brought before them. For the cause itself not being removed, the Court are not in possession of the proceedings, in the same manner as upon certiorari or writ of error. They will not examine the jurisdiction of the city, as to whether the action is brought in the proper Court, or any other part of the proceedings ; if these be disputed by the defendant, he may have a writ of error before commissioners assigned by the King to examine the exception, for this writ does not lie from London into the Courts of Westminster Hall. 418. The Court will not allow an amendment in the Amend- substance of the return ; as by introducing particular customs in support of the by-law set forth, or by setting out an act of parliament, by which its validity may be supported, if they had been omitted at first ; or for the purpose of showing that the defendant is within the custom in which the return was defective. 419. But where the declaration had not been filed before the return was made, the Court allowed an amendment by ordering that it should be filed and re- turned, in a case where the action would have been otherwise lost. 420. If it appear proper, on awarding a procedendo, interfcr- , _, •,, 1- 1 1 1 r 1 -11 cncc of the the Court will dnect that the matter be round specially, Coun. (118) ChaniberLiin of London v. Compton, 7 D. R. (JOS. Ex-parte Eden, 2 M. S. 230. (11')) Watson V. Clarke, Cailh. /.'). S. C. Comb. 138. '(420) Swallow V. London, 1 Sid. 288. ment. 172 ORDINANCES, or that any other particular shall be obgerved, which may be necessary to the justice of the case. Return in- 421. If the custom or by-law be void, the defendant sufficient. must be dismissed ; for the habeas corpus ties up the hands of the City Court, so that all proceedings before a procedendo awarded are illegal and a contempt. Action for 422. If the defendant would proceed against the city turn. '^ ^or a false return, on application to the Court, they will order the return to be filed ; for an action does not lie until the return has been allowed on record, and the filing of it does not prevent a procedendo from being awarded, because the original record is not sent up on habeas corpus, as on certiorari, but the return sets forth a history of the proceedings. Otherwise it could not be filed, in as much as that would preclude the issuing of a procedendo ; for the Court above never sends back a record after it has been filed with them. VII. HOW PLEADED, Custom set 423. Ill an action in the superior courts, the declaration must set out particularly the custom on which the by- law is founded; for otherwise the court will not take notice of it, and if the by-law cannot be established without such particular custom, the action must fall. As to other methods of enforcing by-laws, vide p. 179. By-law set 424. If the by-law be made under the incidental power in the body at large, it is not necessary to set Authority, forth the authority of the Corporation to make it ; but if made under a special power of making by-laws that must (421) Fazakerley v. Baldoe, 6 Mod. 177. S, C. 1 Salk. 352. (422) Fazakerley v. Baldoe, fi Mod. 177, S. C. 1 Salk. 352. (424) R. V. Decan' et Cap. Dublin, 1 Str. 539. Feltmakers v. Davis, 1 B. P, 100. R. V. Lyme Regis, Doug. 154. ORDINANCES. 173 be shown, in tlie pleadings, and also that it was made by the body in whom such power is reposed, and at what time it was so made. 425. The by-law itself must be set out fully in an ac- ^^y^ '" tion of debt upon it, and not by way of recital ; therefore it is not sufficient to aver that the defendant incurred the penalty by virtue of a certain by-law for having refused the office : but this latter averment appears to be sufficient in an action of assumpsit founded upon the Assumpsit, same by-law ; for in that form of action a greater lati- tude is allowed, because after all it comes to a question upon evidence, what legal consideration there is either to support or raise the assumpsit. 426. The case was on conusance in replevin under Replevin. a by-law which imposed a punishment on doing an act contrary to that, and all former by-laws. — The former by-laws must be shown ; for how can the Court judge whether the offence were against by-laws not set forth? besides they may contain some exception, or may not be in themselves legal. 427. A by-law may be set forth and pleaded with an Not extant. averment, that it is no longer extant : in this case con- tinued usage in conformity with it must be shown, com- mencing about the time at which it is averred to have been made. 428. The plaintiff must not only show the power of Penalty to making the by-law, and that it was made and imposed ^ '*'" ' " (425) Feltmakers v. Davis, 1 B. P. 102. Barber Surgeons v. Pelson, 2 Lev. 252. (426) Gerrish V. Rodman, 3Wils. 171. (427) Case of Corporations, 4 Co. 7S. R. v. Tonilyn, C. T. H. 316. R, V. Westwood, 4 B. C. 786. (428) Exon v. Starre, 2 Show, 159. 174 OK DIN ANTES. the penalty, but that it was payable to, and recovevablL' by him. T)efi-ndant 422. It must appear on the proceedino-s that the de- witlun by- '^^ ^ ® law. fendant is under the legal influence of the by-law, and within its obligation. Therefore where the by-law binds freemen only, it must be averred that the defendant is a freeman, and the same where it binds inhabitants. But an averment that he had taken a house and put in a journeyman is sufficient. If it be shown that he was once within the obligation of the by-law, it is not necessary to aver formally and particularly that he is so at the time of the offence committed. Therefore, if it appear that he became a frexjman, or came to reside on the first of January, and that the offence was committed on the first of the following April, it is not necessary to aver that he continued a freeman or to reside up to and on that day ; for unless the contrary appear, that shall be presumed. Not within 430. If the by-law except certain classes of persons exceptions, c • • • i • i • • from its operation, and the exception be material, it is necessary to aver that the defendant is not within it. Demand 43 J, jf the by-law, after imposing the penalty, go on *»on- to declare that if the offender " deny, refuse or neglect" to pay the penalty, it shall be recoverable in an action of debt ; it is not necessary to aver a demand before commencing the action ; for had nothing been said, no demand is necessary, and these words do not make it so, (429) Colchester V. Goodwin, Carter, 119. Gunmakers v. Fell, Willes, 390. Ex-par te Eden, 2 M. S. 229. (430) R. V. Abingdon, 1 Salk. 432. R. v. Coopers of Newcastle, 7 T. R. 547. (431) Butchers v. Rullotk, 3 B.l'. 434.437. ORDINANCES, 175 but had the word " neglect" been omitted, perhaps it might have been presumed that an indulgence was in- tended, and a demand made necessary before an action would lie. 432. If the penalty be for refusing to accept an office Refusal of which is not legally noticed as being of the constitution of the Corporation, it must be averred that the Corpora- tion has such office. Therefore if it be for refusing the livery of a company, the proceedings must show that the company has a right to have, and has such office. And this is not mere matter of form, but sub- stantial, and may be traversed and put in issue, or ob- jected to on a general demurrer. But such office being- shown to exist, the Court will notice its nature, and the liability of all freemen to serve until the contrary is shown. 433. If there be a company having a livery, and hav- Who liable, ing freemen who may be free of the company, though not free of the Corporation, and a by-law is made im- posing a penalty for refusing the livery, it is necessary to aver, not only, that the defendant is a freeman of the company, but also that he is a freeman of the municipal Corporation ; for otherwise he is not subject to the by- law. — This case is very briefly reported, it appears that the by-law was made by the company, in which case it is equally obligatory upon all the freemen, whether members of the municipal corporation or not. — The observation of the judges seems applicable only where the by-law is made by the municipal corpo- ration. (432) Innholdcrs v. Gledhill, Sayer, 275. R. v. Clerk, 1 Salk. 349. (433) Innliolders v. Gledhill, Sayer, 27.'i. 176 ORDINANCES.' Notice of election and Courts. 434. In an action to recover the penalty lor refusing- office, it is not necessary to aver that the defendant had notice of his election, for every corporator is presumed to know what is done at the Corporation Courts where he should be attendant, and for the same reason it is not necessary to aver when a Court was held or where, unless it was upon an extraordinary occasion, or at an unusual place, for he is also presumed to know where and when the usual and periodical courts are held. On custom against fo- reigners. 435. When the action is on a by-law founded on a custom excluding foreigners from trade, it must appear that the act of the defendant was done in the way of his public trade, and not for his private and domestic pur- poses ; but this is sufficiently shown by an allegation that he " used the manual occupation of a tallow- chandler." Notice of by-law. 436. It is not necessary to aver that the defendant had notice of the by-law ; for all within its obligation are presumed to be conusant of the laws to which they are subject, although strangers to the freedom of the place. Duty of 437. In an action for the penalty of the by-law pro- plaintiff i -i • • n . ^ • , ^ tiischarged. hibiting all persons to interfere in the porterage of corn, except those who are members of the company of free porters, it is necessary to aver that there was a free por- ter present at the time, who might have been employed. (434) London v. Vanacre, 5 Mod. 442. S. C. 1 Ld. Ray. 500. Vintners V. Passey, 1 Bur. 239. (435) City of London's Case, 8 Co. 129. a. (436) London v. Bernardiston, 1 Lev. Ifi. James v. Tutney, Cro. Car. 498, (4.37) Faaakerley v. Wiltshire, 1 Str. 468. ORDINANCES. . 177 438. In action of debt upon a by-law of a muni- Defence — cipal Corporation, the defendant cannot wage his law, of law. because the action arises out of a public act in the nature of a specialty, and it seems that wager of law will not be allowed where the by-law is made by a company. If the defendant plead the general issue, and, instead of putting himself on the country, wage his law upon disallowance of the conclusion of the plea, there must be final judgment, and not a respondeas ouster, for the commencement of it is in bar. 439. To an action for recovery of a penalty for refu- insufficien- sing office, the defendant may plead in bar any reason- o^^.^'''^*'^ able excuse ; such as his inability, which exempts him from service ; or that his election will be attended with inconvenience to the Corporation. Or he may plead the general issue nil debet, and give such excuse in evidence. 440. He may plead that he is not eligible by reason ineiigibili- of not having received the sacrament under the regula- tions of the statute of Car. II., and that he is a protes- tant dissenter, and has complied with the provisions of the statute of 1 W. &. M. c. 18. But this latter statute being a private act, must be pleaded specially, and if he omit to set it forth in his plea, but introduce it in the rejoinder, it seems to be a departure. How far dissenters might avail themselves of the benefit of this act as an exemption from serving corporate offices, was for a long- time a litigated question. But upon review of the cases, it appears that little doubt was entertained in the supe- (438) City of London v. Wood, 12 Mod. 669. 675. 677. 684. (431)) London v. Vanacre, 1 Ld. Ray. 499. S. C. Carth. 43.}. Vintners V. Passey, 1 Bur. 239. R. v. Leyland, 3 M. S. 188. (440) Guilford v. Clarke, 2 Vent. 248. R. v. Larwood, 1 Ld. Ray. 32. S. C. Skin. ,')7.=). Harrison v. Evans, 6 Bro. P. C. 196. S. C. Cowp. 39.3, 178 ORDIN ANCF.S, rior courts, although many had been grievously vexed in the city of London. For in Westminster Hall the cases had been sometimes determined upon the pleadings; in other cases the statute had been held to be a protec- tion, and it was the opinion of several judges, that the statute of Charles was intended as an exclusion of such persons from office, and therefore, a protection against the penalties of refusal. But all doubt has been set at rest by the decision of the case of Harrison v. Evans in the House of Lords. Lost by- 44L Where a by-law is pleaded to have been made and lost, from ancient usage in conformity with it a jury may find the fact of its having been made in the terms set forth, and since lost, whether the Corporation be by prescription or charter, particularly if the usage be traced to a period when an alteration was suddenly introduced ; but it ought to have been of long continu- ance and without variation. If it be found only that such an usage has prevailed from any period within time of memoiy, without finding a by-law, the altera- tion cannot be sustained whether the Corporation be ancient or modern ; for in an ancient Corporation the usage within time of memory may be evidence of a custom, yet if a period be shown at which the contrary prevailed, that evidence is rebutted, and in a modern Corporation there can be no usage inconsistent with the charter. 442. It was held that there could be no sufficient usage to warrant a presumption of a by-law lost, where a different form of election had been prescribed by a charter about seventy years before. (441) V. tit. 255. Case of Corporations, 4 Co. 78. R. v. Tonilyn C.T. H. ;U6. R. V. Westwood, 4 B. C. 786. R. v. Miller, 6T. R. 280. f442) R. V. Grosvenor, 7 Mod. 198. OKDINANCES. 179 OTHER METHODS OF ENFORCING BY-LAWS. 443. A by-law may render the penalty recoverable by Distress. '' distress " and detention, until payment according to the forms of common law. 444. It was held, that when a by-law gives power to when. distrain upon due proof before the master and wardens, there can be no distress before a verdict for the penalty ; for there is no legal proof other than the finding of a jury. 445. A by-law cannot ^ve a power of " distress Distress and sale ;" for that is contrary to common lav/, and ^^ ^^ ®' can be given only by the legislature, unless there be a special custom. And if a by-law affect to give this power it is void, as well for the distress as the sale, and he who levies it, is a trespasser ab initio. I presume that this method of distress was intended by Lord EI- lenborough, when he said, in Adley v. Reeves, that " a by-law giving a remedy by distress for the recovery of the penalty would be bad." 446. It seems that without special custom a by-law Detainer of cannot empower an officer to detain the offender's share of the profits of the company, until the amount shall (443) Clarke v. Tucker, 3 Ley. 281. S. C. 2 Vent. 183. 1 Wils. 237. Clark's Case, 5 Co. CA. a. City of London's Case, 8 Co. 127. b. Lee v. Wallis, Sayer, 263. 1 Kenyon Ca. 295. City of London v. Wood, 12 Mod. 686. (444) Woodv. Searle, Bridg. 142. (445) Gierke v. Tucker, 3 Lev. 281. S. C. 2 Vent. 183. Lee v. Wallis, 1 Kenyon Ca. 295. S. C. Sayer, 263. Adley v. Reeves, 2 M. S. 60. (446) Adley v. Reeves, 2 M. S. 60. N 2 180 OKDl NANCES. be sufficient to liquidate the penalty incurred by his breach of the ordinance. Forfeiture of profits. Imprison- ment for penalty. 447. A by-law cannot compel payment of the penalty by declaring that the offender shall be excluded from all participation in the profits of the company, until he shall come and pay the penalty, or that a stop shall be made of his gun-proof, which would prevent his carry- ing on his trade with equal advantage. 448. Nor can it compel payment by declaring that the offender, though a freeman who has assented to such by-law, shall be committed to prison until he shall pay the penalty, unless there be a special custom or a power granted'^by statute. When re- 449. When a Corporation is empowered to enforce strained by • i i • charter. their by-laws, by fine or amerciament, they are by mi- plication precluded from adopting any other method of punishing disobedience to them. Forfeiture of goods. 450. A by-law cannot ordain that the goods which are the subject of the offence, shall be forfeited except there be a special custom or express power given by a statute. Fine for non-per- formance. 461. Nor can a Corporation set a fine for the non- performance of a by-law. (447) Adley v. Reeves, 2 M. S. 60. Gunmakers v. Fell, Willes, 390. (448) Wood v.Searle, Bridg. 141. Clarke's Case, 5 Co. 64. a. City of London's Case, 8 Co. 127. a, Bab v. Gierke, Moore, 411. R. v. Clerk, 1 Salk. 349. R. v. Boston, Jon. 162. R. v. Merchant Tailors, and R. v. City of London, 2 Lev. 200. London v. Wood, 12 Mod. 686. S. C. 1 Salk. .397. 1 Rol. Abr. 363. 1. 45. 364, .36.'). (449) Kirk V. Nowill, 1 T.R. 125. (450) Player V.Archer, 2 Sid. 121. Kirk v. NoM-ill, 1 T. K. 124. Clark V. Tucker, 2 Vent. 183. f451) R. V. Newdigate, Comb. 10. ORDINANCES. 181 452. Nor can it ordain that the offender shall be impri- Imprison- soned for a specified period, nor that he shall be impri- soned unless he pay the penalty. Nor that he shall be so imprisoned during the mayor's pleasure, particularly for speaking opprobrious words of him ; and the circum- stance that a by-law is made by general assent avails nothing. 453. Nor that the act prohibited, being warranted by Avoidance common law or the original constitution of the charter, shall be void. 454. Nor that the offender shall be disfranchised. Djsfran- chiseinent. 455. If under pretence of a void by-law the person or property of the offender be illegally taken, an action of trespass may be maintained against the officer. And if such officer justify under the Corporation, relying on the validity of the custom or by-law under which he has acted, he must show the authority by which the court exists, whethei- by prescription or charter, with all things necessary to be pleaded in an action upon such custom or by-law. And in justifying a distress, although he is general bailiff to the Corporation, he must show a special precept under the common seal ; for this is not an act which he is empowered to do in virtue of his of- fice, and in this respect the case differs from conu- sance made by a bailiff in replevin. (452) Clark's Case, ,") Co. 64. Bab v. Clerk, Moore, 411. London v. Wood, 12 Mod. 686. .'{ Salk. 76. p. 6. (453) Harscofs Case, Comb. 20.3. Doggerill v. Pokes, Moore, 411. (454) R.V.London, 2 Lev. 201. Clarke's Case, IVcnt. .327. Bab v. (Uerk, Moore, 412. contra. (455) Strode v. Deering Show. 168. Land) v. Mills, Skin. 587. Wood V. Searl, Bridg. 13'.). 182 CHAPTER 111. ELECTION, cSr. Tins chapter treats of the means by which Corpora- tions are preserved in their vigor, and supplied with a perpetual sucession of members and officers, and is divided into the following sections : I. The inchoate right of admission to Corporate freedom. II. Who are eligible as freemen or officers, III. In whom the right of electing is vested. IV. Essentials of a valid election. V. Admission. VI. Refusal of office. VII. Appointment of ministerial officers. Section I. THE INCHOATE RIGHT OF ADMISSION TO CORPORATE FREEDOM. 456. According to the principles upon which muni- cipal Corporations were first established, it might ap- pear that there was an incidental right to the freedom vested in all persons after they had become inhabitants (156) R. V. Hereford, 11 Mod. 189. ct iiota. Wilkins' Leges Anglo-Sax- onics, LI. Guil. Conq. p. 229. s. 66. R. v. West Looe, ."J D. fe. .598. S. C. 3 B, C. 686. Mcrcw. West Looe Case, 2.30. ELECTION. 183 / of the place incorporated, within the rules of the anci- ent law ; that is, after they had been resident house- holders paying scot and lot for a year and a day. There would seem to be another reason for their possess- ing that right, which is, that the principles of our con- constitution do not consider any man bound by laws to which he has not assented either in person, or by the voice of his representatives ; and at the same time it is settled, that all the inhabitants of the municipality are bound by such by-laws, as are made by the Corporation for the government of the place. The principle of as- sent through the medium of representatives is, in most cases, rather a legal presumption than the fact ; and perhaps the presumption may be extended a little further, and the inhabitants of a municipality be presumed to as- sent, by representatives whom they never elected, to the ordinances of the corporate body. As to the assent in- ferred from coming to live in a place, that is applicable to but a proportionably small number of the people ; for the greater part are generally natives, in whom no such consent can be implied with any greater plausibi- lity, than that of the Athenians to the edicts of a Sultan by happening to be born within the jurisdiction of the Ot- toman Porte. However, we find no such inchoate right recognized by the courts. Even where the charter seemed to imply such a right, it was held to be a mere qualification, and to confer no title to be admitted. It maybe proposed that all inchoate rights are derived either from prescription or grant. 457. The charter may confer an inchoate right of inhabit- admission upon all the inhabitants, or upon certain classes of them, but such a right is not given by an (157 ) R. V. West Looe, ;'. H. C 686. S. C. 5 D. R. 'y'JS. R. v. Hereford, 1 1 Mod. 188. ants. 184 ELECTION. incorporation of the burgesses or inhabitants of the place in general terms, nor by a grant that it shall be a borough *• of mayor and burgesses being inhabitants of the town." In this case inhabitancy is a mere qua- lification. Inherit- 458. Sometimes this right is conferred on the sons of freemen generally, or on those who have served an apprenticeship within the place, or are distinguished by some other qualification. Appren- 459. If conferred on those who have served an ap- ticeship. prenticeship with a resident freeman, it must have been served in the place ; and it is not sufficient that the master occasionally resides, and that the indentures were made within the municipality. 460. Although an apprenticeship to a freeman of a town, should be for seven years, yet an indenture for four years is voidable only, and not absolutely void ; and if the service have been completed under it, a settle- ment is gained, and it may be inferred a right of admis- sion to the freedom. 461. If the right be conferred on those who have served an apprenticeship, it is not forfeited by an ap- prentice having absented himself from his master's ser- vice, although the indentures were rendered voidable, on account of such absence. (458) R. V. Bird, 13 East, 389. City of London's Case, 8 Co. 126. b. R. V. West Looe, 3 B. C. 684. Austin v. Osborn, Coniyns, 240. (459) R. V. Marshall, 2 T. R. 3. R. v. Carabridfrc, 2 Chit. R. 144. (460) R. V. St. Nicholas in Ipswich, Bur. Set. Ca. 91. S. C. 2 Str. 1066. S. C. C.T. H. 323. (461) Gray v. Cookson, 16 East, 27. Smedley v. Gooden, 3 M. S. 190'. K LECTION. 185 462. The person was bound apprentice to a freeman for seven years. About a year and a half before his time expired, he went to serve it out with a stranger under this indorsement. "I, A. (the freeman) let B. (the ap- prentice) to C. (the stranger) for the residue of his time, to find him of all necessary things during his time, and at the end his comings ;" signed by A. and C. The question was, whether this service entitled to the freedom as service to a freeman : the Court declared it a question for the jury, and refused their opinion. 463. If the apprentice have broken a covenant con- tained in the indenture, as, if he have married during the term, contrary to his covenant, the master may maintain an action on the breach against him, but it is no forfeiture of his right, to be admitted to the free- dom. 464. Nor although he have ceased to reside with his master, which was at first the case, having married and continued to work with his master, more as a journey- man than an apprentice. 465. If a by-law introduce a provision, that the ap- prentice shall not be entitled to the freedom of the place, unless his indentvues be enrolled with the town clerk within a reasonable time after they are executed, such as four months, the inchoate right is restricted, and those who neglect the precaution, are not entitled (462) R. V. Rowe, 4 Bur. 2289. (463) Townsend's Case, 1 Lev. 91. S. C. T. Ray. 92. (464) Id. ibid. (465) R. V. Marshall, 2 T. R. 3. R. v. Coopers of Newcastle, 7 T. R. 547. R. V. Tappenden, 3 East, lyJ . R. v. Cambridge, 2 Chit. R. 144. 186 ELliCTlON. to a mandamus to be admitted. But if the indentures have been tendered for enroUment and refused, a man- damus may be obtained to compel the officer to do his duty. This will be more fully treated under the title man- damus. If the town clerk have made a note of the enroll- ment upon the indenture, the provision of the ordinance • is complied with, and the apprentice entitled to be ad- mitted, although in fact it never were enrolled. Cannot be 466. A by-law cannot be made to prevent persons by by-law. from acquiring this inchoate right, or to add a qua- lification beyond that required by the constitution. Or confer- red on others. 467, If a by-law empower the bailiffs to hold a quar- terly court, and declare that at every such court " it shall be lawful" for them to admit to the freedom of the town such persons as should be suitors for the same, and withal should be thought honest and well-disposed men, and being such as had been resident and dwelling within the town for the space of one year ; inhabitants so qualified do not derive a right to be admitted, so as to obtain a mandamus, but it is left to the discretion of the bailiffs to admit those whom they approve. 468. And this is not aided by the circumstance that the applicant to be admitted has been frequently fined for carrying on his trade in the borough on account of not being a freeman. 469. The notice of the Court appears not to have been attracted to the validity of the by-law ; but I ap- (466) R. V. Tappcnden, 3 East, 190. \. lit. .11.5. (467) R. V. Bailiffs of Eye, 4 B. A. 272. (468) Id. 1 B. C. 86. (469) V. tit. 254 et seq. ELECTION. 187 prehead thut it is absolutely void, for the charter not having disposed of the power of introducing new mem- bers into the body, they can only be introduced by elec- tion, which must be by the whole body, in exercise of their incidental power ; and this cannot be delegated by a by-law to the head officers of the Corporation alone : on which account an inhabitant so admitted, has but a slender title to his freedom. 470. Nor is any right to be admitted, conferred on persons who have been examined and approved by a select body appointed for that purpose, by the corpo- rate classes, in whom the right of election is vested ; the approbation of such body being merely for the in- formation of the elective body, who may either choose or reject the candidate after such approval. 471. A Corporation cannot make a by-law that any person shall be admitted by their officers to the free- dom, on paying a certain sum of money ; for that were a sale of the franchise ; but there may be a custom to admit persons to the freedom, on payment of a certain sum of money, called a right by redemption. (470) Dr. Askcw's Case, 4 Bur. '2191. (471) R. V. Breton, 4 Bur. 22(i0. R. v. Bird, 13 East, 384. City of Lon- don's Case, 8 Co. 12fi. b. 18S ELKCriON. Section II. WHO ARE ELIGIBLE AS FREEMEN OR OFFICERS. I. AS FREEMEN. Incidental 472. It might have been considered that a Corpora- tion has a right only to admit to the freedom the in- habitants of the place, for whose benefit alone it can be supposed that such an institution was intended ; being an establishment for the benefit and good govern- ment of the place, and the regulation and protection of its trade. In the anonymous case, in Barnardiston, Mr. Wills, of counsel, asserted it to be the doctrine of law, that no Corporation could make men honorary freemen, such as non-residents, unless specially em- powered by prescription or charter. But in that case, and several subsequent, it has been held, that exactly the contrary is the law, and that every Corporation has an incidental right of electing whomsoever they please, whether residents or non-residents to be freemen, unless restrained by a contrary prescription or provision of the charter ; much more may the charter empower them to do so, as by authorising them to make omnes homines quoscunque free of the borough. But where a custom was alleged, that an apprentice was not entitled to his freedom by learning his trade there, but that the Corporation might make whom they pleased free, though Holt C. J. recog- nized its validity, he observed that it was an extraor- dinary custom. (472) Anonymous, I Barnard. 137, 138. R. v. Bird, 13 East, 389. R. v. West Looe, 3 B. C. fiSG. S. C. 5 D. R. 601. R. v. Hereford, 11 Mod. 188. Dartmouth, 12Mod. 3.3(). ELECTION. 189 473. This right may, however, be taken away by the Taken away. express provision of the charter, or perhaps by neces- sary imphcation 5 as if it point out a certain and con- stant source from which a sufficient supply of freemen may be at all times obtained. 474. This is done by expressly requiring a particular By express ,.„.., , „ provision. qualincation in those who are to be adopted as tree- men, whether known by the name of burgesses or otherwise, forming the lowest class of the body politic, out of whom alone the officers may be elected ; as when the charter declares that A. shall be a borough of a mayor and burgesses " being inhabitants of the town," in which case non-residents are not admissible to the freedom. 475. Sometimes the charter renders those alone ad- missible, who are qualified in a certain manner, as by having an estate of freehold for the term of their lives, within the municipality, whether by purchase descent or marriage, in which case no others can be admitted, not even one who has an estate of freehold within the municipality for the life of his wife, for that may deter- mine ill his life-time, so that his estate for life, is con- ditional only ; but if the wife were tenant in fee, and the husband became tenant for life by the curtesy, this is a sufficient qualification. 476. I am not aware of any case, where the implica- By implica- tion has been considered sufficiently strong to exclude (473) R. V. Bird, i;{ East, 378. .389. R. v. West Looe, 3B C. 685. S. C. 5D. R.601. (474) R. V. West Looe, 3 B. C. 686. S. C. 5 D. R. 598. (47.'>) R. V. Powell, 8T. R. 642. (476) Anonymous, 1 Barnard. 137, 138. 190 ELECTION. this rio-ht. of oeneral admission. It was not held an exclusion of non-residents, where the charter incorpo- rated " cives residentes et inhabitantes" ; for that, it was said, was the usnal form of incorporations. Yet these words very strongly demonstrate the principle of such estabUshments, as being confined to the municipality ; and in this case a flagrant violation of that principle appeared, for there had been one hundred and nineteen honorary freemen elected at once, undoubtedly for the purpose of out- voting the local party at a parliamentary election : and though the Court said, that it was an * improvident exercise of the power, yet as it was not con- sidered illegal, a thousand might have been admitted with equal impunity, if necessary to effect the object of those in whom the power of admission was mis- placed. 477. In a recent case it was held that the incidental right of introducing members from any source was not taken away by implication in the charter conferring an inchoate right of admission on sons of freemen who had served an apprenticeship, as well as on others who had served their apprenticeship within the municipality. For it was held, that the incidental power might be exercised consistently with these rights, for the latter alone did not offer a certain and constant source for the supply of freemen. Consent of 478. No One is liable to be made a member of a Cor- Jiim elected. . . , , . poration without his own consent. (477) R. v.Bird, 13 East, 389. (478) Dr. Askew's Case, 4 Bur. 2200. KLECTION, 191 479. The statute of Charles II. requiring the sacra- ment to be taken by those who shall be placed or chosen into corporate offices, does not extend to mere freemen, although they have a vote in the election of members of parliament and right of common ; neither are they af- fected by the exceptions in subsequent acts of parlia- ment excluding those who do not receive the sacrament from places of profit in the government ; therefore quakers are admissible to the freedom on their solemn affinnation. II. AS OFFICERS. 480. As to mere ministerial officers, they will be spoken Freemen of in another place. None are eligible to corporate offices, except those already free of the Corporation ; where the custom or charter imposes no further qualifi- tion, every freeman is equally eligible to any corporate office which he is capable of executing ; neither can he be deprived of this right, nor can he refuse to serve when appointed by the majority. 481. Sometimes the constitution requires residence in Resident. the freemen to render them eligible to offices, although non-residents may enjoy the freedom ; but where it is required as a precedent qualification, it is not impliedly necessai-y that the officer continue to reside during the (479J V. tit. 507. 7&8W. 3. c.34. 1 Geo. I. st. 2. c. 6. 1 Geo. I. St. 2. c. 13. s. 4. 8 Geo. 1. c. 6. 12 Geo. II. c. 13. 22 Geo. II. c. 4G. s. 36. 12 Geo. III. c. 21. R. V. Maurice, Cartb. 448. S. C. 1 Ld. Ray. 337. R. v. Lincoln, .-> Mod. 40.3. S. C. 12 Mod. 190. R. v. Turkey Company, 2 Bur. 1000. R. V. Bos worth, 2 Str. 828. 1112. (480) R. V. Amery, 1 T. R. 581. R. v. Pasmore, 3 T. R. 208. Dr. As- kew's Case, 4 Bur. 2200. R. v. Heath, 1 Barnard. 417. (477) R. V. Monday, Cowp. 539. 192 ELECTION. }X)ssession of his place ; so where residence is requisite as a qualification during office, it is not by implication necessary that the person elected should have been resident at the time of election. 482. If the charter direct that the common-council- men shall be elected out of the more discreet " citizens and inhabitants of the city," no one is eligible to be a common-council-man unless both a citizen and inhabit- ant ; although under the charter there may be and are freemen who are not inhabitants, and there is a provision in it " that any freeman refusing to execute ani^ of the offices of the city shall be grievously punished ;" for if there are other offices to which freemen, although non- resident may be elected, the penal clause shall be con- strued distributively, and the dift'erently qualified free- men are respectively liable to punishment for refusing those offices alone to which they are eligible, and, therefore, derive no new qualification from the terms in which the punishment is denounced. What suffi- 483. As to what is a sufficient inhabitancy, the ques- dence. ' tion has not often come before the Court in quo warranto, but a very transitory residence has been held sufficient. 484. A corporator, who had formerly resided in the borough and been desirous of taking a house there, a short time before the day of election bargained to rent one for four years, but at the desire of the owner sub- sequently engaged it for one year only : before the elec- tion he had slept in it one night, after the election in the course of the first six weeks he had slept in it two nights ; (482) R. V. Heath, 1 Barnard. 417. {484) R. y. Sars?eant, 5 T, R. 467. ELECTION. 193 at the expiration of that time on an application for an information in the nature of quo warranto against him, he asserted in his affidavits that it was his intention to reside at this house as often as his connexions with the borouoh should call him there. — This was considered a bona fide inhabitancy. 485. It was held sufficient, where the house was taken and occupied on the day before the election, and for the purpose of qualifying. 486. But in a recent case it was held that taking part of a house for the purpose of such qualification, a few days before the election (although there was a treaty for purchase of a house there, which had been completed since the election) and residence for two days on his visiting the neighbourhood in a military capacity, was not such conclusive evidence, but that an information ought to be granted that it might go to a jury. 487. Where the requisite qualification was inhabitancy in the borough of N. during the preceding six months, a person was considered to have been qualified who became a substitute in the militia, and leaving his wife and family in possession of the house, resided during that period at his quarters with the regiment in another town, except for a day or two on the eve of an election which he had spent with his wife in the borough, he having been constantly responsible for the rent and taxes of the house. (485) R. V. Scolden, 2 Barnard. 440. C486) R. V. Duke of Richmond, 7T. R. 560. 487) R. V. Mitcliell, 10 East, 518. 194 El.KCTlON. 488. When inlmbitancy is the requisite qualification, it does not morely imply residence, but keeping a house within the place, and paying scot and lot. Inhabitan- 489. One was held to be such an inhabitant who had CV ill SGVC~ lai places, served the office of church-warden, and occupied a house in the borough, for which he paid the rates and taxes, although he retained but a part in his own hands, havino; let the remainder in lodoino;s and resided the greater part of the year in another town ; for a man may be an inhabitant householder in several places at the same time. Quaiifica- 490. The charter frequently confines the election of fi'ce! '^ particular officers to be out of a particular class, in which case no others are elegible : difficulty has sometimes arisen upon this point as to the construction of the charter. Disfiuaiiti- 491, The charter appointed that one of the burgesses cation by -i- rr- i office. should be mayor ; that two others should be banms ; that divers of the burgesses should be aldermen ; that the mayor after the due execution of his office, should become an alderman ; that if there were not eight alder- men remaining on the day appointed for electing a mayor, so many burgesses should be then appointed as would complete that number; and that then the mayor and aldermen should nominate four burgesses inhabitants, of whom the burgesses at large should elect one to be mayor. — The aldermen continue burgesses, but they are by implication excluded from being put in nomina- tion as candidates for the office of mayor, the intention (488) R.v. Mallet, 2 Barnard. 408. N. P. (489) R. V. Scolden, 2 Barnard. 43'J. (491) U. V. Wc-ynioiilli, 7 Mo.l. :',7i. S. C. 4 Bro. 1'. C. 4r,4. ELECTION. 195 of the charter is, that the select classes should be sup- plied from the mere burgesses. 492. But if a charter provide that the mayor shall Q"a\ifica- ^ •' tion by ac- be elected out of the aldermen, and a void surrender quiescciKc. having been made, and a new charter (on that account void) subsequently granted and acted upon, and A. having been elected an alderman, and having acted as such under the void charter, and so continued after the corporation had recurred to their ancient valid charter, be then elect- ed mayor ; this election appears to be good, for having the actual possession of the aldermanship, he shall be in- tended to be a rightful officer until the contrary appears, as if merelaicus be presented, &c. to a benefice, he shall be taken to be a clerk until first steps are annulled. It vs^as said in a subsequent case that if one be irregularly chosen at first, and afterwards owned by the town, and entered in the town book, or regularly chosen into a superior dignity ; what followed should be taken to be such evidence of a good election as ought not to be controverted. Per Holt, C. J. 493. For the law on this subject, see post, 32 Geo. III. and title Quo Warranto Relator. The general conclusion to be drawn from the cases on this point is, that none of those who have acquiesced in the subsequent election will be permitted to dispute the validity of the former ; but if six years have not expired from the time of first holding the former office, any person who is not con- cluded by his assent, or otherwise improper to be a relator, may question it in quo warranto, either to oust the usurper from the original office, or the second, which is founded upon it. (492) Piper v. Dennis, 12 Mod. 2r).S. Lord v. Francis, 12 Mod. 408. o 2 196 F.LECTION. Disquaiifi- 494. By llie regulations of some charters, certain cation ''y ^p , . inconsist- officers ave, during- one office, or at the moment of its termination, excluded frombeins elioible into another, on account of some inconsistency. 495. The charter declared that the mayor, bailiffs and burgesses, should choose one of themselves to be mayor, and two of themselves to be bailiffs ; and that the person elected mayor before his admission should take the oaths before the last mayor, his predecessor, and the bailiffs for the time being ; and that those elected to be bailiffs, before their admission, should take the oaths before the mayor and the last bailiffs. A subsequent charter directed that the mayor should continue in office until a certain day and until some other of the burgesses should be elected mayor ; and the bailiffs until a certain day and until two other of the burgesses should be elect- ed bailiffs. It was held, that upon the fair construction of these provisions neither the mayor could be elected bailiff before a new mayor had been elected, for in that case he would be sworn before himself and the former bailiffs ; nor a bailiff elected mayor before the new bai- liffs had been elected, for then he would be sworn before the mayor, the other bailiff, and himself: but that it was otherwise immaterial whether the mayor or the bailiffs were elected first. 496. By the operation of the statute 11 Geo. III. the presiding officer at an election under it is excluded from being elected mayor or head officer, though formerly eligible ; for a swearing in before himself would be incon- sistent with all principle, and a sweaiing in before any other persons would be contrary to the express provi- sions of the statute. (495) R. V. Harper, 5 East, 21!). (4%) R. V. C. Maiden, 4 Riir. 2132. R. v. Nance, 7 Mod. 340. V. tit. 511. ELECTION. 197 497. " In divers counties, boroughs, towns corporate Lastmayor, and cinque ports, where the mayor, baiUff or other officer or officers to whom it belongs to preside at the election and make return of any member to serve in parliament, ought to be annually elected, no person or persons who hath been or shall be such annual officer for one whole year shall be capable to be chosen into the same office for the year immediately ensuing," 498. This statute does not extend to any head offi- cers who are not the returning officers of members to parliament. 499. In a prescriptive corporation there may be a custom that a person who has served an office for two years in succession, cannot be again elected for the sub- sequent year. 500. The statute 1 Richard II. c. 11. which ordains " that none that hath been sheriff of any county by one whole year shall be within three years next ensuing elected again," does not extend to exclude the sheriffs of cities or boroughs from being re-elected within that time, although they are counties of themselves. 501. By this statute mayors, bailiffs, 8lc. are rendered ineligible in future, if they attend any place of public worship other than the Church of England with the habit or insignia of their office. (497) 9 An, c. 20. s. 8. (498) R. V. Scott, 1 Barnard. 24. V. tit. 113. (499) R, V. London, 1 T. R. 426. (!J00) R. V. Haythomc, b B. C. 429. n, (501) 5 Geo. 1. c. 4. s, 2. V. tit. Officer. 198 ELIX'TION. Disqualifi- cation by business. Disqualifi- cation by present in- capacity. 502. By the operation of the statute, 39 Geo. III. c. 76. s. 3. upon the 26 Geo. III. c. 13. s. 12. a dealer in spirits, &,c. is not disqualified from being elected mayor, although the charter makes the granting of spirit licences a material part of his duty ; because the more recent statute empowers him to apply to a magistrate of the county to grant them if there be not sufficient magis- trates in the municipality. 503. No one is eligible to an office in a Corporation who is not legally capable of entering upon and exe- cuting; the business of it at the time of his election. Therefore the election of one gone to America into the office of mayor, is absolutely void and a mere nullity ; for it is no way probable that he will be able to under- take the office in proper time ; and there is so plain a fraud, that a mandamus will be granted for a new elec- tion, as though the office were vacant, without putting the party to the necessity of ousting the person so elect- ed by quo warranto. Infancy. 504. An infant Cannot be elected to an office of a finan- cial nature, because he is not legally responsible for the trust confided to him ; and it makes no difference that such an officer may appoint a deputy, because the prin- cipal ought to be equally responsible for the acts of his deputy as for his own. 505. An infant of six years old cannot be elected mayor, nor it seems even a burgess, although the ad- mission be not to take place until his arriving at manhood. (.-502) R. V. W. Smith, 2 M. S. .'397. (50.3) R. V. Courtenay, 9 East, 261. R. v. Cambridf^e, 4 Bur. 2010. (.'')04) Clariflge v. Evelyn, 5 B. A. 86. (505) R. V. Courtenay, 9 East, 261. II. v. White, C.T.H. 8. R. v.* Carter, Cowp. .M). ELECTION. IQg 506. " No person or persons shall be placed, elected, Sacrament, or chosen, in or to any of the offices of mayor, alder- men, recorders, bailiffs, town-clerks, common-council- men, or other offices of magistracy, or place or trust, or other employment relating to or concerning the govern- ^ ment of any city, corporation, borough, cinque port, or any of their members, or other port- town, within En- gland, Wales, and Berwick upon Tweed, that shall not have within one year next, before such election or choice taken the Sacrament of the Lord's Supper, according to the rites of the church of Enoland." o 507. It has been said that this statute does not extend to common freemen ; but common-council-men, are in- cluded, for they hold an office, whereas a mere freeman has a franchise only. 508. The statute of 5 Geo. 1. does not extend to ren- der those who have neglected to receive the sacrament according to the 13 Car. II. eligible to the offices with- | in its provisions ; and therefore an election contrary to it, does not confer any title upon the unqualified can- didate, so as to give him a right to apply for a manda- niiis to be admitted. Nor, it seems, can such a title be acquired by receiving the sacrament after the election, within the conditions of the annual indemnity act, although no other person has been admitted in the mean while ; for the terms of that act confine the privilege to persons receiving the sacrament after being in pos- session of the office. (506) 13 Car. 2. st. 2. c. 1. s. 12. {^07) R. V. Love, 12 MoihCM. (508) 5 Geo. I. c. G. s. 3. 7 Gw). 4. c. .1. s. 1. R. v. Monday, Cowp. 53i>. R. V. Hawkins, 10 East, 216. R. v. I'arry, 14 East, 561. 200 ELECTION. Wilful inca^ 509. It has been held, that a neglect to receive the refusal of saciament, within the terms of 13 Car. II. being termed a voluntary disqualification, subjects a corporator to the punishment imposed on a refusal to accept office. Quaiifica- 510. If the form of election be, that a certain number tionoinc- , 1 II 1 minees. of persons qualified in a particular manner, shall be nominated by one body of the Corporation, of whom one shall be elected by another body, each of the nominees must be qualified in every respect ; for the second body of electors have a right to choose from the appointed, number of persons duly qualified, otherwise the election might be virtually effected by the body which nomi- nates, by their nominating only one proper person, which would render it necessary to elect him. And if all the nominees are not capable of being elected, the election of any one of them is void, on account of the inequality of his colleagues, although he is himself qualified in every respect. 511. But where it was appointed that two persons should be nominated, the presiding officer under stat. 11 Geo. 1. was nominated as one of them, being in other respects qualified, the other nominee was elected, and the election held to be legal ; because it was said the king might have appointed some one to swear in the pre- sident, had he been chosen, although he could not ad- mit himself. ^.r^e" ^12. It is no objection to the validity either of a elected. legal election or admission, or both ; that the person elected or admitted was at that time actually exercising (509J Vide Sec. vi. (510) R. V. Peacock, 4 T. R. fi86. (511 J R.V.Nance, 7 Mod. 342. V. tit. 496. (512) V. tit. Quo Warranto, Judgment. R. v. Taylor, 2 Barnard. 281. ELECTION. 201 the office without title, and liable to be ousted in quo warranto as an usurper: nor does a subsequent judg- ment in quo warranto affect a good title, acquired dur- ing the usurpation, but the judgment must be only en- tered of the fine for the past usurpation, and not of ouster from the office which he then holds. Section III. IN WHOM THE RIGHT OF ELECTING IS VESTED. 513. The right of electing new members and officers incidental is incident to every Corporation, and there is no need large, that it should be conferred by the charter. There- fore where it is not expressly lodged in other hands, it must be exercised by the body at large, on which ac- count, if in pleading one rely upon an election by any select body, it is necessary to show by what authority and in w^hat form such body is constituted, for a general allegation of election, implies an election by the whole body in exercise of their incidental power. 514. This power of election both of members and Transfer- red to SG" officers may, by the charter, be taken from the body lect classes, at large, and reposed in a select body constituted by ^ '^ '*'' ^^" the crown. In whatever instances it is so disposed of, the remainder of the Corporation must not join in the election. 515. It was said by one of the judges, that when the right of election was originally vested in the Corpora- tion at large, it could not be transferred to a select (513) 1 Rol. Abr. 513. 1. 50. Philips v. Bury, Ca, Pari. 45. i')!!) Anon. 12 Mod. 225. (515) R. V. Larwood, Skin. 573. R. v. Wynne, 2 Barnard. 31>1. 202 ELECTION. class by a new charter, but denied by Holt, C. J. — There is certainly no good reason for maintaining that it can- not be so altered, unless we maintain that the franchise of being a Corporation cannot be surrendered ; but if we support the latter position, we can hardly admit so fundamental an alteration in the constitution of a mu- nicipality. This alteration is not to be contended for on the same ground that a by-law altering the manner of election may be supported, that is, common assent ; for in the acceptance of the charter, the grantees assent not only for themselves, but their successors also for ever; whereas in making a by-law, the assent binds (or is pre- sumed to bind) only themselves and their successors, until the majority choose to change their will and repeal the ordinance. The cases which have been determined on the presumption that the right of election may be restricted by a new charter, are so numerous that the question seems to be no longer controvertible. By-law. 516. So the exercise of the right of election may be reposed in a select body, constituted by an ordi- nance, made by the Corporation itself, where the right of making by-laws is vested in the body at large. Usas, and Berwick upon Tweed, the election df the mayor, bailiff or bailiffs, or other chief officer or officers is by charter or ancient usage confined to a particular day or time, without any provision how to act or proceed in case no election be then made ; and it frequently happens that by such charter or usage particular acts are required to be done at certain times, in order to and for the com- pleting of such elections, and by the contrivance or de- fault of the person or persons who ought to hold the court or preside in the assembly where such elections are to be made, or such acts to be done, or by accident it hath sometimes happened, and may frequently do so, if not timely prevented, that no courts or assemblies have been held, or elections made, or such acts done within the time fixed for that purpose ; in which cases, if elections of such officers could not afterwards be made or completed, or in consequence of such omission the Corporation should be dissolved, great mischiefs might ensue. Be it enacted, that if in any city, borough, or town corporate, within that part of Great Britain, no election shall be made of the mayor, bailiff or bailiffs, or other chief officer or officers, of such city, borough, or town corporate, upon the day, or within the time appoint- ed by charter or usage for such election^ or such election beino; made, shall afterwards become void, whether such omission or avoidance shall happen through the default of the officer or officers who ought to hold the court, or preside where such election is to be made, or by any accident or other means whatsoever, the Corporation shall not thereby be deemed or taken to be dissolved or disabled from electing such officer or officers for the (531) 11 Geo. I. c. 4. s. 1. p ■210 ELECTION. ^Q future ; but it shall and may bo lawful for the members or persons of such city, borough, or corporation, who have rioht to vote or be present at, or to do any other act ne- cessary to be done, in order to or for the completing of such election, and they or such of them as shall not be hindered by any reasonable impediment or excuse, are hereby required respectively to meet or assemble toge- ther in the town-hall, or other usual place of meeting, for making such election within such city, borough, or town corporate, upon t he day next a fter the expiration of the time within which such election ou ght to h ave 15een made/unless suciTcTay shall happen to be Sunday, and then upon the Monday following, between theTiours of ten in the morning and two in the afternoon of the same day ; and that the members or persons having right to vote at or to do any other act necessary to be done in order to such election, or such of them as shall be 60 assembled or met together, shall forthwith proceed to the election of a mayor, bailiff or bailiffs, or other chief officer or officers of such city, borough, or corporation, and to do every act necessary to be done in order to or for the completing of such election, in such manner as was usual in, or in order to the election of such officer or officers, upon the day or within the time appointed by charter or usage for such election." Where the municipality is incorporated by statute, I imagine that an omission to elect on the statutory day will be considered to be within the intention of the act. Hour of 532. The words *' between the hours of ten in the der the sta- morning and two in the afternoon" are not imperative, *"^* but merely directory, and an election may be well begun at any other reasonable time of the day. (532) R. V. Poole, C.T. H. 27. S. C. 7 Mod. 195. ELECTION. 211 533. If the elective assembly be held on the charter Adjourned T 1 111 p ii. assembly. day, it may be adjourned to a reasonable hour oi the following day, although not between the hours of ten and twelve, and an election at this adjourned meeting is good under this statute, if it be not sustainable at common law. But if the mayor had no power of hold- ing over, it seems that such an adjournment cannot be supported. This was the opinion of Lord Hardwicke and two judges, against Lee J. But in the following- term Lord Hardwicke appears not to have been confi- dent in his opinion, and the case was determined upon another point. 534. If the mayor be not elected on the prescriptive Election or charter day, or that appointed by statute, or if hav- damus. ing been elected, that election afterwards be found insufficient and void, an election may be had at any time subsequent, under the direction of the Court of King's Bench, by mandamus, warranted by the second clause of the last mentioned statute ; and this writ may be awarded, although several years have elapsed since the last legal election, for it is a remedial statute, and to be interpreted beneficially for preserving the consti- tution of Corporations. 535. The vacancies among other classes being uncer- Officers of ° . classes, tain, there is no usual or charter day exclusively ap- pointed for such elections ; but in some Corporations there is a rule introduced either by custom or charter of filling up vacancies in select classes, either on the day appointed for the election of the head officer, or at other times. If the Corporation neglect lo supply vacan (53."^) R.v. Poole, 7 Mod. 1%. S. C. C.T.H. 27. R. v. Carmarthen, 1 M. S. 702. (.534) R. V. ().\for(l, C. T. H. 178. V. Mandamus to elect. 212 ELECTION. cies at such times, the Court will issue a mandamus on reasonable cause being shown ; and when the classes to be supplied are limited in number, I. apprehend that the omission is of itself a satisfactory reason for grant- ing the writ. Of this more will be said under title Mandamus. Mandamus. ^^^- ^ Corporation ought to proceed to an election of officers of a definite class, within a reasonable time after a vacancy occurring, for the purpose of preserving the constitution in full vigour, although no particular time be appointed for this purpose ; and whenever the neglect has been such as to warrant the interference of the Court, a mandamus for this purpose will be awarded to compel them to do their duty ; but unless the neglect is such as to endanger the dissolution of the body, the Court will not interfere to compel an election of new members of an indefinite class. Annual. 537^ jf ^]^g charter declare " quod cives et communi- tas singulis annis successivis viginti quatuor concives in aldermannos, necnon quadraginta ahos cives pro com- muni concilio civitatis illius eligere facere et creare pos- sint," — the Corporation may elect all the aldermen and common council annually ; yet the Court will not grant a mandamus to proceed to a. new election, particularly if the usage have been not to elect annually. I should propose that certain of those having a right to vote in the election, make application to the head officer to convene a corporate assembly, for the purpose of con- sidering the propriety of electing new members of these classes, and if that be not complied with, then to apply (536) R. V. Fowey, 2 B. C. 596. S. C. 4 D. R. 139. 141 . R. v. Gram- pound, G T. R. 302. (537) R. V. Cliester, 1 M. S. 102. Prowse v. Foot, 3 Bro. P. C. 169. ELECTION. 213 to the Court for a mandamus to the head officer and the other persons who should convene, to compel them to hold such an assembly. It was said by the Court, that in this case there is another remedy, but I know not what that is, for there can be no ouster in quo war- ranto, because the offices of the present aldermen do not determine at the end of the year, but continue until successors are elected. 538. The election of sheriffs or other annual officers, although not the chief officers, is within the provision of the statute last mentioned, and under the second clause of it a mandamus will be granted to proceed to such election. 539. And equally within the provisions of that sta- Officers for life tute is the election of burgesses and others of a definite class, although neither chief officers nor annually elected, but holding their places for life : this is perhaps an over liberal interpretation of the statute ; but I ima- gine that the Court is possessed of power to award such a mandamus at common law, b^^ virtue of their supreme authority of administering justice by means of that writ, when a case calls for their interposition, in which the law has provided no other remedy. III. ELECTIVE ASSEMBLY. 540. The election must be made at a corporate or Assembly select assembly of all those in whom the right of voting "^ ^'^'=*o'"^- is vested, constituted in the manner described under title Assembly. (538) R. V. Woodrow, 2 T. R. 732. Scarborough Case, 2 Str. 1180. (^39) R. V. Thetfortl, 8 East, 271. 214 ELLCTION. 541. The Corporation was called, the mayor and burgesses of N., and appointed to consist of a mayor, two sheriffs, six aldermen, other officers, and an inde- finite number of burgesses ; the right of election being in the body at large, was transferred to the mayor, sheriffs, aldermen, other officers and certain of the burgesses, called clothing burgesses, who represented the com- monalty, " or so many of them as should be duly as- sembled together for that purpose." It was advanced in the argument and taken for granted by some of the judges, that if the mayor and one or two burgesses were present, the assembly was sufficient to make a valid election. This of course assumes that the election would have been equally valid had the same number been present before the by-law ; for that could not alter the power of election so as to make an act valid which would otherwise have been void for want of a sufficient majority of any select class. Therefore the position must be grounded upon an assumption, that though the alder- men and sheriffs are for certain purposes select classes, they are for the purpose of election a part of the bur- gesses and members of an indefinite class, of whom it is only necessary that some be present, although not a majority of the whole body. If so, the aldermen and sheriffs would vote, not as aldermen and sheriffs, but as mere burgesses. Presence of 542. It is not necessary that the person elected be present at the assembly, so he is within such distance, that he can in due time enter upon the exercise of his office. (541) R. V. Ashwell, 12 East, 28. 31. R. v. Bird, 13 East, 285. but see tit. 255. et seq. (542) R. V. Courtenay, a East, 2fU. ELECTION. 215 543. When corporators vote merely as such in right Title of . . 7 electors of their corporate franchise, the president or returning may not be „ , . , ,. . . , . . , examined, officer has no right to dispute or investigate their title to freedom or office if they are de facto in possession of it. IV. FORM OF ELECTION. 544. Although there be no form of election prescribed Candidates by the custom or charter, every candidate must be pro- posed^™ posed singly, whether the election is of members of a definite, or an indefinite class ; and if the names of more than one be set down in a list, and the election proposed to be made of the whole by a single vote, such elec- tion is altogether void, although the names have been repeatedly read over, and an offer made to strike out any to which an objection should be made, and not- withstanding the election were by the unanimous con- sent of the entire body. For it may be presumed that instead of using his judgment as to the propriety of admitting any individual which would be the case where they are separately proposed, each elector desirous to obtain the admission of some one in particular may compromise his opinion as to the others, and thus per- sons may be introduced who would otherwise have been rejected. 545. But this is a sufficient proposal upon which the electors may if they choose, proceed in the proper way to vote for any persons whether of the list or others. (.'J43) Symmers v. Rcp:cin, Cowp. 507. (544) R. V. Monday, Cowp. .WD. R, v. Flayer, 2 B. A. 708. (,')45) R. V. Monday, Cowp. MO. 216 What ma- jority of votes. ELECTiON. 646. After an election has been properly proposed, whoever has a majority of those who vote, the assembly being sufficient, is elected, although a majority of the entire assembly altogether abstain from voting ; because their presence suffices to constitute the elective body, and if they neglect to vote, it is their own fault, and shall not invalidate the act of the others, but be con- strued an assent to the determination of the majority of those who do vote. And such an election is valid, although the majority of those whose presence is neces- sary to the assembly protest against any election at that time, or even the election of the individual who has the majority of votes : the only manner in which they can eftectually prevent his election is by voting for some other qualified person. 547. If the assembly be duly convened, and the majority vote for an unqualified person after notice that he is not qualified, their votes are thrown away and the person having the next majority, and not appearing to be disqualified, is duly elected. Election voidable. 548. If the majority voted for a person disqualified, by having omitted to receive the sacrament in proper time under 13 Car. II. before his qualification was made known, since 5 Geo. 1. c. 6. s. 3. his election is only voidable, and not actually void ; and if he have been admitted and have held the office for six months, his election is thereby rendered valid from the begin- ning ; or under the annual indemnity act, may be ren- (54G) R. V. Foxcroft, 2 Bur. 1020. Crawford v. Powell, 2 Bur. 1016. S. C. 1 W. B, 229. (547) Claridge v. Evelyn, 5 B. A. 8fi. R. v. Foxcroft, 2 Bur. 1021. R. v. Parry and Phillips, 14 East, .^61. (548) R. v. Bridge, 1 M. S. 76, Crawford v. Powell, 2 Bur. lOlG. S. C 1 W. B. 22:) ELECTION, 217 clered so at any time after admission by receiving the sacrament. 549. If some electors have voted for A. a person so disqualified without notice of the fact, and afterwards, notice having been given of such disqualification, others vote for him, so that the aggregate number of his votes are the majority, all those subsequent to the notice are thrown away, and he stands in the same position as if he had received only the votes given before the notice ; so that if those for any other, against whom no disquali- fication is shown, exceed them in number, the election of A. is absolutely void. 550. If at an elective assembly some of the electors give their votes for one incapacitated, from neglect to have received the sacrament, and afterwards notice be given of the fact, such electors have a right to vote a second time for any person they think fit ; but it is not incumbent upon the president, the candidates or any other to call upon them to vote again ; and if they neg- lect pending the election to avail themselves of their right, it is a waver of it, and the person apparently qualified, who has the greatest number of votes, is duly elected. 551. If the want of qualification be of a corporate character, as if none are eligible to be common-council- men, who are not previously burgesses, and there being several candidates, some previously burgesses, and others not, and one deficient in that qualification be elected ; it seems that the acts of the assembly are altogether null, (549) R. V. Hawkins, 10 East, 214. S. C. 2 Dow. P. C. 147. (550) II. V. Hawkii.3, 10 East, 218. S. C. 2 Dow. P. C. 147. (551) R. V. Bcdforil, 8 Mod. 37. 218 ELECTION. and the election of such person being void, another assem- bly may be held, and a person duly qualified elected to fill the vacant place. It may be argued, perhaps, that the electors ought to be conusant of the qualification re- quired by their constitution, and that therefore the votes given for a person so disqualified ought to be considered as thrown away, then the qualified person having the next majority is duly elected : the effect of which would be that the place being already full, an election at a subsequent assembly would be absolutely void. Poll. 552. If the number of electors voting for each can- didate cannot be conveniently ascertained by sight, either of them is entitled to demand a poll for refusal of which an action may be maintained against the pre- siding officer. Election 553. If a statute declare that in default of taking the oaths, the election and choice shall be void, no act is requisite to annuU it, but the place is actually vacant as though no election had ever been, and not merely voidable ; so that another may be elected into the office without the necessity of resorting to an information in quo warranto, to oust the officer elect. This case was upon the statute of 13 Car. II., but had relation to an oath now unnecessary. 554. It seems to be doubtful whether bribery will avoid the election of an alderman ; for not being within (552) sterling V. Turner, I Vent. 206. S. C. 2 Vent. 25. S. C. 2 Lev. 50. Ashby v. White, (! Mod. 48. 55, 56. Shaw v. Colchester, 2 Mod. 228. (5.53) R. V. Sanchar, 2 Show. 67. (554) R. V. Norwicli, 2L(l.Ray. 1245. ELECTION. 219 the statute 5 & 6 Ed. 6. c. 16. it is a question left to the doctrine of common law, and the opinion of Holt C.J. was, that it was not void on this account. But the offering of such a bribe, is the proper subject of an in- dictment or criminal infonnation. Section V. ADMISSION. 555. After one is possessed of an inchoate right to Right of ad- ,,,. Ill 1 • 1 mission. the freedom, or has by benig duly elected acquu'ed an incipient title either to the freedom or a corporate office, before he can enter upon the enjoyment of it admission is necessary. To this he has such a right, that after application to be admitted, made to the proper offi- cer at a proper time, if the officer refuse, a mandamus lies to compel him to admit the appHcant. Of this it will be more fully treated, under title Mandamus to admit. 556. Admission is so essential to the completion of Title in- a corporator's title, that if one duly qualified and elect- untiud-^ ed assume to act in that capacity, before he has been '"'^^"'"• admitted, he is a mere usurper, and may be ousted in quo warranto, without a previous amotion. And if one have title by election, either to the freedom or to an office, and be so ousted for want of a due admission, his incipient title is destroyed, and he cannot afterward perfect it by admission, but must be a second time elected. The inchoate right to the freedom would not, I apprehend, be affected by ouster from the franchise (555) Townsend's Case, T. Ray. G9. S. C. 1 Lev. 1)1. (55fi) Townsend's Case, T. Ray. C,9. S. C. 1 Lev. Dl. R. v. Clarke, 2 East, 83. V. tit. Quo Warranto, .Judgment. 220 ELECTION. of being a freeman, for want of a legal admission; but such a title might be subsequently perfected by ad- mission. The differ- 557. It may be said that the right to the office is election and derived from election, but the right to the exercise and aciinission. enjoyment of it is acquired by admission. Effect when there is power to hold over. 558. If a mayor or other officer has right to hold over until a successor is elected and sworn, his office is not determined by the election, but by the due admission and swearing in of the successor, who cannot act until his title is so perfected. I. WHEN ADMISSION MAY BE. On a differ- ent day from that appointed. 559. Yet admission is an act so purely ministerial, that it may be done by the proper officer or officers at any time ; although there is a day and place expressly appointed for that purpose by custom statute or char- ter, it may be completed at another time and place. Therefore, if the time appointed by the constitution for admitting the mayor to his office is at the court-leet, held a month after the day of his election, and instead of waiting that time he is admitted on the day of his election or the day subsequent, it is a valid act, and his title to the office is complete, although the effect of it is to bring: him into office a month before the usual time. Under stat. 560. Where, according to the custom, the mayor is c. 4. s. I. elected on a particular day by the corporate body, and (557) R.V.Hull, 11 Mod. 391. (.558) Pendar v. Regem, .3 Ero. P. C. 174. ' (5.59) R. V. Nance, 7 Mod. 340. S. C. Sel. N. P. 959. (5(J0) Id. ibid. ELECTION. 221 sworn in by the town clerk in the presence of the pre- ceding mayor at a court-leet ^eld by the steward of the manor at the end of the following month, and the pre- ceding mayor has no power of holding over; if an election be made on the day following the prescriptive day by virtue of this statute, the person then elected must be sworn in, according to its directions, before the next in place who presides instead of the mayor ; this should be at the time of election, but may be on a subsequent day. The swearing in is not to be at the court-leet according to the custom, for the new mayor is altogether a creature of the statute and there is no injury done to the lord of the leet; for as the Corporation had otherwise been dissolved, he would have lost his franchise, and the customary right of swearincf would have been determined, but that it is saved by the statute, which in this instance transfers it to the presiding officer, and leaves it for the future in the lord. 561. It may be done when the proper persons have At what as- met accidentally, or at an assembly expressly convened ^"-""y- for any other business, although notice have been given that no business except that will be entered upon, and although an equal number of the proper persons have previously protested against entering upon the dis- cussion of any affair, except that for which they are assembled. For unless the majority openly express their dissent at the time the admission is proposed, their assent is implied ; it being an act which they are bound to do, the Court will not presume that they have acted contrary to their duty where the circumstances are of an equivocal character. (5C1) R. V. Courtenay, 9 East, 2G2, 3, 4. et n. '222 ELECTION. When re- trained by express provision. 562. Where the charter says, that if those who pos- sess mchoate rights make a^phcatiou to be admitted, they shall be admitted '* on a certain day, and at no other time," — it is only necessary that they make their claim and tender their qualification on that day ; for if there is not time to admit all who make their claims before the latest convenient hour of it, the Court must adjourn from day to day until they have investigated all the claims, and admitted all the applicants. They have an incidental power of making this adjournment, notwithstanding the restriction of the charter to " that day, and no other time." May be claimed at any time. 563. If not expressly restrained, those who are en- titled to their freedom have a right to claim admission at any convenient time they think proper ; for which rea- son, if the prosecutor have applied to be admitted at a reasonable time but not on one of the days particularly appointed, and having been refused, a mandamus to ad- mit is awarded him ; the defendant must show in the return that the admission is appointed to be on those days, "and at no other time;" for the showing that there are certain courts held in the course of the year for admitting those who apply, is not of itself sufficient to exclude the general right of admission at another time. However long after election, unless there has been a waiver. 564. A person may be admitted at almost any dis- tance of time after his election, unless, from subsequent transactions, there is reason to presume a waver of the election, and an acceptance of it by the Corporation. The lapse of twenty-five years is not of itself a bar to (562) R. V. Carmarthen, 1 M. S. 702. (563) R. V. Wliiskin, Andr. 3. (564) R. V.Jordan, C.T. H. 2o7. R. v. Courtenay, 9 East, 260. 263. et seo . ELECTION. 223 his admission ; but if, having had notice of the election within a reasonable time after it took place, he have lain by that number of years, and another has in the meanwhile been elected to till the same office, without his making any objection, this is such evidence of a waver, that a subsequent admission will give him no right to the office. II. WHO ARE TO ADMIT. 565. If there be no provision made for admission by Incidental any particular persons, it may be doubtful whether the whom. right is vested in the Corporation at large, to be executed at a corporate assembly in all respects (except notice) duly convened ; or whether it^is vested in the head officer alone, as the executive of the Corpora- tion for the discharge of ministerial acts of this nature ; or whether it is incidentally vested in that body which makes the election, whether the Corporation at large or a select class. If the charter impose an oath of office, and do not empower some one to administer it, there is no incidental right of doing so in the mayor or any other, but the Corporation must sue to the chan- cery for a dedimus to appoint a proper officer to admi- nister it. The act of admission is seldom left unprovided for by the constitution : the following cases have been deter- mined on the particular construction of charters. 566. If the admission and swearing in is to be before Right ijy the mayor and aldermen, there can be no valid admis- uon of' sta- tute. (565) R. V. Wake, 1 Barnard. 80. R. v. Decan' et Capitul' Dublin, 1 Str. 537. R. V. Courtenay, y East, 2Cm. (566) R. V. Ruller, 8 East, 392. R. v. Corry, 5 East, 379. R. v. Norris, 1 Barnard. 385. 224 ELECTION'. sion by the rest after the mayor has left tlie assembly. But if the cliarter provide that the person elected shall be sworn in before the last mayor, if alive and present, and in the presence of the aldermen, but if the mayor be dead or absent, then in the presence of the alder- men, this is a clear dispensation with the presence of the mayor in all cases, and he cannot be punished for non attendance. Whose as- sent neces- sary. 567. If the charter empower the mayor and aldermen to elect burgesses and to the same to administer the oath, the mayor and a majority of the aldermen must be present at the admission as well as the election, but it is doubtful whether the admission and administering of the oath with the assent of the mayor be not sufficient, although all the aldermen refuse their acquiescence. 568. " The mayor, bailiif or bailiffs, or other chief officer or officers who shall be elected pursuant to the directions of this act (v. tit. 531.) shall take the oath or oaths by law required, at the time of his admission into such office, before such officer as shall preside at such election in pursuance of this act (v. tit. 108), who is here- by authorized and required to administer such oath or oaths." Before Under this statute, where the next in place to the der'stjuute. niayor presides, he alone has the right of admitting the new mayor and a swearing in before the three next " to him" in place is void. By niiniste rial officer 569. The usual manner of admitting is for the town clerk to administer the oaths and admit, but this he (567) R. V. Courlenay, 9 East, 265. (568) 11 Geo. I. c. 4. s. 4. R. v. C. Maiden, 4 Bur. 2132. V. tit. 560. (569) R. V. Ellis, 2 Str. 994. S. C. in U. v. Coiirtcnay, 9 East, 253. n. ELECTION. 225 tloes as a ministerial officer, so that no sanction is de- rived from his act, unless it be by the consent of those in whom the right is vested. Therefore, whether the oath is to be administered "■ by" or " before" the mayor or others, an admission by the town clerk or other usual officer, in the presence of the mayor or the other per- sons against their consent, is insufficient. 570. The consent of the persons in whom the power Dissent /. J • . . , . . . must be 01 admittmg is reposed is indispensably necessary ; but manifest, as the act is one to which the officer elect has a legal right, such as may be enforced by mandamus, the Court will presume their assent, when there is no distinct evidence of the contrary, or the facts are upon the whole doubtfid ; for all officers are assumed to do their duty, until the contrary appears. 571. The dissent, to be effectual, must be manifested at the time of the attempted admission, but when it is incontrovertible, as if the proper persons are prevented in an endeavor to escape out of the room to avoid giving it their sanction, or if they openly declare their dissent, the pretended admission is void. 572. The effect of the consent of the officer, who has None can the sole right to admit, being requisite to the validity before*''" of the act, is to exclude him from beino- elioible to ^t'emselves. offices where his admission is necessaiy, for there were an inconsistency in permitting him to consent to his own admission ; on this account the person who pre- (570) Oldknow v. Wainvvriglit, 2 Bur. 1021. R. v. Courtenay, 9 East, 265, 2G6. (571) R. V. Courleiiay, 9 East, 26G. R. v. Duke of Bedford, 1 Barnard. 281. (572j R. V. Harper, 5 East, 219. R. v. C. Maiden, 4 Bur. 2132. V. tit. 496. R. V. Nance, 4 Mod. .337. 226 ELECTION. sides instead of the mayor, under the statute 11 Geo. I. is inehgible to the mayoralty. 573. So when the admission is befoi'e himself and one or two others, being principal officers, as where the new mayor and two baihfFs are to be admitted by the mayor and two baihfFs of the preceding year, neither of the preceding mayor or baihffs is eligible to either of these offices. — This is not an exact statement of the case? but a necessary inference from it. 574. But it seems that where the mayor is ehgible out of the body at large, an alderman is not ineligible merely because the mayor is to be admitted by the mayor and aldermen. III. FORM OF ADMISSION. Oath of of- 575. There is a form of admission prescribed by the constitution of all Corporations, and there can be no legal admission where it is not observed. It generally consists in taking the oaths of office, and a proper entry of the admission in the Corporation books, which is a matter of record : a deed under the Corporation seal is unnecessary, unless specially required. In fact the essence of the admission is the administering of the oaths, of which the entry is merely evidence. But an allegation of a custom to administer the oath " before" admission is sufficient ; for the oath having been taken, the person is by that act admitted, or if any further act be necessary after the swearinyr, the Court will grant a mandamus to perform it. (573) R. V. Harper, 5 East, 220. V. tit. 495. (574) R. V. Harper, 5 East, 215. (575) R. V. Bosworth, 2 Str. 1113. sion. ELECTION. 227 576. There may be a o-ood custom that the oath Custom shall be on the New Testament, even m tradmg cities, to be on the the freedom of which there is no reason for excluding ment. those who are not Christians ; but if a Jew apply to the Court for a mandamus to be admitted, it is in vain to dispute the custom, he should apply for a special man- damus to be admitted on taking the oath of his nation ; but the opinion of the Court appeared to be against the admissibility of Jews. So a quaker who would be pre- cluded by his scruples from taking any oath, is entitled to admission on making his solemn affirmation instead of an oath ; and his application for a mandamus, that he may be admitted on so doing, will be granted. 577. When the steward of a court-leet is bound to What enroll the names of those qualified, and administer to an admis- them the oath of allegiance, this is a legal admission for the purposes connected with that Court, and after a refusal to do so, a mandamus will be granted on a proper application. 578. " No master, wardens, or fellowships of crafts nor any of them, nor any rulers of fraternities, guilds, or brotherhoods, from henceforth compel or cause any apprentice or journeyman by oath or bond or otherwise, that he after his apprenticeship or term expired, shall not set up nor keep any shop, house, or cellar, nor occupy as a freeman, without licence of the master, wardens, or fellowship, of his or their occupation, for and concerning the same" on penalty of 40/. one half to the kino; and one half to the informer. (576) R.v. Bosworth, 2Str. 1112, 1113. R. v. Morris, 1 L.l. Ray. 3:57. R, V. March, 2 Bur. 1004. (577) R. V. West Looe, 3 B. C. 68C,. S. C. 5 U. R. (iOO. (578) 28H.VIII. c. 5. Q 2 228 ELECTION. 579. " Eveiy person and persons so placed, elected, and chosen, (v. tit. 506.) shall take the oaths of allegiance and supremacy at the same time when the oath for the due execution of the said places arid offices respectively shall be administered, and in default thereof every such placing, election and choice shall be void." 580. These oaths "shall be tendered and adminis- tered by such person or persons respectively, who by the charters or usages of the said respective cities, cor- porations, and boroughs, and cinque ports, and their members, and other port-towns, ought to administer the oath for due executing the said places or offices respec- tively, and in default of such by two justices of the peace of the said cities, corporatioiis, and boroughs, and cinque ports, and their members and other port-towns for the time being, if any such there be, or otherwise by two justices of the peace for the time being of the respec- tive counties where the said cities, corporations, or bo- roughs, or cinque ports or their members, or other port- towns are." Ex^endsto 581. The statute of Charles extends to Corporations rations. subsequently created, as well as those which were in existence at the time of its enactment; on which account it is not necessaiy to show in the pleadings, that the Corporation, into an office of which the unqualified per- son is elected, was at that time in being. The oaths 532, The person elected must take the oaths at his must be de- '■ aaanded. peril, and demand that the proper officer administer (579) 13 Car. II. st. 2. c. 1. s. 12. as altered by 5 Geo. 1. c. G. s. 3. (580) 13 Car. II. St. 2. c, 2. s. 10. (581) Guilford v. Clarke, 2 Vent. 247. R. v. Aldborough, 10 Mod. 101. (582) R. v.Thacker, Sir T. .Jones, 121. R. v. Oxon, 2 Salk. 429. R. v. Slatford, 5 Mod. 317. V. tit. Mand. Return, Admit. ELECTION. 229 them to him. It is not, perhaps, incumbent upon the officer to tender, but if he refuse to administer them upon demand, a criminal information will be granted and a fine imposed by the Court, and a mandamus will be awarded, to compel him to do his duty. But to a mandamus to admit, it is a good return, that the person elected has not taken these oaths. Perhaps it may be a sufficient ground to sustain an action for damages for loss of the place, if the officer neglect to tender them. 583. The last and preceding annual indemnity acts Admission ^ ^ • • 1 stamps. contain a proviso for the stamping of admissions, where it had been neglected in proper time. 584. If the admissions of several freemen are made upon upon one stamp, that of the first named is good, but those of all the others are void. 585. " If any mayor, bailiff, sheriff, town clerk, or Antedating \~ . 1 , admission. other officer of any Corporation, or other person what- soever, shall wilfully and fraudulently antedate or cause to be antedated any admission of any freeman, such mayor, bailiff, sheriff, town-clerk, officer, or other per- son shall for every such offence forfeit and pay the sum of 500/. to him, her or them who shall inform and sue for the same within one year." 586. The admission gives no title to the officer ; it Effect of 1 • 1 • n ii m , 1-1 admission, only admits him to the exercise ot the omce to whicii he is presumed to have had an antecedent title, which may be questioned and defeated. (583) 6 Geo. IV. c. .3. s. fi. (584) Gilby v. Lockyer, Doug. 207 . (.')85) .3 Geo. HI. c. 15. ss. 3. 6. (.■iSfi) Owen v. Saunders, 1 Ld. Ray. I.i9. 230 ELECTION. Section VI. REFUSAL OF OFFICE. Penalty im- posed by ii by-law. Imprison^ ment by custom. 587. A Corporation has a right to the service of all its members in those offices to which they are capable of being elected ; for this reason, if one be elected, and refuse the office, he will be compelled by the Court to undertake it. And a by-law may impose a penalty upon him for the mere refusal, although he remains liable to service after paying the penalty : or the by-law may release him from the service by treating the penalty as a compensation. 588. The manner of punishing members by levying a penalty on them for refusal to serve an office, has been already treated under title By-law ; and under title Custom, it has been shown that there may be a cus- tom to imprison for this offence. Indictment. 589. Besides these methods of punishing a refusal of office, when the public sustains an injury from it, as by its impeding the administration of justice in the municipality, it amounts to a misdemeanor for which the recusant may be indicted. 590. An indictment against a constable for refusing the office, must show a prescription in the Corporation to elect such an officer ; for it will not be intended that they have constables, for at common law constables must be appointed at the court-leet. {h%7) R. V. Samuel Bower, I B. C. 587. S. C. 2 D. R. 843. (588) R. V. Bedford, 1 East, 80. V. til. 298. London v. Vanacre, 1 Ld. Ray. 499. (590) R. V. Bernard, Skin. 6Vi9. V. tit. 432. ELECTION. 231 591. But it is not an indictable offence to refuse on an anterior day to agree to accept the office on the day when he ought to enter upon the execution of it ; for when that day arrives he may perhaps undertake it, and the public receives no injury from the first refusal. 592. Where an indictment, from the dilatoiiness of Criminal informa- the proceedmg, wdl not accomplish the same object, the tion. Court will award a criminal information. In this case, the office was annual, and the administration of justice in the municipality had been altogether impeded, no sessions having been holden in the city since the election, in consequence of the defendant's refusal. 593. But a criminal information will be granted only in cases where the office affects the public interest, such as the office of mayor or sheriff of a town, by whose refusal the administration of justice is impeded. And not where the office is purely corporate, although a qua- lification for the service of public offices, as for refusing the office of common-council-man, although the sheriffs are eligible from among them alone. 594. Neither will it be granted, where there is a fair doubt on the person's liability to serve : on this ground it was refused, where the application was against a pro- testant dissenter who had qualified under the Toleration Act, there being a by-law of the Corporation which the ., Court left them to enforce against him if they could. But in a former case an information was granted against a dissenter for such a refusal ; it does not however ap- (591) Loudon v. Vanacre, 12 Mod. 272. S. C. 1 Ld. Ray. 499. (592) R.v. Woodrow, 2T. R. 732. (593) R. V. Hungerford, 11 Mod. 132. 142. (594) R. V. Grosvenor, 1 Wils. 18. S. C. 2 Str. 1193. R. v. Lanrood, 2 Vent. 248. '2^?'2 ELECTION. pear, whether that Corporation had provided any by-law on the subject. These cases are cited, because analo- gous cases may arise; but it is now settled, that dissen- ters are not liable to serve if they have not received the sacrament. 595. Nor will it be gi-anted, when it appears that the person did not accept the office rather from the situation of his own affairs than from any wilful neglect, particularly if the Corporation may find a more proper person to serve ; at least, where there is a by-law they will be left to try tirst the effect of enforcing it against him. As where, from the nature of his business, the person is absent from the place a great proportion of his time. What is a 596. When the recusant is disqualified on account of refusal of . • , , 1 ■ i i 1 1 office. not havmg received the sacrament, he is protected by the Toleration Act in certain cases only : if therefore he have not qualified under that act, it still remains a question whether he is liable to the penalties of refusal, and the opinion of the Courts seems to be that he is. It was held in the case of Larwood, by three judges, that the intention of the statute of Charles was to com- pel all persons to receive the sacrament for the purpose of accepting corporate offices, and therefore that neg- lect to receive it, being a wilful incapacity, was equiva- lent to a refusal to serve, and rendered the person liabis to the penalties and punishment of refusal. But a pre- ceding case was determined on the ground that this statute operated merely as an exclusion of such persons from office, as were suspected by the king of entertain- (59.5) R. V. Denison, 2 Keiiyon, 260. [rm) R. V. Larwood, 1 Ld. Ray. ;?1, ;i2. S. C. Skin. 575. S. C. 4 Mod. 270. S. C. 12 Mod. 6!). .Surr v Kxon, 3 Lev. 117. ELECTION. ing opinions contrary to the established government and church principles, and that therefore an exclusion from office was the only punishment intended. Of this opi- nion also, were Sir S. Eyre, and the Lord Keeper, against the three judges in the case already mentioned. And whether it be the doctrine of law or not, it is the only doctrine consonant with policy and common sense ; for the contrary would be not only intolerant of con- scientious opinions, but repugnant to the sentiments of eveiy generous mind, and would operate to introduce into places of trust those dissenters alone who were rene- gades to their principles for the sake of avoiding punish- ment, to persecute with pains and penalties those whose sense of right prevents their compliance, and would aftbrd Corporations an opportunity of accumulating money by electing those only to office who were pre- cluded by the laAv from entering upon the discharge of its duties. The only topic which can be urged in defence of the doctrine is, that no one is compellable to become a freeman of the Corporation, and so may avoid incurring the chance of being elected ; but in many Corporations this would be to exclude tradesmen earning their subsistence in the municipality. 597. A refusal to take the oaths of allegiance Sec. imposed by the statute is equivalent to a refusal of the office, and renders the recusant equally liable to the penalties, for it is a refusal of that without which the office is void and cannot be held. (597) Exon v. Starre, 2 Show. 1»1). 233 ELECTION. By whom. Of whom. When not corpora- tors. Section VII. APPOINTMENT OF MINISTERIAL OFFICERS. 598. The appointment of ministerial officers is some- times by the choice of the whole or of a part of the Cor- poration, sometimes by a particular officer only. In the former case there must be an election as of corporate officers. 599. Ministerial officers may be selected from those who are not members of the Corporation, unless the con- stitution impose a restraint ; and they do not become members by virtue of their office, unless by special pro- vision of the custom or charter. In what form. Without deed. 600. Ministerial officers may sometimes be appointed- by a mere entry in the public books, at times, even that may be unnecessary : in other instances they mvist be appointed by deed under the corporate seal. Sometimes there is an oath attached to their office, but frequently no oath is required. 601. The mayor and commonalty may assign auditors without deed, or appoint a bailiff to make a distress, or a cook or butler. By deed. 602. But a bailiff Cannot be appointed without deed to make a seizure of goods on behalf of a Corporation ; nor can they without deed appoint one to appear as their bailiff in an assize, or to make claim to lands, or to take ((iOl) 3 Jenk. Cent. (i8. 1 Salk. 191. ( W2) Home v. Ivy, 1 Vent. 47. S. C. 1 Mod. 18. ELECTION. 235 their trees, or enter upon land for a condition broken ; nor can they without deed assent to a disseisin made for them, because the doing of such things does not fall within the ordinary duty of a mere bailiff, as the making cognizance for a distress does. 603. The attorney to appear for them in quo war- ranto, must be appointed by warrant under the corpo- rate seal ; and where there are two seals, one used by the mayor for the purpose of sealing those deeds which he alone has a power of executing, and another for sealing those which the whole Corporation make, the appoint- ment must be under the latter. But in the case in Salkeld, there is a quaere, whether an attorney appointed by one of two bailiffs, to appear to an information against the Corporation is not sufficiently constituted, if the Corporation do not disavow the appointment. 604. An attorney to plead in abatement on behalf of a Corporation, must be appointed by a special warrant allowed by the Court. 605. When the principal office lies in grant, the Deputy, deputy must be appointed by deed. 606. If a deputy be appointed by the Corporation in the presence and with the acquiescence of the principal, he is not the officer of the Corporation, but the repre- sentative of the principal ; the act of the Corporation is referable to him, and must be construed to be his appointment, so that on the determination of the office of the principal, the deputyship is instantly terminated ; (603) 3 Salk. 104. R. v. Chester, 2 Show. 366. S. C. Skin. 154. (604) V. lit. 49. (605) Owen v. Saunders, 1 Ld. Ray. VA). R. r. Lcnthal, 3 Mod. 147. (606) R. V. Bedford, 6 East, 366. '236 KLKCTION. for it cannot be regarded as a new office created by the Corporation. Mandamus to aclinit. a ministerial officer. 607. A mandamus lies to admit a ministerial officer who is not a mere officer at will to his office, and to swear him in, but not to admit him into the Corpo- ration unless he becomes a member of it by virtue of his office. A deputy. 608. So a mandamus lies on the application of the principal, to swear in the deputy of an officer to such office and for such purposes as he has a power of ap- pointing a deputy, but no further. But it will not be granted on the application of the deputy. Linbility to serve. 609. None but corporators of the class liable to serve any office, can be punished for refusing it. (607) Case of a Town Clerk, and R. v. Westminster, Comb. 244. R. v. London, 2 Barnard. 398. R. v. London, 2 T. R. 182. et n. V. Mandamus to Admit, and Return. (608) R. V. Clapham, 1 Vent. 111. R. v. President des Marches, 1 Lev. 306. R. V. Gravesend, 2 B. C. 604. S, C. 4 D. R. 117. 237 CHAPTER IV.- AMOTION, ^r. This chapter treats of the manner in which an office legally acquired may be subsequently vacated or the freedom lost, either by the agreement of the corpo- rator with the body of which he is a member, or by his misconduct and the Corporation resorting to its power of punishing him by amotion. It is divided into four sections : — I. Resignation. II. Forfeiture. III. Formal Amotion. IV. Disfranchisement. There is no other manner in which a person who has le- gally entered upon an office or acquired the freedom can relinquish or be dispossessed of it, for the writ and infor- mation in the nature of quo warranto are applicable only to those cases in which the officer never had a legal title, but was a usurper from the beginning, or where having once been legally in office he has ceased to be so by amotion or resignation, and has subsequently exercised it by mere usurpation. AMOTION Section I. RESIGNATION. An office may be resigned in two ways ; either by an express agreement between the officer and the Corpora- tion, or by such an agreement imphed from his being- elected to another office incompatible with it : and per- haps, what is esteemed among the causes of amotion, such a non-residence as to be evidence of an abdication of office and desertion of the municipality, might with greater propriety be introduced in this place as an im- plied resignation. 610. When the officer is appointed by an instrument under the corporate seal a similar instrument is neces- sary to effect a sufficient resignation. But where a deed is necessary, a return that he resigned is sufficient, for that is an implied allegation of a resignation accord- ing to the forms which are required by law, and the deed need not appear to the Court on the pleadings, but must be produced at the trial in support of the general averment. 611. If the officer be constituted by election, of which an entry is made in the public books, no instrument under seal is necessary to determine the office, but the resignation may be made by parol and completed by a similar entry, which manifests the assent of the Corpora- tion to the proposal of the corporator who offers to resign (610) R. V. Chalke, 1 Ld. Ray. 226. Manley v. Long, 3 Lev. 107. R. v. Rippon, 1 Ld. Ray. 56.''.. Potter v. North, 1 Sand. .347. n. 4. (611) R. V. Chalke, I Ld. Ray. 226. R. v. Rippon, lb. .563. AMOTION. 239 612. When the constitution prescribes a particular form in which the resignation is to be made, that must be complied with in all respects. But otherwise an alderman or capital burgess, and of course inferior officers, may resign by letter to the Corporation, as is the manner in London, or by word of mouth, as by de- claring before a corporate assembly that he resigns his office or will continue no longer in the Corporation, and requesting them to accept his resignation. But if a man speaking at large, declare that he will be no longer an alderman, this does not amount to an offer to resign. 613. To complete a resignation it is necessary that Acceptance i o rr> ofresigna- the Corporation manifest their acceptance of the offer tion. to resign, which may be done by an entry in the public books, or electing another person to fill the place, treat- ing it as vacant. It has been said, that although the Corporation have accepted the oifer to resign, yet that the officer may at any time revoke it, until the Cor- poration have elected another into his place. 614. It is sufficient in a return to a mandamus to Pleaded, restore an officer, to aver that the prosecutor has duly " resigned" his office in general terms, for such an aver- ment implies all tilings which the law holds essential to a resignation ; therefore if a deed be requisite, it is im- plied in this general averment, under which on the trial such deed must be produced ; so if a new election be (612) R. V. Chalke, 1 Ld. Ray. 226. R. v. Rippon, 1 Ld. Ray. 563. S. C. 2Salk. 4;5.3. R. v. Lane, 2 Ld. Ray. 1304. Jenning's Case, 12 Mod. 402. Hazard's Case, 2Rol. 11. R. v. Exeter, Comb. 197. (613) R.V.Lane, 2 Ld. Ray. 1304. S. C. 11 Mod. 270. S. C. Fortes. 275. R. V. Rippon, 1 Ld. Ray. 563. 2 Salk. 433. S. C. Jenning's Case, 12 Mod. 402. Hazard's Case, 2 Rol. 11. (614) Verrior v. Sandwich, 1 Sid. 305. and authorities in last para- graph. 240 AMOTION necessary, perliaps it need not be averred, but shall be implied in the general allegation. Yet where the resig- nation is by implication, it is not sufficient to aver it in general terms, but all the important facts must be shown, that the Court may have an opportunity of examining whether they amount to a resignation. Acceptance 615. Every Corporation has an incidental power of by select .... body accepting the resignation of its officers, and therefore when it is averred generally, it should be shown that the resignation was made to a corporate assembly ; and if the right to receive it be in a select body, that ought to appear on the pleading, and how it was acquired by them. 616. I presume that a right to accept a resignation passes incidentally with the right to elect ; for it is not a power to be compared to that of amotion, and it seems that an office should be relinquished by the consent of those in whose authority it originated. 617. A resignation by implication, is where a person holding one office is appointed to, and accepts another incompatible with it. At one time it was thought that such a resignation could only be where the second office is superior to the former : but it has been determined to be quite unimportant, and that if one holding a superior office, accept another subordinate and incom- patible, the appointment to the second office is legal, and operates to vacate the former. This is an absolute (615J R. V. Tidderley, 1 Sid. 14. V. Hazard's Case, 2 Rol. 11. (ei'J) Id. ibid. (617) Gabriel v. Clarke, Cro. Car. l.'^B. Verrior v. Sandwich, 1 Sid. .305. R. V. Godwin, Doug. 38.3. n. 22. Mil ward v. Thatcher, 2 T. R. 87. R. v. Pateman, 2 T. R. 779. AMOTION, 241 determination of the original office, and leaves no sha- dow of title in the possessor ; so that neither quo war- ranto nor amotion is necessary before another may be elected. 618. The office of mayor, alderman or jurat, being Alderman, • f • ^ rr^ • ■ Ml • i i r &c. and Re- jiidicial officers, is incompatible with that or recorder, corder. who is an adviser to them. 619. So are such offices incompatible with that of Town clerk . . . IP ^^'^ alder- town clerk, when the latter is the minister to the for- man, &c. mer; and it is unimportant that on account of the number of jurats, &,c, it is not in general necessary for the town clerk to sit in that capacity, for the constitu- tion requires that the officers shall be effisctive and capa- ble of discharging their duty, and his presence may be necessaiy on account of the absence or sickness of others. But where the aldermen or jurats are not judicial officers, there is no necessary incompatibility between their func- tions and that of town clerk. 620. A financial officer may be elected an alderman, Financial although the auditors of his accounts are selected from auditor of among the aldermen, but he cannot be appointed one counts. of the auditors : it is said that such an appointment vacates his financial office ; but I imagine that this is not correct, and though the offices are incompatible, an appointment to the latter with acceptance, does not vacate the former, for such appointment would be rather void, in as much as the audit may be of former accounts, (618) R. V. Marshall, cited in R. v. Trevenen, 2B. A. 341. (619) Verrior v. Sandwich, 1 Sid. 305. Milward v. Thatcher, 2 T. R. P' R.v. Pateman, 2T. R. 779. Baston's Case, Poph. 176. S. C. Noy, S. C Dyer, .332. b. notis. (620} R. V. Godwin, Doug. .383. n. 22. R. v. Pateman, 2T. R. 779. R 242 AMOTION. and iberefore the anterior office slioukl be regarded ratlier as a disqualification for the latter, than an ofiice simply incompatible. Steward and port- reeve. 621. The offices of steward and portreeve may be incompatible where a Court is to be lield before them ; for the public may be entitled to the opinions of two men, of which advantage they are deprived, when both offices are vested in the same person. But if the pleadings allege that A. was steward and portreeve, the opposite party must either deny that he is steward, or that he is portreeve, for if the offices are incompatible, in as much as acceptance of the latter is an abdi- cation of the former, he is not steward and portreeve, but holds only the latter of these offices : and if issue be not taken upon this fact, it will be considered as ad- mitted by the subsequent pleading, that he is both steward and portreeve, after which the opposite party cannot be allowed on demurrer to question the compati- bility of the offices. Capital bur- gess and steward. 622. There is no apparent incompatibility in the offices of capital burgess and steward (a superior office in the Corporation), particularly where there has been a usage for upwards of a century, for the same person to fill both offices; but perhaps if the burgess be elected mayor, this office is incompatible with that of steward. Nor does there appear to be any incompatibility between the offices of mayor and coroner, which in some Corpora- tions are united in the same person, as in London, where some of the duties of the coroner are discharged by the sheriff. (621) Green V. Davis, 3B. A. 63. (622) R. V. Trelawny, 3 Bur. 1616. City of London's Case, 8 Rep. 126. a. UtlaRcrie, Dyer, 317. Co. Lit. 288. b. AMOTION. 243 623. But election of an officer to an incompatible Election to office does not vacate the former before acceptance by iJieo'fficejf the officer, for although a Corporation has a right to the i^s'^vdd?''^^ ' service of all its qualified members, in any office to which they elect him, yet having already appointed him to one, that is a temporary disqualification, which renders him ineligible to the other, and the Corporotion having chosen to elect him, must be presumed to have been aware of that circumstance, and to have precluded themselves from calling again upon his services. There- fore, if on pretext of electing the mayor to be town clerk, or the town clerk to be mayor, they exclude him from his former office, a mandamus will be granted to restore him to it, unless he has precluded himself by assenting to his election into the other. 624. Where the offices are not in fact incompatible, Offices acceptance of a second may be a resignation of the first not be con- on account of the fonti of the constitution ; as if the Cor- poration is to consist of a mayor, recorder, town clerk and twelve aldermen, the recorder or^town clerk cannot be an alderman, although there be no inconsistency in the duties of the two officers, for such a method of electing would reduce the Corporation to a mayor and twelve or thirteen other officers instead of fourteen, of which it ought invariably to consist ; for it cannot be presumed that, when the crown constituted a certain number of dis- tinct offices, it intended that the Corporation might con- solidate two or more of them in one person. (623) Baston's Case, Poph. 176. S. C. Noy. 78. S. C. Dier, 332. b. notis. Milward v. Thatcher, 2 T. R. 88. R. v. Pateman, 2 T, R. 779. (624) Milward v. Thatcher, 2 T. R. 88. r2 '244 AMOTION. Section II. FORFEITURE OF OFFICE. Actual ces- j.er of office. 625. There may be a forfeiture of a corporate office, in which case the officer is actually out, and the office ipso facto vacant, so that another may be elected to fill it without its being necessary to resort to an amotion or proceedings in quo warranto. But the case of Lord Bruce does not come within the rule, and cannot be much relied on as authority to this purpose. Few in- stances of such for- feiture. 626. There are but few cases in which such a for- feiture can occur, for if the statute provide that an alderman shall remain in office no longer than he con- tinues to reside within the municipality, his non-resi- dence does not in fact vacate the office, and there must be an amotion before another can be elected. Neither, it seems, does conviction of an infamous offence, such as perjury or forgery, vacate the office without amotion. Effect of outlawry. 627. Even outlawry is not an absolute forfeiture of office, but such a temporary disability that one amoved cannot obtain a mandamus to be restored from the time of the outlawry to that of the reversal ; and outlawry is a sufficient return to such a mandamus in general terms, so as to preclude an examination of the formality of the amotion, or even the sufficiency of the cause : and so great is the disability, that if the return be double, set- ting forth first an insufficient cause, and then the out- lawry, no restitution will be awarded. But if the writ (625) R. V. Ponsonby, Say. 247. Lord Bruce's Case, 2 Str. 819. (626) Vaughan v. Lewis, Carth. 229. (027) R. V. Bristol, 1 Show. 288. AMOTION. 245 recite the outlawry, and also its reversal, a legal amotion must be shown, or a peremptory writ will go. 628. Indeed it may be more proper to define a for- feiture of such an office as that of alderman, in which the occupant has a freehold, to be the committal of such a civil or corporate offence, as is a sufficient cause of amotion, and not merely such an offence as ipso facto vacates the office. Section III. FORMAL AMOTION. Amotion applies only to officers ; for the removal of a corporator from the freedom is a disfranchisement, which a simple amotion does not by any means effect. This section is reduced into several subdivisions — 1. Who may amove. 2. When they may amove. 3. For what cause. 4. In what form. 5. Effect of an amotion. And several of these subdivisions will be a^ain di- vided for the purpose of presenting an analytical view of the subject. I. WHO MAY AMOVE. 629. If the power of amoving any officer be not incidental expressly confided to a particular person or class, it is P°^'"*'' (629) Lord Bnice's Case, 2 Sir. 81!). 11. v. Lyme Regis, Doug. 153. R. V. Doncaster, Say. 38. 249. R.V.Richardson, 1 Biir. 539. R. v. Pou sonl)y, 1 Kenyon, 29. R. v. Feversham, 8 T. R. 356. 246 AMOTION. incidental to the Corporation at large, and not to the per- son or class in whom the right of appointing or electing such officer is vested ; for this reason, whenever an amo- tion is pleaded, unless the authority by which it is trans- ferred to a select class be shown, it will be intended to remain in the body at large, and must be proved to have been exercised by the whole Corporation. Customary power, when not altered by charter. 630. If the power of amoving certain officers be an- tecedently in a select body; and the Corporation accept a new charter silent upon that head, but making other alterations and recognizing or confirming such body, although under a different name, and in general terms confirming tlie Corporation in all cases where no altera- tions are introduced, the right of amotion still continues in this select body. Who may amove a ministerial officer. 631. If the charter give the *' mayor for the time being" power to appoint a town clerk, he has power to amove the town clerk appointed by his predecessor with- out any notice or formality, and may exercise it by simply appointing another. Amotion by 632. If the charter reserve to the kmg a power of order of the . r. i ■ i Privy Comi- amovmg the corporators at pleasure, or ofsodomgand appointing others in their places, it is void in toto, and not merely as to the power of amotion. 633. But it has been subsequently held, that where the provision is, that the King may by his order amove (6:i0) Haddock's Case, T. Ray. 439. R. v. Knight, 4 T. R. 429. (631) R. V. Campion, 1 Sid. 15. ,6.32) R. v.Wynn, 2 Barnard. 391. R. v. Carlisle, 1 Str.387. (633) Braithwaite's Case, 1 Vent. 19. S. C. 2 Keb. 488. R. v. Carlisle, ] Str. 387. R. v. Amery. 1 T. R. 590. AMOTION. 247 the corporators or any of them, and that on such amoval the remainder of the Corporation shall elect others in their room, the terms of the charter preclude the sup- position that the king can remove all at once, in as much as there must be a remainder left to exercise the power of election, but that the king may amove one or more, so he leave enough to form an elective assem- bly. This point was not necessary to the decision (and the case itself was overruled in the House of Lords), or I imagine the Court would not have attempted to intro- duce a doctrine so thoroughly unconstitutional, and so decisively contrary to precedents, that the only one which can be found in support of it occurred in the time of Charles the Second, and was afterwards mentioned in the Court with irony and reprobation. 634. The power of amotion does not pass by a gr^nt Power not of the power to elect as incidental to it, but must be to rio-ht of expressly reposed in the select body by the charter. It ^ ^^^"^s- has not been directly determined, but it was assumed by Lord Mansfield, that it may be transferred to a select body by a by-law in the same manner as the right of election. 635. It was said that when the common council has When pre- sumed in a the sole right of election and making by-laws there is select body. some foundation for thinking that they possess the power of amoving those whom they elect, though claim- ing it neither incidentally nor by grant of the charter. I apprehend that when the Corporation is prescriptive, this is evidence for a jury to presume a custom if no- (634) Bagff'sCase, 11 Co. 99. a. S. C. lRol.225. R. v. Richardson, 1 Bur. .539. S. C. 2 Kenyon Ca, 119. Cowp. 502. R. v. Doncnster, 2 Ld. Ray. 1566. S. C. 1 Barnard. 265. R. v. Sadler, Styles, 477. R. v. Ox- ford, Palm. 452. (d^ih) R, V. DoncabUM-, 1 Barnard. 26.3. ■248 AMOTION. thing contradictory appear ; but in a Corporation by charter, surely such a power must be shown to have been expressly granted by the charter or a subsequent by-law, or at the utmost these facts sliould be left to a jury as evidence of a lost by-law. II. WHEN THEY MAY AMOVE, From what 636. The amoval can be only from that office, against ®*'^^" the duty of which the offence is committed ; so that if the corporator hold more than one office, and miscon- duct himself in one, he can be removed from that only, and an amotion from the other is illegal; but if the offence be against the duty of both offices, the removal may be from both. 637. If. a mayor or chamberlain have misapphed or embezzled the funds of the Corporation which are en- trusted to him in that capacity, contrary to his duty of office, he may be amoved from it ; but if at the same time he be an alderman or burgess, this cause is insuffi- cient to autliorize an amotion from the latter office, although a violation of his oath as mayor or cham- berlain. Second 638. If one who has been irregularly amoved for good cause, be subsequently restored in obedience to a peremptory writ of mandamus, he may be again amoved for the original cause, in a more formal manner. (637) R. V. Chalkc, 1 Ld. Ray. 22G. S. C. 5 Mod. 257. R. v. Doncas- tcr, 2 Ld. Ray. 1566. S. C. 1 Barnard. 265. (638) Taylor v. Gloucester, 3 Biilstr. 190. R. v. Ipswich, 2 Ld. Ray. 1283. AMOTION. 249 639. When the ofience is ao-ainst his duty as a cor- When be- . fore convic- porator, but not a misdemeanor against the general tion. law, he may be amoved by the Corporation or those in whom the power is vested, without any previous proceed- inos ag-ainst hini in the courts of law. 640. When the oftence is against his duty as a cor- Doubtful, porator, and at the same time a misdemeanor against the law, it is not settled whether he may or may not be amoved, before he has been convicted in a court of jus- tice : the argument against it is, that no court can en- tertain proceedings which woxdd tend to prove a per- son guilty of such an offence, before he has been con- victed by a jury, the only legal tribunal ; both because it would be a prejudice against him on the trial, and be- cause it may involve the inconsistency of a conviction in the court of the Corporation, and an acquittal before the Court of criminal judicature. 641. The Corporation had power to amove for any Bribery, misdemeanor, expressly given bv the charter, and they amoved a capital citizen for having given a bribe to a freeman, and offered him another, on condition of his voting for a particular person at the election for a mayor. The return showed an amoval for " the causes aforesaid" — an information " to the following effect" — that articles were exhibited against him to the effect in the information — and then set forth the offence as above, and the oath of the informer positively to the offence. — ' (639) R. V. Richardson, 1 Bur. 531). R. v. Liverpool, 2 Bur. 732. R. v. Derby, C.T.H. 154. (640) R. V. Richardson, 1 Bur. h3S. R. v. Liverpool, 2 Bur. 732. R. v. Derby, C.T.H. l.'w. (641) R. V. Carlisle, Fortcsc. 200. S. C. 8 Mod. 20. 103. S. C. 1) Mod. 379. R.V.Derby, C.T.H. 155. Dodwell v. Oxford, 2 Vent. 34. Chap- man V. Wisii, Fitzgib. 155. 250 AMOTION. Although there might have been a previous conviction at law, yet being a great offence against the duty of his office, the Corporation have a jurisdiction, and may amove before a conviction by a jury, there being an express power to remove. This was the opinion of the whole Court, and the form of the return was considered sufficient. But in the judgment given by Lord Hardwicke, in R. V. Derby, he refers to this case in the following tenns : " Mandamus to restore a freeman of Carlisle, return that he corruptly gave money to one of the Cor- poration to vote for a mayor ; and on that return the Court was equally divided : Ld. Ch. J. Pratt, and Mr, Justice Powis, held that a precedent conviction was ne- cessary ; but Mr. Justice Eyre, and Mr. Justice '(For- tescue I suppose) were of a contrary opinion, and they held, that for things which are merely offences at com- mon law, a precedent conviction is necessaiy, because in such case the removal is solely on account of the party's infamy ; but that for an action prejudicial to the Corporation, as well as contrary to the common law, the party might be disfranchised without a prior conviction ; and so that case rested ; so that it is hitherto quite vmsettled." Lord Hardvvicke appears to have mistaken the point on which the Court divided ; for his obsei'va- tion is not borne out by the report cited in his judg- ment, but absolutely contradicted both by Fortescue, who says the whole Court was agreed on each point, and 8 Mod. 103. in which it is said that three judges held the amotion good, before conviction, against Pratt C, J. who stood alone, and that they were equally di- vided on the form of the return. Or it may be that his lordship had seen only the first argument of the case when the Court was so divided, though Powis J. after- AMOTION. 251 wards changed his opinion. — We have then a direct decision on this point, if we confide in Fortescue's report, who was himself one of the judges, by the unanimous opinion of the Court after argument and long considera- tion, and if we resort to the case in the Modern Report, by three judges against Pratt C.J. Yet the opinion to which Ld. Hardwicke C. J. seemed to incline, that there ought to be a previous conviction, is most conso- nant with reason : for the king cannot grant a Corpo- ration any extraordinary power of trying such offences, so that the express grant avails nothing ; for unless the Corporation has by the common law the right of inves- tigating the corporators' conduct in these respects, it cannot be conferred by charter, for that would be an assuming to create a court with power to proceed in a manner different from the rules of common law, which cannot exist except by prescription or statute. 643. A burgess was amoved before conviction for Razing cor- criminally razing entries in the Corporation books, which books. were at first proper : this was held to be a misdemeanor as well as a breach of corporate duty, and Holt C. J. inclined that the amotion could not be supported, but the case was adjourned, and subsequently determined against the return upon another point, 644. The amotion was for riotously assembling and Hindering ■' ° corporate assaulting several corporators, and thereby impeding 1'"?'"'^^?^' the business of the Corporation, and held to be legal riot, before conviction for the riot, because the offence is in its nature two-fold : the impeding of the corporate business, an offence against his duty, for which the amo- tion is sufficient ; and the riot, which is but a circumstance (643) R. V. Chalkc, Comb. .H97. R. v. Derby, C.T. II. I'lo. ';644) Haddock's Ca. T. Ray. 439. R. v. Derby, C.T. H. 135, 156. 252 AMOTION. attending his breach of duty, for he might have been found not guilty, and acquitted of the riot upon an indict- ment, and still have been guilty of a breach of his duty ; or he might have been guilty and convicted of the riot, and yet have been innocent of a breach of his duty to the Corporation, so that as an indictment would not have determined the matter, it had been vain and nugatory ; and this is ditierent from the case of Chalke, for there he could not have been guilty of the offence at law with- out at the same time having been guilty of a breach of his duty. Attending 645. Under this class of olfences must be ranked that meethi'gs!' of a mayor, who attends divine service with the insignia of office at any places of religious worship other than those of the established church. Perjury, forgery, &c. 646. When the offence is not against his duty as a corporator, but indictable as a misdemeanor, and of so infamous a nature as to render him unfit for any public charge, as perjury or forgery, an officer cannot be amoved before he has been convicted by a jury, nor is such an amotion sustained by a subsequent conviction ; but in as much as he may be immediately amoved again for these offences, I apprehend that a peremptory mandamus would not be granted to restore him after conviction. Libel. 647. It was held that an. amotion before conviction, for publishing a scandalous libel of the mayor, could (645) V. Chap. V. Sec. II. (646) R. V. Richardson, 1 Bur. r^'.iS. R. v. Liverpool, 2 Bur. 732. R. v. Derby, C.T.H. 154, 155. R. v. Chalke, Comb. 397. II. v. Lane, 2 Ld. Ray. 1304. S. C. Fortesc. 275. S. C. 11 Mod. 270. (647) R. V. Lane, 2 Ld. Ray. 1301. S. C. Forlcsc. 275. S. C. 11 Mod. 270. R.v. Derby, C.T.H. 155. AMOTION. 253 not be sustained. I imagine that an amotion for this offence could not be supported after conviction ; for though a misdemeanor — the offence of writing a hbel on a person and sending it to him, is not an infamous of- fence, nor has a libel on a mayor, written by a corporator, any thing of the crime of laesse majestatis or peculiar guilt. III. FOR WHAT CAUSE. 648. Sarjeant Hawkins said, that though a private Non-user, office is not forfeited without some special damage, a public office is forfeited by mere non-user. But it was held by Lord Hardwicke and Page J. that this is not the law, and that it was determined in Whitacre's case, that a public office is not forfeited by mere non-user, unless some special damage ensue, any more than one of a private nature. This division resolves itself into two parts : the first showing what causes are sufficient ; the second what causes, having been relied upon, were held to be insuffi- cient. (1.) Sufficient Cause. 649. A mere ministerial officer appointed durante At pleasure. bene placito, may be amoved without any other cause, than that the pleasure of those who appointed him is determined, and it is * unnecessary to resort to notice, and a formal amotion for the appointment of another to the office is sufficient. In these cases, of course, the right to amove is incidental to the right of appointment. (648) R. V. Halfoitl, "Mod. 194. 254 AMOTION. 650. And he may be so amoved when appointed durante bene placito, where the power of appointment is " for life or during pleasure." Of this class is a town clerk or recorder, that is, it seems, where the re- corder is a mere counsel to advise, and not one who has a corporate office and voice in the common council. Common- 651. There may be a custom to elect common-coun- men eligible cil-men ad libitum, and to remove them at pleasure, for p easure. ^j^^y j^g^yg ^q^ necessarily a franchise in the office, but tlieir distinction is collateral to the Corporation, being- freemen appointed by the other freemen to act for them according to the terms of the custom. 652. Or the charter may render common-council-men so amoveable, as is the case where it empowers to re- move them per discretiones suas toties quoties et quan- docunque illis placuerit. Aldermen. ^^^' ^^^ there cannot be a custom to amove at plea- sure from an office of the essence of the Corporation, such as an alderman or jurat, for these have a franchise in their office and each as much title as another, so that such a power of amotion would tend to aid party in- trigues and dissolve the Corporation. And it is wholly unimportant that there be a custom to elect such (650) Dighton's Case, T. Ray. 188. S. C. 1 Vent. 77. 82. S. C. R. v. Stratford on Avon, 1 Lev. 291. R. v. Tliame, 1 Str. 115. Middleton's Case, Dier, 332. b. n. Pepis Ca. 1 Vent. 342. R. v, Cambridge, 2 Show. 70. R.V.Canterbury, 11 Mod. 403. S. C. 1 Str. 674. (651) Warren's Case, Dier, 332. b. n. R. v. Coventry, 1 Ld. Ray. 391. S. C. Salk. 430. R. v. Chester, 5 Mod. 11. (652) R. V. Coventry, 1 Ld. Ray. 392. S. C. Salk. 430. R. v. Andover, 1 Ld. Ray. 710. (653) Warren's Case, Dier, 332. b. n. Anonymous, 1 Lev. 148. Digh- ton's Case, 1 Vent. 77. 82. S. C. 1 Sid. 461. AMOTION. 255 officers "during pleasure," or to elect them "during life if it appear to them expedient," and that it is alleged that they deemed it expedient to amove them. If such a clause be contained in a charter it is absolutely void. 654. But a custom was alleged for the mayor and major part of the Corporation to turn out whom they pleased. On which Holt C.J. observed that there was no remedy for it, the constitution being so. The following have been held sufficient causes for turning out such officers as are not amoveable at plea- sure, on account of a dereliction of their corporate duty. 655. Non residence, having deserted the borough and resided at a considerable distance for the last four years Non-resi- clcncc continuously, by reason of which he has neglected to attend the business of the Corporation, although it do not appear that any special damage has arisen to the body from his absence, or that the charter required residence. 656. Having deserted his habitation in the city for the space of three years, and been forty times absent from the corporate meetings after general notice, al- though his presence was not absolutely necessary, is sufficient cause for amoving an alderman ; for it is in- cident to his duty and place, to be resident where he is chosen, his very name imports it, and such absence renders him incapable of doing his duty where he ought ; (654) R. V. Aiulover, 12 Mod. 665. (655) R. V. Doncaster, Say. 39. R. v. Trueboy, 11 Mod. 75. S. C. 2 Ld. Ray. 1275. R. v. Lime Regis, Doug. 153. (656) Exeter v. Clyde, 4 Mod. 36. S. C. Comb. 197. Vaughan v. Lewis, Carth. 229. 256 AM(yriox. his is not a placeof profit, l)ut of freedom and government of the city, and every alderman ought to be a citizen and inhabitant of the city, where he is an alderman, and if he remove he ceases to be a citizen ; but he may con- tinue to be a freeman, though he want that qualification which enables him to be an alderman. 657. Non-residence which has caused ^ neglect of duty, by which some person is injured in his corporate franchise, is cause for amoving an alderman ; but unless residence be required by the charter, it is sufiicient that the corporator at reasonable times attend to the corpo- rate business, although he reside at some distance from the town. Neglect of 658. Non attendance at several corporate meetings attendance. ^ , • • , ■ ■ n t r ^ ■ after havmg received proper notice, if by reason of his neglect the business of the Corporation have been im- peded, is sufficient cause for amoving a recorder. 659. So is the temporary absence and a less frequent non-attendance of an oflEicer, whose duty calls upon him to be constantly present, such as a mayor 660. Continued absence of about five years, and general neglect of attending when courts are to be held X before the mayor, aldermen and recorder, or two of them {' is sufiicient cause for amoving a recorder, although no particular mischief has arisen to the Corporation from his neglect. Semb. (657) R. V. Portsmouth, 3 B. C. 156'. S. C. 4 D. R. 775. R. v. Trueboy, 11 Mod. 75. (658) 1 Hawk. P. C. 166. s. 1. R. v. Wells, 4 Bur. 2004. Lord Brace's Case, 2 Str. 819. et notis. R. v. Ipswich, 2 Ld. Ray. 1233. S. C. Salk. 443. (659) 3 Atk. 184. Case 56. Bui. N. P. 206, 7. (660j Lord Hawloy's Case, 1 Vent. 145. ANfOTION. 257 661. So is non-attendance at one corporate meeting, appointed by himself where his presence is proper, though not absolutely necessary, he being in the neigh- bourhood and able to attend, although he did not re- ceive notice at the time of the meeting. — But it may be observed, that other charges w^ere brought against this recorder. 662. So is ignorance of the law, manifested by par- ticular acts, as formerly by tiying an accessory before the principal, or denying benefit of clergy to one con- victed of bigamy. But a general averment of ignorance of the law, cannot be sustained. Semb. 663. Not accounting for rents by him received in Not ac- . counting, his official capacity, and charging for payments never made, is a sufficient cause for amoving a chamberlain ; but it ought to appear that he has been called upon to account. 664. Razing of genuine and true entries in the public Razing books, to falsify them and injure the Corporation ; but a general allegation that he razed or altered the books is insufficient, for the razure or alteration may have been to correct an entry originally erroneous. 665. Being so poor as not to be capable of paying Poverty, the taxes for which he is liable in the municipality, is sufficient cause for amoving an alderman. (661) R. V. Ipswich, 2 Ld. Ray. 1237. R. v. Wells, 4 Bur. 2004. 1 Hawk. P. C. 66. s. 11. (6(52) Lord Hawley's Ca. 1 Vent. 146. (663) R. V. Doncaster, 2 Ld. Ray. 1566. S. C. 1 Barnard. 265. sed vide R. V. Chalke, 1 Ld. Ray. 226. (664) R. V. Chalke, 5 Mod. 257. S. C. 1 Ld, Ray. 226. V. tit. (665) R. V. Andover, 3 Salk. 229. S 258 Drunken- ness. AMOTION. 666. Habitual drunkenness is cause for amoving an alderman, on account of the evil example to others, and his consequent insufficiency to discharge the duties of a magistrate. Disturbing corporate business. 667. Disturbing the election of the mayor, or pre- venting corporators from assembling and proceeding in their business in the corporate assembly, although at- tended with riotous conduct, and the amotion may be before a conviction for the riot. Bribery. 668. Bribing a corporator to vote for a particular candidate to fill an office in the Corporation, such as that of mayor, or to vote for a candidate at the election of members of parliament, but there should be a pre- vious conviction by a jury. (2.) Insufficient Cause. The causes which will be now enumerated are such as having been relied upon in returns of an amotion, were held by the Court to be insufficient. Original disqualifi- cation. 669. That which only disqualified the person to be elected, although it made the election voidable ab initio, is insufficient ; for one so disqualified is not in law a corporate officer, and therefore cannot be amoved by the Corporation, but must be ousted by proceedings (666) R. V. Taylor, 3 Salk. 231. Taylor v. Gloucester, 1 Rol. 409. S. C. 3 Bulstr. 190, (667) Haddock's Case, T. Ray. 439. R. v. Derby, C. T. H. 155. V. tit. 644, (668) R. V. Tiverton, 8 Mod. 186. R. v. Derby, C. T. H. 155. V. tit. 641. (669) R. V. Doncaster, Say. 40. R. v. Miles, B. N. P. 20.3. R. v. Lime Regis, Doug. 85. Symmers v. Regem, Cowp. 502. V. tit. 728. et seq. AMOTION. 259 in quo warranto. Of this nature is non residence, when required only as a qualification before election, or any irregularity in the election or admission. — And if a cor- porator so disqualified or illegally coming into office, have held it undisturbed for six years, being protected by the statute against an ouster in quo warranto, he cannot be amoved by the Corporation declaring his office originally void on this account, but he has ac- quired an indisputable title. 670. But if non residence be not only a disqualifica- Continuing . , . , . cause, tion antecedently to the election, but residence is re- quired as a continuing qualification during the posses- sion of office, there is no reason for preventing an amo- tion for the subsequent offence, though the amoving body have precluded themselves from disputing his ori- ginal title, either by concurring in his election, or his subsequent official acts, for as against them he is a legal officer. 671. Non-residence is not a sufficient cause of amo- Non-resi- tion, unless residence be required by the charter, or the when.* non-residence be attended with some special injury to the Corporation or municipality. If the charter impose a penalty upon a mayor or other officer for not residing, unless it give also a power of amoving him for the of- fence, it restrains the punishment to the penalty and does not wjirrant an amotion. 672. Departure from the borough and its liberties with his family, about five months before, and not hav- (670) R. V. Miles, B.N. P. 20.'}. (fi7l) R. V.Williams, 2 M. S. 144. (i672) R. V. Leicester, 4 Bur. 2087. s2 2C0 AMOTION^ ing returned at the time of the amotion, is not suffi- cient to warrant it, unless a special damage have been caused to the borough, by such absence. Neglect of 673. Residing two or three miles from the borough, assemblies, and non-attendance at a meeting of the common coun- cil, is not of itself a sufficient cause ; for it is not the imperative duty of a common-council-man to attend every assembly, and his conduct is not to be impeached if he render a general attendance in his place. 674. Absence of a portman from four occasional great meetings, one of which was on the charter day, he hav- ing received ordinary but no particular notice, when it does not appear that any necessary business was by that means impeded, is not sufficient cause. 675. Nor is absence of a recorder from a corporate meeting, not having received a special notice that his appearance was necessary, and the Corporation having received no public inconvenience from his absence. 676. Non-attendance of a burgess at the sessions where his presence is not necessary, so that he attend so often that by a similar regularity of attendance in the others, the corporate business would not be neg- lected. 677. Or saying that he would come no more among them, unless followed by generally absenting himself : (673) R. V. Doncaster, Say. 39. (674) R. V. Richardson, 1 Bur, 540. S. C. 2 Kenyon Ca. 120. (675) R. V. Wells, 4 Bur. 2003. (676) R. V. Pomfret, 10 Mod. 108. (677) R. V. Exeter, Comb. 197. AMOTION. 261 this is rather a question of a tender of resignation, and such a declaration in general terms, although accepted, does not amount to a resignation. 678. Age is no sufficient cause for removing an al- Age. derman, but rather an honor. 679. Razing: entries in the Corporation books, unless Razure of books, it be shown that they were originally correct, and that the razure was mischievous, or to falsify them, is an in- sufficient cause. 680. It is insufficient cause for amoving an alder- Personal man, that he used insulting words to the mayor in com- mon council, as saying that he was a base fellow or a fool ; — or for removing a common-council-man for say- ing of an alderman that he was a knave ; nor is writing a libel on the mayor, a sufficient cause ; for personal offences from one member to another are to be punished according to law, and not by the Corporation. 681. Bankruptcy and not having obtained his certifi- Bankrupt- cate, or insolvency, is not a sufficient cause of amoving from the office of alderman or any other office, when the possessor has not the receipt and management of the public funds. 682. Refusal to deliver over the Corporation books Detaining entrusted to his custody as the proper officer to per- (678) Hanzard's Case, 2Rol. 11. (679) R. V. Chalkc, 1 Ld. Ray. 226. S. C. 5 Mod. 259. (680) R. V. Oxford, Palm. 45.5. 2 Salk. 428. Jay's Ca, 1 Vent. 302. Bagg's Ca. 1 Rol. 224. S. C. 11 Co. 99. Earle's Ca. Carth. 174. S. C. B. N. P. 203. R. V. Lane, Fortesc. 275. S. C. 11 Mod. 270. (681) R. V. Liverpool, 2 Bur. 7.32. 7.35. (682) Anon. 1 Barnard. 402. R. v. Ipswich, 2 Ld. Ray. 1238. R, v. In- gram, 1 W. B. 50. 262 AMOTION. sons applying to receive them with an order from the Corporation ; for they may be consulted in his hands^ or detinue would lie for them, if the Corporation had a right to compel the delivery ; or a mandamus. Suing con- 683. Suing another in courts out of the municipality law7 ° ^ or refusing to abide the arbitration of two corporators appointed by the Corporation, contrary to the restraint of a by-law, is not sufficient cause of amotion. Refusinc; to pay fees. 684. Refusing to pay the usual fee on admission to the livery, or his share towards the expence of renew- ing the charter, are not causes of amotion, but the pro- per subjects of a by-law which the body has power to make for enforcing such payments when reasonable. corporate money, Misem- 685. Misemployment of the corporate funds in his corporate ° custody, when it is the proper subject of an action ; but this appears to be a good cause of suspension from a financial office, for the Court will not grant a mandamus to restore until the accounts are made up, and submit- ted to the Corporation. Revealing counsels. 686. Revealing the private counsels of the Corpora- tion was held insufficient; but that was from the gene- rality of the allegation, and omission in showing what were the counsels revealed. Casual in- toxication. 687. Casual intoxication is not a sufficient cause of amoving an alderman, for this is likely to happen to the best of them. (683) Middleton's Case, Dier, 333. a. (G84) Taverner's Case, T. Ray. 446. 1 Sid. 282. (68,5) R. V. Chalke, 1 Ld. Ray. 226. S. C. 5 Mod. 2o!). London, 2 T.R. 182. (686) Bagg's Case, 1 Rol. 224. (687) R. V. Taylor, 3 Salk. 231. R. V. Mayor of AMOTION. 263 688. Refusa to advise the mayor or aldermen in their Refusing '' . legal ad- several capacity, is no good cause for amovuig a re- vice. corder, his duty being merely to advise the Corporation as a body politic, or in their judicial capacity. And if it appear that the oath which he has taken on entering upon his office, requires him to advise them in their several capacity, on certain subjects, his refusal so to advise on other topics, is an insufficient reason for amoving him. 689. So is a recorder's having given advice, and acted Advising ^ , . . . contrary to contrary to the mayor's opinion and direction, in con- directions ./ 1 of mayor. tmuing an elective assembly of members ot parliament, and administering oaths after the departure of the mayor, who is the returning officer ; although this is contrary to law, for this is not a corporate assembly, and the recorder's is no offence against his corporate office. 690. Nor is it sufficient cause for removing a cor- Advising porate officer, that he hindered the gathering of tolls custo°ms7 claimed by the Corporation, by menacing the toll ga- poratbn?'^' therer, and persuading the owners of the goods charged not to pay, particularly where it appears that there is some uncertainty concerning the title, for it is only dis- puting the legality of the demand for which the Cor- poration has its remedy if injured. It was said in Bagg's case, that dissuading the owners from paying a custom called wine wight was an insufficient cause of amotion as alleged, but that it would have been suffi- cient, if any special injury had been shown to have (688) R. v. Ipswich, 2 Ld. Ray. 1238. (689) R. V. Wells, 4 Bur. 2003. (690) R. V. Vicars, 11 Mod. 214. Bagg's Case, 1 Rol. 224. S. C. 11 Co. 97. b. 98. b. 264 AMOTION. arisen to the Corporation from liis interference, for that it is against the corporator's duty and oath, which are to maintain the privileges of the town. IV. IN WHAT FORM. AmoTing assembly, &c. 691. To constitute a legal amotion, it is necessary that the corporator receive notice to appear ; that an assembly of those who have power to amove convene ; that the proceedings be conducted in such a man- ner that he have a fair opportunity of defending him- self; and that he be convicted of the offence and amoved. Notice to accused. 692. A personal notice must be served upon the ac- cused a reasonable time before the amotion : in one case it was held that notice on the same day was sufficient, but in that case it seems that he appeared to defend himself against the charge. And where an amotion is shown, the notice must be particularly averred and positively ; if it be under a recital, as licet summonitus fuit, it is insufficient. Parol. Particular chai ges. 693. The notice of the day may be well enough given by the officer by word of mouth. 694. It does not appear necessary that the summons should particularize the charges, but that some intima- tion of them ought to be given, that the accused may (692) R. V. Ricbardson, 1 Bur. 540. R. v. Liverpool, 2 Bur. 731. Bagg's Case, 11 Rep. 99. a. (fi93) R.v. Ipswich, 2 Ld. Ray. 1240. (694) R. V. Corp. of Wilton, 5 Mod. 259. R. v. Liverpool, 2 Bur. 734, 5. Exeter v. Clyde, 4 Mod. 37. R. v. Ipswich, 2 Ld. Ray. 1240. ' AMOTION. 265 have an opportunity of vindicating himself. In the case of Glyde it was said, that there should be a notice of the charge, and that it was not sufficient to summon him generally, and then to allege particular crimes against him which he may not be prepared to answer. And it seemed to be the opinion in the case of Whita- ker, that if the notice set forth one charge, and a dif- ferent were preferred at the time of trial, the accused might decline answerino; the new matter, and that an amotion grounded on such new charge would be void. 695. In two cases this notice is dispensed vnth : the Notice dis- pensedwith first IS, where the party has appeared at the Court, and by appear- either defended himself or confessed the charge against him; for this is a waver of his right to notice. 696. The second is where the corporator has left Byaban- . donment of the borough and resided constantly elsewhere, with his the bo- family ; for it amounts to a desertion of the place, and abdication of his office, therefore no notice either per- sonal or general to come and defend himself against the charge is necessaiy ; but it seems that if he have subsequently returned and be in the place at the time of the amotion, a notice ought to be given as in other cases ; for though the return does not cure the preceding absence, he cannot be presumed to have abandoned the borough, and may be able to show a sufficient excuse for his absence. (695) R. V. Wilton, 2 Salk. 428. R. v. Ipswich, 2 Ld. Ray. 1240. R. v. Feversham, 8 T. R. 356. (696) R. V. Shrewsbury, ' Mod. 202. S. C. 4 Bro. P. C. 271. Glyde v. Exeter, 4 Mod. 37. S. C. 1 Show. 2r)8. 364. S. C. R. v. Exeter, Comb. 197. R.V.Shrewsbury, C.T.H. 151. R. v. Trueboy, 2 Ld. Ray. 1275. S. C. 11 Mod. 75. R. V. Lime Regis, Doug. 144. 149. R. v. Grimes, 5 Bur. 2600. Sed vide R. v. Portsmouth, 4 D, R. 775. S. C. 3 B. C. 156. 266 AMOTION. 697. But one who has left the municipality and re- sided elsewhere for five months, is entitled to notice to come and defend himself; for this can by no construc- tion be construed an abandonment of the borough, al- though the corporator may have expressed an intention of continuing to reside elsewhere ; for he may alter his mind and return within a reasonable time, unless his absence have caused injury to the Corporation by his neglect of duty, or perhaps the charter expressly require residence. Assembly. 698. The body who amove must be convened in a corporate or select assembly, according to the rules laid down under that title. And if the mayor and aldermen be assembled as part of the common council, they can- not proceed to an amotion in the character of mayor and aldermen ; for when so convened they can only do such business as they are empowered to transact in the character of the common council. And in the re- turn of an amotion by the common council, it must be averred to have been made by them in common council assembled, and not merely at an assembly held in the common-council house. Charge. 699. The charge against the accused must be alleged with substaatial certainty, but technical precision is not required ; for this reason an allegation, that he forged or caused to be forged is sufficient, although it were not sufficient in an indictment, on account of the alterna- tive. (697) R. V. Leicester, 4 Bur. 2089. (698) R. V. Sandys, 2 Barnard. 301. Taylor v. Gloucester, 1 Rol. 409. S. G. 3 Bulstr. 190. Vide Chap. I. sect. iv. (699) R. V. Lime Regis, Doug. 174. AMOTION. 267 700. The officer must have an opportunity afforded Defence, him of answering the charges preferred against him, and making a full defence. 701. If a charge insufficient in itself be alleged OflFence against an officer or one that cannot be sustained, the amotion is not legal, although he confess a sufficient offence ; as if a recorder be accused of neglecting to hold a sessions of oyer and terminer and gaol deliveiy, and he confess an omission to hold a sessions of the peace, his answer is irrelevant to the charge, and an amotion for the offence confessed is not sustainable, because of the erroneous accusation. 702. If the officer remain silent, and do not deny the charge, it must be examined and proved, and all pro- ceedings must be conducted as though he had denied it ; for an amotion on pretence that his silence amounts to a confession is void, but not sufficient ground for an action against those who disfranchise him unless ma- ,. lice be shown. 703. As to form in amoving a ministerial officer Ministerial officer Slc elected during pleasure, very little is necessary, for he is not entitled to any notice ; and a summons to those who have a power of amoving him to convene and elect another is sufficient, without a summons to convene to amove him from office ; and if they do elect another, this is of itself an amotion of the former without a previous declaration that he is amoved, for they are presumed (700) Bagg's Ca. 1 Rol. 225. S. C. 11 Co. 99. a. (701) R. V. Ipswich, 2 Ld. Ray. 1240. (702) R. V. Feversham, 8 T. R. 3.56. Hannan v. Tappenden, 1 East. .')62. (703) R. V. Canterbury, II Mod. 403. S. C. 1 Sir. fi74. R. v. Thame, IStr. 11."). R. V.Taunton, Cowp. 413. R. v. Patcinan, 2 T. R. 777. 268 AMOTION. to understand what is the legal effect of such an elec- tion ; and therefore the argument, that perhaps those who voted for the new officer, apprehending that they were electing him into a vacancy, would not have voted for an amotion of his predecessor, is of no weight. Of similar effect is an election to an incompatible office with acceptance by the person elected ; they are all pre- sumed to know that such an election is a determination of the former. V. EFFECT OF AN AMOTION. 704. A legal amotion does not invalidate any act which the corporator has previously done or in which he has concurred, but from that moment he ipso facto ceases to be a corporator, and another may be elected into the vacant place. If the person amoved continue to act as a corporator he is a mere usurper without color of title, unless it be acquired by length of time : he may be ousted in quo warranto and punished for the usurpation ; and all corporate acts in which he has concurred are equally void, as though he had never been elected or admitted. But it is necessary to observe that an amotion from one office does not in the least impair the corporator's title to another, much less is it a dis- franchisement from his right, as a mere member of the Corporation. VI. RESTORATION, When and 7^)5. When a corporator has been excluded from par- means** ticipating in corporate business, in which he has a right (704) Jay's Ca. 1 Vent. 302. Syniiners v. Rcgem, Cowp. 503. AMOTION. 269 to act, under pretence of an amotion or suspension, which is a temporary amotion, he is entitled to a writ of restoration, to which the Court will compel obedience, unless it be shown that the amotion relied upon was legal. On this more will be said in treating of the man- damus to restore. 706. The duty of restoring one who has been impro- By whom, perly amoved, belongs to that body however consti- tuted, which has attempted the amoval. In fact a restoration is merely an abstaining, on the part of the amoving body, from opposing the right of the corpo- rator to transact the duties and enjoy the franchises appertaining to his office. It was said by Coke C. J. that the writ ought to be directed to the municipality in their corporate name, and not to the amoving body ; but it appears that a direction in either manner is suffi- cient. 707. The effect of a restoration is not to create the Effect. person an officer de novo, and give him a new title, but it replaces him in exactly the same situation in which he stood before the attempted amoval. For this reason all corporate acts in which he has concurred be- tween the moment of his removal and restitution are of equal validity as if he had never been amoved : if he were before a legal officer, such acts are legal, if he were only an officer de facto, his acts before his amoval, during the amotion, and subsequently to the restora- tion are equally voidable, and he may be ousted in quo warranto for any defect in his original title. If he (70G) Taylor v. Gloucester, I Rol. 409. S. C. 3 Bulstr. 190. Holt's Ca. Freem. 441. notis. V. Mandamus, Direction. (707) Symmers v. Regeni, Cowp. 50.3. R. v. Ipswich, 2Ld. Ray. 1283. S. C. Salk. 448. 3 Salk. 231. Taylor v. Gloucester, 3 Bulstr. 190. 270 AMOTION. were originally a legal officer and amoved for sufficient cause, but restored on account of informality in the amotion, all his corporate acts both before and since the .removal are valid, as though he had continued in the entire and undisturbed fniition of the office ; but he may be again amoved in a more formal manner, which vacates his office from the time of the second amotion, but has no retrospective effect upon the former irregular amotion. Voidamo- 708. Indeed, if the amotion were voidable, on ac- tion does /• • rr. • ■ m • • ^ not aflFect count 01 an uisumcient cause or msufficiency ni the form by which it was effected, the person continues a corporator to all intents and purposes ; and if he is treated by the rest as an officer, and continues to act in and enjoy the franchises of his office, there is no need of a writ of restoration. For if on an information in quo warranto against him for usurpation subsequent to such an amotion, he either show his original title, or that be admitted by the pleadings, it is incumbent on the prosecutor to show the sufficiency and formality of the amotion, and the same must appear when his title is collaterally impeached for the purpose of invalidating corporate acts in which he has concurred. Section IV. DISFRANCHISEMENT. The distinction between amotion and disfranchise- ment has not been at all times sufficiently regarded, but it is very material. Amotion applies only to officers, and causes a cessation of the particular offices from which they are amoved, but in no manner affects their right to the freedom of the municipality. Disfranchisement is applicable only to the freedom, and AMOTION. 271 of course affects some officers, yet not quasi officers, but quasi freemen. If therefore, the officer must as a necessary continuing qualification be a freeman, a dis- franchisement ipso facto determines his office, but if the office require no such qualification, a stranger being equally eligible with a corporator, the disfranchisement in no degree impairs his title to the office. Therefore if a common-council-man be amoved, he still continues to be a freeman, and if a recorder where the recorder is eligible from among strangers as well as corporators, happening to have been a corporator, be disfranchised, he still continues to hold his office of recorder. 709. It appears that there is not an incidental right in Corporations to disfranchise their members, but it must be claimed by prescription or express grant of the charter. This was the rule laid down in the first case upon the subject, and it has never been ex- pressly overruled, the cases in which it has been ques- tioned being questions of amotion. 710. The law relative to disfranchisement is not well ascertained, and is for that reason more open to obser- vation than that relating to amotion. I apprehend that some of Sir E. Coke's remarks on this subject are worthy of considerable attention, although they have been frequently looked upon as overruled. At the time when James Bagg's case was before the Court, their attention had been rarely attracted to the consideration (709) Bagg's Ca. 1 Rol. 225. S. C. 11 Rep. 99. a. Style, 478. (710) Bagg's Ca. 11 Co. 99. S. C. 1 Rol. 224. The Protector v. King- ston, Styles, 480, Lord Bruce's Case, 2 Str. 820. R. v. Oxford, Palm. 454. R. V. Richardson, 1 Bur. 525. S. C. 2 Kenyon, 91. R. v. Doncaste.r, 2 Ld. Ray. 1566. T. T. 25 & 26 Geo. II. R. v. Dcncaster, Say. 38. Sym- mers v. Regein, Cowp. 50.3, 4, 6. R. v. Lime Regis, Doug. 151. AMOTION. of corporate causes, and the distinction between the rioht to the offices and the right to the freedom of a municipaUty had been Httle considered. The particu- lar case was of amotion from office ; the arguments were in general more applicable to disfranchisement. But there is a material difference in principle. The enjoy- ment of office is not for the private benefit of the cor- porator, but an honorable distinction which he holds for the welfare of the Corporation, and therefore al- though it be an office of a freehold nature, it is entirely conditional ; in the first place depending on the particu- lar reo-ulations of the constitution, such as residence, &c. ; secondly, upon his discharge of those duties which belong to the office, neglect of which is cause of amo- tion ; thirdly, on his being such a person as ought to be permitted to hold office, and therefore defeated by commission of any infamous offence, although not re- lating to the Corporation. But the franchise of a free- man is wholly for his own benefit, and a private right ; a right in the municipality similar to that of a natural subject in the state, of which he ought not to be de- prived for any minor offence against his corporate fealty than that for which as a subject he ought to be deprived of his franchise as a liegeman. For this reason all minor corporate offences, such as improper behaviour to his fellow-corporators, where not punishable by the general law of the land, as well as violations of his cor- porate duties, ought to be punished by penalties im- posed by the ordinances of the municipality, and not by disfranchisement. But such offences against the general law, as occasion a forfeiture of all civil rights, import in themselves a forfeiture of the cor- porate franchise ; and offences against the Corpora- tion, which tend to its destruction, such as defacing the charters, altering the corporate records so as to destroy the evidence of their title to privileges, or AMOTION. 273 that of the title of his fellow-corporators to their fran- chises are of course causes of disfranchisement. If the charter require residence or any other subsisting quali- fication, of course the freedom being in itself condi- tional, the right determines upon cessation of that qua- lification. This has been improperly compared to a con- dition on which an estate is voidable ; it should be ra- ther compared to a limitation depending upon the con- tinuance of some collateral circumstance, for if residence be required as a continuing qualification, it is an ingre- dient necessary in the character of the person who may enjoy the freedom, and not a mere condition for the benefit of another, of which he may take advantage or which he may wave at his pleasure. The common law points out a space of time sufficiently definite to prevent any difficulty arising from regarding non resi- dence as a cesser of title in a freeman. If one neg- lected to make continual claim for a year and a day, he lost his entry, or if he neglected to claim an estray, or, according to our ancient law, if a lord neglected to retake his villein, who had fled and resided in a borough for that time, his right was gone ; and many other instances might be adduced, in which the common law regards a year and a day as a cesser of title, and a space of time sufficiently definite to avoid all difficulty as to what did or did not amount to a sufficient neglect to alter an existing right. 711. Few cases have ascertained what is sufficient cause of disfranchisement ; those which have been de- cided on this point, are almost all of the negative kind, showing only what causes being relied upon were con- sidered insufficient to warrant a disfranchisement. 274 AMOTION, 712. A corporate assembly was convened by the bai- liffs, vvlio, apprehensive of a riot from the violence of the dift'erent parties, having adjourned the Court, and gone away with their party, the opposite party stayed in the town hall, saying that the Court was not dissolved, and declaring themselves a Court thereupon made divers orders or acts of Court and caused them to be entered in the court book, where all the orders used to be en- tered. This conduct was held to be sufficient cause for disfranchising the party who remained and con- curred in such acts ; for it was no court, and the entry of such orders is very prejudicial to the Corporation and to the ill example of others to disturb the govern- ment. Poverty. Assault. Libel, &c. 713. Being so poor as to be incapable of paying his scot and lot was held insufficient. So was a conviction of an assault, or saying of an alderman that he was a knave ; or writing a libel or scurrilous letter concerning an alderman. For the first is a misfortune and not an in- jury to the Corporation as such ; and the other offences mentioned are punishable at common law by fine or im- prisonment upon conviction by a jury, and not fit sub- jects for the investigation of a corporate body. Slander. 714, It was said by Twisden C.J. that a freeman may be disfranchised for saying of the mayor that he had burnt the charters of the Corporation; but the observation was orratuitous and immaterial to the (712) The Protectory. Kingston, Sty. 478. 480. (71.3) R. V. Andover, 3 Salk. 229. Jay's Case, 1 Vent. .302. Earle's Case, Carlh. 174. b. R. v. Oxford, Palm. 45,5. R. v. London, 2 Lev. 201 . R.V.Lane, 11 Mod. 270. (714) Jay's Case, 1 Vent. 302. AMOTION. 275 decision ; besides, the charge may be true, and if so the corporator has a right to prove it against the mayor. 715. Even a usage in a prescriptive Corporation to Custom for disfranchise or to suspend a freeman for insulting words to an alderman a principal officer of the Corpo- ration is void, although the customs have been in gene- ral terms confirmed by a statute. 716. Misconduct in a corporate office warrants only Cause of ,■ n 1 -1 rr> • 1 ■ 1 1 amotion is an amotion irom that particular office in which the pei'- not cause of son has misconducted himself, and does not justify an chisement. exclusion from the freedom. 717. It was resolved that the cause of disfranchise- Attempt to ment ought to be grounded upon an act, which is against proper act. the duty of a citizen or burgess and to the prejudice of the public good of the city or borough, and against his oath which he took when he was sworn a freeman, for it is a condition of law tacitly annexed to his free- dom or liberty. But a mere attempt to do such an act, unattended with any eventual injury to the municipality,- is not a sufficient cause, for a freeman has a freehold in the franchise for his life. 718. If the party grieved by an illegal disfranchise- Remedy for ment be for the causes of his disfranchisement commit- franchise- ted to prison, or if his shop be shut up, or if he be ""^"*' (715) R. V. London, 2 Lev. 201. R. v. Rogers, 2 Ld. Ray. 777. R. v. Guildford, 1 Lev. 162. (716) R. V. Doncaster, 2 Ld. Ray. l.')66. V. tit. 636. (717) Bagpr'sCase, llRep. 98. (718) Bagg'sCase, 11 Co. 99, b. T 2 276 AMOTION. removed with force from the corporate assembly, he may have an action of false imprisonment, or trespass, or assault and battery, and in such action the causes of the disfranchisement may be pleaded and exa- mined. 277 CHAPTER V. CORPORATORS. This chapter treats of the title, offices, privileges, and duties of Corporators, both officers and freemen, in their relative situation as members of the same body pohtic, and is divided into tw^o sections. I. Title of Corporators. IL Their powers, privileges, duties, acts, &c. Section I. TITLE OF CORPORATORS. 719. The first section shov^^s how the title is con- summated, how investigated, how confirmed, and what is its duration. I. HOW CONSUMMATED. 720. The title of a corporator or corporate officer is acquired by election, appointment or inchoate right, conferred on certain classes of persons as before has been observed, and it is consummated by admission COHI'ORATORS, to the enjoyment of the freedom or office. This admis- sion, whether made in ordinary course or in obedience to a writ of mandamus, does not in the least strengthen the original title or confer any new right : its operation is merely to give the person the legal possession of the office, which he must maintain upon the strength of his prior title. 721. The charter provides, that if the mayor die with- in the year after his election and swearing in, the alder- man first in order after the mayor so dying, who shall be in the borough during the vacancy of such mayor, shall officiate as mayor, and so from time to time as often as the case shall happen. In this case the right of the senior alderman to officiate is confined to the particular circumstance of the mayor's death " within the year after his election," and if the mayor hold over his year and then die, the senior alderman is not war- ranted by this provision to officiate as mayor until a successor is chosen. 722. If the charter declare that the common-coun- cil-men shall be elected out of the burgesses (free- men), and name among the first common-council-men, persons who are not burgesses, they are by such nomi- nation constituted burgesses and freemen, but this arises from the acceptance of the charter, because that is equivalent to an election by those who are already free- men ; but the king cannot by his letters patent create an individual a freeman of a municipality already incor- porated . (721) R. V. W. Smith, 2 M. S. 584. o'JS. (722) 4D. R. 421). City of London's Casi-, 8 Co. 126. b. CORPORATORS. 279 723. If the officer be created by patent, he is imme- ^^JflJj*''' diately in his ofl&ce by force of the patent without any admission or investiture. I 724. There are some offices which the person may possess before he is sworn ; but these are not of a cor- porate character, to which an admission is indispens- able. 725. It has been already said, that when the proper Remedy to p . 11 J obtain of- persons have reiused to admit one entitled, a manda- flee. mus will be granted to compel them to do so. This re- lates only to public offices and franchises ; yet all corpo- porate rights are of that nature, and although there may be persons holding offices under the Corporation which are of a private nature, and for which a manda- mus will not be granted, these cannot be called in strictness corporate offices. To prove his title to a pri- vate office, if it be of a freehold character, an assize may be brought by the claimant, in which he must show a seisin. If it be an office of profit he has his remedy by an action on the case against the usurper for the profits, or assumpsit for money had and received to his use, in which the fees and mean profits may be recovered but not the office itself; and to maintain these personal actions, it is not necessary for the plain- tiff to show that he was ever seised. 726. The mandamus gives a legal not an actual pos- Effect of a session, and the person admitted under the writ is left mandamus. (723) Craig v. Norfolk, 1 Mod. 122. (724) Id. ibid. (725) Craig V. Norfolk, 1 Mod. 122. R. v. Westminster, Comb, 244. R. V. Jotham, ?> T. R. b78. R. v. Whitstable, 7 East, 356. (726) R. V. Dean and Chap, of Dublin, 1 Str. 538. Basset v. Barn- staple, Sid. 286. R. V. Norwich, 2 Ld. Ray. 1215. 11. v. Jotham, 3T. R. 577. R. V. Clarke, 2 East, 83. V. Man3) V. tit. 97. u 2 292 CORPORATORS. whom the defendant was elected may be put in issue. The third section of this statute empowers the defendant to protect the title of the president from examination, where the president had been in possession of the office six years before the filing of the information. 754. *' If any person or persons against whom any such information in the nature of a quo warranto shall be exhi- • bited, shall derive title under an election, nomination, swearing into office, or admission by any person or per- sons, the title of such person or persons against whom such information shall be exhibited shall not be defeated or affected by reason or on accouiit of any defect in the title of such person or persons so electing, nominating, swearing into office, or admitting, in case such person or persons under whom title shall be derived as afore- said was or were in exercise de facto of the franchise or office (in virtue of which he or they so elected, nomi- nated, sworn in, or admitted) at a period six years at least previous to the time of filing such infonnation, and his or their title shall not have been questioned by any legal proceeding carried on with effect." III. DURATION. Head offi- 755. The office of the mayor or other head officer is cer, annua . ^j^^^^^^j^ ^^^^ jpg^ facto expires on the determination of the year next after the annual charter day on which he ought to be elected. The effect of which is, that if a mayor be elected but a few months before the charter (754) 32 Geo. III. c. 58. s. 3. (755) R. V. Sir R. Atkyns, 3 Mod. 12. R. v, Hearle, 1 Str. 627. Mayor of Durham's Ca. 1 Sid. 33. , CORPORATORS. 293 day, his office may only endure for two or three months, and if a mayor be improperly amoved during his office, he may be restored at any time before the next charter day, yet he cannot enjoy it for a portion of time equal to that which expired between his amotion and restora- tion, but on the charter day it determines ; and if a mayor so amoved is not restored before the next charter day, he cannot be restored afterwards. 756. But in some Corporation^ the head officer has a Holding • • J I,- over, power to hold over until a successor is "provided ; this can only be by force of a custom or express provision of the statute or charter, for the statute of 11 Geo. I. does not operate to give a mayor the power of holding over where he had it not before. Where the head officer has this power of holding over, a successor ought to be chosen on the charter day, and immediately admitted, except where custom has provided a special manner of admission. But if a successor be not admitted, the head officer of the preceding year continues to be legally in office until another duly qualified is elected, admit- ted and sworn ; and his office does not determine during the usurpation of one or many successive officers de facto. The same is the law where there are several head officers. 757. If a head officer who has power to hold over be Restora- Uon. amoved and restored during the year, he has the same right of holding over, but no prolongation of office. If such an officer be improperly amoved, and not restored before the next charter day, he must be afterwards re- stored, unless, though amoved, he has presided at the election of a successor, or one has been elected under a (756) R. V. Thornton, 4 East, 308. R. v. Hearle, 1 Str. 627. V. tit. flSy 9'J, 100. 294 CORPORATORS. special power; for unless he be restored, or preside not- withstanding the amotion, or there be such special power, no legal successor can be elected ; but he is not entitled to be restored for the purpose of holding the office for so long a time as he had been amoved, for where a successor might have been elected at any time, one may be elected immediately upon his restoration. Aldermen, 758. At conimon law the office of an alderman is a franchise, which the possessor is entitled to enjoy for his life; so is the office of a jurat, portman, capital burgess, or other member of a select body, being an in- tegral part of the Corporation, But the prescription, statute or charter may render them eligible for any defi- nite period. Yet, though rendered eligible for a year, their office is so much of the nature of a freehold, that they are implied to have a right of holding over, unless there be a clear provision to the contrary. Annually 759. On this account, where the charter declared that * '^ ^' the first aldermen should continue until the 9th of Oc- tober then next, and until other burgesses should be elected and sworn into their places, according to the order and provisions for electing a mayor, and proceeded to direct that the mayor and burgesses should after that day annually choose one of the aldermen to be mayor for one year next following, and until another should be chosen into his place : it was held that the aldermen as well as the mayor were eligible annually, and that their office continued from the time of election until the fol- lowing 9th of October, and after that time until others were chosen into theiV places, although many years (758J R, V. Doncastcr, 2 Ld. Ray. 1564. Prowse v. Foot, 3 Bro. P. C- 169. S. C. lStr.625. (759) Prowse vv Foot, 3 Bro. P. C. 169. S. C. 1 Sir. 625. CORPORATORS. 295 might elapse before such an election should be made. So that they possess in this case rather a conditional freehold than a mere annual office, but one which may be defeated by an election of other burgesses into their places, without the necessity of a preliminary amotion, and which ipso facto determines upon the election and admission of others duly qualified. 760. So if the charter appoint aldermen annuatim elegendi, these words are only directory, and the alder- men of the preceding year continue legally in office until others are elected. 761. And if the charter appoint that the Corporation may be able (possint) to annually elect aldermen, it seems that the aldermen are officers for life, with a lia- bility of being superseded, and not mere annual officers. 662. Officers who are constituent parts of the Corpo- At will, ration cannot hold their offices at the will of the others, and a custom that they should so hold them, or an ex- press clause in a charter to this effect, would be merely void. 763. When the charter declares that the aldermen Merges in the office or shall be aiding to the head officer, although he is eli- mayor. gible out of the aldermen, the inferior merges tempora- rily in the superior office, so that he cannot be present and act in each distinct character at the same time. (760) Foot V. Prowse, 1 Str. 625. (761) V. tit. 537. (762) V. tit. 653. (763) R. V. Tliornton, 4 East, 307. 296 Common council- meu. COllPOHATons. 764. Tlie duration of the office of commou-council-men depends upon the particular constitution of each Corpo- ration ; they may be officers for life, which they are, unless there be a diffi^rent regulation ; or they may be- officers annually elected, or holding their offices merely at pleasure. If tlie common-council is created by a by- law, whether they are appointed to hold for an indefinite period, which is a freehold, or for a time certain, it would seem that their offices ipso facto determine upon the repeal of the by-law. They are not recognized by the common law as a select body, nor is their office noticed, either as to its nature or duration ; because the common law considers the common-council to be the whole of the corporators convened in council for the management of their affairs, or so many of them as please to attend, without any other qualification than that of being free- men ; and this common-council is incident to all Cor- porations of common right, unless the charter have otherwise regulated it. For this reason, when the cora- mon-councilmen are a select body, the nature of their constitution and office must be specially shown in the pleadings. Freemen. 765. The franchise of a burgess or common freeman is a freehold for his life ; but it may be made to depend upon residence within the municipality, which is some- times the case, or perhaps upon some other condition. Recorder, 6ic. 766. Such offices as those of recorder and town clerk depend for their duration upon the particular constitu- tion of every Corporation ; they may be for life, for a (764) Case of Corporations,' 4 Co. 77. b. R. v. Knight, 4 T.R. 431. R. V. Chalke, 1 Ld. Ray. 226. S. C. Comb. 3'.l7. (765) Symmers v. Regem, Cowp. .506. (766) R. V. Durham, 10 Mod. 147. Dighton's Ca. 1 X'ent. 82. CORPORATORS. 297 year, or other term certain, or during pleasure. But they are at common law offices for life, or rather dum bene se gesserint; for this reason, if they are to be appointed for a shorter period, it should appear in the pleadings. Their offices also are so much in the nature of a freehold, that if they are " eligible for a year" and constituted in general terms, they do not expire with the year, but the possessors are entitled to hold over until others are elected. Yet if they are *' eligible for a year only^^ the office ipso facto determines on the expir- ation of the year. 767. A Corporation can only appoint such officers as other offi- the nature of their constitution requires ; therefore, un- less empowered by the prescription or charter, they cannot appoint a livery ; nor can they appoint constables without a special power, for they are to be appointed at the court-leet, and if there be none, at the turn, which is the general leet of the county. 768. The moment the office of a principal determines, Deputy, by death or otherwise, the authority of the deputy is at an end, and all his subsequent acts are void, at least after the death of the principal is known. They have not even the force of acts done by an officer de facto, for he is not an officer, but merely the representative of the principal while alive. (767) Vintners v. Passey, 1 Bur. 237. Hastings' Case, 1 Mod. 24. R. v. Barnard, Comb. 416. (768) R. V. Bedford Level, 6 East, 369. CORPORATOKS. Section II. POWERS, PRIVILEGES, DUTIES, ACTS, &c. Corporate powers. 769. A municipal Corporation has at common law few powers beyond those of electing, governing, and amoving its members, and regulating its franchises and property. These are presumed to arise out of general consent, and the necessity of self-preservation ; this assent is manifested in the first instance by acceptance of the charter, and subsequently by becoming members of the body politic. Hence the power of the governing officers can extend only to the administration of the by- laws and other ordinances by which the body is regu- lated. Corporate officers, as such, have no power of administering the general laws of the land, or holding a court of justice; but this is generally conferred upon some of them by a distinct and express commission in the particular charter, or by the general provisions of an act of parliament. Distinct from ma- gisterial. 770. The powers of corporate officers, as corporators, are therefore quite distinct from their authority as mu- nicipal magistrates and judges of an inferior court, or in any other specific capacity. For this reason they will be but briefly alluded to in this treatise. Exempt ju- 771, When the king grants to the inhabitants of the nsdiction. municipality that they shall be sued in their own courts. (769) R. V. Sir R. Atkj-ns, 3 Mod. 12. R. v. Langley, 2 Ld. Ray. 1030. (770) Jones v. WiUiams, 5 D. R. 6"63. (771) Reg. Brev. 219. b. S. C. 12 Mod. 644. Cross v. Smith, 2 Ld. Ray. 837. Foxwhist v. Tremaine, 2Saund. 209. b, n. 1. CORPORATORS, 21^ and not elsewhere, the Corporation has an exempt ju- risdiction, which may be pleaded to the jurisdiction of the superior courts, if they have a court capable of en- tertaining the plea. This differs from a conuzance, in as much as this is the privilege of all the individuals, and must be pleaded by the defendant ; whereas if a court have conuzance of pleas, it cannot be pleaded by the defendant, but the court must make claim of the conu- zance, showing its title in the court which has posses- sion of the action, where it must be allowed. The privilege of an exempt jurisdiction belongs to the de- fendant alone, so that if the plaintiff proceed in another court, the defendant may plead to the jurisdiction ; but this must be before making full defence, and the plaintiff cannot proceed before this plea is determined. If the plaintiff institute his suit in the municipal court, the defendant may wave his privilege, and come to the Court above for a certiorari to remove the proceedings. 772. An exempt jurisdiction can be granted by the crown to no person or body of persons but a municipal Corporation. 773. A ne intromittat clause in a grant of conuzance Concurrent does not exclude the superior courts, but the justices tion. of the county are excluded by it, and possess no con- current jurisdiction. But a concurrent jurisdiction over a place may be granted to a Corporation together with the county magistrates, and this is the case where jurisdiction is granted to a Corporation without a ne intromittat clause over a place where the county j ustices had formerly jurisdiction. (772) Cross V. Smith, 2 Ld. Ray. 837. (773) R. V. Cambridge, 2 Ld. Ray. 1.339. R. y. Grey, 8 Mod. 361. R. V. Sainsbur}', 4 T. R. 431. Bates v. Winstanlcy, 4 M. S. 429. R. v. Amos, 2 B. A. 533. 2 Chest. Ca. 557. 300 To try causes. CORPOKATORS. 774. A Corporation court may entertain a cause, although between a corporator and a stranger to the Corporation, and although a judge of the court, even the mayor, be one of the parties, if the court be com- plete in the absence of that judge, for he cannot sit to determine his own cause. 775. But they cannot entertain a cause in which the whole Corporation is a party against a stranger, there- fore they cannot entertain an action brought against one for a toll claimed to be due, either wholly or in part, to the Corporation. This must be tried in the King's Courts. 776. Some observations have already been made on the proceedings of corporate Courts and their jurisdic- tion, as far as relates to corporate purposes ; their pro- ceedings in administering the general law is foreign to the plan of this volume. 777. The common-council has not an incidental right to act as a court, in the investigation of the validity of an election. Corpora- tors not justices of right. 778. A mayor, alderman, or recorder, merely as such, is not at common' law a justice or conservator of the peace, and therefore in his corporate capacity ought not to exercise the powers of fining or committing to prison, but should do such acts in his character of a justice of peace. (774) London v. Markwick, 11 Mod. 164. S. C. 1 Bro. P. C. 218. (775) Player v. Archer, 2 Sid. 105. 121. (776) V. tit. 186. 399. (777) Jeffs V. Bolton, 1 1 Mod. 386. S. C. Fort. 349. (778) R. V. Langley, 2 Ld. Ray. 1030. Sir R. Atkyns' Case, 3 Mod. 12. Jones V. Williams, 5 D. R. 662, S. C. 3 B. C. 767. CORPORATORS. 301 779. But it has been usual in charters expressly to But some confer on the mayor and a certain number of the princi- createdf ^ pal corporators a commission of the peace, by virtue of which, those who hold the offices from time to time become invested, in right of such offices, with the powers and character of temporary magistrates. The authority is permanent, and in the nature of a perpetual commission, the powers of which are to be exercised successively by the different persons who fill certain offices designated by the charter. 780. This authority cannot be granted by mere im- Notbyim- •'_ 7 . plication. plication : or at least it cannot be implied, from a grant that the recorder shall be a justice of the peace, that the deputy recorder is also a justice, where not ap- pointed by the charter to be one. OT 781 . Nor can it be inferred that a deputy alderman is a justice of the peace, where the charter empowers the aldermen, who are declared to be justices of the peace, to appoint deputy aldermen during their absence from the borough, particularly if it neither require that the deputies be selected from among the corporators, nor that they shall be obliged to take an oath for the due discharge of their duty. Much less can it be implied under these circumstances, where the Corporation also is empowered, in the absence of such aldermen, to elect others to be aldermen during their absence, which tem- porary aldermen are expressly declared to be justices of the peace. (779) yVeathcrhead v. Diewry, 11 East, 175. (780) Anonymous, 2 Barnard. 237. R. v. Gravesend, 4 D. R. 117. S. C. 2 B. C. 604. (781) Jones v. Williams, 5 D. R. 662. S. C. 3 B. C. 10,1. 306 COnPOR'VTORS. Cannot be 782. Indeed, it seems that the crown cannot grant empowered ,..,„, . , . . to (iciegjite the prmcipal omeers who are constituted justices, power justice. to create deputies with similar authority. For though it may grant mayors, aldermen, and recorders, power to delegate their office merely as mayor, alderman, or re- corder, which they cannot do without an express au- thority ; yet the office of a judicial magistrate is of so high a nature, that it cannot be delegated under the express sanction of a charter ; for an act of parliament has provided that " no person shall have any power or authority to make any justice of the peace, but that all such officers shall be made by letters patent under the king's great seal, in the name and by the authority of the king, any grants, usages, prescriptions, allow- ances, act or acts of parliament to the contraiy notwith- standing. Provided that cities, boroughs and towns corporate, which have liberty, power and authority to have justices of the peace, shall still have and enjoy their liberties and authorities in that behalf, after such like manner as they have been accustomed." 783. At least, if the king can grant such a power of delegation, it must be in express words, such as " the deputy shall be a justice of the peace ;" and the Court will not intend such a grant. On this it may be ob- served, that there is nothing in the statute to prohibit • the king from constituting deputy mayors, or aldermen justices, but that it excludes only the leaving a discre- tion in the mayor, whether they shall be mere deputies or whether they will give them the authority of jus- tices. (782) Jones v. Williams, 3 B. C. 767. S. C. 5 D. R. 660. 27 H. VIII. c. 24. s. 2. 6. Com. Dig. Justice of Peace, A, 1. (783) Jones V. Williams, 3 B.C. 766, S. C. 5D. R. 661. CORPORATORS. 303 784. "In all writs of assize, and of actions personal Whenjus- sued or to be sued before the king in his Bench, Jus- force of , ^ TM 1 1 • ? • statute. tices 01 ttie Common Pleas, or any other kmg s jus- tices for the time being, of any lands or tenements, or of any thing being or arising within any seignory, fran- chise or ancient demesne, whereof the cognizance or jurisdiction ought to pertain to any lords, mayors, bai- liffs, citizens, burgesses, or commonalty of such seigno- ries, franchises or ancient demesne, that then if any defendant in any such assize, or other actions perso- • nal, make any default to put out, exclude, and expel, the aforesaid lords, mayors, bailiffs, citizens, burgesses or commonalty of their cognizance or franchise, that the justices at the request of the said lords, mayors, bailiffs, citizens, burgesses or commonalty, shall make enquiry by the assize, where such exception is alleged in assizes, and in actions personal, by inquests to be taken before the justices, if such defaults are made as before is said or not. In which assize and inquests to be taken, as well the plaintiffs as the lords, mayors, bailiffs, citizens, burgesses, and commonalty, may have their challenge. And .if it be found by such assizes or inquests so to be taken, that such defaults shall be made by collusion, to put out and exclude the said lords, mayors, bailiffs, citizens, burgesses or commonalty, of their franchises, liberties, cognizances or jurisdiction, that in such cases the said writs shall be abated, and the plaintiffs shall be in the kings mercy," 8cc. 785. " Mayors justices or justice of peace, sheriffs and bailiffs of cities, towns, and boroughs having franchise, (shall) have in the same cities, towns, and boroughs. (784) 8 H. VI. c. 26. et vid. 9 H. IV. c. 5. (785) 8 H. VI. c. 9. s. G. 304 rORPOUATORS. like power to remove such entries (with force into lands and tenements, or them after entry holding; with force) and in other articles aforesaid (v. stat.) rising withiii the same, as the justices of peace, and slieriffs in coun- ties have." 786. By this statute all mayors are for the partiCdrElf' purposes of it, created justices of the peace, or rather endowed with precisely similar powers ; so that if a' * mayor sign a conviction under the statute, *' A. B. mayor," instead of "A. B. justice of the peace," it is' sufficient. Union of ^^ ''• Where a court may be held by a steward arid ^fices"*' portreeve or their deputy, if one person can be both steward and portreeve, he may hold it alone, or he may appoint one person to be both deputy-steward and deputy- portreeve ; and such deputy alone may hold the court. Power to 788. ^' Whereas by an act for the more easy assessing, collecting, and levying of county rates, (12 Geo. 2. c. 29.) *' several powers and authorities are given to the jus- tices of the peace in England, within the respective limits of their commissions, at their general or quarter sessions, from time to time to make one general rate or assessment for such sum or sums of money, as they in their discretion shall think sufficient to answer all and every the ends and purposes of the several acts therein recited; but there being a proviso in the said act that the same or any thing therein contained should not . (812) 1 Lilt. .')iy. R. V. Lisle, Andr. 173. 312 corpokatoks. putting the common seal to an obligation, or making a retm'n to a mandamus . i y i << 1 1 y 813. There is a quaere whether a by-law made under a mayor de facto be valid or void. It is clearly void, for a by-law has not even the plea of necessity, and were it admitted to be good, the acts of usurpers might bind the legal members of the Corporation. - J Acts of se- 814. When there are several judicial officers occupy- cers. ° ' ing the same office, as bailiffs, sheriffs or coroners, they may often act independently in their capacity of judges; but in their ministerial character they must all join. ,111103 £ 815. When the Courts judicially take notice that several persons constitute one ministerial officer, as that there are two persons who constitute the sheriff of Lon- don, the act done by one of such persons is a mere nulhty, as a return by one of the sheriffs of London. But when the Courts do not judicially notice the fact, the act of some of them is not a nullity, but imperfect only ; therefore a return by three instead of the four coroners of a county, is cured by the statute of jeori; fails. -^^s Punish- 816. " If any mayor, bailiff or other magistrate in ficers"^"^' England, Wales, Berwick upon Tweed, Jersey or Guernsey, shall knowingly or wilfully resort or be pre- sent at any public meeting for religious worship, other than the church of England, as by law established, in (813) R. V. Castle, Andr. 124. [^] (814) Lamb v. Wiseman, Hob. 70. (815) Id. ibid. (81fi) 5 Geo. I. C.4. s. 2, CORPORATORS. 313 the gown or other peculiar habit, or attended with the ensign or ensigns of or belonging to such his office, every such mayor, bailiff or other magistrate, being thereof convicted by due course of law, shall be disabled to hold such office or offices, employment or employ- ments, and shall be adjudged incapable to bear any public office within England, Wales, Berwick upon Tweed, Jersey or Guernsey." 817. An action does not lie against a iudicial officer Action ® •' against. for an error in judgment, unless it be shown that under color of his office he acted wilfully and maliciously. 818. An action does not lie against the steward of a court, for orderino; that a freeman should be dis- franchised until he paid a certain fine, although the freeman has sustained loss by the sentence, and been since restored under a mandamus, the punishment being illegal ,• unless it be shown that the steward acted ma- liciously, and for the express purpose of causing an injury to the person disfranchised. "819. But an action at the suit of a freeman, lies against the presiding officer for refusing his vote at the election of a mayor. Quaere. 820. An action on the case lies against the presiding officer for refusing a poll on the demand of a candidate, when the numbers cannot be conveniently ascertained by sight. In this action an averment that the plaintiff thereby lost his office was held sufficient after verdict ; (817) Harman v. Tappenden, 1 East, 502. (818) Id. 563. etn. (819) Ashby v. White, 2 Ld. Ray. 957. Herring v. Finch, 2 Lev. 250. (820) Starling r. Turner, 2 Lev. 50. Ashby v. White, 2 Ld. Ray. 955. \ 314 CORPORATORS. but it should be, that otherwise he would have been elected. 821. So it lies for taking away the paper on which an officer is keeping an account of the voters polled, when it cannot be otherwise ascertained how the ma- jority will vote. In this case the defendant, a burgess, had caused the Corporation to assemble for the purpose . ' of removing the plaintiff from his office of recorder, and finding the majority voting on the part of the plaintiff, he took away and destroyed the paper on which the poll was taken. 822. The different statutes giving magistrates double costs, where the plaintiff is nonsuit in actions against them, extend to corporate officers acting in the capa- city of justices of the peace, but do not extend to pro- tect their acts in a mere corporate capacity. Indictment. 823. It is an indictable offence for aldermen to con- vene and conspire to elect persons to fill the vacancies in their body, contrary to the consent of the mayor, where it is necessary that the mayor preside at the election of aldermen. But the Court will not take judicial notice of the constitution of the Corporation, or that the consent of the mayor is necessary to the con- vening of the assembly, or his presence at the election ; all these circumstances must appear on the indictment, and it is insufficient to say that according to the privi- leges conferred by the letters patent, there ought to be twelve aldermen, but the charter constituting that (821) Sir J. Shaw's Case, 2 Mod. 228. (822) Herring V. Fincb, 2 Lev. 250. (823) R. V. Atkyns, .3 Mod. 5. 7. S. C. 2 Show. 2.'38. S. C. Treiuain, 233. Sod vide R. v. Soley, 11 Mod. 117. CORPORATORS, 315 number must be set out. — The indictment was for a riot. 824. A criminal information will be granted against Criminal those who riotously disturb the election of the chief lion. officer, but if it be not shown that the right of making the election is vested in the persons who are so dis- turbed, judgment will be arrested. 825. It will be granted against the individuals who, meeting under color of forming a corporate assembly, make an order and enter it in their books, stating that the assembly were sensible that A. (their late mayor,) was actuated by motives of public justice, of preserving the rights of the Corporation, and supporting the honor and credit of the chief magistrate, in conducting a pro- secution for perjury, on account of which he had been found guilty of a malicious prosecution in a competent Court ; for this is a libel on the administration of justice. 826. Or for corruptly combining and prostituting their office, for the purpose of the election of members of parliament or other purposes affecting the constitu- tion, although an indictment may be the more proper proceeding. 827. Or for giving a bribe to procure the election of a particular person to be mayor, particularly if attended with an endeavour to prevent the election of another, as if the offender being the mayor, whose presence is necessaiy, absent himself and remove the corporate (824) R. V. Soley, 11 Mod. 115. (825) R. V. Watson, 2 T. R. 204. (826) R. V. Davie, Doiif?. .'589. R. v. Dummer, 1 Saik. .'.74. n. (827) R. V, Tiverton, 8 Mod. 186. 316 CORPORATORS. books ; on which account no mayor could be elected on the charter day to the great detriment of the CorJ poration. 828. Or for offering a bribe to a corporator to vote for a particular person to be mayor, although the bribe was refused. See the form of the information in Plymp- , , --ill ijqo'iq ton s case. . *■ ^ 829. It will not be granted ao-ainst the members of a select body, who, on the charter day having separated for the purpose of nominating persons of whom another body is to elect one to be mayor, instead of proceeding to their duty, previously enter upon the discussion of other public business, if there have been an usage to do so for the last 150 years; for though it is a great offence against their corporate duty, it appears that there is a plausible reason for them to consider that they had a right to do so. 830. Nor against a body who have the power of amo- tion, for disfranchising, on the eve of an election, mem- bers who had been previously restored in obedience to a mandamus, although for the same cause as the for- mer amotion, and although the applicants in their affidavits impute corrupt motives for election purposes ; if the defendants disavow such motives, and declare that they believed the cause of amotion sufficient in point of law. (828) R. V. Cripland, 11 Mod. 387. R. v. Plympton, 2Ld.Ray. 1377. R. V. Vaughan, 4 Bur. 2494. (829) R. V. Parkyns, 3 B. A. 678. (830) R. V. Davie, Doug. 589. CORPORATORS, 317 831. Nor will it be g-ranted against the governing Not for . ■ ■ r 1 misapplica- part of a Corporation, for mis-application of the corpo- tion of rate funds ; for the Court of equity is the proper tribu- nal for the investigation of this question. Where the trust reposed in a Corporation has been abused by the governing body, by appropriating to themselves the pro- fits of property granted them for public purposes, the proper method of proceeding is by information in chan- cery in the name of the attorney-general, which he will in his discretion file on the application of a member of the Corporation or other person aggrieved ; upon which, if necessary, a discovery may be obtained, and the offending parties may be compelled to account. 832. The application for a criminal information is a Informa- waver of an action for the same cause, and if granted, of action, operates to stay civil proceedings : but the Court will in its discretion consider which is the more proper method of proceeding, and if it seem fit, refuse the in- formation, and direct an action to be brought. 833. Besides those cases in which the Court grants Informa- leave to file a criminal information, the attorney-general torney-ge- may at any time file one of his own authority ; and if it include unnecessary counts, it seems that the Court cannot direct them to be struck out, but there should be an application to the attorney general for a summons to the prosecutor's attorney, to show cause why they should not be struck out, and if they appear unneces- (831) R. V. Watson, 2T. R. 204. Dumracr v. Chippenham, 14 Ves.jun. 250. Limerick v. Attorney General, fi Dow. P. C. 136. (832) R. V. Sparrow, 2 T. R. 198. (833) R. V. Green, C. T. H. 209. 318 CORPORATORS. sary, it wll recommend to the consideration of the at- torney-general, the propriety of striking them out. Motion for 834. A motion to show cause why a criminal informa- infornia- n ■, i i i i j tion. tion should not be filed, cannot be made on the last day of term. (834) R. v.Davies, Say. 241. 319 CHAPTER VI. CONFIRMATION. An existing Corporation may be confirmed in its con- stitution and privileges, either by act of parliament, or by acceptance of a new charter from the king, and few are the Corporations which have not in the course of their existence been confirmed by one or the other. The confirmations by statute are of two kinds : the one by a general law confirming all Corporations at that time in being : the other by a statute relating to a par- ticular municipality. By statutes or charters usually called confirmatory, there are in general many altera- tions made in the pre-existing constitution, or indeed they would be almost nugatoiy. I. BY STATUTE. 835. " Civitas London habeat omnes libertates suas General statutes. antiquas et consuetudines suas ; preterea volumus et concedimus quod omnes civitates alise et burgi, et villae, et barones de quinque portubus, et omnes portus ha- beant omnes libertates et liberas consuetudines suas." (835) Magna Charta, !) H. III. c. 9. 320 CONFIRMATION. Statutes re- lating- to particular Corpora- tions. 836. " Auxint voet le Roi que les citees, burghs, et villes, de franchises eient leur franchises, usages, et franches costumes selonc ce q'ils deyvent avoir et soleyent." 837. A confirmation of customs by parUameiit, ex- tends only to ratify such customs as were previously good. 838. As to the statutes confirmatory of particular Corporations, they are not mentioned here, for they must be pleaded and relied upon as private charters. And those statutes which confer particular powers and privileges on corporate officers, are not altogether within the scope of this treatise ; a few of them have been already extracted. London. 839. The statute of Richard II. by which the cus- toms of London are confirmed, may be found at length in the report of the case of Colchester against London ; and for the statute of the second year of William and Mary, which reverses the celebrated judgment on the information in the nature of quo warranto against the city, entered in the thirty-fifth year of Charles the Se- cond, refer to the statutes at large. It may be observed that this act is a public act throughout, and need not be pleaded, though it was argued at one time that a part only was declared a public act. (8.%) 1 Ed. 111. c. 2. s. 9. (837) City of London's Case, 8 Co. 12G. Fazakerley v. Wiltshire, 1 Str.466. (839) 7 R. II. c. 35. Player v. Vcre, T. Ray. 289. Colchester v. Lon- don, W. Jones, 240. 2W. &M. St.]. c. 8 R.V.London, 12 Mod. 18- S. C. Skin. 294. 316. CONFIRMATION. 321 840. The Corporations of the universities of Oxford Oxford and 1/^1-1 nit • 1 • Cambridge, and Cambridge were confirmed by a statute in the reign of Ehzabeth, which declared that their charters should be good, effectual, and available in law, to all intents and constructions and purposes, according to the form, words, sentences and meaning of the same, as amply, fully and largely, as if the same letters patent were recited verbatim in that act of parliament: provided that the privileges and liberties of the municipal Corpo- rations of the city and town should not be prejudiced, but continue as before. II. BY CHARTER. 841. By a charter of confirmation, the pre-existing Effect, constitution may be essentially altered, if it depended upon prescription or charter ; but not if it were estab- lished by an act of parliament. Such alterations can be made only by express provision, or by modifications of the body politic, or new provisions inconsistent with the continuance of the ancient regulations ; in all other respects the constitution continues as before. 842. A charter of confirmation must be accepted in Accept- the same manner as an original charter of creation. Of this acceptance the doing of corporate acts in a manner conformable with its provisions, and contrary to the for- mer rules is evidence. But if such a charter be accepted by the select classes and rejected by the freemen of the (840) 13 Eliz. c. 29. (841) R.V.Barber Surgeons, 1 Ld. Ray. 585. R. v. Larvvood, 1 Ld. Ray. 32. S. C. Comb. 316. R. v. Miller, 6 T. «. 277. (842) R. V. Larwood, Comb. 316. S. C. 1 Ld. Ray. 32. vS. C. Skin. 575. R. V. Wynn, 2 Barnard. 391. Y 322 ("oNriuMA'iitJK. former Corporation, elections in conformity with it, and the submission of the freemen for the space of thirty- five years give it no autliority. Confirma- 843. Wlien a Corporation has accepted a new char- tion or . . Riant. ter they may use. it as a confirmation or a grant accord- ing to the nature of its provisions ; it operates also in some respects as a surrender, for its effect is to confirm the constitution when unaltered, to grant new powers and franchises, and to alter or repeal those which were formerly enjoyed. Alterations. 844. If the power of amotion were anciently vested in a select body and a new charter neither dissolve that body nor divest it of such power, nor transfer that power to any others, although that body be newly modified, the power of amotion is tacitly confirmed in them and to be exercised as before. 845. If under the ancient constitution all house- holders were entitled to vote except innholders or dratvers at inns, and a new charter, confirming all ancient cus- toms except where altered, declare that no drawer at an inn shall vote, omitting innholders ; this does not operate to remove the disqualification of innholders, but they are still excluded by virtue of the ancient constitution. 846. If such charter confej: a new franchise upon the Corporation, for which it is necessary that a public ofiicer be constantly provided, (such as the shrievalty of Middlesex, which was conferred on the city of London,) (843) K. V. LarwDod, 1 Ld. Uay. .^'Z. S. C. Comb. .3UJ. (844) Haddock's Case, T. Ray. 435. R. v. Wcstwood, 4 B. C. 79.5. (845) R. V. Abell, 3 D. R. 395. (846) London V. Vanacre, 12 Mod. 271. S. C. 1 Ld. Ray. 499. CONFIRMATION. 323 the Corporation is bound to provide a sufficient officer, and their neglect to do so is a forfeiture of the fran- chise, on account of which the letters patent may be repealed by scire facias. And by accepting the charter, all the freemen of the Corporation who are capable of discharging such office, render themselves liable to undertake it, although it is to be executed beyond the limits of the Corporation. 847. After receiving a new charter, which alters the qualification of the electors, or eligible or the mode of election, an election according to the former constitu- tion is altogether void. 848. If two sheriffs were both formerly eligible by the Corporation at large, and a new charter declared that one should be elected by the select classes, and the other by the commonalty, and the commonalty pro- ceed to elect both, the election of the first chosen is valid, and that of the second void. 849. So if formerly burgesses might be elected from among either inhabitants or strangers, and a subsequent charter has limited the eligibility to the inhabitants, the election of a stranger is void, although the Corporation have been in the habit of electing strangers ever since acceptance of the charter. 850. So if the statute or new charter prescribe a dif- ferent form of election from that anciently pursued, an election according to the former mode is void. (848) R. V. Larwood, Comb. ;il6. S. C. 1 Ld. Rny. 32. (849) Powell V. Regem, 3 Bro. P. C. 436. (850) R. V. Barber Surgeons, 1 Ld. Ray. 58o. R. v. Miller, 6T. R. 277. R. V. Westwood, 4 B. C. 795. Y 2 324 CONI'IIIMATION. 851 . The charter at times alters the period of dura- tion of an office ; so that if a mayor had antecedently a power to hold over, being elected annually on Michael- mas day, by the mayor burgesses and common council, that power is abrogated by a new charter, confirming the constitution in all things not altered, but aholishiug the ancient manner of electing, nominating and appoint- ing the mayor, and directing that the election shall be in future by the mayor, common council, and town clerk, annually upon the twenty-fourth of September pro uno anno integro proxime sequendo. For the former method of election being abolished, surely an incidental right under such election will be gone also. The right of election is transferred to other persons, and can there be a holding over under an election when the foundation of that holding over is gone ? (851) R. V. Phillipg, 1 Str. 397. 325 CHAPTER VII. DISSOLUTION, 852. It has been a disputed question, whether a Cor- poration can be actually dissolved except by the extinc- tion of all the people of the place, nor is it yet set at rest. It was violently agitated in the time of Charles the Second, pending the proceedings against the city of London, and has been frequently discussed since, particularly in the contest between the different parties of the Corporation of Chester. When the question has been closely pressed on the Court, they have avoided it, by finding that in the particular cases urged, the Cor- poration was in a state of suspension, or that the sur- render of the charter was invalid for want of enrol- ment, or that there was an error in the proceedings against the Corporation. The frequent use of the word Dissolution in law books is no ground for argument ; for at different times it has been held in all the instances to which the expression has been applied, that the body was not ipso facto dis- solved ,• and the charters granted upon such a presump- tion, have been either declared void, or construed to be charters of revival and confirmation, and not charters of new creation. (852) Case of the City of London.— Quo War. passim. 2 Show. 263. 279. Smith's Ca. 1 Show. 278. 280. S. C. R. v. London, 12 Mod. 17, 18. S. C. 4 Mod. .'iS. Duiigannon Ca. Hob. 14. S. C. 12 Rep. 120. Harrison v. Williams, ;5 B. C. Ifi2. 326 DISSOLUTION. The different means by which Corporations have been supposed capable of dissokition are, 1. by the loss of an integral part of the Corporation, such as the mayor, the aldermen or a majority of them, or at least by the death or ouster of all the corporate officers. 2. By surrender of the franchise of being a body politic, made by the Corporation for the time being, which surrender must be accepted by the king whose acceptance is said to be manifested by causing it to be enrolled in chan- cery. 3. By repeal of the letters patent on proceed- ings in scire facias, founded on a supposed forfeiture of that franchise. 4. By proceedings in quo warranto founded on the same pretence. As I apprehend it, the creation of a mimicipal Cor- poration is the constituting of all the people of a cer- tain place, a body politic, for the purpose of self-go- vernment, and the enjoying certain privileges and fran- chises which could not otherwise be enjoyed with equal couveniency ; a body which does " not depend for its existence either upon the circumstance of having officers capable of administering their affairs, or the actual possession of those privileges or franchises. If this principle be correct, and it is not unwarranted by the highest authorities, a Corporation may be suspended and inert, but cannot be dissolved unless by the extinc- tion of all, or at least by the surrender or misconduct of a majority of the people of the place. The courts have often in some measure departed from this doctrine, in treating a Corporation as consisting only of officers and freemen and not including the people of the place ; but a very recent decision has, I think, fully substantiated my position. And perhaps the principles may be thus reconciled. On the application of Williams, who was an inhabi- tant of Chester, but not a freeman, to obtain inspec- BISSOLUTION . tion of a by-law in which he was interested, the learned Judge who now presides in the Court of King's Bench observed, that the apphcant was not to be considered as standing altogether in the situation of a stranger^ but that the by-law must be taken to have been made for the public weal, and for the rule and government of persons resiant and dwelling within the city. In the case of Dungannon it was held, that the king might incorporate a place, and confer franchises upon it, to be exercised by a certain body to the exclusion of the rest. Of this kind I apprehend are all incorporations of municipalities ; the people of the place are both formally and virtually incorporated ; certain only are admitted to the enjoyment of many franchises, fewer still are in- vested with offices either of pre-eminence or govern- ment, and the power of regulating their affairs ; but the whole are presumed to have an interest in the grant, that of being governed by the corporate body, better than they had otherwise been, and sometimes of enjoy- ing such privileges as the right of common. Although, then, the principal advantages might be lost by the ex- tinction of the officers of the body politic, and almost all the rest by the extinction of those admitted to the freedom, the form of incorporation, the constitution itself still remains, and the king may by another charter empower the inhabitants to elect new officers, and admit another race of freemen, or may himself appoint them either by nomination or prescribing certain qualifica- tions, without reincorporating the people of the place. Many opinions thrown out by the judges at different times are contrary to this doctrine, but tlie decisions are in support of it, and though impeached, they have not been overruled. 327 )28 DISSOLUTION. I. BY LOSS OF AN INTEGRAL PART, cer. Cliiefoffi- 853. A Corporation was considered to be dissolved^ by the omission to elect the mayor on the day appointed by the constitution, in cases where the former had no right to hold over, because there remained in the body no power of afterwards electing one. It was also ob- served, that it might be dissolved where the mayor died between the day of his election and that at which his office would expire, if the charter had not provided for a new election on that event ; but I apprehend the au- thority of this observation is very weak, for at the ut- most it could only amount to a suspension, until the next charter day. The first case is now provided against by a statute which expressly declares that no Corpora- tion shall be dissolved or disabled from electing such officer on that account. 854. The statute goes further, and with a retrospec- tive view provides that " no Corporation shall be deemed or adjudged to be dissolved or disabled from electing a mayor, bailiff or bailiffs, or other chief officer or officers by reason of any omission or default which hath already happened in not nominating electing or swearing a mayor bailiff or bailiffs or other chief officer or officers of such corporation, upon the day or within the time limited for such nomination, election or swearing by the charter or usao'e of such corporation, or by reason of the absence of the mayor, bailiff or bailiffs, or other chief officer or officers who ought to have presided at the assembly for such nomination, election or swearing, or by reason of (853) 11 Geo. I. c. 4. s. 1. V. tit. 5.31. Banburj' Ca. 10 Mod. 346. R. V. Pasmore, 3 T. R. 245. f854"l 11 Geo. I. c. 4. s. 7. DISSOLUTION. 329 such election having become void as aforesaid, but every such corporation shall be adjudged, deemed and taken to be and to have been subsisting and capable of electing such officer or officers, to all intents and pur- poses, any such omission, absence, default or avoidance, or any defect, disability or forfeiture, arising therefrom, in any wise notwithstanding." 855 " Provided that nothing herein contained shall extend or be construed to extend to invalidate or make void any charter heretofore granted to and accepted by any city borough or town corporate, or any Corporation within the same or any of them, or any elections or acts had made or done in pursuance of any such charter." 856. A corporation is said to be dissolved by the loss Aldermen, of all or the majority of the members of any integral part, without which it cannot transact its municipal business, unless the subsisting parts have vested in them a power of restoring it. — As if the Corporation be con- stituted of mayor, eleven other aldermen and burgesses, the election of the mayor to be made by the mayor, al- dermen and burgesses; if none of the aldermen re- main, or only five, the Corporation is dissolved ; unless the mayor and burgesses possess the power of electing aldermen without the interference of aldermen. 857. This has been called dissolution, but it should whatisdis- be observed that in no one of the cases where it has been so called, was the corporation in the state de- scribed. It may be well therefore to point out the effect (855) 11 Geo. I c.4. s,8. (856) Colchester V. Seaber, 3 Bur. 1870. S C. 1 W. B. 5'.n. R. v. Pas- more, 3 T. R. 241. R. V. Miller, 6 T. R. 278. R. v. Morris, 3 East, 216. S, N. 4 East, 26. 330 DISSOLUTION. of an actual dissolution, and the effect of a corporation beinff reduced to this state. ^ Extinction. 858. If a Corporation be dissolved, its property does not escheat to the crown, but inverts to the private donors. If a prescriptive corporation be dissolved, a new corporation established in its place, although en- dowed with all its powers, privileges, immunities and property, cannot claim by the prescription of the former body. If a Corporation be once dissolved, though a new one be founded of the same name, and all the posses- sions be granted to them, yet homage ancestral is gone. The franchise, to be a Corporation, can subsist only in the persons to whom it is granted, and cannot merge in the crown, therefore on a dissolution of the body politic, they must ipso facto determine. From these observa- tions it is clear that a Corporation actually dissolved is incapable of revival. Suspension. 859. When the case of a Corporation in a defective state, has been before the Court, the term suspension has been used instead of dissolution, and its state has been thus described. The Corporation still subsists ; the remaining members still enjoy the right of voting in the election of members of parliament; they still enjoy the right of common : and the crown may appoint a new ■ set of officers and revive their activity, without granting them new powers or reincorporating them. They may even be revived by a different name, without words of (858 j Knight v. Wells, 1 Lut. .')!<). Attorney General v. Lord Gower, y Mod. 22(). Windsor v. Webb, God. 211. Whitton v. Westren, W. Jon. 190. Chest. Ca. 567. R. v. Stratford on Avon, 14 East, 360. 1 Rol. Al)r. 816. p. 2,3. Co. Lit. 13. b. 102. b. Treoy, Qno War. 13. R. v. Saunders, 3 East, 119. V. tit. 4. (859) V. tit. 863. U. v. London, 1 SIiow. 278. 280. Colchester v. Sea- l;rr, 3 Bur. 1870. S. C. 1 AV. B. 591. Si-arlioron-h v. Huller, 3 Lev. 237. DISSOLUTION. 331 incorporation, contiuiiing to be the same body politic, possessed of all their ancient rights and franchises, lia- ble to all their ancient duties and obligations, and may ,be endowed with new privileges by such charter of revival, in the same manner as if such privileges had been granted to a Corporation in the plentitude of its power. It was said that the statute of George was passed only through jealousy of the authority which existed in the king to revive by appointing new officers. 860. Contrary to this however, it was held that where a Corporation is suspended, the personal privileges of its members are extinguished, and its property and franchises vested in the crown. But that the franchises created by the crown do not merge in it or become ex- tinguished, but may be regranted to a new body of men. II. BY SURRENDER. 861. It has been said that a Corporation may sur- Maybe. render the franchise of being a Corporation, and the argument is deduced from the principle that a contract may be released by the same authority by which it was formed. So that, as the grant and acceptance of a char- ter is sufficient to create a Corporation, the sun-ender and acceptance of a charter is sufficient to destroy it. If we can presume the assent of the majority of the freemen and people of the place, to such a surrender (860) R. V. Pasmorc, 3 T. R. 241. 244. Strata Marcella, 9 Co. 2^. h. (861) R. V. Miller, 6 T. R. 277. R. v. Haythorne, 5 B. C. 412. 425. R. V. Grey, 8 Mod. ;«il. Butler v. Palmer, 1 Salk. I'Jl. Nevvling v. Fran- cis, .3 T. R. I'JO. 196. R. V. Holland, 2 East, 72. R. v, Osbourne, 4 East, 335. Quo War. Poslsc. 332 DISSOLUTION. Ck)ntra. Insufficient surrender. it may be very difficult to maintain the contrary opi- nion. But I apprehend that very strong evidence would be required, were a surrender now relied upon in a case where the Corporation have not received nearly equaL advantages from a new charter founded upon it. — It is clear that a Corporation created or confirmed by statute, cannot surrender their franchise. And it has been held that a Corporation by charter, cannot surrender the franchise of being a Corporation, for that otherwise an act of parliament would not have been necessary to legalize the surrenders of the religious houses in the reign of Henry the Eighth. But the Court in most cases ap- pear to have assumed the contrary ; and held the sur- renders relied upon ineffectual for want of enrolment. Wrong name. 862. If a Corporation consisting of mayor, aldermen and burgesses, surrender their charter, by the name of mayor, aldermen and capital burgesses, it is void. Effect on rights of others. 863. " In the case of the town of Nottingham, it appeared that at the common-council of the said town, it was ordered that there should be a surrender made of the charter to the king, and thereupon the mayor pur- suant to the said order, did take out of the town chest the said order (charter) and surrendered the same ac- cordingly ; and so it fell out, that in the said charter was contained not only the franchise of the Corpora- tion, but also the grant of certain common to the in- habitants, end because the surrender was against the minds of a great number of the inhabitants, who were discontented and were opposers of the present govern- ment of the kingdom, they took advantage of this omis- sion and exhibited an information into B. R. and de- (862) R. V. Bridgewater, 11 Mod. 291. (863) T. Ray. 482. DISSOLUTION. 333 sired the master of the crown office (in whose name the information was exhibited) to file it, but in regard it tvas 7natter of state, and of great concern, he this term de- sired the directions of the Court, who ordered that the attorney-general should be made acquainted therewith, who at another day appeared and refused to meddle therewith, and so it was left to Mr. Astry to file or not to file at his discretion, for the Court would not use any compulsory means for filing it, in regard they could not know whether such an information was necessary or no ; and it is properly the office of the king's attorney to manasce informations of such concernment." III. SCIRE FACIAS. 864. If a charter have been originally granted upon To repeal an erroneous consideration, or if it be injurious to the voidable. public, or otherwise voidable, either in toto or in certain parts only ; it may be repealed entirely or as to the void- able parts only, without affecting the remainder, by proceedings in scire facias. But when it is absolutely void, this process is unnecessary, for though unrepealed, such a charter affords no protection to one acting under it, against an action for any injury which he has done another. 865. But when facts are stated as the consideration when not. of the charter, it will not be repealed because a con- clusion has been drawn from them erroneous in point of law. (864) Sackville College Ca. T. Ray. 178. Butler's Ca. 2Vent. 344. R. V. Pasmore, .3 T. R, 244. 2 Chest. Ca. 556. (865) R. V. Pasmore, 3 T. R. 242. 245. 334 uissolutiolN. 866. Nor will it be avoided, because it refers to a preceding charter as valid, when in fact it is void, if it be not founded upon such charter. For for- 867. If a charter conferring a franchise be granted upon a condition implied in the nature of the grant, which the Corporation has neglected to perform to the public inconvenience, it may be repealed by scire facias. 868. And it has been said that if a legal existing Corporation abuse the powers confided to it, this amounts to a forfeiture of the charter, and it may be repealed by scire facias, which is the only way of taking advan- tage of it : but that this proceeding is unnecessary where the Corporation is actually dissolved. IV. BY QUO WARRANTO. 869. In the time of Charles the Second judgments (some final and some merely on default) were given against several Corporations on proceedings in quo war- ranto, under which they were assumed to be dissolved. And the ground on Vvhich this assumption was based vv'as, that the misconduct of the officers amounted to a forfeiture of the franchise, on account of which the Corporation ceased to exist, and therefore they were liable to be punished for acting as a Corporation. (86G) R. V. Haythorne, o B. C. 426. (867) London v. Vanacre, 12 Mod. 27J. S. C, 1 Ld. Ray.-IDD. (868) R. V. Pasmore, 3 T. R. 244. Smith's Ca. 4 Mod. 57. R. v. Wynn, 2 Barnard. 391. r8fi9) Tailors of Ipswich, 1 Rol. 5. R. v. Grosvenor, 7 Mod. 199. Sir .J. Smith's Ca. 4 Mod. .5.5. 58. S. C. 12 Mod. 17, 18. S. C. Skin. 311. S. C. ! Show. 278. 280. R. v. Saunders, 3 East, 1 19. Treby. ^iio War. 13. DISSOLUTION. Others argued that on such a forfeiture, although the franchise were forfeited, the body continued to be a Corporation, but hable to be dissolved by judgment in this proceeding, which might be that the franchise "should be seized as forfeited. Were the former opinion correct, it had been necessary to file the information against the individuals nominatim, and this ought to have been a criminal information, and not an informa- tion in the nature of quo warranto, for that of necessity assumes the existence of the Corporation, but asserts that the possessors have no right to hold offices in it. But in confidence of the latter opinion, the informations were in the nature of quo warranto, and against the body by its corporate name ; so that the judgment had this absurdity in it — by in effect declaring that the Corpo- ration had forfeited its right to be a Corporation, and that it should be seized into the king's hands, which was impossible ; for a Corporation, as a Corporation, cannot commit a forfeiture : it is merely the franchise of others, and could not be seized by the king, for he could not be the Corporation. Supposing a Corporation can be forfeited, either by the misconduct of its officers or of all the members, but that by such forfeiture it is not ipso facto extinct, whatever proceeding is pursued to destroy it must be against that body of people on whom the franchise was bestowed ; therefore proceed- ings against the mayor, aldermen and common-council (or even commonalty) had been illegal ; they must have been instituted against the citizens and inhabitants of the place, for on them the right to be a Corporation was originally conferred, though they are not all admitted to the place of freemen. If indeed a Corporation usurp a liberty (that is, sup- posing a liberty granted to it has been forfeited by its abuse or non-performance of the condition on which it 335 336 DISSOLUTION. was granted, and supposing such forfeiture ipso facto determines its right to enjoy such hberty,) quo war- ranto may be brought against the body in its corporate name, and the liberty may be seized on judgment ; but this in no manner affects the existence of the Corpora- tion, it only deprives them of the particular franchise which they have abused, and though stript of all its franchises the Corporation still subsists. The effect of a judgment on default in quo warranto has been de- clared not to cause a dissolution of the body politic, and will be mentioned under that title. 337 CHAPTER VIII. REVIVAL/ 870. A Corporation which has been suspended may vvhen by be revived by the Crown in another form or name, and this may be by words of confirmation only, without words of grant. But if a Corporation have been actually dissolved and extinct, it can never be revived ; the char- ter must create a new corporation by words implying incorporation. 871. It may be revived as well by a general procla- By procla- . mation. mation under the great seal, mcludmg all Corporations in a similar state of inertness, although not mentioned by name, as by a particular charter : for that is as it were a special charter, to each of those Corporations, whose members choose to resume their places, and act under it, doing which is an acceptance of the grant, and sufficient although others within its terms do not accept it. The proclamation relied upon in this case, appears to me to have been a nullity in law, although in fact it may have caused those to assert their rights, who would otherwise have permitted the temporary usurpa- tions to have continued ; for if the judgments, had dissolved the Corporations, they were incapable of re- vival ; and considering them not to have dissolved the (870) Colchester v. Seaber, 3 Bur. 1870. S. C. 1 W. B. 591. R. v. Pasmore, 3 T. R. 242. R. v. Amery, 2 T. R. 569. (871) R. V. Pasmore, 3 T. R. 192. 197. 241. Z 338 REVIVAL. Corporations, as the fact was, they continued to be legal subsisting- bodies, and the officers had an equal right to resume their places, although the proclamation had never issued. Re -grant of surrender- ed frau- cliises. 872. If a Corporation have been surrendered, it may be revived by a charter restoring, granting and confirm- ing the liberties of the former, although it do not pro- fess to reincorporate the place. The meaning of this seems to be that the Corporation cannot destroy itself, but continues althoug-h it have surrendered all its franchises, which the crown may restore. Effect of revival. 873. By the revival of a Corporation, all their former rights and franchises are revived, and may be asserted in the name conferred by the new charter ; the king may at the same time confer upon them new rights and franchises. In what persons. 874. The king may revive the former body, with the same officers and members as before, bestowing only upon them the powers of action which had failed ; or he may revive it with those officers and the addition of others, or may omit the former officers, and appoint new men to fill all the offices. In whatever form revived, the charter must be accepted by a proper majority of those appointed by it, and it is unimportant that all the original members refuse to receive it. When there 875. It was held that if a Corporation be dissolved revival. ^•'^d the crown create another in its place, it cannot (872) R. V. Grey, 8 Mod. 361, 362. (873) R. V. Pasmore, 3 T. R. 241. (874) R. V. Pasmore, 3 T. R. 244. 247. (87.5) R. V. Amery, 2 T. R. rt&J. 2 Chest. Ca. 556. REVIVAL. 339 afterwards revive the former during the existence of the second. — If dissolution be used to signify extinction, the first can never be revived ; if it be used to signify suspension, it seems that the grant to a new body of men operates as a revival of the former Corporation ; so that in fact there is no new Corporation created, though the charter be in the form of an incorporation. * It is universally admitted that there cannot be two distinct Corporations, created in the same place, with the same rights, property and privileges, and with simi- lar powers. 876. While judgments in quo warranto have been Custosof . ~ . . , , , corporate standmg agamst Corporations, it has been the practice franchises for the king to appoint a custos of the franchises, whose ure. authority ipso facto determines upon a restoration of the body politic, by reversal of the judgment, or a par- don of the offences. This implies that the Corporation continues to exist. In the case of London, judgment was given in the long vacation after Trinity term of 35 Charles the Second, and in the following term the king appointed Sir Henry Tulse to be mayor of "■ Lon- don being in his hands by force of the judgment in quo warranto, to hold the office at the king's pleasure." And the mayor appointed an attorney in the King's Bench, thus " The mayor of the city of London has placed and appointed" — the appointment was anciently in the corporate name — " the mayor, commonalty and citizens appoint." — 877. " It was resolved by the Court, that if there be Voidchar- an old charter surrendered, but the surrender is not en- (876) Mayor of London by commission, 2 Show. 314. Quo War. pas- sim. 2 Chest. Ca. 567. (877) Bully v. Palmer, 12 Mod, 247. S. C. Butler v. Palmer, Salk. 190. Z 2 340 REVIVAL. rolled, and a new charter in consideration of the sur- render granted, that the second charter is void ; and if there be any other persons in the new charter than were in the old, any law made by them is void, because they act under a void charter ; but secus, if it be the same members in the old charter, because then they * act by their first charter, which is still good. So if in the first case they had given a bond, and put the seal of the new Corporation to it, it would be void. But if the members of the old charter had gone to election, and some by color of the new charter had voted with them against their will, their choice by majority of the old charter with some mentioned in the new, is good." PART 11. 343 CHAPTER I. CORPORATE DOCUMENTS. I. EVIDENCE. 1. Corporate documents are of two kinds, those Public, which are the records of the municipality, relating only to the members of the body politic and persons under its go- vernment, which are of a public nature, and evidence in all questions among themselves, and also in ques- tions of a public right, as that of swearing and admit- ting freemen ; and those of the other kind which relate Private, to the corporate rights in respect of strangers, and are as much private writings as the title-deeds of any indi- vidual. 2. When Corporation books have been kept publicly What are as such, entries made in them by the proper officer have ^^ been generally admitted to be given in evidence. And of similar authority are entries made by another proper person during the sickness of the officer, or on his re- fusal to attend; but in the latter case, the reason why they were not made by the officer ought to be shown. (1) London v. Lynn, IH.Bl. 214. c. Marriage v. Lawrence, 3B.A. 144. R. V. Debenham, 2 B. A. 187. Gibbon's Ca. 17 How. St. Tr. 810. Moore's Ca. 17 How. St. Tr. 8.54. (2) R. V. Mothersell, 1 Str. 93. 344 CORPOItATK DOCUMENTS. Authenti- 3. Whoevcv produces the book must establish its autliority before he dehvers it in, and may be required to show where it has been kept, and how it came to his possession. Whatnot 4. A book Containing minutes of some corporate ^" "^' acts which occurred ten years ago, entirely written by the relator's clerk, who was not an officer of the Corpo- ration, and appearing never to have been kept among, or esteemed as one of the corporate documents, or even seen before the present application for an information, is not admissible as a corporate document. 5. Nor is the copy of a letter made 50 years ago, and found in the Corporation chest ; but the original must be first accounted for, as though it had been found in the possession of a private person. 6. Nor are entries of a private nature in the public books of a Corporation, evidence for them in support of a right which they claim, for this were allowing the party to fabricate evidence for themselves. Copies of 7. Where the original document is of a public na- Sence.' ture, and would be evidence if produced, it is not neces- sary to show the document itself, for it may be required in many places at the same time ; for that reason an immediate sworn copy made by the proper officer will be admitted. (3) R. V. Mothersell, 1 Str. 93. R. v. Tlietford, 12 Vin. Abr. 90. p. 16. (4) R. V. Mothersell, 1 Str. 93. (5) R. V. Gwyn, 1 Str. 401. (6) R. V. Debenham, 2B. A. 187. Marriage v. Lawrence, 3 B. A. 144. (7) R. V. Lord George Gordon, Doug. 593. (3). 1 Phil. Evld. 405. CORPORATE DOCUMENTS. 345 II. CUSTODY. 8. The custody of corporate documents belongs Of chief more particularly to the chief officer, but they ought to be kept in the usual depository, which should be in the Guildhall. If other persons have access to the public depository, and some one having taken away, injured, or attempted to injure any of the documents, the mayor has on that account removed them into his private cus- tody, the Court will not compel him to replace them in the public place, until provision has been made for their security against the recurrence of similar mis- chief. 9. If the custody of their documents belong to one Of redor- of their officers in virtue of his office, the Corporation ' cannot compel him to deliver them up, but may require that he submit them to their inspection whenever they think proper. 10. Sometimes the custody of these documents is Ministerial entrusted to the town clerk or other officer, merely as ^' '^^^' the servant of the Corporation, in which case they may appoint another to receive them, and if they are not delivered over after demand, the Corporation may ob- tain possession of them by an action of detinue, or the Court will compel a delivery by mandamus. 1 1 . If the predecessor in office, or he being dead his Mandamus , . , . .1 1 . to obtain. personal representative, or another person having pos- (8) R. V. Pigram, 2 Bur. 767. S. C. R. v. Rye, 2 Kenyon, 48G. (9) R. V. Ipswich, 2Lcl. Ray. 1238. (10) Id. ibid. (11) R. V. Nottingham, 1 Sid. 31. Anon. 1 Barnard. 402. 346 CORPORATE DOCUMENTS. session of corporate documents under him, refuse to de- liver them over to the successor or the Corporation on a proper application, the Court will grant a mandamus to compel him to do so. 12. A mandamus will be granted to compel either a stranger or corporator in possession of corporate docu- ments to restore them, although they have been depo- sited with him as a security for money which he has laid out on their account ; but if he rely upon this as a reason for detaining them, he may return it to the writ and try its sufficiency. Perhaps under these cir- cumstances the interference of the Court was uncalled- for, the Corporation ought to have been left to obtain possession of their books by an action of detinue ; and the granting the writ in this instance is a departure from the general principle, which is to deny it wherever there is another adequate legal remedy. But the ground on which it was granted is, that they were public books, and ought not to be in the private custody of any one. III. PRODUCTION. When offi- cer has neg- lected for corporate use. 13. If the officer who has the custody of corporate books have refused or neglected to produce them at former meetings, where they ought to have been pro- duced for the purpose of making entries of elections and admissions of new members, the Court will grant a mandamus to compel him to produce them at the next meeting for that purpose ; although if he fail in doing so, the Corporation may provide other books and (12) R. V. Ingram, 1 W. B. 50. (13) Anon. 2 Barnard. 235. R. v. Mothersell, 1 Str. 93. COBPORATE DOCUMENTS. 347 make such entries in them, which on an explanation of the circumstances, are equally admissible in evidence with entries in the old books. 14. Upon an affidavit that there are razures, oblitera- At trial, on ^ _ _ _ account of tions or interlineations, in certain corporate documents razures, &c. which are necessary to be given in evidence, instead of granting a rule for copies, the Court will make a rule on the officer who has the custody of them, to attend on the trial at the expence of the applicant, and pro- duce the particular documents in which the affidavits positively allege that there are such razures, oblitera- tions or interlineations, but not any others. This rule is absolute in the first instance to avoid delay, and is granted as being a more effectual method of compel- ling a refractory officer's attendance than a subpoena. IV. INSPECTION. 1 5. Every corporator has, as such, an interest in the do- Corpora- cuments of the Corporation, and a general right to inspect by manda- them upon all proper occasions, and if upon application '"" " for that purpose, the officer who has the custody refuse to shew them, the Court will grant a mandamus to en- force his right. 16. One who has a prima facie title to a corporate office has a right to inspect such documents as relate to that (14) Anon. 1 Barnard. 430. R. v. Shrewsbury, 2 Barnard, 317. Anon. 2 Barnai d. 340. R. v. Bedell, Say. 76. (1.5) R. y. Newcastle, 2Str. 1223. et n. R. v. Shelley, 3T. R. 142. R. V. Babb, 3 T. R. 580. R. v. Tower, 4 M. S. 162. Rogers v. Jones, 5 D. R. 484. R. v.Travannion, 2 Chit. Rep. 366. n. R. v. Chester, 1 Chit. Rep. 476, 477. n. 47'J. (16) R. V. Newcastle, 2 Str. 1223. R. v. Lucas, 10 East, 235. tute 34B CORPORATE DOCUMENTS. title ; and may obtain a mandamus for this purpose be- fore any suit has been instituted. 17. A corporator has a right to inspect these docu- ments, to obtain information' as to his rights, whether in /• a dispute with a foreigner, or the Corporation itself, or any of its members. Under sta- 18. "The mayor, bailiff, sheriff, town-clerk or other officer of any Corporation, having the custody of or power over the records of the same, shall upon the de- mand of any person being an officer or member of such Corporation, on the payment of one shilling, permit such person on any day or days except Christmas day, Good Friday and Sunday, between the hours of nine in the morning and three in the afternoon, to inspect the books and papers wherein the admission or swearing in of the freemen, burgesses or other members or officers of such Corporation, shall be entered, and to have copies or minutes of the admission, or the entry of swearing in of any one or more of such freemen, burgesses or other members or officers, upon paying sixpence for every one hundred words, for writing the same. And if such mayor, bailiff, sheriff, town clerk or other officer shall refuse or deny to any person hereby entitled to demand it, the inspection of such books or papers, or to have copies or minutes thereof as aforesaid, such mayor, bailiff, sheriff, town clerk or other officer shall for every such offence forfeit and pay the sum of 100/. together with full costs of suit to him her or them who shall inform and sue for the same within one year after such offence committed, by action of debt, bill, plaint or information," &c. (17) Edwards v. Vesey, C. T. H. 128. R. v. Babb, 3 T. R. 580, (18) 32 Geo. III. c. 58. s. 4. CORPORATE DOCUMENTS. 349 19. This does not entitle such persons to an inspec- tion of the orders or appointments for the admission or swearing in; it is confined to the entries of the admission, or swearing in, and being a penal statute cannot be ex- tended by equitable construction. 20. Under a former statute, of which this is an exten- sion, a joint action may be sustained against one bai- liff and the town clerk, for if both refuse, the offence may be joint ; but if there be two bailiffs, of whom one only refuses, the other being an unoffending party must not be joined. 21. When the corporator's apphcation to inspect is Or rule, founded on his general right, he has a mandamus ; but when it is founded on a suit pending, he obtains a rule. 22. A party to a suit who has not a general interest Right of in the Corporation, and therefore at other times, no suit, whe- right to inspect their documents, may acquire a right j-ators 0?°' of inspecting them for the purpose of the particular others, proceeding. When this is the case, as well as when a corporator is engaged in an action in which the evi- dence of such documents may be material, the Court will make a rule upon the officer who has the custody By rule, to grant an inspection, and copies of such parts of the corporate writings as relate to the matter in dispute ; but the rule will in no case be extended beyond the Extent of. (19) Davies V. Humphreys, 3M. S. 228. (20) 3 Geo. III. c. 15. s. 4. Schuldam v. Burmis, Cowp. 196. (21) Tidd's Prac. 649. R. v. Shelley, 3T. R. 142. (22) R. V.Newcastle, 2 Str. 1223. R. v. Babb, 3 T. R. 580, 581. South- ampton V. Greaves, 8 T. R. 592. R. v. Shelley, 3 T. R. 142. Bateman v. Phillips, 4 Taunt. 162. R. v. Chester, 1 Chit. Rep. 476, 477. n. 479. R. v, Travannion, 2 Chit. Rep. 366. n. 350 Right of foreigner. CORPORATE DOCUMENTS. particular documents referring to the point in litigation. And in this respect it is immaterial whether the ap- plication be made on behalf of a Corporator or another person. 23. This rule will be granted on the application of a resident foreigner, against whom the Corporation has commenced an action to recover the penalty of a by- law for trading within the limits of the municipality, in violation of the privileges of the Corporation ; but the grant of inspection and copies will be restrained to the by-laws relating to the exclusion of foreigners. Common 24. A similar rule will be granted to a common re- relator. _ _ ^ lator, on an information in the nature of quo war- ranto, although he is not a member of the Corporation, and has no interest in the event of the proceedings. Of stran- gers. 25. But in proceedings between a Corporation and a mere stranger, as where the Corporation proceeds to enforce its right to a toll, the Court will not grant the stranger a rule to inspect the corporate documents ; for between such parties, the writings of the Corporation are as much private writings and their private muni- ments of title as those of any individual. The rule will not be granted even in those cases where a Court of equity would decree an inspection of the deeds of a private person, for were the common law courts to as- sume the power of so doing, in these instances they might with equal propriety assume it in questions between in- dividuals. And when Courts of equity grant such an (23) Harrison v. Williams, 4 D. R. 823. S. C. 3 B. C. 163. (24) R. V. Bell, 1 Barnard. 373. (2.5) Atherford v. Beard, 2 T. R. 615, 616. Southampton v. Greaves, 8 T. R. 592. Hodges v. Atkis, 3 Wils. 398. Anon. 2 Vez. 621 . CORPORATE DOCUMENTS. 361 inspection, they may adapt their rules to the particular case in the manner best calculated to attain the ends of justice ; whereas if the King's Bench were to grant an inspection of title-deeds, it must be a general rule framed to embrace all cases. 26. This rule will not be granted on an information against a corporator or perhaps another person for bri- bery at an election, or other offence against the law of the land, either for the purpose of furnishing evidence of the offence, or showing that a witness against him is a freeman of the Corporation. 27. On proceedings in mandamus, a rule to inspect Rule, when is not granted until a return has been made, and when maudamus. the return has been allowed, the cause is at an end, and the rule expires of course ; but if an action be brought for a false return, a new rule will be granted. Therefore on mandamus to admit a mayor, the defend- ant (the mayor in possession of the office) is not en- titled to a rule to inspect for the purpose of preparing his return to the writ, and showing that the applicant is not elected ; but if he return not elected, and an action be brought against him upon that return, he shall have a rule to inspect, and a copy of the charter if it is not enrolled. 28. The former practice in proceedings on the infor- Wbenin , r- . . 1 QUO war- mation m the nature of quo warranto, was to grant a ranto. (26) R. V. Purnell, 1 W. B. 45. R. v. Heydon, 1 W. B. 351. (27) Anon. 2 Salk. 4.30. Anon. 1 Barnard. 26. R. v. Surry, Say. 145. R. V. Nottingham, 1 W. B. 59. (28) Anon. 1 Barnard. 26. R. v. Bell, 1 Barnard. 373. R. v. Hollister, C,T. H. 245. R. V. Nottingham, 1 W.B. 59. R. v. Surry, Say. 145. R. V. Stacey , 1 T. R. 2, 3. R. v. Shelley, 3 T. R. 142. R. v. Babb, 3 T. R. 581. 352 CORPORATE DOCUMENTS. rule to inspect, on granting the rule to show cause why the information should not be awarded, when the re- lator was a corporator, and had an interest in the ques- tion ; and not to grant it until the rule was made abso- lute, when applied for by a common relator. But in a more recent case, it was said that there is no good rea- son why the rule to inspect should be granted before the rule for the information had been made absolute. Motion, how made. 29. The motion for a rule to inspect and have copies, must be supported by affidavits detailing the circum- stances on which the claim is founded, and showing that an application has been made to the proper officer for the same purpose, and that he has refused to comply with it. The rule will be granted absolute in the first instance, when the application is made in the proper stage of the proceedings on a writ of mandamus or in- fonnation in the nature of quo warranto. Copy of charter re- fused. 30. If the charter has been enrolled, copies of it may be obtained by application to the office of the Rolls, and the Court will not grant a rule on the corporate officer, to permit an inspection or furnish a copy of it ; but if it have not been enrolled, upon an affidavit of this fact, the Court will grant a rule upon an officer who has it in his custody. Poll books. 31. A poll book in which the names of the electors of the mayor or aldermen are registered, is a book (29) Roev. Aylmer, Barnes, 236. R. v. Shelley, 3T.R. 142. R. v. Travannion, 2 Chit. Rep. 360. Tidd's Prac. 649. (30) R. V. Tucker, 1 Barnard. 28. R. v. Amery, 1 T. R. 150. Contra, Anon. 2 Salk. 430. (31) R. V. Hughes, 1 Barnard. 41. Acherley v. Bell, 2 Barnard. 64, S. C. Atesley V. Bell, Id. 114. CORPORATE DOCUMENTS. 353 of a public nature, and when necessary a rule wiM be granted to inspect it. But the rule must direct an in- spection of that book in particular, for under a general rule to inspect or have a copy of all the public books, the person who has obtained it is not entitled to an in- spection or copy of such a poll book. 32. The rule requires that the expence attending AtappH- obedience shall be borne by the person who obtains pence, it, and also allows the officer a remuneration for his trouble. 33. If the officer disobey the rule to allow an inspec- Disobedi- . , . . „ ence to tion, and give copies or, or to produce corporate docu- rule. ments, the Court will grant an attachment against him ; but not if he swears he neither has them in his custody, nor knows in whose possession they are ; nor if there be a fair doubt whether the books fall within the terms of the rule. (33) R. V. Hughes, 1 Barnard. 41. R. v. John, 8 Mod. 134. A A 354 CHAPTER II. MANDAMUS. Its nature. 34, The writ of mandamus is a prerogative writ, by which the Court of King's Bench exercises its supreme jurisdiction over all public bodies and officers in the ad- ministration of justice, when the law has not provided another specific and adequate remedy. It has been pecu- liarly applied to the regulation of Corporations, for the purpose of compelling them to observe the ordinances of their constitution, and to respect the rights of those who are entitled to participate in their privileges. It is not intended to offer a general treatise upon this writ, but to speak of it only as it is applicable to corporate purposes. Runs into exclusive jurisdic- tions. 35. It is a prerogative writ, and runs into exclusive jurisdictions, in the same manner as the writ of habeas corpus ; it runs therefore into the palatinates, the city of London, the cinque ports, and ancient towns, not- withstanding their peculiar privileges. (34) Awdley V.Joy, Poph. 176. (35) R. V. Commissioners of Excise, 2 T. R. 385. 2 Lev. 86. R. V. Winchelsea, MANDAMUS. 35^ .# Section I. APPLICATION FOR THE WRIT. 36. The writ of mandamus is not granted of course, HowoV but upon motion founded upon affidavits, which must be drawn up in a manner so certain and formal that an indictment for perjury may be sustained upon them, if the averments be wilfully false. 37. Where then the Corporation is by prescription, the constitution of it as well as the party's right, must be verified by affidavit. Where it is by charter, a copy of it must be produced at the time of making the mo- tion. 38. If the affidavits be sworn in Court, or before a judge at chambers, they need not be entitled in the King's Bench. But if sworn before a commissioner, they must be entitled of the Court, unless it say before A. B. a commissioner *' of the Court af King's Bench." 39. The affidavits must show a case in which the writ lies, and some grounds for the application, al- though both parties are equally willing to have the question tried. (36) R. V. Chester, 1 T. R. 403. R. v. London, 1 T. R. 425. R.v. Ely 2T. R. 336. Anon. 2 Barnard. 237. (.37) Bui. N. P. 200. Selw. N. P. 1076. ^38) R. T. Hare, 13 East, 189. (39) R.T. Bishop of London, IT. R. 333. A A 2 366 MANDAMUS. For wliat 40. It is granted to enforce public rights, and to compel officers to do their duty, although they are other- wise liable to penalties for neglect of it ; but it is not granted in aid of rights and claims of a mere private character. Defect of 4i_ x^g ^^y-[i of mandamus will be granted only where other re- ° "^ medy. there is a specific legal right, and no other specific legal remedy adequate to enforce that right. Therefore where there is such a legal right, it will not be refused merely because there is a remedy in equity, or be- cause there is a specific remedy at law, if not ade- quate to its purpose ; and where there is a fair doubt whether the writ ought to issue, it will be granted, for the question may be disputed on the return. 42. But where there is another specific and adequate legal remedy, the writ of mandamus will not be granted. It will not for this reason issue to put a claimant in possession of an office, for which he may maintain a writ of assize, nor to restore to an office of profit, unless a strong reason be shown ; the claimant may try his right in an action to recover the mean profits against the person in possession : nor will it be granted for a corporator who is not disfranchised, but merely excluded from participating in the profits of the corporate pro- perty, for he has another remedy. (40) R. V. Everet, C. T. H. 261. R. v. Bank of England, 2 B. A, 622. (41) R. V. Dean and Chapter of Dublin, 1 Str. 538. R. v. Owen, Comb. 399. R. V. Windham, Cowp. 378. R. v. Barker, 1 W. B. 352. R. v. Mar- quis of Stafford, 3 T. R. 651. R. v. Canterbury (Archbp.), 8 East, 219. R. V. Margate (Comp.), 3 B. A. 224. R. v. Haythorne, 5 B. C. 422. 429. R. V. Severn and Wye Comp. 2 B. A. 646. R. v. Dean (Inclosure), 2 M. S. 80. R. V.Ward, Fitzgib. 124. Middleton's Case, 1 Sid. 169. (42) R.V.Westminster, Comb. 244. R. v. Jotham, 3 T. R. 575. R. v. \Vhitstable, 7 East, .3,53. MANDAMUS. 357 43. If there be another remedy in its nature specific inefficiency . of other re- and apparently adequate, the affidavits must show that medy must it would prove wholly ineffectual. 44. Where the application is to enforce the right of an individual, the affidavits must show in him a prima facie title, that he has complied with all forms neces- sary to constitute his right, and that he has previously applied to the defendants to do that which he requires the Court to command the performance of, and their re- fusal or neglect. I. TO ELECT. 45. The Court will grant a mandamus to proceed to Mayor after an election of a new mayor, at any time after the char- day, ter day has passed without such election, where the former mayor having power to do so, holds over, and refuses to convoke an assembly for that purpose, unless the charter restrain the right of electing to a particular time. 46. The writ will be granted to compel the mayor to discharge any part of his duty as presiding officer, after he has been guilty of a default in the performance of it. 47. It will be granted to command the Corporation Members of ° . a definite to proceed to an election of members to supply vacan- class. (43) R. V. Margate (Comp.) 3 B. A. 224. (44) Amherst's Ca. T. Ray. 214. R. v. Chester, 1 T. R. 403. R. v. Ely. 2 T. R. 334. R. v. Jolham, 3 T. R. 577. B. N. P. 199. (4.5) R. V. Cambridge, 4 Bur. 2011. R. v. Tregony, 8 Mod. 113. 127. (46) R. V. Everet, C. T.H. 261. R. v. Williams, 2 M. S. 144. (47) Anon. 2 Barnard. 236. R. v. Grampoimd, 6 T. R. 302. R. v. Fowey, 2 B. C. .")96. S. C. 4 D. R. l.'W. 3.58 MANDAMUS. cies in a dejinite integral class, after a reasonable time has expired from the period of their occurrence, during which they have neglected to fill them up. And where it has been the usage to fill up such vacancies on the charter day after their happening, if the Corporation have omitted so to do, a mandamus will be granted immediately afterwards. Nor is it any objection to the issuing of the writ, that at the time of applying for it an information in the nature of quo warranto is pending against the mayor and corporators to whom it must be directed, for if they have a good title, the election will be valid, and if their title be defective, the Corporation will only remain in its former state ; besides, the infor- mation may be collusive, and it shall not be allowed them to say in their defence to the infonnation that they have a good title, and to impugn it themselves in opposing the writ. To elect one 48. It will be granted to compel them to proceed to of two no- , 1 . r. /> , minees. the election of one out oi two persons put m nomma- tion for an office, when the course of proceeding is for one class of the Corporation to nominate two persons, of whom another class is to elect one into the office. Ministerial 49. It will be granted to compel the election of an- nual ministerial officers, if the offices be necessary to the constitution of the Corporation ; even such officers as mace bearers, if public ministers and necessary in the execution of the judicial functions of the Corpora- tion ; but not if mere private officers or rather ser- vants. (48) R. V. Abingdon, I Ld. Ray. .561. R. v. Ely, 2 T. R. 334. (4y) R. V. St. Martin, 1 T. R. 149.. R. v. Liverpool, 1 Barnard. 83. MANDAMUS. 359 50. But the Court will not grant a mandamus to fill Indefinite up vacancies in an indefinite class, however reduced in number, if the members of the definite class are to be elected from it, and sufficient remain to supply the present vacancies in the definite body, and to perform all duties imposed on them by the charter ; for it would be lessening their chance of being elected into the defi- nite class. If there are vacancies in the definite body, the application ought first to be to compel the Corporation to fill them up, and afterwards the Court would perhaps grant a mandamus to elect a sufficient number into the indefinite class, to prevent the dissolution of the Corpo- ration, although it may be very difficult to point out how many are to be elected, which is a strong argument against granting the writ. 51. Many difficulties had arisen in Corporations where Mayor, wl pc hold over. the chief officer had no power of holding over, for after power tcT the expiration of his year, the office of president having determined ; if no successor had been elected on the charter day, neither could the Corporation afterwards proceed to a new election of their own accord, nor could the Court of King's Bench empower them so to do. It has been already shown when the Corporation may proceed to an election of their own authority, under the statute of George, which if they neglect to do, the Court of King's Bench is empowered by the following- clause of the same statute to authorize and compel them to supply the vacant office. 52. " If it shall happen that in any city, borough or town corporate in England, Wales and Bcrwick-upon- (50) R. V. Fowey, 2 B. C. 590. 593. S. C. 4 D. R. 139. (52) 11 Geo. I. c. 4. s. 2. Vid. Part I. tit. 531. 360 MANDAMUS. Tweed, no election shall be made of the mayor, bailifT or bailiffs, or other chief officer or officers of such city, borough or town corporate upon the day or within the time appointed by charter or usage for that purpose, and that no election of such officer or officers shall be made pursuant to the directions herein before prescribed or such election being made, shall afterwards be- come void as aforesaid, in every such case it shall and may be lawful for his Majesty's Court of King's Bench, upon motion to be made in the said Court, to award a writ or writs of mandamus requiring the members or persons of such city, borough or town corporate, having a right to vote at or to do any other act necessary to be done in order to such election respectively, to assemble themselves upon a day, and at a time to be prefixed in such writ or writs, and to proceed to the election of a mayor, bailiff or bailiffs, or other chief officer or officers as the case shall require, and to do every act necessary to be done in order to such election, or to signify to the said Court good cause to the contrary, and thereupon to cause such proceedings to be had and made as in any other cases of writs of mandamus granted by the said Court for election of officers of Corporations, and of the day and time appointed in and by any such writ or writs of mandamus for holding such assembly, public notice in writing shall by such person as the said Court shall appoint, be affixed in the market place or some other public place within such city, borough or town cor- porate, by the space of six days before the day so ap- pointed." After seve- 53. Under this statute a mandamus will be granted ^^^"' to proceed to an election, although several years have (53) R. V. Oxford, C. T. H. 178. B. N. P. 201. R. v. Scarborough, 2Str. 1180. MANDAMUS. 361 elapsed since the expiration of the office of the last legal mayor, or other officers of a Corporation, although there have been officers de facto intermediately elected who have been ousted on proceedings in quo warranto. 54. It will be granted on the application of the Cor- Though one poration to proceed to a new election where a person has but unqua- been already elected, who is unqualified to assume the of- fice on account of not having received the sacrament within the preceding year ; but in as much as since the remedial statute of 5 Geo. 1. and the annual indemnity act, his election is not absolutely void, the Court will first require that the person so elected shall previously decline acceptance of the office, or show such disqua- lification as a reason for non compliance, on an applica- tion for a mandamus to compel him to undertake it. 55. And it will be granted in cases where it is doubt- AVhere 1 -1 r ■ 60. S. C. 2 Salk. 700. R. v. Newsham, Say. 212. 39v MANDAMUS. their name as a select body. As if the right to elect a mayor be contined to the aldermen or to the common council, the writ to elect even under the statute of George may be directed to the aldermen or common council generally. 138. So the writ to restore may be directed to that select body alone, who have the power of electing and amoving such person, for the power of restoring him is vested in it by implication. 139. If the writ directed to a select body, and not in the corporate name, include in its direction any others besides those whose duty it is to obey the command, it will be superseded for misdirection. As if the right to elect a town clerk be in the mayor and aldermen alone, and the writ be directed to the mayor, aldermen and common council. Or if the right to admit a town clerk be in the mayor alone, and the writ be directed to the mayor and aldermen. But if the power of amotion be in the mayor alderman and others of the common council, a direction to the mayor, aldermen and common council is sufficient; for though the mayor and aldermen being part of the common council, the direction by the omis- sion of the words others of is a repetition of the mayor and aldermen : none are included in such direction ex- cept those who have a right to act. In what ca- 140. The writ must not only be directed to the Cor- pacity, . / poration or select body in their proper name, but also (138) Holt's Ca. Freem. 442. et n. S. C. T.Jones, 52. R. v. Abing- don, 1 Ld. Ray. 560. R. v. Gloucester, Holt. Rep. 451. (139) R.V.Smith, 2 M.S. 598. R. v. Abingdon, 2 Salk. 700. R. v. Hereford, 2 Salk. 701. Pees v. Leeds, 1 Str. 640. R. v. Norwich, 1 Str. 55. R. V. Wigan, 2 Bur. 782. (140) R. V. West Looe, 3 B. C. 685. S. C. 5 D. R. 599. Papilion and Dubois Ca. Skin. 64. MANDAMUS. in their proper capacity, and the apphcation must state plainly in what capacity it is intended that the writ should be directed to them. Therefore where the same individuals are the officers of the Corporation, and of another Court, it must appear in which capacity it is intended to issue the writ to them. For this reason an application for a mandamus to admit an inhabitant " as a resiant" must be for a writ to them as officers of the court leet, and not as corporators ; so a mandamus to swear in the sheriffs of London must be directed to the " mayor and aldermen," being their corporate capacity, and not to " the Court of mayor and aldermen/' which, though consisting of the same persons, and though the admission is in fact made when they are assembled in that court, is a capacity dehors their corporate. 141. It is in the discretion of the Court to include Several rights. several persons in the same writ as prosecutors, and they will include several when they constitute but one officer, as where two bailiffs occupy but one chief office, and their claim is precisely the same ; at least, if such a writ have issued to admit them, they will not supersede it on that ground alone. 142. But s6veral distinct rights cannot be included in the same writ ; as to restore five persons to their offices, though of the same description and in the same Corporation, for the turning out of one is not the amo- tion of the others ; and though some may have a right to be restored, the cause and form of amoving the rest may be sufficient. And so where several apply to be (141) R. V. Montacute, IW. B. 60. R. v. Kingston, 1 Str. 578. n. R. V. Ipswich, 1 Barnard. 407. (142J R.V.Kingston, 1 Str. 578. Andover Case, 2 Salk. 4.5;{. Anon. 2Salk. 436. R. v. Chester, 5 Mod, 11. R. v. Liverpool, 1 Barnard. 8.H. R. V. Water Eaton, 2 Smith. 55. 391 392 MANDAMliS. admitted, some may have title and others not. Nor will the writ be granted in general terms, as to admit all who have a right to admission and who make their claim, or to assemble and do their duty, or perform those things which are necessary for the Corporation. And upon either of these grounds the writ will be super- seded, even after an insufficient return. Riglitof 143. The writ must show the rio-ht of the applicant prosecutor ~ ^ ^ must be to have the act commanded done in his favour, and a shown. default in the defendant to do his duty ; but if there be a defect in setting out the title, it will be cured by a return admitting it, and relying upon some other ob- jection. 144. A mandamus to admit one who has served his apprenticeship, may show that the right to be a free- man is acquired by serving an apprenticeship with a resident freeman, and aver that the prosecutor had served his apprenticeship " with A. B. the said A. B. being a freeman of the said town, and having lived during the apprenticeship in that town &c." for this is a sufficient averment that B. was and continued a resi- dent freeman during the apprenticeship. 145. If there be a fee payable on admission to the freedom or office, it is necessary in the application to show that it has been tendered, but it is not neces- sary that the writ contain an averment of the tender. (143) R. V. Whiskin, Andr. 3. R. v. Coopers of Newcastle, 7 T. R. 548. Peat's Ca. 6 Mod. 310. (144) R. V. Whiskin, Andr. 3. (146) Moore v. Hastings, C. T. H. 363. MANDAMUS. 393 146. A mandamus to a company to enroll the inden- tures of an apprentice, may state generally that every person who has served an apprenticeship of seven years under indentures of apprenticeship to a free burgess &.c. whose indentures of apprenticeship have been enrolled &c. is entitled to be admitted to the freedom of the municipality, and then aver that the applicant on the first of May &c. was by indentures bound apprentice to A. B. (then being a free burgess Sec.) for seven years, that the said indentures ought upon being tendered to the &c. to have been enrolled, and that the said in- dentures were tendered by the applicant to the defend- ant in order that they might be enrolled, but that the defendant refused to enroll them. 147. If the prosecutor, having been formerly out- lawed, obtain a mandamus to be restored, the writ must set forth the outlawry and its subsequent reversal, other- wise, although it have been in fact reversed, the Court will not judicially notice the reversal on a return of outlawry. 148. Where no particular person is interested, the Public general right must be shown. An averment, that time whereof the memory of man is not to the contrary, there has been and ought to be in the town of N. a common council consisting of twenty-four persons, is a sufficiently formal allegation of the prescriptive consti- tution : it is not too general ; nor does the averment that there ought io be include matter of law, but merely (146) R. V. Coopers of Newcastle, 7T. R. 548. (147) R. V.Bristol, 1 Show. 288. (148) R. V. Nottingham, Say. 36. S. C. Bui. N. P. 201. R. v. Devizes, lb. 204. 394 MANDAMUS. brings the fact of usage before the jury. This suffi- ciently shows the general right that there should be an election to fill up vacancies as they occur, and should be followed by an averment that there are such vacan- cies. Duty of de- 149. In a mandamus to undertake an office, it is fendant. sufficient to show the general liability of the defendant to serve, and allege that he was elected, and without reasonable cause refused to undertake it : it is unne- cessary to aver that he was able and fit to serve. 150. The writ must show with convenient certainty the duty to be performed, but need not show by what authority the duty exists, or that the defendant is the person bound to perform the act ; for if that be not the case he may rely upon it in his return. 151. The command must be to perform some definite and specific act or acts, so that a certain and conclusive return may be made that the act is done. 152. The command must be to perform the act; as to admit, restore 8cc. and not to command others to per- form it. Therefore a writ directed to the Corporation, reciting that A. and B. had amoved the prosecutor, and commanding them to require A. and B. to restore him, will be superseded. (149) R. V. Merchant Taylors, 2 Lev. 2C0. (150J Bui. N. P. 204. R. v. Beltesworlh, 2 Str. 857. R. v. Ward, 2 Str. 897. (151) Andover Case, 2SaIk. 4:33. Anon. 2 Salk. 436. R. v. Kingston, 1 Str. .')78. R. V. Water Eaton, 2 Smith. 55. R. v. Liverpool, 1 Barnard. 83. (152) R.V.Derby, 2 Salk. 43G. MANDAMUS. 395 153. A mandamus is granted to proceed to the elec- tion of some one to fill a certain office, but not to elect a particular individual to supply the vacancy. And it does not appoint the election to be at a time certain, except when it issues under the statute. 154. It is granted to restore the prosecutor to the office of mayor, but not to restore him to that office to enjoy it for so long a time after the expiration of his year, as was wanting to complete his time of office at the period of the amotion. 155. The command to admit to the corporate freedom should be to admit to the privilege, and not to the office and place of a freeman. 156. It seems to be'sufficient to command the delivery of corporate documents in a term so general as " eviden- tias." 157. There is a quasre whether the command to deli- ver books in the possession of an ex-officer, should be to deliver them to the Corporation, or to the officer who is to have the future possession of them. It seems that it should be to deliver them to the Corporation, yet they must be received by the officer entitled to the cus- tody. And in the case of Nottingham the writ com- manded the delivery to be made to the new officer. (133) R. V. Bridgcwater, 2 Chit. Rep. 257. Shuttleworth v. Lincoln, 2 Bulstr. 122. 2 Rol. Abr. Rest. 5. Anon. 2 Barnard. 237. (154) Mayor of Durham's Case, 1 Sid. 33. (155) R. V. Morris, 1 Ld. Ray. 338. (156) R. V. Nottingham, 1 Sid. 31. (157) R. v.Holford, 2 Barnard. 330.350. R. v. Wildman, 2Str. 879. R. V.Nottingham, I Sid. 31. 396 MANDAMUS. Or show 158. All writs of mandamus before the peremptory cause writ, command the defendant to do the act, or to show cause to the contrary, which warrants the return in jus- tification of a refusal to do it. But it is not an objection on which it will be superseded, that the first writ or even the alias, omits the words, " or show cause ;" for the very nature of such writs is to enforce performance of the act, or the showing a good reason why it shall not be done. It was said that these words were first intro- duced in Bagg's case, but have been omitted in many cases since. Teste. 159. The writ must bear teste in term time, indeed, on the very day on which the rule is made absolute. If it bear teste out of the term in which it was granted, it is supersedable, and the Court will take judicial notice of the end of the terra. Retuin. 160. There must be eight days between the teste and return, if the party whose duty it is to obey, live with- in forty miles of London, but if he live at a greater distance, there must be fourteen days between the teste and return. Of these days one is inclusive and the other exclusive, so that if the writ be dated on the second, it must be returnable on the tenth or the six- teenth. (158) R. V. Owen, 5 Mod. 315, S. C. Comb. 399. R. v. St. John's, 1 Vent. 549, (1.59) R. V. Dublin, 1 Str. 540. Sterling's Case, 1 Sid. 304. S. C. 2Keb. 91. Anon. 2 Salk. 434. Anon. 2 Barnard. 236. (IGO) Anon. 2 SaUc. 434. R. v, Dover, 1 Str. 407. et n. General Rule, U Mod. 64. MANDAMUS. 397 Section III. PROCEEDINGS BEFORE RETURN. 161. The mandamus ought to be served upon him Service. who is to make the return, and if directed to a Corpo- ration it ought to be served upon the mayor. 162. But it has been held that a personal service on the town clerk alone of a peremptory mandamus to the Corporation, was sufficient to found an application for an attachment. 163. An objection to the form of the writ maybe taken Objections. before the time for making the return has expired ; but if nedected until after that time the Court will not supersede it until a return is made, unless for gross faults, or because it issued erroneously. 164. An objection may be taken after the return on demurrer, although the return is bad, indeed at any time before the peremptory mandamus has issued. The direction of a writ was questioned, in discussing the validity of an election under it, and although the Court did not determine the case on this objection, Lord Ellen- borough C.J. dwelt long upon it: however it would seem that if the proper persons have obeyed, no objection should afterwards be allowed. It should be remarked, (161) R. V. Exeter, 12 Mod. 251. (162) R. V. Fowcy, 4 D. R. 614. (163) R. V. Norwich, 1 Sir. .^.5. R. v.Tregony, 8 Mod. 112. R. v. Willingford, 2 Barnard. 132. R. v. Wlatchurch, 2Barnard. 447. Whitwood V. Jocam, Selw. N. P. 1076. R. v. Kingston, 8 Mod. 210. S. C. 11 Mod. 382. (164) R.V.Kingston, 8 Mod. 210. S. C. 11 Mod. .382. R. v. Ward, 2Str. 897. R. v. Smith, 2 M S. 598. R. v. Margate, 3 B. A. 223. 398 MANDAMUS. that in the case of Smith, the Corporation derived their authority to elect from the command of the Court. 166. If, upon the objection, it appear that the writ is insufficient in substance, as in the omission to state a material fact, or if there be a material variance from the rule upon which it has issued, it will be superseded or quashed : but if the objection be in form only, it may be amended by leave of the Court. 166. But the writ will not be superseded on motion supported by affidavits, on a ground on which it is con- tended that it ought not to issue; in this case the defendants will be put to make their return. So where the writ had commanded the delivery of the corporate documents, under the term evidentias, the Court re- fused to quash the writ, as being too general, but re- quired a return to be made, when the defendant might take his exceptions. Ancient 167. According to the ancient practice, if a return manner of . . ^ . ,. compelling was not made in due tune to the origniai writ, an alias issued, and a pluries returnable immediately, and if no return was made to that, on affidavit of service an at- tachment, was obtained against the defendant for dis- obedience to the process of the Court. And it was held that a return to the original writ might be filed after the issuing of the pluries, if attended with no da- mage to the plaintiff, although in strictness the return ought to have been made to the pluries. (1(J5) R.V.Margate, 3 B. A. 224. R. v. Kingston, 1 Rtr. 578. S.C. 11 Mod. 382. R. V. Wildman, 2 Str. 880. R. v. Water Eaton, 2 Smith, 55. (166) R. V. Whaley, 2 Str. 1139. R. v. Nottingham, 1 Sid. 31. (167) Anon. 2Salk, 434. Da Costa v. Russia Comp. 2 Str. 783. Anon, il Mod. 265. MANDAMUS. 399^ 168. " When any writ of mandamus shall issue out Return to of the Court of Queen's Bench, the Courts of Sessions under stat. of counties palatine, or out of any of the courts of grand sessions in Wales, in any of the cases aforesaid (where persons who had a right to the offices of mayors, bai- liffs, portreeves and other offices within cities, towns- corporate, boroughs or places within 'England and Wales, or to be burgesses or freemen thereof, have been turned out of the same, or have been refused to be admitted thereto), such person or persons who by the laws of this realm, are required to make a return to such writ of mandamus, shall make his or their return to the first writ of mandamus." 169. " The said Courts respectively may allow such person or persons to whom such writ of mandamus shall be directed, or to the person or persons who shall sue or prosecute the same, such convenient time re- spectively, to make a return, plead, reply, rejoin or de- mur as to the said Courts respectively, shall seem just and reasonable." 170. "Where any writ of mandamus shall issue out of the Court of King's Bench in any of the cases (under this statute) the person or persons to whom such writ shall be directed, shall make his or their return to the first writ." 171. Since the statute of Anne, the Court will not in other diive the prosecutor to the alias and pluries, even in (168) 9 Ann. c. 20. s. 1. ^ (169) lb. S.6. (170) 1 1 Geo. I. c. 4. s. 9. V. Part II. tit. .52. 62. (171) Coventry Case, 2 Salk. 429. De la Costa v. Russia Comp. 1 Bar- nard. 24. S. C. 2 Str. 78.3. Fitzgib. 4. R. v. Bettesworth, 2 Str. 857. 400 MANDAMUS. cases not within its provisions ; but compel a return to the first writ. Return filed after death of defend- ant. 172. After the expiration of the time when the re- turn ought to be filed, the prosecutor may call upon the proper officer to make it at any time ; and if that officer die, having executed the return but not filed it, the Court may direct an issue to try its validity, and if found duly made, cause it to be filed ; yet it is doubtful whether the Court will grant leave to file it after the ofiicer's death, on disclosure of that fact. Perhaps it will be allowed to be filed, if it conclude the rights of such officer alone, but not if it conclude the rights, or aver the consent of others, since neither an action, nor an information can be sustained to falsify it. How to compel a return. 173. The manner of compelling a return is by appli- cation to the Court upon an affidavit of service for a peremptory rule to return the writ, the exigency of which is according to the distance of the place ; for it is not a four-day rule, but if to be obeyed in London, it may be granted to make the return instanter, when a return must be made on the following day. 174. The Court will allow time to make the return on a reasonable suggestion of difficulty, and the neces- sary investigation of documents, to ascertain whether the defendant ought to return performance of the act commanded by the writ, or whether he have sufficient cause for refusing to do it. (172) R. V. Holmes, 3 Bur. 1643—5. (173) Coventry Case, 2 Salk. 429. De la Costa v. Russia Comp. 1 Bar- nard, 24, S. C. 2 Str. 783. Fitzgib, 4. R. v. Bettesworth, 2 Str. 857. 783. V. Impey, Mand. 116. (174) Archbp. of Canterbury v. Trinity College, 2 Barnard. 194. MANOAMUS. 401 Section IV. RETURN. 1. GENERAL REMARKS. 175. The return must be made by the Corporation, By whom select body, or individuals to whom the writ was di- rected. If the mayor in possession of the office at the time be only a mayor de facto, he must nevertheless join in the return. And if a writ be issued to the mayor or bailiff of B. at the time A. is mayor or bailiff of B. (without mentioning the name of A.) the return must be made by A. although C. has intermediately attained the office ; at least, if the command of the writ were to admit C. to the office of mayor or bailiff, so that the office of A. is determined by the very act of obedience to the writ. 176. It has been held that if the writ be directed to the mayor, bailiffs and burgesses (this was not the cor- porate name), the Court cannot refuse to file the re- turn which is brought to them by the mayor, although a motion is made to oppose the filing of it, supported by the affidavits of some of the burgesses, stating that the return is contrary to the resolution of the majority of the bailiffs and burgesses ; and that the burgesses cannot be allowed in this manner to come in and dis- avow the return, because the mayor is the head of the (175) Manaton's Ca. T. Ray. 365. Steven's Ca. T. Ray. 432. Knight V. Wells, 1 Lutw. 519. R. v. Lisle, Andrews, 173. R. v. Clithero, 6 Mod. 133. (17C) R. V. Abingdon, 12 Mod. 308. S. C. 2 Salk. 431. S. C. Carth. 499, R. V. Norwich, 2 Salk. 432. Powell v. Price, Comb. 41. Sed. vid. R. v. Hoskins, C.T. H. 188. D D 4(J8 MAN DAM IS. Corporation. It was said also that the return is not good if made by the mayor without a majority of the burgesses, nor if made by a majority of the burgesses in opposition to the mayor, and on this ground the Court refused to deliver the writ to the burgesses, that they might make a different return. 177. I apprehend that where the writ is to others besides the mayor, the only legal return is that which is made by a majority of the votes of those to whom it is directed, at an assembly duly convened, as for any other corporate business, and that it is quite immaterial whether the mayor or any other principal officers vote in favor of or against it. The mayor I consider to be merely a ministerial officer in forwarding the return, and that if he substitute one different from that which the majority sanction, either by their direction or acqui- escence ; after their disavowal no action can be sus- tained against them for a false return, and of course that no proceedings can be had upon the return under the statute : and therefore that on the disavowal of the ma- jority the Court will not allow the mayor's return to be filed, but will accept one made by them through the medium of another officer, and grant a criminal informa- tion against the mayor. How made. 178. The Court will not direct how the return shall be made or altered, but after it has been filed will allow proper alterations to be made with the consent of both parties, that the question may be brought forward in the most convenient form. And for this purpose, on the application of the prosecutor, they will order that the (177) Vid. Part I. tit. 133. etseq. (178) R. V. Marriott, 1 D. R. 167. MANDAMUS. 403 defendant shall be at liberty to amend his return, so as to raise the proper question for the opinion of the Court, if he think fit. 179. It must be certain upon a fair and reasonable Must be construction, without recurring to possible facts which do not appear ; it is said that the same certainty is required as in indictments and returns to writs of habeas corpus. The reasons assigned are, that the party may have sufficient ground to support an action for a false return, and that the Court may form a plain conclusion to warrant their judgment from what appears on the face of the proceedings. It was formerly added, as a further reason for requiring this certainty, that the other party had no opportunity of excepting to it by a counter plea ; but it has been held that the same certainty is still necessary, although the statute of 9 Anne has afforded this opportunity, by giving the prosecutor a plea to the return. Yet where presumption and intend- ment are admitted, it will be in favour of the return, and not to show it insufficient. 180. The return must state facts and not conclusions state facts. of law, therefore if the writ aver that the prosecutor was elected, the return must deny the fact of election, or show how the circumstances of the pretended elec- tion differ from those which are necessaiy to a valid election according to the form of the constitution, that the Court may decide on its legality. So all the facts of an amotion must be distinctly shown, that the Court (179) R.V.Abingdon, 12 Mod. 401. S. C. 1 Ld. Ray. 560. S. C. 2Salk. 432. R. V. Sterling, Say. 175. R. v. Lyme Regis, Doug. 153, 154. (180) R.V.Liverpool, 2 Bur. 731. R. v. York, 5 T. R. 76. D D 2 404 MANDAMUS. may judge of its sufficiency both as to the cause and the form of their proceedings. Notargu- 181. It must not be arg-umentative, denvino; the facts mentative, i • , .,.,.. "^ &c. alleged m the writ by implication only ; but must aver the grounds of defence precisely and positively, and not even by way of recital. Therefore it ought to say that A. was not elected. Sec. and it is insufficient to say *' it does not appear to us that he was ever elected," or *' we do not know that he was ever elected," &c. So in showing a custom, it must assert positively that there is such a custom, and not introduce it by way of recital, as by averring that " King James, by his letters patent, reciting that they had a custom to elect any one to be of the common-council, and to remove him ad libitum, confirmed the said liberties, &c. and by force of the said custom, time whereof, &c. used, and according to the form of the said letters patent, they removed." So it is insufficient to aver that another person had 18 votes, and the prosecutor only 17, at the election,- for this is argumentative. 182. If the return set forth a constitution different from that shown by the writ, it must expressly negative it. If therefore the writ aver that the bailiffs ought to be elected from among such aldermen as had not been bailiffs within three years ; the return must expressly deny the exclusion, it is insufficient for it merely to state that they are eligible from among the aldermen generally, nor is it helped by the additional words "■ ac- cording to the form and effect of the letters patent ;" (181) R. V. Winchclsea, 2 Lev. 86. R. v. Hereford, 6 Mod. 309. Basset V. Barnstaple, T. Ray. 153. S. C. 1 Sid. 286. R. v. CoFentry, 1 Ld. Ray. 391. S. C. 2 Salk. 430, R. v. Rchester, 4 D. R. 330. (182) R. V. Maiden, 1 Ld. Ray. 481. S. C. 2 Salk. 431. MANDAMUS. 405 because that is but a repetition of what they have stated to be the form prescribed by the letters patent. 183. Yet the denial may be composed of several as- sertions ; for an assertion that the prosecutor was not admitted at the time of his election, nor since that time, nor is yet admitted, is equivalent to an assertion that he has never been admitted up to the time of the return, and does not relate only to the period at which the writ issued. 184. If the return rely upon a misdirection of the writ, it must assert positively that it is misdirected, and show in what manner. If a return be made to the alle- gations in the writ generally, and merely conclude that they were never incorporated or known by that name, it is insufficient ; particularly if the return profess to be in obedience to and execution of the writ, and show that the Corporation has been known by several names, without setting them forth. 185. It must assert, deny or answer all material facts Must an- , . „ ,, , . ,, -. swer the m their lull extent, substantially, and not by mere am- writinsub- biguity of words. Therefore if the averment be of an election, a return not elected at the time of receiving the writ is insufficient, for it denies only that an elec- tion took place at the moment of receiving the writ : so if the writ, founded on the possession of an office de facto, assert that A. was elected; admitted and sworn, it is not sufficient to reply not elected, and admitted and (183) R. V. King's Lynn, Andr. 105. (184) R. V. Ipswich, 2 Ld. Ray. 1239. S. C. 2 Salk. 435. (185) R. V. Clapham, 1 Vent. 111. S. C. R. v. President des Marches, 2 Lev. 86. R. v. Coventry, Salk. 4.30. R. v. Ilchester, 4 D. R. .3.30. R. v. Lyme Regis, Doug. 79. 85. stance. 406 MANDAMUS. sworn; but it was said that not elected, or admitted or sworn, might have been good, for if deficient in all these essentials to a legal title, the applicant had never been even an officer de facto, which is sufficient to pre- clude the grant of a peremptory mandamus to be re- stored, although the return is otherwise defective. 186. So if it attempt to show an incapacity to obey the writ by reason of the change of circumstances, it must appear that there was no fraud or stratagem on the part of the defendant. Therefore to a writ to admit the prosecutor to the office of mayor, directed to " A. B. mayor &c." it is an insufficient return that he A. B. was on a day before the issuing of the writ amoved from the office of mayor and another elected in his stead, whereby he could not admit, for if the election of the prosecutor be legal, it precludes the substitution of ano- ther mayor before his admission, and the return having the color of fraud on the face of it, a peremptory writ will go to A. B. to admit the prosecutor. Must show 187. The return must aver the existence of all powers of amoving, which are necessary to warrant the act upon which the defendants rely, as a cause for not performing the com- mands of the writ, unless they are incidental to the body by whom it was done, or incidental to the posses- sion of another power which it has already shown. Thus to a mandamus to restore, the defendants relying upon the validity of an amotion, must if a select body show by what custom, charter or by-law they have power to amove ; but having shown their power to amove, they need not set forth their authority to hold a Court for (186) R. V. Stevens, T. Jones, 177. S. C. T. Ray. 432. Manaton's Case, T, Ray. 365. (187) R. V. Lyme Regis, Doug. 153. &c. MANDAMUS. 407 the purpose of amotion, for that is incidental to the power of amoving. And so if the writ be to the Cor- poration at large, it is not necessary to show specially how the power of amotion became vested in them, be- cause it is incidental to them as a body corporate. 188. It is not necessary to negative possible facts, Need not so that if the defendants rely upon an amotion, being possible the body at large, without showing how they were in- ^^ '' invested with the power of making it, it is equivalent to an averment that such power is reposed in them, for this is implied by law ; and it is unnecessaiy to aver that there is no charter &.c. by which that power is transferred to a select body. If such a return being sufficient on the face of it be allowed, as was the cause at common law, the concealment of a charter so trans- ferring the power would be as much a false return, and warrant an action, as an express denial ; for the return, though it have the semblance of truth, is not true in substance ; and therefore since the statute, the prosecu- tor may show in his plea, that this power has been transferred to a select body, and if found for him, a peremptory writ must be awarded. 189. If the return rely upon a judgment, it is unne- Need not cessary to state the proceedings on which it is founded, procced- for as long as it remains unreversed, no enquiry can be 'yffch" instituted concerning them under this form of action, ex- founded!* cept for' the purpose of showing fraud and collusion, however faulty they may have been ; if the judg- ment were erroneous, the proper mode of correcting it is by bringing a writ of error. (188) R. V. Lyme Regis, Doug. 153, 154. Braithwaite's Ca. 1 Vent. 19. (189J R. V. West Riding, 7 T. R. 467. R. v. Suddis, I East, 315. 408 MANDAMUS. 190. It is not necessary that every part of the return should be sustainable : but it is sufficient, if upon the whole it disclose a fair legal reason, why the writ should not be obeyed, although certain parts are unsatisfac- tory ; for these parts may be treated as mere surplusage, or the Court may disallow them, and send down the rest to be tried. Maybe double. 191. The return need not be single, for it was never subjected to the ancient strict rules of pleading, but may assign several causes for refusing to perform the act commanded by the writ, so they are consistent with each other, and imply no contradiction. If one only of these be sufficient in law to warrant the refusal, the return will be allowed as to that, though it must be quashed as to the remainder which are merely super- fluous. The return to a writ to admit to the office of alderman, may state "that the prosecutor was not a burgess (a necessary qualification), that he was not eligible to be an alderman, and that he was not elected an alderman ;" which causes are not inconsistent with each other, and any one of them, if true, is a sufficient answer to the writ. So it may state that the prosecutor " was elected but refused by those who had the right of approving, and that he had not received the sacra- ment," for each alternative admits a formal election, which the former shows insufficient, thougrh it had been legal, and the latter avoids for a legal defect. Inconsist- ent returns. 192. But where two or more inconsistent causes are stated, the return must be quashed altogether, for (190) R. V. Cambridge, 2T.R. 461. Bristol, 1 Show. 288. (191) R. V. Norwich, 2 Ld. Ray. 1244. 2044. R. V. Cambridge, 2 T. R. 461. (192) R. V. Pomfret, 10 Mod. 108. R. v. Norwich, 2Ld. Ray. 1244. S. C. 2 Salk. 436. R. v. Cambridge, 2 T. R. 461. R. v. York, 5 T. R. 74. R. V. York, 6 T. R. 495. R. v. Wright V. Fawcett, 4 Bur. MANDAMUS. 409 though one or more of them may be true, and sufficient if standing alone, the return must be false when taken collectively. The Court cannot know which part to believe, and will not allow so great an irregularity, al- though the prosecutor may, since the statute, have an opportunity of traversing each of them. On this ground the return must be quashed if it state that A. was elected^ but refused by those who had the right of approving, that he had not received the sacrament, that he was turbulent and factious, and procured his election by bri- bery — and that he was not elected; for although some of those causes are consistent, and if true sufficient ; yet as some admit an election, and others deny it, there is an evident falsity. So a return must be quashed which asserts that the prosecutor was elected and ad- mitted, and amoved for non-attendance at the sessions, and that he had not received the sacrament, and there- fore his election was void ; for one admits an election, which the other denies. It may be observed that the falsity of these returns, is in construction of law and not in fact ; for it appears that there was a formal elec- tion, but voidable by reason of the prosecutor not hav- ing received the sacrament, and that the return was devised in these terms, from a doubt entertained by the defendants, whether the election were on that account voidable only or absolutely void, and therefore, as they called it, no election. 193. If a return be made by individuals, their signa- Return tures to it are not necessary, nor is it requisite that the "fg^nature return of a Corporation have the signature of the mayor °^ '*^*'- (193) R.v. Chalice, 2 Ld. Ray. 848. Thetfonl Ca. 1 Salk. 192, R- v. St. John's Col. 4 Mod. 241. Powel v. Price, Comb. 41. Lidleston v. Exe- ter, Comb. 422. S. C. 12 Mod. 126. S. C. 1 Ld. Ray. 223. R. v. Holmes, ^ 3 Bur. 1644. 12 Ed. II. st. 1. c. 5. 410 MANDAMUS. or the corporate seal ; for such acts of a Corporation are in the nature of records, and returns by mayors, coro- ners Sec. are not within the statute of York, which re- quires the signature of the sheriff to his returns. Cancelled after filing. 194. After a return has been filed the Court will not allow it to be taken off, even on the application of both parties ; but when the parties applied to the Court for that purpose, on the ground that it was false and scan- dalous, they directed that it should be dashed through as though it were cancelled. Taking the file. oir 195. There was an application by a Corporation to have a return taken off the file, on the ground of having been filed since the death of the mayor, who was said to have made it, and that it concluded the consent of the majority of the Corporation, as it could not be falsi- fied by action or information, on account of the mayor's death. The Court hesitated, and afterwards it was agreed by the parties, under their direction, that it should remain on the file, but not be construed to con- clude any besides the mayor who made it. II. TO ELECT. Showing restriction by charter. 196. To a mandamus to elect a mayor, the former having held over after his year had expired, the re- turn stated, that by the cliarter they were empow- ered to elect a new mayor on the Tuesday next after Michaelmas-day in every year, and that the mayor so elected should continue in office until another should (194) Widdrington's Case, T. Ray. 68. (195) R. V. Holmes, 3 Bur. 1643—5. (196) R.v.Tregony, 8Mod. 11,3. 127. VidePart I. tit. .531. bridge, 4 Bur. 2011. R. V. Cam- MANDAMUS. 414 he duly elected in manner as aforesaid, and then pro- ceeded to say, that the last charter day had passed without a new election, and therefore they could not proceed to a new election until the next charter day, unless the present mayor should die or be amoved. It was held that another mayor could not be elected until the charter day except in such cases, and therefore that the return was good. This case was before the statute 11 George, and the learned editor of this report, ap- pears to be of opinion that the statute empowers the Court to compel an election in such cases before the charter day ; but I apprehend that it is restrained by the preamble to Corporations, in which the mayor has no power of holding over, and can only be extend- ed to Corporations in which it is doubtful whether the chief officer have such power. 197. To a mandamus to elect, by which it appears incapacity that the constitutional number of aldermen is fifteen, that an election must be made at an assembly of a ma- jority of such number, it is an insufficient return that there are not eight aldermen who were legally elected, and therefore they cannot elect ; because although there are not eight whose titles were originally unim- peachable, there may be eight or more, of whom the titles of some were originally good, and those of others, though at first voidable, are now become unimpeach- able by the operation of the indemnifying statutes. 198. To a mandamus to elect under this statute, if Election under H the return rely upon an election on the day after the Geo. (197) R. V.Monmouth, 1 B. A. 49. 5Geo. I. c. 6. 32 Geo. III. c. 58. and Indemnity Act. (198) 11 Gep. I. c. 4. 3. fi. R. v. Morgan, 7 Mod. .'i2.'?. V. Part 1. tit, 111. 412 MANDAMUS. charter day or the following Monday, there having been an omission on the charter day, it must show all the circumstances essential to such an election, and aver that A. the person nearest in place or office presided; an averment that A. one of the nearest in place presided is not sufficient. Office full, &c. 199. To a mandamus under this statute, to the stev/ard of a court leet, commanding him to summon a jury to elect and swear in a portreeve, the return is sufficiently positive and certain, if it state that he has held a Court, empannelled a jury, and charged them to elect and swear some person into the office of port- reeve ; that the jury found that A. was already duly elected and sworn into that office on the charter day, and that therefore no person could be elected and sworn into the office as the writ commands. And this is sufficient to preclude the issuing of a peremptory writ. So if he were commanded to direct them to present B. whom the writ asserts to have been elected, the return may be that the juiy find that he was not elected. III. TO ADMIT. 200. To a mandamus to admit, it is a sufficient re- turn to show that the prosecutor has been ousted in quo warranto, subsequently to his acquiring the title upon which he relies ; and this return is conclusive, althouo-h the ouster was for want of admission alone, the prosecutor's election having been legal. (199) R. V, Williams, Say. 141. R. v. Willis, 7 Mod. 262. (200) Vid. Quo Warranto, Judgment. R. v. Serle, 8 Mod. 332. S. C> R. V. Hull, 11 Mod.391. R. v. Taylor, 7 Mod. 172. MANDAMUS. 413 201. An aveiTOent that the prosecutor has nof been Not elected. elected is a sufficient answer to the general allegation in the writ, that he has been elected ; but an averment that he has not been dull/ elected is insufficient, for this puts no fact in issue, but admits that there has been an election, yet asserts that it was not according to the constitution of the Corporation, and therefore in such case it ought to show how he was insufficiently elected. Yet if the writ alleged that he has been duly elected, a return that he has not been duly elected is sufficient, » for it fully answers the suggestion of the writ. 202. But the better opinion seems to be that it is quite immaterial whether the word duly be introduced or omitted, for if it be not a due election, it cannot be considered any election so as to afford the prosecutor the benefit of this writ ; and as a due election is im- plied in an averment of an election, so the word " duly" ought not to injure if introduced in the denial of that fact. 203. Ifthe writ set forth certain facts, and conclude by Musttra- verse tacts. reason whereof the prosecutor was elected, the return must not aver that the prosecutor was not elected ; for that is an admission of the facts in their fullest extent, and a denial only of the legal inference \ but it ought to traverse some material fact, on the truth of which the election is founded. Or if all the facts be indisputable, and yet not sufficient to support the election, it must (201) R. V. Ward. Fitzg. 19.5. R. v. Harwood, 2 Ld. Ray. 1405. Wright V. Fawcett, 4 Bur. 2044. Co. Lit. ."581. Manaton's Ca. T. Ray. 3G.5. Ste- ven's Ca. T. Ray. 4.32. Hereford Ca. 1 Sid. 209. R. v. Cornwall, 1 1 Mod. 174. R. v. Lambert, 12 Mod. ^^. S. C. Carth. 170. R. v. Chester, 5 Mod. 11. (202) R. v. Lyme Regis, Dong. 84. (20.3) R. v. York, h T. R. 76. R. v. Maiden, 1 Ld, Ray. 481, S, C. 2 8811^.4.31. 414 MANDAMUS. negative the constitutional manner of election set forth in the writ, and show what circumstances are necessary to constitute a legal election. Neglect to receive sa- crament. 204. If the defendant rely upon the invalidity of the prosecutor's election on account of his having omitted to receive the sacrament, and admit the fact of his elec- tion, the return must aver that he has not been elected at any other time, and then assert that he had not re- ceived the sacrament within the year preceding. It is insufficient to allege, that he was elected within a cer- tain number of years after the passing of the statute of Charles, without having previously received the sa- crament, for there may have been another election. Yet I apprehend that the return may be confined to a mere averment that he had not received the sacrament within the year preceding it, when a particular election is relied upon in the writ. Oaths. 205. It is insufficient to aver that the prosecutor did not take the oath of allegiance before them, the mayor and bailiffs, for he might have taken it before two jus- tices of the peace. Neither elected. 206. If the writ be granted to admit several persons to distinct offices, the return should deny the election of each of them, and a return that they were not elected is insufficient, for one may have a good title, although the other have none. (204) R. V. Abingdon, 1 Ld. Ray, 560. S. C. 2 Salk. 432. (205) 13 Car. II. st. 2. c. 1. s. 1. R. v. Oxon, 2 Salk. 429. S. C. R. v. Slatford, 5 Mod. 318. S, C. Comb. 420. (206) R. V. Guise, 2 Ld. Ray. 1008. S. C. R. v. Twitty and Maddicot, 2 Salk. 434. MANDAMUS. 415 207. If the writ aver that the Corporation were duly Assembly , , , . , - , , , insufficient. assembled on a certain day and elected the prosecutor recorder, and the return admit a corporate meeting on that day, duly assembled for making other elections, it is not sufficient merely to aver that they were not duly assembled for the election of a recorder, but it is necessary to state some fact on account of which they were not competent to proceed to such an election. For the Court will not presume that the prosecutor's elec- tion took place on the same day at a different assem- bly from that which the defendant states, and that assembly is prima facie competent to make the elec- tion. • 208. A return that he was not elected at the time of Election, , . ^ 1 . . . . when. the receipt of the writ is insufficient ; for it is strictly true, although he were elected at any time before the moment the writ reached the defendant's hands, so that it does not with certainty deny the prosecutor's right ; but if the writ assert that he was elected in Easter week, a return that he was not elected in Easier week, is sufficient, for the suggestion of the writ is answered in its full extent. 209. If the Corporation have a right to judge of the Insufficient, sufficiency of the deputy of the prosecutor, the return may show this, and say that he is not a sufficient person. 210. If the writ state that the prosecutor was duly Not elected elected, and that he thereby became entitled to be ed. (207) R. V. York, 5 T. R. 74, 75. (208) R. V. Clapham, 1 Vent. 111. R. v. Penrice, 2 Str. 123.5. (209) R.v. Clapham, 1 Vent. HI. (210) Wright v. Fawcett, 4 Bur. 2044. 410 MANDAMUS. sworn, it may be returned that he is not duly elected, and that he has not been approved by the lord of the manor showing that such approbation is by custom necessary before ho is entitled to be sworn. Non-pay- 211. If there be a fine payable before admission, the fine. return may show that circumstance, setting forth the by-law &c. by which it is imposed, and aver that he has not paid it. Inference 212. If the return set forth an insufficient cause for no aid. not admitting a principal burgess, and conclude with " by which his election is become void, and he is not a principal burgess" — although the sentence "he is not a principal burgess," might have been sufficient had it stood as an independent averment, yet the word awe? shows that it is a mere inference from the preceding state- ment, and therefore cannot avail the defendant as a dis- tinct assertion. Office full. 213. It is not a sufficient return that the office is already full, for if the prosecutor had the prior title, the possessor is a mere officer de facto at the utmost ; and if the title of the possessor is good, the prosecutor was never legally elected, there being no vacancy ; upon which the return should rely. Moreover the Court does not grant the writ unless it appears that there was a vacancy at the time of the applicant's election. Must he ad- 214. To a mandamus to admit to the municipal free- mitted of a i . , . i j • i.x^ l certain dom, the retum may show an ordmance that no person company. (211) Taverner's Ca. T. Ray. 447. (212) R. V. Abingdon, 1 Ld. Ray. 560. S. C. 2 Salk. 432. * (213) R. V. Ward, Fitzg. 195. V. II. 87. (214) R. V. Ludlow, 8 Mod. 270. Vide Part I. tit. 361. MANDAMUS. 417 shall be admitted, but as a freeman of the company of his own trade, and that the prosecutor is not free of that company, but it must also aver that he is of such a trade, and carries it on within the municipality. 215. To a mandamus to admit, the return may show Admissible ' _ on certain that there are certain days periodically appointed for days only, such admissions, and that such persons are not admissi- ble at any other time ; but it is insufficient if it omit to negative the right to be admitted at other times. IV. TO RESTORE. SI 6. A mandamus to restore can be resisted only on the ground of a legal incapacity in the prosecutor, his having been ousted in quo warranto, having resigned, been amoved, or disfranchised. 217. It is sufficient to aver that the prosecutor has Outlawry, been outlawed ; and this return was allowed before the statute of Anne, although in fact the outlawry was re- versed, unless both the judgment and reversal were recited in the writ ; for the Court will not judicially notice the reversal. 218. An ouster in quo warranto concludes the prose- Ouster, cutor, so that a mandamus will not be granted, and of course is a good return to one which may have issued erroneously. 219. The return may state that the prosecutor in due Resigna- manner resigned his office ; and this is sufficient, al- (215) R. V. Whiskin, Andr. 3. (217) R. V. Bristol, 1 Show. 288. (219) R. V. Rippon, I Ld. Ray. 563. S. C. 2 Salk. 4,32. E E tion. 418 MANDAMUS. though a deed is necessary to the resignation ; for all legal requisites are implied in such an averment, in so much, that if on an action for a false return it be shown that the resignation was by parol only, and that a deed is necessary, the return is falsified. 220. The averment must be in the same form if the resignation were merely a consent that he should be turned out, and an averment that he consented to be turned out is improper, for the legal effect, and not the form of words, should be set forth. 221. It is not necessary to show the authority of the body to accept a resignation, whether it be the Corpo- ration at large or the body by which the officer was elected j for the body at large has an incidental right to accept the resignation of any of their officers, and the select body to accept the resignation of the office which themselves conferred. 222. But if the resignation be by mere implication, from acceptance of an incojmpatible office, the special matter must be shown ; a general averment of a resig- nation is not sufficient. Amotion. 223. The return of an amotion must show all those facts which are essential to a legal amotion, stating the circumstances positively, and not legal conclusions. Therefore it is insufficient merely to allege that the (220) R, V. Lane, 2Ld. Ray. 1304. S. C. 11 Mod. 270. S. C. Fort. 275. (221) R. V. Tidderley, 1 Sid. 14. (222) Verrior v. Sandwich, 1 Sid. 305. (223) R. V. Doncaster, Sel. N. P. 1052. Bruce's Ca. 2 Str. 819. R. v. Abingdon, Salk. 482. Bagg's Ca. 11 Co. 99. R. v. Liverpool, 2 Bur. 731, 732. S. C. 2 Kenyon, 431. MAIfDAMUS. 419 prosecutor was duly amoved, but the return must show the cause of amoving, notice to the person amoved, that an assembly of the proper persons was duly held, the proceedinos before them, a conviction of the offence, and an actual amotion by them. 224. Yet where the prosecutor was elected to hold the office during pleasure, it is sufficient to set forth that circumstance, and to state generally that he was duly amoved by them at whose pleasure he held, with- out assigning any cause. 225. It has been already shown what causes are and what are not sufficient to warrant an amotion : it re- mains only to point out how they must be stated in the return. 226. The particular acts which constitute the cause Particular - facts must be shown ; it is insufficient to say '* for removing servants of the Corporation who ought only to be dis- placed by the common-council," or " for obstinately and voluntarily refusing to obey orders and laws made by the mayor, aldermen and burgesses, for the good of the borough," without showing what were the laws, &c. * which he disobeyed : or that he has been guilty of a general neglect and omission of the duty of his office, without showing the particular instances of neglect and (224) R.V.Thame, IStr. 115. Dighton's Ca. 1 Vent. 77. 82. (225) Vide Part I. tit. 648. (220) R. V. Wilton, 5 Mod. 259. S. C. 12 Mod. 113. R. v. York, 2 Ld. Ray. 1566. S. C. R. v. Doncaster, Say. 39. « Disobedience to by-laws is not a cause of amotion, but ought to be punished by a pecuniary penalty, and therefore setting fortli those by- laws would not have made the return sufficient. E E 2 420 MANDAMUS. omission. For it is the province of the Court to deter- mine whether the acts or neglect amount to the offence charged. 227. But the return was, that the recorder was in no manner skilled in the law, without showing particular instances of ignorance, and the Court held that the return was sufficient. But in this case the recorder was not a barrister, which the Court intimated he should have been. Desertion of the mu- nicipality. 228. Recessit, elongavit, et habitationem suam rehquit et deseruit, et amovebat seipsum et familiam suam ad Topsham extra civitatem, &c. et officium suum volun- tarie reliquit et neglexit, is a sufficient averment of a desertion of the municipality, and implies that he has never come back to reside. Oflfence against the office. 229. If there be an express power to amove for non- residence, it ought to be set out according to the terms of the charter ; and if confined to particular cases only, it must be shown that the conduct of the prosecutor came within the precise terms of the provision. 230. The r(;turn must show plainly that the office from which the prosecutor is amoved is that against which the offence was committed, where he holds more than one; this may be by express statement, or by necessary implication. But it is insufficient if it show only that he was a burgess (when in fact he was also (227) R. V. Lord Hawley, 1 Vent. 145. S. C. 2 Keb. 770. 778. 796. S. C. R. V. Coventry, 1 Ld. Ray. 39) . (228) Exeter v. Clyde, 4 Mod. 36. S. C. 12 Mod. 28. (229) R. V. Shrewsbury, 7 Mod. 202. (230) R. V. Lyme Regis, Doug. 173. 177. R, v. York, 2 Ld. Ray. 1566. MANDAMUS. 421 a common-council-man), and setting out an amotion from his office, show only a sufficient cause for amoving common-council-men, although it appear that some of the burgesses were common-council-men : it were other- wise if it show that all the burgesses were common- councilmen. 231. When the officer is amovable at pleasure, the Officer at will, defendants in their return should rely upon the deter- mination of their pleasure, and not allege any other cause ; for if they allow it to appear that he has a kind of freehold, and set forth an insufficient cause of amo- tion, he shall have a peremptory writ to be restored. 232. If the power of amoving be in the Corporation Power, in ... r 1 1 • 1 • whom. at large, it is unnecessary to set forth their authority, for the law implies it ; but if it be vested in a select body, it must be shewn how it became vested in them; and it is not inferred from their enjoying the right of election. And they must show a sufficient power to re- move from all the privileges and offices from which they have assumed to amove the officer. 233. The return must show a summons to every per- Notice to son who has a right to be present and vote on the pro- posed amotion, living within the municipality ; and this is not sufficiently averred by saying that they were in due manner assembled : yet there is an earlier case to the contrary. (231) R.v. Campion, 1 Sid. 14. R. v. Ipswich, 2 Ld. Ray. 1240. R.v. Oxon, Salk. 428. (232) R. V. York, 2 Ld, Ray. 1566. Symmers v. Regem, Cowp. .503. R. V. Faversham, 8 T. R. 356. R. v. Cambridge, Fort. 203. S. C. 2 Ld. Ray. 1346. (233) R. V. Liverpool, 2 Bur. 731. R.v. Shrewsbury, 7 Mod. 202. M A N U A M b S . 234. It must appear that those who have the power of amoving were duly convened for the purpose, but this is sufficiently alleged by saying that " the mayor and major part of the aldermen and common-council as- sembled and took the cause into consideration ;" al- though it should have been that " the mayor, aldermen and common-council assembled," for the assembly of the majority is the assembly of the whole body. 235. In all cases where the officer is entitled to notice to appear and defend himself, the return must aver that such a notice was given him ; and it is insufficient to state that they could not summon him, if it appear that he was within the municipality, although it is stated also that he concealed himself, and went armed, to pre- vent any one approaching him ; but it must shew that they did what they could to summon him. 236. " We caused to be summoned," sufficiently avers that he was summoned ; not so " we commanded the proper officer to summon him." 237. If the return show an absence from the muni- cipality amounting to a total desertion, it is unnecessary to aver a summons, but if it appear that he subsequently returned, then a summons should be shown. 238. But if it show that the prosecutor actually ap- peared before the assembly and made his defence against (234) R. V. Shrewsbury, 7 Mod. 202. (235) R. V. King's Lynn, Cunningh. 98. R. v. Cambridge, Fort. 206. S. C. 2 Ld. Ray. 1348, R. v, Gaskin, 8 T. R. 209. (236) Braithwaite's Ca. 1 Vent. 19. (237) R. V. Exon, 1 Show. 365. S. C. R. v. Clyde, 12 Mod. 28. S. C. 4 Mod. 36. (238) R. V. Chalke, 1 Ld. Ray. 225. R. v. Wilton, 2 Salk. 428. R. v. Gaskin, 8 T. R. 209. MANDAMUS. 423 the charge, this being a waver of notice by him, no previous summons need be alleged. 239. It must show in certain the charges which were Charge pre- alleged against him, but it is sufficient to say that an infonnation was exhibited to the ** following effect, and that he was amoved for the misconduct and offences in the information and articles above mentioned," these offences -having been set forth in a former part of the return. 240. It must appear that the charge in the accusation Proved, on which the amotion is founded was proved against him on oath or confessed ; it is not sufficient to state that he was present and did not deny it, or that he was called upon to show cause why he should not be punished, and that he neither denied the charge nor desired time to defend himself. 241. It must show that an amotion was made by the Amotion • 1 • 1 • 1 made by persons m whom the power is shown or miplied to be proper per- vested ; but if it be shown that the power is in the mayor and aldermen, and such burgesses as had been aldermen, it is sufficient to allege an amotion by the mayor and burgesses, according to the charter. 242. It need not aver that the amotion was by instru- Form, ment under the corporate seal, or that it was recorded in the public books, for if that be necessary, it is implied in a general averment that they amoved him. (239) R. V. Carlisle, 8 Mod. 103. S. C. Fort. 200. (240) R, V. Carlisle, 8 Mod. 99. R. v. Wilton, 5 Mod. 258. S. C. 2 Salk. 428. R. v. Feversham, 8 T. R. 356. (241) R. V. Feversham, 8 T. R. 356. Braithwaite's Ca. 1 Vent. )9. R. v. Doncaster, Say. .17. S. C. B. N. P. 205. (242) R. V. Chalke, I Ld. Ray. 226. S. C. R. v. Wilton, 5 Mod. 258, MAN DAM US- 243. To a writ to restore a common-council-man, it is sufficient to aver that they were eligible, and that he was elected on a day certain for a year, and that he continued for a year, and that at the expiration of the year on a day certain another was elected in his stead, whereby he was duly amoved ; but if it omit to show the day on which the prosecutor and the successor were elected, it is insufficient. 244. It is sufficient to aver that the prosecutor was an officer during pleasure, and that upon due summons to elect they assembled and elected another into his place, and thereby he was removed ; nor is the conclu- sion thereby (perinde) argumentative. 245. It has been held that a return, not amoved by us, is sufficient ; but the reporter introduces a quaere, whether it ought not to have been rejected as a negative pregnant. 246. The mandamus was to restore a burgess who had been amoved without being heard in his defence ; the return was that he had not received the sacrament ; and it seems that the Court considered it a sufficient return, as showing that he was never legally elected into the office ; and therefore sufficient to preclude a peremptory mandamus to restore, although not a good cause of amotion. Sed quaere. (243) R. V. Chester, .•) Mod. 11. (244) R. V.Thame, 1 Str. 115. R. v. Canterbury, 11 Mod. 404. S. C. 1 Str. f)74. (245) Lucas v. Colchester, in Hereford's Ca. 1 Sid. 210. (246) R.V.Lambert, 12 Mod. 2. R. v. Lyme Regis, Doug. 85. R. V. Aldborough, 10 Mod. 102. Vid. Part Lfifi!). II. 185. MANDAMUS. 425 Section V. SUBSEQUENT PROCEEDINGS. 247. Before the 9tli Anne, the proceedings on the Action for writ of mandamus terminated on the allowance of the turn, return as sufficient in substance, and if it were false the prosecutor was obliged to resort to ulterior proceedings, such as an action for a false return, or an information, according; to the circumstances of the case ; but this being found inconvenient, the legislature at that time introduced a proceeding in the nature of a civil action by the following enactment : 248. " As often as for any of the cases aforesaid, any Plea, &c. writ of mandamus shall issue out of any of the said Courts, and a return shall be made thereunto, it shall and may be lawful to and for the person or persons suing or prosecuting such writ of mandamus to plead to or tra- verse all or any of the material facts contained within the said return." 249. It seems that the prosecutor cannot demur to Demurrer, the defendant's return, (per Wilson arguen.) 250. He has until the last moment of the term next after the return made to put in his traverse, which may be to every distinct fact in the return. (248) 9 Ann. c. 20. s. 2. Vid. Part II. I(i8. (249) R. V. Cambridge, 2 T. R. 460. (250) Anon. 2 Barnard. lOG. 426 MANDAMUS. 251. A trial at bar cannot be moved for by the de- fendant until the prosecutor has put in his traverse to the return. Replica- 252. " To which the person or persons making the return shall reply, take issue or demur, and such fur- ther proceedings, and in such manner, shall be had therein for the determination thereof, as might have been had if the person or persons suing such writ had brought his or their action on the case for a false return," Issue and 253. " And if any issue shall be joined on such pro- ceedings, the person or persons suing such writ shall and may try the same in such place as an issue joined in such action on the case, should or might have been tried." 254. It was held by the Court in the case of New- castle, that under this clause of the statute, the prose- cutor may, at his option, try the cause either in the place where the proceedings properly originated, or in Middlesex, where the return alleged to be false was filed. But that if all the material facts are alleged to have happened in another county, and issue be joined in that county, the prosecutor is precluded from issuing the venire to the sheriff of Middlesex. 255. " Whereas there at present exists in the counties of cities and of towns corporate within this kingdom, (251) Anon. 2 Barnard. 106. (252) 9 Anne, c. 20. s. 2. (2.'J3) Id. ibid. (254) R. V. Newcastle, 1 East, 116. Cameron v. Gray, 6T, R. 363. R. V. Oxford, 2 Salk. 669. Russel v. Succlen, 1 Sid. 218. (255) 38 Geo. III. c. 52. s. I. MANDAMUS. 427 an exclusive right that all causes and offences which arise within their particular limits, should be tried by a jury of persons residing within the limits of the county of such city or town corporate ; which ancient privi- lege intended for other and good purposes, has in many instances been found by experience not to conduce to the ends of justice. In every action whether the same be local or transitory which shall be prosecuted or de- pending in any of his majesty's courts of record at Westminster, and in every indictment removed into the King's Bench by writ of certiorari, and in every infor- mation filed by his majesty's attorney or solicitor general, or by the leave of the Court of King's 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 venire in such action, indictment or information be laid in the county of any city or town corporate in England, or if such ivrit of Qu. the mandamus be directed to any person or persons body poli- this ?— if tic and corporate, that it shall and may be lawful for the bodie°^po^- Court in which such action, indictment, information or dh-'ected'to other proceeding shall be depending, at the prayer and o^^o^g^*"^ instance of any prosecutor or plaintiff, or of any defen- P'^'^^ °^ ^. •' ^ '■ •' corporation dant to direct the issue or issues joined in such action, is not with- . . m It. indictment^ information or proceeding 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 and distringas accordingly." 256. Upon the issue elected or not elected, in manda- Proof of *^ election. mus to admit, the prosecutor must be prepared to prove in himself every qualification required by the constitu- tion, such as being an inhabitant or a burgess. He (256) Tufton v. Nevinson, 2 Ld. Ray. 135 1. 4*28 . MANDAMUS. must prove also that he has complied with the provisions of the statute, as that he has received the sacrament, although no objection vv^as made on that account, at the time of the election, and the defendant has not given him any notice that he will be required to do so ; nor is he relieved from the necessity of doing so by the expiration of six months since his election, for the statute of George does not confirm his title before admission. New trial. 257. The Court will grant a new trial, although the verdict for the prosecutor of this writ is not conclusive of his right, since he may be ousted on quo warranto after an admission, or again amoved after a restoration under the peremptory mandamus. And it will be award- ed on the ground that the former trial was against evi- dence, although it was at bar. Judgment, 258. " In case a verdict shall be found for the per- costs, &c. son or persons suing such writ, or judgment given for him or them upon a demurrer or by nil dicit, or for want of a replication or other pleading, he or they shall recover his or their damages and costs in such manner as he or they might have done in such action on the case for a false return, such costs and damages to be levied by capias ad satisfaciendum, fieri facias or elegit ; and a peremptory writ of mandamus shall be granted without delay, for him or them, for whom judgment shall be given, as might have been if such return had been adjudged insufficient. And in case judgment shall be given for the person or persons making such return to such writ, he or they shall recover his or their costs of suit, to be levied in manner aforesaid." (257) Musgrave V. Nevin&on, 1 Sir. 58.5. S. C. 2 Ld. Ray. 1360. Gay v. Cross, 7 Mod. 37. Smith d. Dormer v. Parkhurst, 2 Str. 1105. (2.58) f)Anne, c. 20. s. 2. MANDAMUS. 429 259. The damas^es must be found by the jury who Damages, ^ . . by whom tiy the cause, for they are consequential on the issue, found. and not merely incidental, on which account they can- not be ascertained by an inquisition. If there have been an omission in this respect, no judgment can be entered on the original proceeding, because the form of the entry is, that the prosecutor recover damages and his costs, and of course no peremptory writ can issue, for that proceeds upon a rule awarded to the prosecutor, founded upon the judgment. But a venire de novo may be awarded. 260. Judgment as in case of a nonsuit will be given Judgment t> " as m non- if the prosecutor do not proceed to trial after a traverse suit. of the return, and issue joined on the traverse ; for the statute has expressly provided that if any material fact contained in the return be traversed, such further pro- ceedings shall be had thereupon, as if the action had been brought for a false return, and therefore it must be treated as an action between party and party. 261. If the Court decide against the prosecutor on a Ontra- ° - verse, traverse to the return, judgment must be entered tor the defendant. 262. " Where any person shall be entitled to be ad- costs of mitted a citizen, burgess or freeman of any city, town P'"''''^'^" corporate, borough, cinque port or place within England and Wales, and shall apply to the mayor or other per- son, officer or officers of such city, town corporate, bo- (259) Kynaston v. Shrewsbury, 2Str. 1052. S. C, 4 Bro. P. C. 271. S. C. C.T. H. 153. (260) Wigan v. Holmes, Say. 110. R. v. Stafford, 4 T. R. 689. (261) Green v. Durham, 1 Bur. 133. (262) 12 Geo. III. c. 21. s. 1. 430 MANDAMUS. rougli, cinque jjort or place, who hath or have autho- rity to admit citizens, burgesses and freemen therein, to be admitted a citizen, burgess or freeman thereof* and shall give notice specifying the nature of his claim to such mayor or other officer or officers, that if he or they shall not so admit such person a citizen, burgess or freeman within one month from the time of such no- tice, the Court of King's Bench will be applied to for a writ of mandamus to compel such admission, and if such mayor or other officer or officers shall after such notice refuse or neglect to admit such person, and a writ of mandamus shall afterwards issue to compel such mayor or other officer or officers to make such admission, and in obedience to such writ, such person shall be admitted by the said mayor or other officer or officers a citizen, burgess or freeman of such city, town corporate, bo- rough, cinque port or place, then such person shall, unless such Court shall see just cause to the contrary, obtain and receive from the said mayor or other officer or officers so neglecting or refusing as aforesaid, all the costs to which he shall have been put in applying for obtaining and serving such writ of mandamus, and en- forcing the same, by a rule to be made by the Court out of which such writ shall issue for the payment thereof, together with the costs of applying for obtaining serving and enforcing the said rule ; and if the rule so to be made shall not be obeyed, then the same shall be enforced in such manner as other rules made by the said Court are or may be enforced by law." Rule dis- 263. If the motion for a mandamus to elect be dis- charged without charged, on a doubt whether the possessor of the office costs. (263) R. V. Bankes, 3 Bur. 1455. MANDAMUS. 431 is an officer de facto, or a mere intruder, it will be dis- charged without costs. 264. But if the motion be refused on the ground of With costs, there being another legal specific and adequate remedy, in clear cases the Court will compel the prosecutor to pay the costs. 265. If the writ be quashed on the ground of vari- Costs on ance from the rule, the defendant will be allowed his ed. costs on applying to the Court. 266. If on going to trial on his traverse to a return Witbdraw- by the mayor and Corporation, the prosecutor withdraw '"^ the record on account of the absence of a material wit- ness, whom he had subpsenaed, the defendants are en- titled to their costs for not proceeding to trial ; although the witness is a member of the Corporation, and absented himself without any reasonable excuse, unless it appear that his absence was caused by the act of or in collusion with the other corporators. 267. If the prosecutor recover costs and damages in SLerirs 11- J poundaf^e. this proceeding, the sherift must levy his poundage also, for it is an action and within the statute of George. 268. If several join in the prosecution of a manda- Joint liabi- mus, their attorney may sue them jointly for the charges costs. (264) Bui. N. P. 204. R. v. Chester, 1 T. R. 405. (265) R.V.Kingston, 11 Mod. 382. (266) R. V. Yarmouth, 5 B. A. 5.S2. (267) 43 Geo. III. c. 46. s. 5. R. v. Glamorgan, 2 Smith. 8. (268) Green and fifteen others v. Pope, 1 Ld. Ray. 127. 432 MANDAMUS, of the proceedings, and maintain his action against the survivors for the whole, because their liability is joint. Error. 269. Error does not lie on the allowance of the return to a writ of mandamus, nor on the disallowance of the return and award of the peremptory writ, for it is only in the nature of an interlocutory judgment. 270. But error lies on the modern form of action in- troduced by the statute, after judgment upon the re- turn and subsequent pleadings, for that judgment is final. 271. On a mandamus to restore, if the jury do not find damages for the prosecutor, so that the Court can- not give a substantial judgment, if the case be brought before the House of Lords by error on a pretended judg- ment, they will remit it with a direction to the King's Bench to award a venire de novo. Section VI. AMENDMENTS. Statutes of 272. " An act made in the fourth year of her Majesty's ' * reign entitled, an act for the amendment of the law, (269) R. V. Dublin, 1 Str. 540. S. C. 8 Mod. 29. R. v. Hearle, 1 Str. 628. Dublin v. Dowgate, 1 P. Wms. 351. et n. Dublin v. Regem, 2 Bro. P. C. 554. (270) Ut. sup, 269. Kynaston v. Shrewsbury, Str. 1052. Dublin v- Dowgate, 1 P. Wms. 350. Dublin v. Regem, 2 Bro. P. C. 554, (271) Kynaston V, Shrewsbury, C.T,H. 153. S. C. 2 Str, 1052. S. C. 4 Bro. P. C. 280. (272) 9 Anne, c. 20. s. 7. 4 Anne, c. 16. 32 H. VIII. c. 30. 18 Eliz. c. 14, 37 Eliz. c. 5. 21Jac. I. c, 13. 16 & 17 Car. II. c. 28. MANDAMUS, • 433 and the better advancement of justice, and all the sta- tutes of jeofailes shall be extended to all writs of man- damus and informations in the nature of quo warranto and proceedings thereon, for any the matters in this act mentioned." - 273. These statutes extend the power of the Court as Auommon to allowing particular amendments for the purpose of bringing precisely the same point before the jury with more form and certainty than the original pleadings would have exhibited it. But the Court, for the ad- vancement of justice, have assumed an equitable juris- diction, of permitting amendments which materially vary the question which is to be submitted to the con- sideration of the jury. This power extends to proceed- ings in mandamus and on the information in the na- ture of quo warranto, as well as other actions. Amend- ments in mere form, are allowed of course, such as alterations of clerical errors, and may be made in any stage of the proceedings. On the application to make substantial amendments, the Court does not so much consider the progress of the pleadings as whether the alteration will tend to the furtherance of justice, or whether it would merely tend to effectuate the sinister motives of the party. 274. The writ may be amended on motion at any Of writ, . . . when. time before the return is filed, even, it seems, in a depar- ture from the rule ; but after a motion to quash the writ for such a departure, the Court will not allow the rule to be extended in this respect to warrant the writ, but (273) Vide Part I. tit. 413. 418. Quo Warranto, Amendment. R. v. Grampound, 7 T. R. 703, 4. R, v. EUames, C. T. H. 42. (274) R. V. Water Raton, 2 Smith, .55, .56. R. v. Clithcroe, (i Mod. 1.33. )■ )• 434 MANDAMUS. the writ must be superseded, although the Court would have granted a rule to its full extent had it been desired on the application. 275. The writ had stated the custom of the borough relative to the admission of liurgesses too narrow ; a return had been filed and traversed ; the plaintifT had neglected to proceed to trial at the next assize, and on the motion of the defendant, a rule had been made absolute for a judgment as in case of nonsuit; the pro- secutor applied to amend his statement of the custom, but the Court refused leave, as the amendment was unprecedented, and put him to apply for a new writ. New writ. 276. If the return be allowed upon its merits, the Court will not grant a new writ, although there is some want of form in the former ; as if it be misdirected, for the return having been made, the prosecutor may bring his action for a false return against the individuals who made it, and they are precluded by their own act from excepting to the direction of the writ. Return,cle- 277. Amendments are not allowed in the return after in. it has been filed, unless they will evidently conduce to the furtherance of justice. Yet where they will have that effect, leave is not refused ; the Court will therefore give a day to amend a misnomer or clerical error in it, on terms of short notice of trial, so that the prosecutor may not be damnified. So where the writ commanded to restore to the ofiice and place of one of the common- council and one of the aldermen, and the return was, not elected and admitted to the office and place of one (275) R. V. StaflFord, 4 T. R. 690, (276) R. V. Rippon, 1 Ld. Ray, 564. Enfield v. Hills, T. Jones, 116. (277) Widdrington'sCase, 1 Lev. 23. R. v. Chichester, 1 Show. 273, MANDAMUS. 435 of the common-council and of one of the aldermen, the defendant was allowed to amend, by addmg " or either of them ;" it having been only a mistake of the clerk of the crown-office, his instructions being general. 278. So the defendant will be allowed to amend the statement in his return, when it is not to introduce any alteration in substance, but is only for the purpose of con-ecting errors in its grammatical construction, so as to render it consistent and sensible. But upon an ap- plication for this favor, the Court will impose such terms as will conduce to the administration of justice, as by requiring the defendant to undertake, if an action for a false return should be brought, to take short notice of trial, and not to bring a writ of error if there should be judgment against him. 279. There had been a trial and verdict for the de- When ma- fendants on the following return : *' that the borough of ration. G. is an immemorial liorough and corporation, that the borough hath immemorially consisted of a mayor, recorder, eight capital burgesses, inhabiting and residing within the borough, to advise the mayor touching the good rule and government of the borough, and the adminis- tration of justice, a tmun clerk, and an indefinite number of freemen, or free burgesses," &c. The Court having intimated an opinion of its insufficiency, on an applica- tion for a peremptory writ on that ground, the defend- ants applied for leave to amend and reduce it, by omissions, alterations and interpolations, to the follow- ing form — ** that the borough of G. is an immemorial borongh and coi-poration, that in the borough aforesaid (278) R. V. Lyme Regis, Doug. 131. (279) R. V. Grampouml, 7 T. R. 704. F F 2 436 MANDAMUS. there have immemovially been a mayor dud eiglit of the biir»esses of the borough aforesaid elected in mamier here- inaj'ter mentioned, inhabiting and residing within the borough, to advise the mayor touching the good rule and government of the borough, and the administra- tion of justice, who during all the time aforesaid, have been and still are called capital burgesses of the said borough, and an indefinite number of freemen or free burgesses." The Court refused to allow the alteration. Lord Kenyon C.J. said, " Consider what this case is ; the prosecutor who had attended all corporate meetings, and had in fact discharged all the duties of his office, was removed from his office of capital burgess for not residing within the limits of the borough ; it seems therefore to be a harsh proceeding against him. We are not acquainted with the motives and reasons for removing the prosecutor; but perhaps it might have been convenient for some of the parties that the recorder should appear to be an integral part of the Corporation, and that this return, stating that the Corporation con- sisted of a mayor, recorder, eight capital burgesses, and a town clerk, should be on the files of the Court ; pro- bably this was an experiment to try whether or not that could be found by a jury, and now that they find that the averment bears against them in another point of view, they wish to have it altered. On reviewing the cases, it is manifest that the Court has seldom indulged the par- ties by permitting amendments to be made in a return to a mandamus after the mandamus has been filed. The ground on which my opinion is formed in this case is, that the amendments proposed are not for the further- ance of justice, and it is an attempt to carry the rule of amendment further than it has ever been extended in any other case. If the Corporation are still pertina- cious, they may remove the prosecutor again, and then MANDAMUS. 437 they will have an opi)ortunity of putting such a consti- tution of the Corporation on the record as they will abide by." Section VII. ACTION FOR FALSE RETURN. 280. If the return were sufficient in its statement, but false, before the statute of Anne the proceedings on the writ of mandamus were concluded, and the prose- cutor had no immediate remedy on his writ; for the Court could not proceed to question its verity. At times, indeed, when they strongly suspected bad faith, they called upon the defendant to verify his statement in the return upon oath, a proceeding which had the approbation of Sir Matthew Hale, but was not in ge- neral acquiesced in by the judges. In questions where the public were more immediately concerned, the form of the subsequent proceeding was by criminal informa- tion; but when the question more particularly interested an individual, his only remedy was by bringing an action on the case for a false return. This action may be still resorted to in certain instances (for the statute is not applicable to all cases), although the more conve- nient form introduced by the statute has rendered it almost obsolete. 281. This action Hes on a return either false in its When it direct assertions, or in the substance or its signification, (2fi0) Manatoii's Ca. T. Ray. .%V>. Turner's Ca. 1 Sid. 257. Bagg's (Jii. 1 1 Co. 'jy. b. Kynaston v. Shrewsbury, 2 Str. 105J. Rich v. Pilking- ton, Carth. 171. Bui. N. P. 204. (281) R. V. LymcLegis, Doug. 153. 438 MANDAMUS, although the words which are used be in themselves; true, by the conceahnent of any fact which counter- acts that which is asserted, or even that which is neces- sarily implied : as if the return, relying upon an amotion by the whole body, do not show in whom the power of amotion is vested, so that the law intends it to remain in the body at large, and to warrant the disputed amotion, whereas in fact there is a subsisting charter within the knowledge of the defendant, by which the right of amov- ing is transferred to a select class. 282. In this action it is not material whether the mandamus ought originally to have been granted or refused, at least after a plea affirming the truth of the return it shall be taken pro confesso, that the writ was granted and the return made by the defendant, to falsify which the action is brought. Action 283. " If any damages shall be recovered by virtue of when bar- , ./ o j red, this act against any such person or persons making such return to such writ as aforesaid, he or they shall not be liable to be sued in any other action or suit for making such return." 284. It has been said that a judgment in the action under this statute, erroneous on account of the verdict being defective in the jury's having omitted to assess damages, is no defence to an action for a false return. But this means nothing; for the action cannot be brought unless the return has been al/oived, and in this case, although the prosecutor has no benefit of his writ, the return is expressly disalloived. (282) Green v. Pope, 1 Ld. Ray. 126. (283) 9Anne, c, 20. s. 3. (284) Kynaston v. Shrewsbury, 2 Str. 1052. V. tit. seq. MANDAMUS. 439 285. It cannot be commenced before judgment on the When may sufficiency of the return has been actually entered upon menced" the record, notwithstanding any rule of the office not to enter judgment on the return except in cases where a peremptory writ is awarded, for it is incumbent on the plaintiff to see that judgment on the sufficiency of the return is entered ; and it is necessary that the fact ap- pear by the declaration ; an averment that he thereby lost his place will not remedy the omission. 286. It can be brought only in the Court of King's in what Bench, so as to attain the object of the proceeding; for *^'^^^ ' although judgment may be given upon it in the Com- mon Pleas, the Court of King's Bench will not take judicial notice of that judgment upon motion for a peremptory writ. And therefore upon such a judgment no peremptory mandamus can be awarded, for it sets out with a statement that the return is false prout con- stat nobis per recordum. Yet it is not necessary that a judgment be formally entered when the proceedings were in the proper court, for the peremptory writ may be awarded on the postea. 287. If the proceedings on which it is founded be Joint ac- joint, the action may be brought by all jointly ; indeed it is said, that if several were joint prosecutors of the writ, they must all join in the action for a false return, at least the survivors, when some are dead ; for the peremptory mandamus which issues on judgment for the plaintiffs in this action must pursue the form of the (285) Enfield v. Hills, 2 Lev. 239, S. C. T. Jones, 116. {286} Green, &c. v. Pope, 1 Ld. Ray. 128. S. C.Skin. 670. S. C. Anon. 2 Salk. 428. Foot v. Prowsc, 2 Str. 698. (287) Ward ct al' v. Brampston, 3 Lev. 362. Green and fifteen others V. Pope, 1 Ld. Ray. 128. R. v. Andover, 2 Salk. 433. S. C, 12 Mod. 332. Butler V. Rews, 12 Mod. 349. R. v. Montacute, 1 W. B, 60. 440 MANDAMUS. original writ, and cannot be granted to one without the rest. But on a mandamus to restore several, it was held that they could not join in an action for a false return. Since the law on this subject has been better ascertained, the Court will not grant a mandamus to several, unless they jointly claim the same right ; and if it be necessary to resort to an action for a false return on such a writ, I apprehend that all the prosecutors must join in the action for a false return, for the prin- ciple on which the writ would issue is, that their interest cannot be severed. Against 288. Although the return is the return of the Corpo- ^ """* ration, in as much as the making a false return is of a tortious character, those who do it are liable for the consequences in their private capacity, and an action lies against them, or any one or more of them in their private names, to recover damages for the injury done to the prosecutor ; and having made the return on which the action is founded, they cannot take advantage of the misdirection of the writ. 289. If the declaration state that the defendant, an alderman, caused the return to be made in the name of the bailiff and aldermen, &,c. and the defendant show that he did it with their consent when duly convened in common-council, the plaintiff must be nonsuit ; for it is the return of the mayor, aldermen, &c. and his declara- tion ought to have been against all those who joined in directing it to be made, for it was a corporate act ; but (288j Enfield V. Hills, T.Jones, 116. S. C. 2 Lev. 239. R.v. Rippon, 1 Ld. Ray. 564. S. C. Corayns, 86. R. v. Chalice, 2 Ld. Ray. 849. Rich V. Pilkington, Carth. 171. Sed vide Vaughan v. Lewis, Carth. 229. {289} Vaughan v. Lewis, Cartli. 229. Sed vide Rich v. Pilkington, Cartlu 17L MANDAMUS, 441 his action is sustained, although they all consented, if they were not convened in common-council. — The falsity was in asserting it to be the return of the bailiff and aldermen. 290. If several joined in the return, as a Corporation, the action may be brought either against all or any one of them ; but if it appear that the defendant voted against the return, and it was made against his consent, which may be given in evidence on the plea of not guilty, the plaintiff must be nonsuit. 291. The action for a false return is local, but the Action lo- venue may be laid either in the county in which the proceedings on which it is founded took place, or in Middlesex, where the offence is committed by placing the return upon record. 292. It is not necessary to aver that it was the duty Avermeut '' of duty. of the defendants to obey the writ, for in as much as their return alleges a reason for not obeying the com- mand, it is an admission of their duty, unless they show a sufficient excuse. 293. It must be averred and proved to be the return Proof of de- . - , . J fetidant s of the defendant. Proof that the writ was delivered to return, him, and that it has such a return, is prima facie evi- dence of this fact, and renders it incumbent upon him to show the contrary. Service of the writ on the de- (290) Rich V. Pilkington, Carth. 171. R. v. Rippon, 1 Ld. Ray. 564. (291) Vide Part II. tit. 254. R. v. Newcastle, 1 East, IIG. Lord v. Francis, 12 Mod. 408. R. v, Oxford, 2 Salk. 669. Russel v. Succlen, 1 Sid. 218. Cameron v. Gray, 6 T. R. 363. (292) Norwich Ca. 12 Mod. .322. (293) B. N. P. 205. R. v. Chalice, 2 Ld. Ray. 848. Vaugliaii v. Lewis, Carth. 229. 442 MANDAMUS. fendant, his declaration tliat a return should be made, together with a rule for an attachment against him for want of a return, and another to discharge that rule on payment of costs and appearance to the action, is evi- dence that the return was made by the defendant. How set 294. It is sufficient to set out that the return was forth, 1 1 /> A made modo et forma sequenti. Must shew 295. The plaintiff must falsify the return by showing his own title ; but where the writ was for the insignia of office, in so much as the return would not have been allowed had it relied on his not having received the sa- crament, it seems to be unnecessary to show that fact in the action to falsify it. 296. If the plaintiff in his declaration state an elec- tion on the wrong day, but prove it on the right, his averment is substantially made out, for the allegation of the time is immaterial ; but if he lay it on the proper day, but prove it on a wrong, his action fails ; for the election is not vaUd. This was the case of an election of a chief officer on a day prescribed as the customary time of election. Costs. 297. If the plaintiff obtain judgment, he is entitled to his costs under the statute of Gloucester ; if the de- fendant obtain it, he is entitled to them under the sta- tute of James. (294) Pullen v. Palmer, 1 Ld. Ray. 496. R. v. PowcU, 2 W. B. 787. (295) Crawford v. Powell, 2 Bur. 1016. (22fi) Vaughan v. Lewis, Carth. 228. (297) 6 Ed. I. c. 1. 4 Jac. I. c. 3. Tidd's Prac. 984. Hull, Costs, 327, 8. 443 MANDAMUS. ^^^ Section VIIL CRIMINAL INFORMATION. 298. A criminalinfonnation will be granted to punish When^ corporators for making a false return, when it affects the rights of the public rather than those of any individual in particular, so that an action cannot be sustained against them. This cannot be moved for until the re- turn has been filed and allowed ; and must be framed against the offenders in their natural capacity, and not against the Corporation as a body, although the return were made under the corporate seal. 299. If the mayor make a return in the name of the Corporation, against the consent of the majority, a criminal information will be granted against him, 300. The applicant for the information, must allege Affidavits, that in his apprehension and belief, the party were led to make such return by corrupt and impure motives, and state circumstances raising strong suspicion, that such were their motives, or show circumstances from which such motives must be necessarily inferred. 301. If iudo-ment be given as;ainst the defendants on Peremp- JO o cj tory man- the falsity of the return, they will be fined and a da.nas on . , J judgment. peremptory mandamus will be awarded. (2!)8) R. V. Spotland, C.T.H. 185. R. v. Surgeons, 1 Salk. 374. R. v. Pettiward, 4 Bur. 2453. Anon. 12 Mod. 559. R. v. Lancaster, 1 D. R. 485. (299) R. V. Abingdon, 2 Salk. 431, 432. S. C. 12 Mod. 309. S. C. CartU. 499. (.300) R. V. Wilhambon, 3 B. A. 583. R. v. Baron, 3 B. A. 434, (.301) R. V. Surgeons, I Salk. 374. R. v. Abingdon, 2 Salk, 431,432. S. C. 12 Mod, 308. -144 iMANDAMUS. Section IX. PEREMPTORY MANDAMUS. On insuf- 302. If the return to the mandamus be disallowed ficient re- - . . . . turn. by the Court, on account of msufficiency or inconsis- tency, a peremptoiy writ will be awarded, which requires an implicit obedience in doing the act commanded, without allowing any further opportunity of assigning a reason to the contrary ; and is in the nature of a writ of execution to which the proper parties must return their act of obedience. When not, 303. Yet, although the return is insufficient, if upon the whole it appear that the party ought not to have the advantage he claims, the peremptory writ will not be allowed to issue ; as if on a mandamus to restore, it appear that the prosecutor was irregularly amoved, but that if restored he ought to be immediately amoved again on account of a sufficient cause of re- moval, as gross misconduct, or having created a continu- ing disability in himself to discharge the functions of the office. In one case the officer had been irregularly removed from the place of steward of the sheriff's court of Bristol, he was a magistrate of Shadwell, and bound to affiard daily attendance at his office, so that he must either neglect his duty at Bristol, or his office in London. 304. But it will be granted where the body have (302) Steven's Ca. T. Ray. 432. R. v. Norwich, 2 Ld. Ray. 1245. R, v. Uchester, 4 D. R. 329. R. v. Cambridge, Fortes. 205, . i (303) R. V. Campion, 1 Sid. 14. R v. Axbridge, Cowp. 523. R. v. Griffiths, 1 D. R, 3'JO. S. C. 5 B. A. 735. (304) Protector ct R. v. Campion, 2 Sid. 07. 1 Sid. 14. R. v. Oxon. 2 Salk. 429. R. v. Slatford, 5 Mod. 316. R. v, Ipswich, 2 Ld. Ray. 1240. MANDAMUS. 445 merely the power to amove again, and it is not a duty incumbent on them to do so, arising from the insuffi- ciency of the officer to execute the office. As where an officer amoveable at pleasure has been amoved for an insufficient cause ; for it is presumed that they acted ilhder a misapprehension of their duty, and not through an intention of voluntarily dispossessing him of his office. '^"' 305. When the Court has given their opinion against Peremp- a return, but are inclined to reconsider the matter, they nisf. award a peremptory mandamus nisi, which issues of course, unless they make known their opinion to the contrary before the expiration of the same term. 306. The peremptory writ is never denied after judg- On judg- ment for the plaintiff in an action for a false return brought false re- in the Court of King's Bench, but it will not be awarded '"'"' on a judgment obtained in the Common Pleas. , 307. "A peremptoiy writ of mandamus shall be grant- On judg- ed without delay, for him or them for whom judgment mandamus. shall be given, as might have been if such return had been judged insufficient." 308. Judgment was given for the defendant in pro- On reversal ceedings on mandamus in the Court of King's Bench ; for defend- this was reversed in the Exchequer Chamber, and the reversal was affirmed in the House of Lords. — A peremp- tory mandamus was awarded to the prosecutor, because (305) R. v.Tappenden,3East, 192. (306) Vide Part II. tit. 286. Buckly v.Palmer, 2Salk.431. (307) 9 Anne, c, 20. s. 2. (308) Bui, N.P. 202. Foot v. Prowse, 2 Str. 698. Sed vide R. v. Ainery, 1 Anstr. 183. et Part II. tit. 286. 446 MANDAMUS. his right was estabhshod in the only manner it could be established on such proceedings, in as much as the province of the superior Court is only to affirm or re- verse the judgment below, and not to give a new judg- ment for either party ; and this is a mandatory and not a judicial writ, for which reason it is not necessary that there be a judgment to found it upon. On postea. 309. No motion is allowed for a peremptory manda- mus founded on an action for a false return until four days after the return of the postea, because the defend- ant has so long to move in arrest of judgment. But it may be awarded on the postea, without entering a formal judgment. When stayed. 310. A motion for a new trial stays the issuing of a peremptory writ until the motion is disposed of. 311. But a bill of exceptions does not delay it, whe- ther mentioned in time or not. 312. Nor does a writ of error brought on the judg- ment in an action for a false return ; for were the pe- remptory writ restrained until the alleged error is de- cided, annual officers would afterwards derive no benefit from a judgment in their favor, as the office would expire in the interval. Form of pe- remptory writ. 313. This writ must pursue the original mandamus in its direction, although that were erroneous and a (309) Bui. N. P. 198. 200. Buckly v. Palmer, 2 Salk. 431 (310) Wright r. Sharpe, 11 Mod. 175. (311) Wright V. Sharpe, 11 Mod. 175. (312) Wright V. Sharpe, 11 Mod. 175. 350. Cont. Ruding v. Newel, 2 Str. 983. (313) R. V. Ipswich, 2 Ld. Ray. 1240. Bui. N. P. 200. Dublin T. Dowgate, 1 P. Wms. MANDAMUS. 447 misnomer, for the defendants have precluded themselves from objecting it, by their return to the substance ; for this writ is merely to enforce the former, and founded upon it. 314. When the writ is directed to the mayor and Service of. Corporation, a personal service on all the members is not necessary, nor even upon the mayor. An attachment was gianted for disobeying a peremptory writ, return- able in six days, which had been served personally on the town clerk alone ; for if the defendants wanted fur- ther time, they ought to have applied to the Court for that purpose, and as to personal service it is unneces- sary in other cases. 315. A peremptory writ to restore is fully obeyed. What suffi- if the Corporation actually restore the officer, although encc. they at the same time summon him to show cause why he shall not be amoved, and in pursuance thereof amove him for the same offence. In this case the restoration was on account of the irregularity of the amotion, and the insufficiency of the cause alleged ; I apprehend that had the amotion been held regular, and the cause insufficient, a second amotion for precisely the same cause, would have been treated as a contempt of the Court. 316. If the peremptory writ have been obeyed in Objected to, mere form but not effectually, the prosecutor has an opportunity of bringing this before the Court, by oppos- ing the motion to file the return. (314) R. V. Fowey, 5D.R. 614, (315) R. V. Ipswich, 2 Ld. Ray. 1283. Bagg's Ca. 11 Rep. 99. b. (316) R. V. Ipswich, 2 Ld. Ray. 1283. 448 MANDAMUS. Section X. ATTACHMENT. Wien. 317. When the defendant is guilty of disobedience to the process of the Court, in not making a return in proper time ; they will assert their authority by issuing an attachment against him, under which they will punish the contempt, and compel obedience to the writ. When therefore a Corporation makes no return, the attachment must not issue against the Corporation, for that cannot commit an offence, but against the indivi- duals who are guilty of the contempt in their natural capacity. Against 318. If the writ issued to the two bailiffs, the attach- ment must go against both ; although one is willing to make the return, but is unable to do it because his col- league has the possession of the writ, and will neither join in a return, nor deliver the writ that he may make it by himself. The object of this is to prevent the pro- secutor being defeated by the contrivance of the parties ; but when the officers are brought before the Court, the punishment will be proportioned to their respective offences. 319. So if the writ be directed to several in their natural capacities, unless all join in making a return, they must be all nicluded in the attachment. But if it were directed to a Corporation, the attachment may (317) Mills' Ca. T. Ray. 152. (318) Bailiffs of Bridgnorth, 2 Str. 808. R. v. Salop, B. N. P. 198. 201. (319) New Sarum, Comb. 327. R. v. Salop, B. N. P. 198. 201. whom. MANDAMUS. 449 issue against those particular persons who are guiUy of the offence, that is, those who do all in their power for the purpose of obeying it, are not to be included. 320. It is granted for not making the return to a For what, peremptory writ on the day assigned. 321. An attachment is granted for neglecting to make a return of the pluries, without allowing the defendant to be heard by counsel in explanation of the contempt. 322. It is granted after a peremptory rule to return the first writ, but not on a neglect to return the first writ on the day assigned. 323. And it is granted where a return is made, if it be frivolous and to avoid the justice of the Court, or if it be made contrary to the consent of the Corporation, where the writ is addressed to them as well as him who made the return ; as if it were to the mayor, town clerk and burgesses, and on the return made by the mayor, the town clerk states by affidavit that he knows nothing of making it. 324. The manner of applymg for an attachment is Rule ni&i. by motion of the prosecutor's counsel, who upon show- ing by affidavits a fair ground for the interference of the Court, will obtain a rule nisi, upon which the de- fendant has an opportunity of showing any thing which (.S20J R. V. Fowey, 5 D. R. 614. (;321) Coventry Ca. 2 Salk. 42i). Anon. 2 Salk. 434. (322) Coventry Ca. 2 Salk. 42i). Anon. 2 Salk. 434. Anon. Comb. 234. (323) R.V.Robinson, 8 Moa.33(;.- R. v. Hoskins, C.T.H. 188. R. y. Abingdon, 12 Mod. 308. Vid. Part II. 176, 7 . (324) Chduiit V. Smart, 1 B. P. 477. Tidd's Pr. 484. 450 MANDAMUS. will exculpate him from the charge, unless the contempt be very gross, in which case it is made absolute at first. Service of 325, It is not necessary to show personal service of a peremptory writ to a Corporation upon all the indivi- duals of it or even upon the mayor, personal service on their town clerk is sufficient. And it seems that an attachment will be granted against a mayor, when the peremptory writ directed to him alone has not been served upon him, on affidavits that the writ had been left at his house, he having kept out of the way to avoid it. 326. The writ was directed to a Corporation under the statute of George, commanding the mayor and Corpo- ration to elect a mayor on a day certain ; there was a rule made by the Court that public notice in writing of the time appointed by the writ should be affixed in some public place by the town clerk six days before the election — a sufficient number of corporators did not attend — there were affidavits showing that the notice had been affixed to the Guildhall according to the directions of the rule, and that a copy of the rule had been served on the defendants and the greater number of the corporators : it did not appear that they had been served with the manda- mus or that they had any other notice of it. — An attach- ment was granted : for if the defendants did not live with- in the municipality, or if they knew nothing of the mat- ter, they ought to show it. 327. The affidavits upon which this motion is made, must assert positively that the persons upon whom (325) R. V. Fowey, 5 D. R. 614. R. v. Tooly, 12 Mod. .'512. (326) R. V. Edy vcan, 3 T. R. 352. (327) R. V. Newcastle, 1 Barnard. 383. MANDAMUS. 451 the rule to return the writ was served, are the members of the Corporation to which the writ issued. It is insuffi- cient to state that certain persons (naming them) were served with the rule, whose names are the same as those of the corporators ; and if a rule have been ob- tained upon so defective an affidavit, it Vv'ill be dis- charged, although the defendants have not shown cause, since an indictment for perjury could not be sustained upon it. Semb. 328. When a mandamus is served upon all the per- sons to whom it is directed, and an attachment is de- sired against all of them, it is enough to produce an affidavit of service of the writ, at the time for showing cause upon the attachment, nor is it then necessary to be produced, unless required by the other side. But if the writ were served only upon some of the members, and the attachment desired against them in particular, they ought to have an opportunity of answering this affidavit of the special service of the writ. 329. The writ was directed to the mayor and jurats, Feigned issue. and no return made, because the mayor would have re- turned an execution of the writ, as he claimed the ex- clusive appointment to the office, and the jurats would have returned not elected, as they claimed an equal right to vote with the mayor. The Court withheld an attachment, and the parties entered into a rule by con- sent to try their right in a feigned issue, whether the prosecutor were or were not elected, &c. (328) R. V. Esham, 2 Barnard. 2«5, (329) R. V. Rye, 2 Bur. 79S. G 2 452 MANDAMUS. Attach- 330. Attachment is of two sorts ; that which may go ment, ' •' '^ upon the aUas to punish the contempt of Court, and that which goes only on the pluries, which entitles the party to his action for damages. (330) Anon. 12 Mod. 164. lb. MS. 453 CHAPTER III. QUO WARRANTO, AND INFORMATION IN THE NATURE OF QUO WARRANTO. Section I. QUO WARRANTO. 331. The ancient method of proceeding against those who exercised franchises in derogation of the rights of the Crown, from which all public franchises emanated, was by an original writ called Quo Warranto, which was the king's writ of right, and issued whenever his attorney thought it expedient. Under some early statutes a general proclamation was to be made to command all those who enjoyed franchises, to come before the jus- tices in eyre, and show their title, under pain of forfei- ture, if they neglected to do so in the next eyre, unless they should come before the king in his Bench or other his justices. These proclamations were temporary, and the writ has grown obsolete ; but on it is founded the information in the nature of quo warranto at com- mon law. filed by the king's attorney general of his own authority, or by the king's coroner, formerly of his own authority, but since the statute of William under sanc- tion of the Court of King's Bench. (331) 6 Ed. I. 18 Ed. I. stats. 2, 3. Strata Marcella, 9 Co. 28, R. v.- Trinity House, I Sid. 80. R. v. Tielawny, 3 Bur. 1(516. 454 QUO WAKRANTO, Section II. INFORMATION IN THE NATURE OF QUO WARRANTO. 332. This iut'ormatiou is for llie usurpation of fran- chises of three kinds. First, for the usurpation of fran- chises which the king has aheady granted, and are of such a nature, that if the defendant have no title, they may be repossessed and enjoyed by the king ; such as the franchise of wrecks, waifs and estrays. Secondly, those which the kino- has created, and which subsist in themselves, although there be no person in esse, who has a good title to them ; their nature is such that if the defendant be found to have no title, he must be ousted and forejudged of the enjoyment of them, but they are not repossessed by the king ; of this kind are corporate offices, so that if the officer or all the officers be ousted, the franchise is not aifected, but others may be appointed to fill their places either by election by other persons, to whom the king has granted the power, or, if there are none capable of making such election, by a new appointment of the Crown. The third kind com- prises what are called franchises, but are not really such; that is, if one or more pretend to be a Corporation, or to have wreck or waifs and estrays, or a market, when in fact no such Corporation was ever erected, or grant made by the king of the franchise of wreck, waifs and estrays or a market, upon judgment against the defendant on this point, the pretended franchise is ex- tinguished, and can neither exist in the crown nor be granted to others; therefore there can be no judgment of seizure of these, but the defendant must be fore- judged and fined for his usurpation to the public injury. QUO WARRANTO. 455 Perhaps at the present day a criminal information would be preferred in the last case. 333. The information itself is also of three descrip- tions. The first is an information filed by the attorney general of his own authority ; the second an information filed by the master of the crown office by the direction of the Court, in exercise of its jurisdiction at common law ; the third a similar information by leave of the Court, in pursuance of the statute of the reign of Queen Anne. 334. The nature of the franchise usurped affects the judgment more than the other proceedings, and will be more fully discussed under that title. The character of the information will be considered in the three subse- quent sections. Section III. INFORMATION BY THE ATTORNEY GENERAL. wnom. 335. The attorney general may of his own authority Apinst file an information in the nature of a quo warranto in the Court of King's Bench, against persons who assume to act as a Corporation to compel them to show by what prescription statute or charter they make title to the franchise : or he may file it against an individual who possesses a corporate office or any other franchise to compel him to show his right. It is not often that re- sort has been had to this proceeding since the statute of Queen Anne. (335) R. V. Clarke, 1 East, 43. R. v. Trevenen, 2 B. A. 482. 466 QUO WARRANTO. Lei^aiCor- 336. He may file an information against a Corpora- tor usurp- tion by the name of the body politic, for usurping a cluse. '*"' franchise to show by what title the Corporation holds such franchise. Legal offi- 337. And he may file it against a person who is ad- mitted to be a legal corporate ofiicer, to show by what title he holds a franchise which he assumes to exercise in his oflicial capacity ; as if the mayor assume a right to admit freemen without the assent of the rest of the body corporate. One pre- 338. Or against a person who does an act to the tending to ii-.- i n • ^ i- i/x; be an offi- public mjury, under pretence ot title as bemg the oriicer of a dissolved (suspended) Corporation. But the mop©'' proper proceeding is a criminal information. ' Section IV. INFORMATION AT COMMON LAW. 339. Besides the cases in which the statute of Anne has empowered the Court to grant leave to a private person to file an information in the nature of quo war- ranto, it has power at common law to direct such an information to be filed by the master of the Crown-office, on application by any subject, who shows that a public injuiy is done by the usurpation of franchises. This information is of a criminal character, and on a verdict (.336) R. V. Cusack, 2Rol. 115. (337) R. V. Hertford, 1 Salk. 374. S.C. 1 Ld. Ray. 426. (338) R. V. Saunders, 3 East, 119. (339) R. V. Trelawny, 3 Bur. 1616. R. v. Williams, 1 Bur. 407. R.ti Saunders, 3 East, 119. R. v. Bedford Level, 6 East, 367. ■ ' 45t QUO WARRANTO. against the defendant, the Court will impose a fine foi the offence, which is a misdemeanor, and, where the 'franchise has existence, give either judgment of ouster against the defendant, or of seizure into the king's hands, as the nature of the case may require. But the Court will not sanction this proceeding, either when the franchise is not of a public character, or when the applicant appears to them in the light of one inter- meddling unnecessarily with the affairs of others ; in these cases they will leave him to inform the attorney general, who will use his own discretion as to filing the information. Indeed where there is no such franchise as that which the person assumes to exercise, as if the apphcant allege that a Corporation is extinct, and yet ask for an information against a person for acting as returning officer of members of parliament, under pre- tence of being an officer of such Corporation, the Court will not grant a quo warranto ; for if the public have been injured by such act, the attorney general should file a criminal information. 340. The Court will not grant leave to file an mfor- Not against , r- . • i /-I Corpora- mation m the nature oi a quo warranto agauist a Corpo- tion. ration, to show by what authority they act as a Corpo- ration. 341. Nor against persons, having a right to vote for Forequivo- members of parliament as inhabitants, for acting as ' ' ' burgesses by so voting, as burgesses, without having been admitted. 342. Leave has been granted to file an information por hold- in quo warranto against one wrongfully and unjustly record. (340) R. V. Carmarthen, 1 W. B. 187. S. C. 2 Bur. 869. (341) R. V. Harvey, 1 Sir. 547. (342) R, V. Williams, 1 Bur. 407. S. C, 2Kenyon, 75. 458 QUO WAUUANTO. holding and presiding at a court of record in the ab- sence of the bailiffs of a Corporation, who are the legal* presiding officers ; though no usurpation of the office of bailiff was alleoed : for althouo;h the case is not on that account within the statute of Anne, and there cannot be judgment of ouster, the introduction of a relator, is surplusage, and there may be a fine imposed for the offence. Actinjr as steward of a coiirt- leet. 343. Against one claiming to be and acting as stew- ard or bailiff of a court leet, whose office it is to sum- mon and select the jury, or against one for holding a court leet ; for this is a public court, and an office of a public nature. But not so the office of a steward of a court baron, for a court baron is not a public court, but the private court of the lord. Bailiff, &c. of a town. 344. Against one usurping the office of bailiff of an unincorporated town, '* an office of great trust in its^ rule and government, and affecting the administration of justice therein," although there be of right no such officer belonging to the place, so that it is unnecessary to set forth particularly the constitution under which such office exists. 345. Against a bailiff, portreeve or sub-bailiff of an unincorporated borough being the returning officer, or " an office of trust and pre-eminence touching the elec- tion and return of members of parliament," although not expressly asserted to be the returning officer. — (343) Clifton's Ca. 3 Leon, ca, 235. R. v. Medlicot, 2 Barnard. 222. R. V. Hulston, 1 Str. G21. R. v. Bingham, 2 East, 312. (344) R. V. Boyles, 2 Ld. Ray. 1560. S, C. 2 Str. 836. S. C. Fitzg. 82. (345) R. V. M'Kay, 4B. C, 356. R. v. Highmore, 5 B. A. 771. S^ C 1 D. R. 442. R. V. Mein, 3 T. R. 598, 599. n. QTO WARRANTO. 459 And even against one who voted for members of parlia- ment claiming a right by virtue of a Jjurgage tene- ment. 346. Ae-ainst the aovernor of the Bedford L'ev'el^, for important ^ *= office. his is an office of much public miportance, though not strictly of a public character. 347. Against a chief constable of a hundred, though PuWic ofli- ° _ ^ cer. not a returning officer ; but not against a petty con- stable. 348. After several motions and debates at the bar, For admit- tinji: to free- leave was given to file an information m the nature of doiu. quo warranto against the mayor and aldermen, in the name of the king's coroner, to show by what warrant they admitted persons not residing within the munici- pality to the freedom. And Holt C.J. said that they might be ousted and fined, although the franchise could not be seized into the king's hands. 349. It has been granted against the bailiff and twenty-tivo of the common-council-men, for claiming, using and occupying without the mayor, and not being tyventy-Jive of the common-council-men, the franchise to elect, approve and admit persons to be burgesses. 350. And against an individual for claiming to make and swear in free burgesses, without the concurrence of (346) R. V. Duke of Bedford, 1 Barnard. 282. (347) R. V. Ragsdcn, Cunningh. 54. Anon. 1 Barnard. 279. (348) R. V. Hertford, 1 Ld. Ray. 426, S. C. 1 Salk. 374. Bui. N. P. 208. Sed vide S. C. in R. v. Breton, 4 Bur. 2261. (349) R. V. Breton, 4 Bur. 2261. (350) Id. ibid. 460 QUO WARRANTO. the bailiffs and burgesses ; and against another indivi- dual for claiming- to elect and amove free burgesses ad libitum ; the former writ was superseded quia erronice emanavit, but in a subsequent case the Court complied with a similar application. 351. And against A. and B. the mayor and town clerk of C. to show by what authority they used the franchise of admitting persons to the freedom, who had not a previous title by birth, servitude or election. — In this case the information is stated at length . Section V. INFORMATION UNDER THE STATUTE.. 352. A new and more convenient method of proceed- ing on an information of this kind, applicable to almost all cases where Corporations are concerned, was intro- duced by the legislature in the reign of Queen Anne, and has been since brought to a considerable degree of perfection, and reduced to a form of action between the parties, essentially of a civil character, although in form and ancient reputation a criminal proceeding. I. 353. " If any person or persons shall usurp or intrude II. into, or unlawfully hold and execute — the offices of mayors, baihffs, portreeves or other officers, or the fran- III. chises of burgesses or freemen — in any city, town cor- IV. porate, borough or place within England or Wales — it (351) R V. Breton, 4 Bur. 2260. (352) R. V. Shelley, 3 T. R. 142. R. v. Babb, 3 T. R. 579. R. v. Tra- vannion, 2 Chit. Rep. 366. a. (353) 9 Anne, c. 20. s. 4. QUO WARRANTO. 461 shall be lawful for the proper officer of the Court of Queen's Bench, the courts of sessions of counties pala- tine, and the Courts of grand sessions in Wales — with v. the leave of the said Courts respectively — to exhibit VI, one or more information or informations in the nature of a quo warranto — at the relation of any person or Vii. persons desiring to sue or prosecute the same — and who vin. shall be mentioned in such information or informations to be the relator or relators against such person or per- sons so usurping, intruding into, or unlawfully holding and executing any of the said offices or franchises — and to proceed therein in such manner as is usual in cases of information in the nature of quo warranto. I propose, as the most convenient method of arranging the law on this subject, to offer a commentary on the different clauses of this enactment. " If any person or persons shall usurp or intrude into i. User, or unlawfully hold and execute." — 354. There must be a user and possession of the office or franchise ; a mere claim to be admitted is insufficient, although founded upon an election which is not prim^ facie void. 355. But an actual swearing in is a sufficient user, although it be imperfect or bad in law ; as if made be- fore an improper person, or before the corporate assem- bly after the president, an integral part of it, had left. But it was said by Page J. that a mere swearing (354) R. V. Ponsonby, Say. 247. S. C. 1 Kenyon, 26. R. v. Whitvvell, 5 T. R. 86. (355) R. V. Pmsehouse, 2 Barnard. 261. R. v. Harwood, 2 East, 180. R. V. Tate, 4 East, 340. R. v. BuUcr, 8 East, 3'J2. 462 QUO WARRANTO. in before an officer de facto was not sufficient : this doctrine however I apprehend to be overruled. 356. Wrongfully and unjustly holding and presiding at a court of record of a borough, in the absence of the bailiffs, is not an usurpation of the office of bailiff, for the intruder may have thought it his right or duty in virtue of his own office as recorder or town clerk ; yet it is an usurpation of the office of a judge, or of the fran- chise of holding the court, for which an information may be granted at common law. 357. Where a person has been recently chosen by persons having no color of authority to elect, although he have entered upon the office, it is unnecessary to oust him in quo warranto for the election is a nullity ; and the proper electors may choose an officer into the place as being vacant. But if he have held undis- turbed possession of the office and exercised it for a long while, he is to be regarded as an officer de facto, and an information may be granted. 358. A quo warranto was after some hesitation grant- ed against a mayor for holding over his year,* and pre- venting the election of a successor ; although he was not a returning officer within the act of Queen Anne, for it was said that there is no other remedy. But I apprehend that now a mandamus would be, granted to (356) R. V, Williams, 1 Bur. 407. S. C, 1 W. B. 95. S. C. 2 Kenyon, 75. (357) Anon. 1 Barnard. 345. (358) R. V. Scott, 1 Barnard. 24. 9 Anne, c. 20. s. 8. * Qu. Is not this case erroneously stated — was not the former mayor re-elected, instead of holding over ? QUO WARRANTO. 4^ proceed to a new election, notwithstanding the right to hold over, and without a previous ouster. 359. It is not necessary that the person should be con- tinuing to hold the office at the time of applying for the information. It will be granted where one has usurped an office which was in its nature temporary, as the office of mayor or annual alderman, although the year have expired and four years since elapsed, during which others have been successively elected ; so it will be granted where the office is permanent, but the usurpa- tion has ceased, as where one had held the office of al- derman, and resigned it before the application, particu- larly if there be any doubt on the sufficiency of the resignation, for in this case there should be a disclaimer on the record. And when the office has determined, there may be judgment for the fine, although there can be no ouster. So it will be granted when one legally in office has resigned it though without deed, and after- wards usurped it and acted again. " The offices of mayors, bailiffs, portreeves or other ll. What „ offices. officers, or the franchises of burgesses or freemen. 360. The operation of this statute is confined to cor- porate offices and franchises, and therefore under its provisions an information cannot be granted against a whole Corporation, as a Corporation, for usurping the franchise ; it is added, although it may be granted against all the individuals who constitute the body politic. (359) R.V.Powell, Say. 239. R, v. Williams, 1 W, B. 95. R.v.New Radnor, 2 Kenyon, 498. R. v. Warlow, 2 M. S. 76. R. v. Paine, 2 Cliit. Rep. 'MM. (360) R. V. Carmarthen, 2 Bur. 869, S, C. 1 W. B. 187. R. v. Wil liams, 1 W. B. 95. S. C. 1 Bur. 407 464 QUO WARRANTO. Neither is it granted under the statute for usurping the office of judge of a Corporation court, which offic^, of right belongs to certain corporate officers. mislsQ 361. Nor does the statute extend to a portreeve of a borough, although a returning officer of members rje^l parliament ; nor to a registrar of a city court of requests;- elected by the householders ; nor to a usurper of the fran- chise to have a fair or market ; although these offices and franchises should exist in a corporate place ; for they are not corporate offices or franchises. i^^^ 111. What " In any city, town corporate, borough or place withi% ^ ^"* England or Wales." 362. The Corporation must be in a state of activityjij for an information will not be gianted against one actTi* ing as returning officer of members of parliament, under pretence of exercising his franchise as alderman of a Corporation averred to be dissolved. 363. The words " borough or place," are by the general construction to be put on the act, restricted to boroughs and places incorporated ; and therefore the steward of a court leet, the bailiff, sub-bailiff or constable of an , unincorporated borough is not within its provisions, although he may be the returning officer of members of parliament. (361) R. V.Richardson, 9 East, 470. R. v. Hall, 2 D. R. 342. S. C. 1 B.C. 237. R. V. Marsden, 3 Bur. 1812. S. C. 1W.B.579. A .9d£ (362) R. V. Saunders, 3 East, 119. ;) i•..jf^fqo "^id yjSIK (363) R. V. Mein, 3 T. R. 598. R. v. VVallis, .5 T. R. 379.' , R.V. Richara- ^o„, 9 East, 470. R. v. M'Kay. 4 B. C. 356. '^ OibiOno OloJaSt ? l>i*q'jj*l {>SE) . fsa.y JI (£3E) ; i^tn .hiV (5»£) • QUO WARRANTO. 465 '-*'" It shall be lawful for the proper officer of tlie Court iv. What ■ r • courts. of Queen's Jieiich, the courts of sessions oi counties palatine, and the courts of orand sessions in Wales." 364. The information can be filed only in and by leave of these Courts, and so it was at common law : the information was allowed by virtue of the general jurisdiction of the King's Bench, as the grand justiciary of the kingdom, and having the superintendence of magistrates and public officers in the administration of justice. It was held that proceedings and a judgment in the court of exchequer (in Ireland) were upon this ground absolutely null and void, as being coram non judice, although a new charter had been granted upon it and acted upon for many years. — In the King's Bench the master of the crown-office (the king's coroner) is the proper officer. " With leave of the said courts respectively." V. By leave. 365. This leave is obtained by motion made in the Motion for. Court of King's Bench by counsel in term time ; and it seems that such motion cannot be made on the last day of term, for it was thought that the rule as to criminal informations, in this respect applied to infor- mations in the nature of quo warranto. It cannot be signed by counsel before leave is obtained, and there- fore the information need not state that it is filed by leave of the Court. 366. A quo warranto against a person in the office, may be applied for at the same time as a mandamus to restore one who has been amoved from it. (364) Pippard v. Drogheda, 5 Bro. P. C. 369. (365) R. V. Davies, Say. 241. (366) Vid. Part II. tit. 102. II U 466 QUO WARRANTO. 367. This motion must be founded on affidavits, stating all the circumstances upon which the defend- ant's title is impeached. The statement must be of facts and not legal deductions, and they must be so posi- tively and formally alleged, that an indictment for perjury, may be sustained upon it if wilfully false. 368. The following averment was held sufficiently positive, not being denied by the defendant: " This de- ponent understands and believes that at a certain meet- ing the defendant, as he has heard and believes, was admitted a freeman, and that he has been since sworn and enrolled accordingly, as he hath been informed and believes." 369. The following allegation was held insufficient for stating a legal deduction, instead of the facts which were to warrant that deduction, " the defendant at the time of his election did not reside in the borough as was required by the charter," for this by a technical inter- pretation, implied that he did reside in the borough, but that the nature of his residence was not that which the charter required, and therefore it ought to have been shown what kind of residence the charter rendered requisite, and in what that of the defendant was in- sufficient. In a less precise construction, the first clause of the sentence is positive, that the defendant did not reside in the borough, and the signification of the second is, that residence in the borough is required by the charter. (367) R. V. Sargeant, 5T.R. 4G9. Sed videR. v. Harwood, 2 East, 180. Vide Part II. tit. 36. (368) R. V. Harwood, 2 East, 180. (369) R. V. Sarg-eant, .'') T. R. 469. QUO WARRANTO. 467 370. AfEdavits made on a motion for an information against A. cannot be read on a similar motion against B. because it is said the deponent cannot be prosecuted for it if false. 37 1 . The prosecutor may use the affidavits of a per- son whom the Court would not allow to become relator on the information. Semb. 372. If a town clerk have made an entry in the Cor- poration books, that he had administered the oaths to the defendant, it seems that on a recent application his affidavit that he had not administered them, with an explanation of the entry, may be read ; but it will be rejected on an application made after the lapse of seve- ral years. 373. If the affidavits of the prosecutor, assert that Non-resi- • dciicc* the defendant resided at a place, which is not within the borouD-h, he must also aver that he did not reside within the borough. For a person may have two places of residence at the same time, and live sufficiently often at each to be considered by the law a resident house- holder, in the one as well as the other. 374. If the affidavits set forth facts from which a Manner of . , • 1 • /> J election. custom to elect m a particular manner is to be interred by a jury, as that a particular manner of electing has prevailed for fifty years and upwards, and as far back (370) R. V. Thetford, 1 1 Mod. 141. Tidd's Prac. 498. et pass. (371) R. V. Binstead, Cowp. 11. R. v. Symmons, 4 T. R. 224. Sed Vide Part II. tit. 422. (372) R. V. Hclstone, 2 Str.677. (373) R. V. Scolden, 2 Barnard. 4.39. (.374) R. V. Lane, .'i B. A. 488. H H 2 4G8 QUO WARRANTO. as the 'deponents could recollect, they must add that they believe that manner of electing- to be immemorial ; for although the facts stated be tiue, and there are none other who can show an anterior usage to the contrary, yet such a usage may be in the knowledge of those who make the affidavits. Acceptance of charter. 375. If they set forth a charter they must either positively aver that it has been accepted, or show such a usage to have subsequently prevailed within the municipality in conformity with it, as cannot be sup- posed to have taken place, had not that charter become the governing constitution, from whence the Court m?ky necessarily infer its acceptance. , m Rule nisi. 376. When the applicant has made out a prima facie case of usurpation upon a corporate franchise, the Court grants a rule nisi upon the defendant, the object of which is to afford him an opportunity of discovering to the Court the evasiveness or insufficiency of the charge against him, or any legal reason why the information should not be granted, and not of positively denying it by his affidavits. Yet it seems that if the affidavits for the defendant so positively deny the facts asserted on the other side, as to sustain an indictment for per- jury, the information in the nature of quo warranto will be refused until an indictment has been prosecuted, and the persons making such affidavits have been found guilty. AflBdavits for defend- ant. 377. Whether facts are asserted or denied by the de- fendant, he should always be prepared with the affidavits (375) R. V. Barzey, 4 M. S. 255. (376) Bul.N.P. 206. R. v. Woodman, 1 Barnard, 101. R.v.Trew, 2 Barnard. 371. (377) R. V. Trew, 2 Barnard, 371. QUO WARRANTO. 469 of others as well as his own, for his alone will not be much respected where the facts are of such a cha- racter that they would of course be known to others. 378. The Court docs not of course give leave to file Court's dis- . . cretion in this information, but will form their opinion as to the allowing in- ~ „ . . ... r II 1 formation, expediency or allowing it, on consideration or all the circumstances which are developed by the affidavits of both parties, so that an omission of any material fact in those on the one side, may be supplied by the admis- sions of the other, although it make against the party by whom it is admitted. But nothing will be presumed which would tend to avoid an election which has been many years acquiesced in. 'ji^Z79. When a prima facie case of usurpation is shown, When and there appears a fair doubt on the title of the de- fendant, the Court will not discuss the question in the summary way of motion, but send the facts to a jury. Yet if there be any personal objection to the applicant, as that he labours under the same defect of title, or has acquiesced in the title which he now disputes, the Court will refuse the information. And it will not be granted without a very strong case, where the applicant is a stranger unnecessarily intermeddling in the affairs of the municipality, or where the judgment against the defendant will involve the dissolution of the Corpo- ration. (378) R. V. Stacey, 1 T. R, 2. R. v. Mcin, 3 T. R. 597. R. v. Hill, Lofft.43. (379) Vide Part II. tit. 412. et seq. Biil. N. P. 206. R. r. Stacey, 1 T. R. 2, 3. R. V. Bond, 2 T. R. 771. R. v. Main, 3 T. R. 598. R. v. Clarke, 1 East, 46. n. 47. R. v. Trcvenen, 2 B. A. 482. 470* yUO WARRANTO. 380. When the Court will not allow the information on the original ground of the application, they will not permit the prosecutor to abandon that, and to resort to some other point, which was not brought principally forward, and relied upon at tirst, for the trial of a mere incidental and secondary question. In the following cases the Court has thought proper to send the question to a jury, or leave the parties to bring it more solemnly before themselves on demurrer ; and therefore allowed an information. Eligibility 381. When there was a doubt whether the defendant '"" ^ " ■ was previously qualified to be elected, as where it was doubtful whether he had sufficient capacity at common law ; in this case he possessed the office of burgess, hav- ino- been elected when an infant nine years old, and admitted when he attained his full age. 382. The defendant was a non-resident at the time of his election, but afterwards came to reside ; the ques- tion was whether the terms of the charter required residence as a previous qualification for the office of capital burgesses, the words being, that no capital bur- gess should exercise his office any longer than he was an inhabitant. 383. Residence was a necessary qualification, the question was whether the defendant were qualified, that (380) R. V. Osbournc, 4 East, 336". (381) R. V. White, C.T.H. 8. R. v. Carter, Cowp. 59. 226. R. v. Courtnay, 9 East, 261. Clariflge v. Evelyn, 5 B. A. 86. (382) R. V. Pool, 2 Barnard. 93. Vid. Part I. tit. 481. (383) R. V. Lathrop, 1 W.B. 471. S. C. R. v. Latham, 3 Bur. 1487. R. V. Richmond, 6 T. R. 561. QUO WARRANTO. 47J is, whether an occasional short stay at lodgings rented . by the year, were a bona tide residence or merely a co- lorable qualification for the particular purpose of the election. 384. There were two doubts, — whether being a capital burgess was required by the charter as a previous quali- fication for being elected mayor ; and whether the de- fendant had been legally elected into the office of capi- tal burgess, it being admitted that he was a burgess, which he contended to be the only qualification required by the charter. 385. A, and B. (the defendant) were nominees, no- tice had been given that A. was ineligible ; afterwards a majority voted for A. but B. vs^as admitted. The doubt was whether A. were actually ineligible under the act of Anne ; for if it be found that he was qualified, B. must be ousted, and A. admitted in his stead, 386. The defendant had neglected to receive the sacrament within the year before his election ; but he affirmed in his affidavits that he was of the established church of England, and had not anticipated that he should be elected, having been absent from the mu- nicipality. 387. The right of election was vested in the Election ° . doubtful. jnry of a borough court (not the leet) of a prescriptive borough, and the defendant was elected by a jury, the doubt was whether the jurors were qualified ; there was (384) R. V. Tucker, 1 Barnard. 27. (385) 9 Ann. c. 20. s. 8. R. v. Godwin, Dong. 385. (386) R. V. Smith, and R. v. Brown, 3 T. R. 574. et n, (:W) R. V. Whitchurch, 8 Mod. 210. 472 QUO WARRANTO. a question whether they must be itilutlntants having a freehold in the municipahty, or whether non-residenis having such a freehold were qualified. The reason of granting the information was, that there could be no information against the jurors themselves, and the title of the electors was such that it could not be tried except by proceedings against the person elected by them. 388. The notice to the corporate assembly was defective in omitting to state that the purpose of meet- ins: was an election ; but there were other doubts in the case. 389. The conunon council consisted of the mayor, aldermen, recorder, chamberlain and capital burgesses ; the charter directed that the election of the recorder should be by the mayor, aldermen and capital burgesses without the chamberlain, who should not be present. — Notice of an assembly of the common council was given, a majority convened, among them the chamberlain, who was also an aldermen — defendant was elected recorder. The two questions were as to the notice on which the as- sembly convened, and whether the chamberlain could.., be present in his capacity of an alderman. Km odw 390. The defendant was elected at the adjourned court. — The affidavits for the prosecutor asserted, that according to their apprehension and belief the bailiffs, though not mentioned in the style of the Court, were an essential part of it, and that one must be present : this the affidavits on the other side denied, according (388) R. V. Tucker, i Barnard. 27. V. Part 1. tit. 74. II. 384. • -V^ (389) R. V. Sandys, 2 Barnard. 301, 2. (3'jn) R. V. Lathrop, 1 W. B. 470, S. C. R. v. Latham, 3 Bur. 148.5. QUO WARRANTO. 473 to tlieir apprehension and belief. A Court was held at which no bailiff was present ; they adjourned to another day^ when the election took place. It was therefore doubtful whether the bailiff were an integral part of the corporate assembly, and if the first meeting were in- sufficient the second was a nullity, though sufficiently constituted, being a mere adjournment. 391. The question was, whether the bailiff, who had by the custom a right to hold over until another was duly appointed, could be put out by a new appointment, after a defective appointment made at the proper time. — Note : this case is very badly stated ; the title of the mayor appears to have been defective. 392. The electors of the defendant had been disfran- chised, and on a mandamus restored by the mayor alone, contrary to the consent of the body (as was said), so that their right to vote appeared to be doubtful. — If the electors were in possession of their office, their titles could not be thus investigated : but there ought to have been informations against them individually. 393. There was a doubt on the words of the charter, ^^^Jl'^J^ j" who were the persons who ought to admit, and there- fore whether the defendant's admission were sufficient. 394. From the facts stated, there was a doubt whe- Incompa- tible oflBce ther the office of the defendant, from which it was doubtfviL sought to oust him, were not incompatible with another which he had subsequently accepted. (391) R. V. Butler, 8 Mod. 350, (3!}2> R. V. Latham, 3 Bur. 1485. (3y3) R. V. Trew, 2 Barnard. 371. (394) R. V. Patcman, 2 T. R. 779. : 474 QUO WARRANTO. When 395. Where there is a fair doubt whether the infor- dmibtfnl . whether in- matioii ouglit to be allowed, and the plaintiff would be lies. without other remedy, leave will be granted to file it, that the question may be brought more solemnly before them than upon motion, and that the parties may have an opportunity of carrying it before a superior tribunal. And the circumstance of the question being new, of great consequence, and affecting almost all the Corpo- rations in the kingdom, will be rather an inducement to allow than to refuse the information. In the following cases the Court has refused leave to file an information in the nature of quo warranto.^ '. Original title suffi- cient. 396. Where the original title of the officer is not impeached, and he has not been amoved from office, although the affidavits show a good cause of amotion. And it will even be refused where the officer is non- resident, and the charter declares that by no longer residing, he shall vacate his office. For it is not deter- mined until amotion, and whenever the original title is sufficient, there is no ground for this proceeding. Title under void char- ter. 397. The defendant (as mayor) claimed under a charter which had been acted upon ever since it was granted (thirty-five years) without interruption, but which was averred to have been granted in consequence of the surrender of a former charter, which surrender had never been enrolled. The Court said they would leave this matter to the attorney-general, because the title of (395) R. V. Scott, 1 Barnard. 24. R. v. Carter, Lofft. 519. (396) Lord Bruce's Ca. 2 Str. 819. R. v. Ponsonby, Say. 248. S. C. 1 Kenyon, 26. S. C. 5 Bro. P. C. 299. R. v. Heaven, 2 T. R. 77i3. Vid. Part II. tit. 93. (397) R. V. Morgan, 11 Mod. 309. QUO WARRANTO. 475 the whole Corporation was involved. This case is, I apprehend, overruled by that of the city of Chester, which was an information against an alderman, making title under another of the void charters of king Charles, though in that case there was no sufficient evidence of usage. 398. It was requisite that both nominees should be Nomina- aldermen, and at the defendant's election the other m. nominee held the offices of alderman and recorder, (the latter being last accepted,) at that time usually held together, but seemingly incompatible, the election was five or six years before the application ; and the infor- mation refused. " To exhibit one or more information or informations ^'I- Several informa- in the nature of a quo warranto." tions. 399. Two or more informations may be granted at the same time against the same person to try his title to two distinct offices in the same Corporation, as if he be mayor and common-council-man. — Or distinct offices used and claimed by the same person, may be tried in the same information. 400. Or two infoiTOations may be granted at the same time ; one against an elector, and another against a person, the validity of whose election depends on the legality of such elector's office or place ; or against the person who presided at a corporate assembly, and another person elected at the same assembly. But in (398) R. v.Trevenen, 2 B. A. 482. (31)9) R. V. Ponsonby, Say. 211). R. v. Stokes, 2 M. S. 71. Symmers V. Regcni, Co\vp.500. (400) Anon. 2 Barnard. 1!)3. Anon. 2 Barnaul. 220. H. v, I'enryn, 8 Mod. 216. 47d Otto VA'lSli'ANTO. these cases the Court will on motion enlarge the tule, against the person elected, and direct that against the elector or president to be tried first. ^"* At the relation of any person or persons desiring to VII. Who may be re- lator, sue or prosecute the same." 401. Under the power which is vested in the Court of granting or refusing leave to file the information, they will consult the ends of justice in rejecting the application, although it is evident that the defendant has no right, if it appear that the public is not injured, and there is an impropriety in the conduct of the per- son who comes forward to propose himself as the re- lator. ■^A^'" In the following cases the Court have considered it proper to sanction the application, although it had been suggested that there was a personal objection to the applicant when he was, Stranger. 402. A pcfson having no interest in the affairs of the Corporation, when there was a strong case against the defendant, such as his having omitted to receive the sacrament. >■-!£;■) Inhabitant. 403. An inhabitant of the borough, though not''*it freeman, the municipal government being vested in tftfei' Corporation. '"'" iOiJ One previ- ously elect- ed subse- quently ad- mitted. 404. One who, having been previously elected into the Corporation, was admitted during the mayoralty of (402) R. V. Brown, 3 T. R. 574. n. (403) R. V. Hodge, 2 B. A. 344. n. (404) R. V. Trevehcn, 2 B. A. 342. (\0t-) 3 (801^) QUO WARRANTO. 477 the defendant, for usurping which office the informa- tion is moved ; for such admission is matter of right and no acquiescence in the defendant's title, and moreover such an apphcant has a particular interest in ousting the usurper, that his inchoate right may be perfected by a legal admission. 405. A corporator so poor as not to be responsible Corporator for the costs if there should be a verdict for the de- fendant. f 406. A corporator who voted for the defendant at Wien dis- his election into the office from which he seeks to oust Son latent. him, he being at the time ignorant, that the defendant was disqualified by having neglected to receive the sacrament. 407. A corporator who was present and voted at the Who has acquiesced time of the defendant's election (it seems against him), in defend- . . ant's acts. and who has since attended corporate meetmgs at which the defendant presided , although a j udgment against him will suspend the Corporation. 408. A corporator who applies to oust the defendant from the office of mayor, having objected to his qualifi- cation at the time of his election to the office of alder- man, on the validity of which election, the superior office depends, although he had since attended corpo- rate meetings with him, and did not object to his elec- tion to the mayoralty. » 1 1 " ■■ (405) R. V. Trevenen, 2 B. A. 34.'?. (406) R. V. Smith, 3T. R. 574. (407) R. V. Morris and Stewart, 3 East, 216. (408) R. V. Clarke, 1 East, 46. 478 QUO WARRANTO. Who has 409. A town clerk who had been long acquainted the'disquji- with the defect in the defendant's title, it not appearing that he had lain by intentionally, or been guilty of any improper conduct in the affair. Who is in 410. One who applies as a friend of the defendant, concert . . , t /. i c with the dc- to nistitute the proceeding tor the purpose or empower- ing him to enter a disclaimer, where it is doubtful whe- ther he hold incompatible offices, and there is no way of resigning one of them. But the Court will impose such restriction on the parties as the interests of third persons render necessary. fendant. Who may In the following cases the Court refused leave, on the ground of personal objection to the applicant when he was. not, One who 411. A person who, having; been the legal adviser of advised the ^ ' '^ . , . - . defendant, the defendant, had frequently since advised him dunng the exercise of the office that his election was good. A meddling 412. A stranger to the Corporation, having no proper '' ' interest in their affairs, in a case where public expedi- ency did not require the application, and the circum- stances did not show a very strong case. Corporator 413. A corporator whether rich or poor who appeared others. to be the mere tool of a stranger or other person on whose application the Court would have refused the information ; and when there was good ground to sus- (409) R. V. Binsted, Cowp. 77. (410) R. V. MarshaU, 2 Chit. Rep. 370. (411) R. V. Paine, 2 Chit. Rep. 369. (412) R. V. Grant, 11 Mod. 299. R. v. Stacey, 1 T. R. 3, (413) R. V. Stacey, 1 T. R. 4. R. v. Cudlipp, 6 T. R. 503. R. v. Tre- venen, 2 B. A. .344. 482. QUO WARRANTO. 479 pect this collusion from the affidavits of the different parties, the Court required explanatory affidavits, and the disavowal of all parties who appeared to be im- plicated. 414. A corporator whose own title is subject to the Holding by same defect as that of the defendant which he seeks to impeach, as if at his own election he received the vote of a person, who has been since ousted, and he comes to dispute, the defendant's title as depending upon the legality of that person's vote. 415. A corporator who was elected under a president whose title is subject to the same defect as that of the defendant. 416. A corporator who has concurred in the very act Who has of which he comes to complain, or who has acquiesced in the title of the defendant. 417. A corporator who has long acquiesced in two offices subsisting in the same person, on the incompati- bility of which the defendant's title rests, particularly if such offices were at the time generally esteemed com- patible ; as if the election was to be of one of two nomi- nees, both of whom must have been aldermen, and when the defendant was elected, his co-nominee pos- sessed the offices of alderman and recorder, his subse- quent election to that of recorder having in law vacated the former office. (414) R. V, Bond, 2T. R. 771. R. v. Peacock, 4 T. R. 687. R v. Cud- lipp, 6T. R. 503. (415) R. V. Cufllipp, 6T.R. 508. (416) R. V. Stacey, 1 T. R. 2. R. v. Clarke. I East, 46. (417) R. V. T revcnen, 2 B. A. 31,",. 482. 480 QVO WARRANTO. 418. A corporator who has concurred in an agreement not to enforce a by-law, under which he now seeks to impugn the defendant's title. Who has 419^ ^ corporator who has known the defect for improperly *■ lain by. several years, and lain by until the judgment against the defendant will have the effect of dissolving the Corporation, if it appear that he did so intentionally. Wio im- 420. A town clerk who seeks to impeach the title own act or of the defendant on the ground of not having taken the oaths to the government, which he was the proper officer to have administered, if he neglected to tender them ; although the officer did not offer to be sworn. There was an affidavit by the defendant that he would willingly have taken them had he known it to be neces- sary. The town clerk had lain by a long while, and now came forward on the instigation of a stranger, for the purpose of encreasing his influence in the bo- rough election. Who has 421. A person who founds his application upon a information confession of a defect of title, which he had insidi- ^ '^'^" ■ ously obtained from the defendant. Some ad- 422. If scvcral persons apply for the information of missible, , i i i others re- whom somc are not proper persons to be relators, and ^ ^ ■ there is no personal objection to the others whose affi- davits set forth the whole ground on which the defend- ant's title is impeached, the Court will grant it to those (418) R. V. Mortlock, 3 T. R. 301. (419) R. V. Bond, 2 T. R. 771. R. v. Trevenen, 2 B. A. 482. (420) R. V. Hart, 8 Mod. 56. (421) R. V. Dicken, 4T. R. 283. (422) R. V. Symmons, 4 T. R. 223. R. v. Cudlipp, 6 T. R, 509. Qtrb' ■tV^ARRANTO. 481 who are unexceptionable exclusively of the others ; un- less it appear that they are acting under the influence and are the mere tools of those to whom it would have been denied. 423. If on shqwine: cause the defendant rely on the Objection => -^ , to applicant circumstance of the applicant's being in the same situa- shown. tion with himself, or having acquiesced in his usurpa- tion, he must set forth plainly and positively all the facts from which this will appear. " Who shall be mentioned in such information or Viii. No- minal rela- informations to be the relator or relators agamst such tor. person or persons so usurping, intruding into or unlaw- fully holding and executing any of the said offices." 424. Notwithstanding this provision, the practice is for the party who has obtained the rule to appoint whom he thinks fit to be relator, but it seems that if he who is appointed has no interest in the dispute, the proceedings will be stayed by the Court. SEVBRAL INFORMATIONS. 425. " If it shall appear to the said respective Courts, that the several rights of divers persons to the said offices and franchises may properly be determined on one information, it shall and may be lawful for the said respective Courts to give leave to exhibit one such infor mation against several persons, in order to try their re- spective rights to such offices or franchises." (423; R.V.Bond. 2T. K. 771. (424) R. V. Wynne, 2 M. S. 346. (425) 9 Anne, c, 20. 8.4. I I 482 QUO WAKRANTC), 426. It has been said that where the situation of each defendant is precisely similar, and no inconvenience will follow, the right claimed and the evidence to be ad- duced against each being exactly the same, the Court will direct several informations to be consolidated. But as inconveniency may at all times ai'ise from this, when the offices are distinct though of the same character, in depriving the defendants of an opportunity of severally disclaiming or maintaining their respective offices, the Court will seldom consolidate the informations, except in cases where the office is joint. But upon an under- taking of all the defendants to abide the event of one trial, where their titles are precisely similar, and disclaim if there be judgment of ouster against one of them, the Court will direct, for the purpose of avoiding expense, that one only of several informations shall be carried to trial, and that the rest shall be suspended. 427. Hules for quo warranto are often drawn up against the borough of such a place generally, without assigning the name of Corporation, and the body poli- tic is sufficiently identified by the fact that there is such a place as the borough. (426) R. V. Foster and others, 1 Bur. .573. Syminers v. Regem, Cowp. 500. R. V. Warlow, 2 M. S, 76. 1 Barnard. 282. (427) R. V. Bedford, 1 Barnard. 242. QUO WARRANTO. 483 Section VI. PROCEEDINGS ON THE INFORMATION. I. BEFORE PLEA. 428. " To proceed therein in such manner as is usual in cases of information in the nature of quo warranto." 429. The Court will not quash the information upon Recogni- motion, though with the consent of both parties, but charged, will grant a consent rule to discharge the recogni- zances. 430. The process on the writ was summons, and on Process— Seizure on default of appearance a seizure of the franchise usurped, non-ap- _ ,.„.., p , pearance at But on the information in the nature ot quo warranto, the return, the first process is venire facias, in nature of a'summons, and then distringas, between the teste and return of which there must be fifteen days, if the Corporation be in a foreign county. But on the information against a Corporation, there can be no seizure for a default be- fore the distringas. 431. In proceedings against a Corporation for usurp- Seizure on. ation of a franchise, if they be in default, there may be judgment of seizure of the franchise into the King's (428) 9 Anne, c. 20. s. 4. (429) R. V. Edgar, 4 Bur. 2297. (430) R. V. Trinity House, 1 Sid. 86. Eriggs' Ca, 2Ro]. 46. R. v. Wygorne, 2 Rol. 92. R, v. Hertford, 1 Ld. Ray. 426. S. C. 1 Salk. 374. S. C. Carth. 503. R. v. Yarmouth, 3 Salk. 104. (431) StrataMarceUa, 9Co. 29. 2 Chest. Ca. 567, 8. Co. Ent. 539. b. 1 I 2 484 QUO WARRANTO. hands or in the king's right quousque : but as the exist- ence of the Corporation is not affected, it may come in and fine and reply, or the King may pardon the default by proclamation or charter, upon which the body are entitled to repossess themselves of their franchises ; in- deed no act is necessary on their part, unless a writ of execution have issued to the sheriff, and he have made execution of the franchise, which the king may put into the keeping of a custos. 432. It has been said that on the writ, if the franchise were seized on default, and not replevied in the same eyre or term, the defendant could not afterwards replevy, but should be concluded for ever. And in imitation of this was the practice on the information in the reign of Charles the Second. If the party did not appear there was judgment of seizure quousque, and if they did not replevy and appear in the next term, there was judgment final unless they should plead within a certain day. 433. But this proceeding is not warranted in law, for on the writ if one made default on the summons and again on the venire facias, although there were two defaults, the judgment could only be of seizure into the king's hands and not of forejudger ; for it is no cause of for- feiture, as no man shall finally lose his land or franchise on any default unless he have appeared ; but process must be continued until the king may have final judg- ment. (432) Maidstone Ca. Poph. 180. Judgment in Quo Warranto, Comb. 1 9. R. V. Chester, 2 Show. 366. Glo'ster, 2 Inst. 282. (433) 3 Jenk. Cent. Ca. 91. Strata Marcella, 9 Co. 29. 2 Chest Ca. 566. QUO WARRANTO. 485 434. The Court mio-ht at common law either grant Impari- .... ance. or deny a second imparlance in their discretion. 435. " The said courts respectively, may allow such Time to person or persons respectively, against whom any infor- mation in the nature of a quo warranto in any of the cases aforesaid, shall be sued or prosecuted, or to the per- son or persons who shall sue or prosecute the same, such convenient time respectively to plead, reply, rejoin or demur as to the said courts respectively shall seem just and reasonable." 436. " Such person or persons against whom such information or informations in the nature of a quo war- ranto shall be sued or prosecuted, shall appear and plead as of the same term or sessions, in which the said information or informations shall be filed, unless the Court where such information shall be filed, shall give further time to such person or persons against whom such information shall be exhibited to plead." 437. After appearance two four-day rules are given Rule, for the defendant to plead, after the expiration of the last, the Court is moved for a peremptory rule, which is granted on the day of the motion or any day after : if the last rule of course do not expire, so that the mo- tion for the peremptory rule may be made before the end of the term, the defendant has until the following term to plead. 438. After plea pleaded there must be given one rule (434) Herring v. Brown, Comb. 12. (435) 9 Anne, c. 20. s. (J. (436) Id. s. 4. (437) R. V. Ginever, i] T. R. 595. et n. (438) Id. ibid. 446 QUO WARRANTO. of course on the expiration of which, the Court may be moved for a peremptory rule. Disclaimer. 439. The defendant may either disclaim the franchise mentioned altogether, or disclaim as to part of the time and justify as to other part. And under particular cir- cumstances on making the rule absolute, the Court will direct that the defendant shall be allowed to enter a disclaimer without paying costs. In this case the de- fendant was a very young man, and had never acted in the office. . 440. If the affidavit annexed to a plea in abatement, have no title, the plea must be set aside. ll. PLEA. No general issue. 441. The defendant must either disclaim or justify ; he cannot plead non usurpavit ; for if he admit his pos- session of office, he is bound to show his title specially, and all those particulars on which it is founded. Must rely 442. It is not sufficient to show a title in another to tUie"*" ^^ the franchise ; for the object of this proceeding is not like an action in which the plaintiff seeks to recover, and must therefore rely on his own right ; but it is for (439) Co. Ent. 527. b. R. v. Biddle, 2 Str. 952. R. v. Holt, 2 Chit. Rep. .366. Tidd's Prac. 984. (440) R. V. Jones, 2 Str. 1161. (441) R. V. Blagdcn, 10 Mod. 299. R. v. Trinity House, 1 Sid. 86. Strata Marcella, 9 Co. 28.a. Gloucester (st.), 2 Inst. 281. Anon. 12 Mod. 225. (442) 2 Chest. Ca. 548. Partridge's Ca. Cro. Eliz. 125. Musgrave v. Nevinson, 1 Str. 585. R. v. Leigh, 4 Bur. 2145. R. v. Hebden, Audr. 392. QUO WARRANTO. 487 the purpose of excluding the defendant from the posses- sion of an office or franchise, from which the pubhc have a right to demand his being ousted, unless he shows a complete legal title in himself. But any defect in the plea may be helped by treating facts alleged by way of inducement in the information, as though they were incorporated in the plea, for the purpose of sustain- ing the defendant's title. 443. The defendant may by leave of the Court plead Double several pleas, although he do not introduce as one of them, that he had held the office for six years. 444. But he cannot plead two inconsistent pleas, inconsist . » . , , . . , ent pleas. as to justify in one under the constitution by custom, and in the other under a constitution introduced by a charter. 445. The defendant may plead that he has held the six years. office for six years before the information filed. — " Which plea shall and may be pleaded either singly or together with and besides such plea as he or they might have lawfully pleaded before the passing of this act, or such several pleas as the Court on motion shall allow." This statute and that of Anne are made in pari ma- teria, and confined to corporate offices in corporate places. 446. But if a corporator were more than six years ago elected to an incompatible office, and still holds both (443) R. V. Autridge, 8 T. R. 4(i8. R. v. Newlatul, Say. 'J6'. R. v. Powell, 8 Mod. 180, (444) R. V. Powell, 8 Mod. 180. (44.5) ,32 Geo. 111. c. .58. s. 1. V. Part I. lit. 717. '.) Anne, c. 20. R. v. Richardson, i) East, 470. (446) R. V. Lawrence, 2 Cliit. Rep. .171. 488 QUO WARRANTO. offices which are still incompatible, this plea does not apply. Defend- 447. For the purpose of making out his title, the de- ant's title, fgj^fijjj^^ J^^g|. gj^o^ the Constitution of the municipality by which the office or franchise exists, how a title to it is acquired, a vacancy (if an office in a definite body), his own title by election or inchoate right, and his ad- mission according to the constitution he has set forth. tion Const itu- 448. The plea must set forth the existing constitu- tion, as supported by custom, statute (if not a public act), or charter, unless it be set forth in the information, and admitted by the defendant as there shown. 449. If the information describe the persons who were incorporated as the " mayor and citizens," and the plea describe them as " citizens and inhabitants," being a description of individual persons before incorporation, the Court will intend them the same, and not presume that there were two Corporations of the same name co-existent in the same place. 450. If the plea set forth a commission in the charter to swear the then appointed mayor, aldermen and com- mon council, but omit to aver that the mayor, aldermen and common council were sworn, and afterwards aver an election by the mayor, aldermen and common council, this is bad on demurrer, but will be cured by a verdict finding the election by the mayor, aldermen and common council, for that finds that there were a mayor, aldermen and common-council, legally constituted, to which the swearing is essential. (449) 2 Chest. Ca. 54y. (450) 2Chest. Ca. .551. QUO WARRANTO, 489 451. The Court will only notice so much of the Charter, charter as is set out in the proceedings, for which reason each party must set forth all that upon which he means to rely, unless it is already shown by the anterior plead- ings. But it is not necessary to show any part of the charter which is not relevant to the question. 452. It must show in whom the right of election and Who elect admission to the office which he claims is vested. That ' is, if vested in the Corporation at large, it is unneces- sary to aver it, for being incidental in them, it is implied by the law until the contrary is shown : but if vested in a select body, it must appear how that body is consti- tuted and how it became possessed of the right ; an averment that it is vested in such a body is not suffi- cient; but the custom or clause in the charter confer- ring it upon them must be specially set forth. 453. It must show the custom or clause of the charter Mode of which prescribes the time and manner of making the ^ ^*^ '"^* election, and this must appear in certain. Therefore if it allege that at that time, and two hundred years last before, the election was made in a particular manner, except where there was a by-law in force to vary it, if the plea rely on that manner of election, it must set it forth particularly, and aver that there was no by-law in force to vary it. 454. If the plea set forth a clause in the charter, ap- pointing the election to be made according to the mode (451) R. V. Smith, 2 M. S. 597. (452) R. V. Lyme Regis, Doug. 153. (453) R. V. Birch, 4 T. 11. 610. (454) R. T. Birch, 4 T. R. CIO. R. v, Haytiiorne, 5 B. C. 427. 490 QUO WARRANTO. in use at a particular time, it must contain a statement of the mode which prevailed at that time. 455. An allegation that there is a custom to hold a Monday court, and that the burgesses being present and assembled there for that purpose have elected, is insuffi- cient ; it should show either that such Court was ap- pointed by the custom for the particular purpose of such election, or that the Court was to be convened upon cer- tain notice for an election. 456. BHt it is only necessary to set forth so much of the form as is material, and may omit stating what is merely ministerial. As if it be the custom for the Cor- poration to elect at a court held in the morning, and for a jury of the leet to present the person elected to the steward at the evening court, by a memorial in writing ; and for the steward to admit and swear him in ; the plea is sufficient although it omit to show the custom for the jury to present, because that office is merely ministerial and a duty ; the omission of which does not invalidate the defendant's title, for if elected by the cor- porators and admitted by the steward, his title is good, although the jury presented another person. 457. If the plea set forth a prescriptive right of in- troducing freemen by the election and admission of the body at large, and then set forth a right of introducing them by the mayor and common council, unless it show some charter, or at least by-law, by which the right has been transferred from the body at large, to the select class the plea is bad ; and it cannot be helped by show- (455) R.V. Hill,4B.C. 443. (456) R. V. Rowland, 3 B. A. 134. (457) R. V. Holland, 2 East, 74, QUO WARRANTO. 491 ing that in fact, the right is vested in the body at large, but exercised by the mayor and common coun- cil as their representatives. 458. It must show a vacancy of the office to which Vacancy, he was elected ; and if it have previously set forth the manner of election to that office by a select body, upon vacancies occurring by reason of particular events only, as by amotion or death of the mayor within the year, it must appear that the vacancy into which the defend- ant was elected occurred in consequence of one of these events ; for unless the plea have negatived a different manner of electing on vacancies happening in other cases, if it appear that this vacancy occurred upon the charter day, or by death of the mayor, after the ex- piration of his year or any different event, the plea is defective. 459. It must then show an election of the defendant Election of . , . defendant, by a legal majority of the body m whom the power is vested, according to the form and into the vacancy, as before set forth, together with a subsequent legal admis- sion. 460. The election was to be made by the then residue By snffi- . . cient elect- of the mayor and aldermen ; the constitutional number ors. of aldermen, including the mayor, was twelve, six were present at the assembly ; it was necessary therefore that it should appear by the pleadings that there was one vacancy among the aldermen. An allegation that the mayor is dead sufficiently shows such a vacancy, for the Court will not presume an intermediate election ; but (458) R. V. Smith, 2 M. S. o!}7. (45!)) R. V. Holland, 2 E.-ist, 74. (460) R. V. Smith, 2 M. S. 51>;>, fiOO, 492 QUO WARRANTO. an averment which shows that the office of mayor is vacant is not sufficient, for though the alderman who was mayor have ceased to hold the latter office, he may still be living and hold the office of alderman. 461. When burgesses are constituted by election, an averment by the defendant that he was nominated bur- gess is vicious, for election and nomination are by no means synonymous. Conclusion. 462. The plea to the ancient writ must have con- cluded, after stating the facts on which the title to a franchise was founded, with eo warranto, &,c. ; and in imitation of it, the modern plea to the information should conclude, and by this authority, 8cc. Insufficient plea, Slc. 463. When the defendant pleads or demurs, and his plea or demurrer amounts to a confession of the user of the office, and he fails in the justification or the cause of demurrer, judgment must pass against him, and a repleader will not be awarded, although the plea raised an issue immaterial whichever way determined. 464. If the prosecution were commenced within six months after his admission, the defendant on the trial must show that he had received the sacrament within the time limited by the statute, or that he has subse- quently qualified under the Indemnity act, although no exception was taken on that account at the time of election or since, and although he has no intimation from the relator that such proof will be required. (461) R. V. Lisle, Andr. 174. (462) Strata Marcella, 9 Co. 27. a. (463) R. V. Philips, 1 Str. 397. R. v. Boyles, 2 Ld. Ray. 1560. • (464) Tufton v. Nevinson, 1 Str. .')85 S. C. 2 Ld. Ray. 1354. QUO WARRANTO. 493 465. " Upon the demise of any king or queen of this realm, all pleas to informations in the Court of King's Bench shall stand and be good in law without calling defendants to plead again to the same, unless the de- fendants desire to do so, and make request to the said Court for that purpose within five months next after such demise." 111. REPLICATION, SCC. 466. " And such person or persons who shall sue or prosecute such information or informations in the nature of a quo warranto, shall proceed thereupon (the plea) with the most convenient speed that may be ; any law or usage to the contrary thereof in any wise notwith- standing." 467. " And in every such case, the prosecutor of such information may reply to such plea (of six years' pos- session) any forfeiture, surrender or avoidance by the defendant of such office or franchise, happening within six years before the exhibition of such information, whereon the defendant may take issue, and shall be entitled to costs in manner aforesaid." 468. The relator may demur to the whole plea, and And de- murrer, at the same time deny particular parts of it. Semb. 469. A prosecutor may reply specially, and put as Immaterial , , , , matter. many matters in issue as he pleases, but the new matter (465) 4&5 W. &M. c. 18. s. 7. (466) 9 Anne, c. 20. s. 4. V. Part II. tit. 435, 6. (467) .32Geo. III. c. 58. s. 2. V. Part I. tit. 747. (468) R. V. Ginever, 6 T. R. 733. n. (469) R. V. Latham, 3 Bur. 1187. S. C. R. v. Latlirop, 1 W. B. 471. R. V. Knight, 4 T. R. 424. 494 QUO WARRANTO. introduced in the replication ought to be consistent with that contained in the plea. Therefore if the defendant set up a title under an old charter, insufficient because a new charter has been granted altering that mode of election, the replication may set forth the new charter, for it is consistent with the plea, but an addition of that which defeats it. But if the defendant allege a custom for the Corporation to elect freemen from certain classes ad libitum, and the replication traverse that custom, and proceed to introduce an allegation that persons have been admitted to the freedom in right of servitude, and that no one ought to be admitted who has not served a certain apprenticeship, &c. this supplemental matter is all surplusage ; a rejoinder to that alone is a departure from the plea, and any issue arising out of it is imma- terial. Previous 470. If the defendant set forth in his plea the pos- ^lon.' ^^" session of a necessary previous qualification, the repli- cation may impeach that qualification, and the Court will not restrain the relator in this respect, although it introduce a trial of the defendant's title to a different franchise from that for the usurpation of which the in- formation is granted. As if the information were granted against him for usurping the office of common-council- man, and the plea set forth that the defendant at the time of his election was a freeman, which was a neces- sary qualification for being elected a common-council- man, the replication may impeach his title to the freedom. 471. A replication that the Corporation was not in due manner assembled for the purpose of electing bur- (470) R. V. Brown, 4 T. R. 277. Piper v. Dennis, 12 Mod. 253. (471) R. V. Hill, 4 B. C. 443. QUO WARRANTO. 495 gesses is sufficient, for the words " in due manner" will not injure, they are superfluous only in alleging that which the law would have implied in the simple aver- ment, that the Corporation was not assembled for the purpose of electing. 472. The relator may impeach the title of the person President's who presided at the assembly where the defendant was elected, although he was an officer de facto ; for the legality of his election depends upon the legality of the assembly at which it took place, to which it is essential that the legal head officer presided. And this may be done, it seems, although the person who presided is since dead, particularly if proceedings had been com- menced to oust him, and discontinued only by his death. And judgment of ouster against such a person is conclusive against the defendant, unless he can defeat it on the ground of fraud or collusion. But this right to impeach the title of the president is subject to the restrictions of the statute of George the Third. 473. If issue be joined on the fact that '*A. was mayor at the time of the defendant's election," the issue is whether A. was the legal mayor, and not whether he was mayor de facto. 474. If the election of the defendant depend upon Voters the legality of the titles oi voters, who do not elect in (472) R.v. Hebden, 2 Str. IIO'J. S. C. Andr. 392. R. v, Spearing in R. V. Stacey, 1 T. R. 4. n. R. v. Smith, 5 M. S. 279. V. Part I. tit. 729. 7,2 Geo. III. c. .58. s. .3. (473) R. V. Smith, 5 M. S. 280. (474) R. V. Penryn, 8 Mod. 216. R. v. Pyke, 8 Mod, 287. R. v. Heb- den, 2 Str. 1109. S.C. Andr. 391. Symmers v. Regem, Cowp. .503. R. V. Grimes, 5 Bur. 2601. R. v. Mein, 3 T. R. 598. R. v. York, 5 T. R. 72. R. V. Hughes, 4 B. C. 377. 378. R. v. Smith, 5 M. S. 279. 4^ QUO WARRANTO. right of a corporate franchise, so that they cannot be impeached by an information in the nature of quo war- ranto against themselves, the relator may impeach and put them in issue to defeat that of the defendant. But where an information could have been obtained against the electors individually, as in all cases where they elect in right of a corporate franchise, it is sufficient for the defendant that they were de facto in enjoyment of their franchise, and the relator cannot impeach their titles. But if a judgment of ouster have been intermediately obtained against any of the electors on whose title that of the defendant depends, the record of this judgment may be shown on the trial, and is conclusive against the defendant, unless he can impeach it on the ground of fraud or collusion. Not duly- elected. 475. To a plea of election according to the provisions of the governing charter of the Corporation, the relator should reply not duly elected, for this puts in issue every thing which can be investigated in this pro- ceeding. 476. If the defendant in his plea treat his admission as an election, and the prosecutor take issue upon it as an election, it is not competent for them to treat it otherwise on the trial, so as to impugn the pleadings on that account. Argumen- tative. 477. A replication that 60 votes tendered for another candidate were improperly rejected, and 38 tendered for the defendant improperly admitted, and that the majo- rity of legal votes tendered was in favor of the other (475) R. V. Hughes, 4 B. C. 376. (476) Symmers v. Regem, Cowp. 501. (477) R. y. Hughes, 4 B. C. 377. QUO WARRANTO. " 497 candidate, is argumentative that the defendant is not duly elected, and therefore insufficient. 478. If the defendant in his plea rely upon a qualifi- Departure. cation as introduced by the charter, and in his rejoinder set out a by-law introducing a different qualification, and rely on that, it is a departure ; for if he intended to rely upon the by-law he should have set it out in his plea. IV. TRIAL. 479. Upon a suggestion that an impartial trial cannot In next be had in the same county, the Court will award the venire into the county next adjoining. And on an ap- plication to remove the proceedings from the county of the city of Chester, the venire will be awarded into the county of the palatinate. 480. A trial at bar will be granted when it appears At bar. that a question of great importance will arise, that the constitution of the Corporation depends upon the issue, and there is much difficulty anticipated from the nature of the evidence. But not merely because the existence of the Corporation depends upon the issue, or that freeholds of great value are involved in the question. 481. The Court will o-iant a new trial on an informa- New trial. (478) R. V. Weymouth, 7 Mod. 374. S. C. 4 Bro. P. C. 464. Sad vide R. V. Hughes, 4 B. C. 368. V. Part II. tit. 504. (479j R. V. Amery, 1 T. R. 368. R. v. St. Mary, 7 T. R. 735. (480) R. V. Whitchurch, 8 Mod. 211. R. v. Amery, 1 T. R. 364. n. 367. (481) R. V. Francis, 2 T. R. 484. R. v. Ellames, 7 Mod. 224. S. C. C.T. H. 48. R. V. Bennett, 1 Str. 105. Musgrave v. Nevinson, 1 Sir. 534. S. C. 2 Ld. Ray. 1358. R. v. Bell, 2 Str. 995. 1105. Smith d. Dormer, v. Parkhurst, 2 Str. 1105. R. v. Blunt, Say. 102. Gay v. Cross, 7 Mod, 37. Bright V. Eynon, 1 Bur. 395. R. v. Jones, 8 Mod. 208. K K 498 QUO WARRANTO. tion in the nature of quo warranto, as on any other form of proceeding-, for it is now regarded as a civil action in essence, although criminal in form. Some -years ago there was much doubt entertained on this point, when the verdict had been given for the defendant ; for the proceeding was considered to be of a criminal nature : but the contrary doctrine has subsequently been so firmly established that a new trial will be granted, even after a trial at bar, where there is any misconduct in the jury or the verdict is plainly against evidence. v. JUDGMENT. Motion in 482. If there be verdicts for the defendant on some of his pleas, and judgment on demurrer for him on the rest, motion may be made on behalf of the crown to stay the defendant from entering up his judgment, on the ground, that it appears on his own showing that he is not entitled to the office, on account of a defect in the nomination on which his election was founded, that not having been previously contested. 483. If any material issue be found for the crown, by which it appears that the defendant has no title, there must be judgment for the crown, although several issues were found for the defendant. 484. There was a mis-trial and verdict against the queen on quo warranto, the Court directed that the postea should not be certified, for otherwise the defend-' (482) R. V. Nance, 7 Mod. 341. (483) R. V. Leigh, 4 Bur. 2145. R. v. Hebilen, Andr. 391. (484) Neville V. Payne, Cro. Eiiz. 30.j. QUO WARRANTO. 499 ant might exemplify the verdict as duly tried, which would be evidence against the queen. 485. *' In case any person or persons against whom any information or informations in the nature of a quo warranto, shall in any of the said cases be exhibited in any of the said Courts, shall be found or adjudged guilty of an usurpation or intrusion into, or unlawfully holding and executing any of the said offices or fran- chises, it shall and may be lawful to and for the said Courts respectively, as well to give judgment of ouster against such person or persons of and from any of the said offices or franchises, as to fine such person or per- sons respectively, for his or their usurping, intruding into or unlawfully holding and executing any of the said offices or franchises." 486. If there be two modes of acquiring; title to the <^n title '■ " shown, corporate freedom, and the defendant relying on one though a of them do not show a good title acquired in the mode might have been pro- on which he relies and professes to claim, judgment duced. must be against him, although it appear by the plead- ings that, had he chosen to rely on the other mode, he might have made out a good title. 487. When the proceeding was founded on a usurpa- Seizure. tion of a franchise, which might be repossessed and en- joyed by the crown, the judgment was of seizure into the king's hands, under the ancient writ. (485) y An, c. 20. s. 5. Vid. Part II. tit. 3.53. (486) R. V. Leigh, 4 Bur. 2145. Symmers v. Regem, Cowp. .506. (487) R. V. Hertford, 1 Ld. Ray. 426. Strata Marcella, 9 Co. 25. b. R. V. Hearle, 1 Str. 627. K K 2 500 yUO WAKKANTO. Ouster. 438. When the judgment is founded on the usurpa- tion of a franchise which continues to exist, as a Cor- poration or a corporate office, but which the king can- not possess and enjoy, it must be of ouster of the indi- vidual or individuals, who were guilty of the usurpation, from the franchise or office usurped, and of fine for the misdemeanor. Hence it arises that the information must be against the individuals who usurp the franchise of being a Corporation (if it be sustainable at all in this case), and not against the body in its corporate name ; when in fact there has been such a legal Corporation constituted, but none of the officers or members de facto have a legal right, having forfeited the franchise after coming in by an originally good title. No judg- 489. If the title of the defendant be defective in the ment. quousque. admission only, his qualification and election being suf- ficient, yet as he has not a legal title, the judgment must be absolute against him, and concludes him from again setting up the former title, repaired in the defec- tive point by a subsequent admission. It was at one time suggested that there might be a judgment quous- que, as that the defendant should be ousted until he should be legally admitted ; but it is now settled that if one have been duly elected and insufficiently admitted, the judgment must be of ouster generally ; and before (488) R. V. Cusack, 2 Rol. 115. Virginia Comp. 2 Rol. 455, R. v. Dublin, Palm. 1. Strata Marcella, 9 Co. 25. b. R. v. Hertford, 1 Ld. Ray. 426. Smith's Ca. 4 Mod. 58. S. C. 1 Show. 278. 280. R. v. Grosvenor, 7 Mod. 199. 2 Barnard. 391. R. v. Hearle, 1 Str. G27. Symmers v. Regem, Cowp. 510. R. v. Carmarthen, 2 Bur. 869. S. C. 1 W. B. 187. R. V. Amery. 2 T. R. mi. R, v. Pasmore, 3 T. R. 244. R. v. Courtenay, 9 East, 267. Form of judgment, Hoblya v. Regem, 6 Bro. P. C. 517. (489) R. V. Pindar, 8 Mod. 235. S. C. R. v. Serle, 8 Mod. 332. S.C. R. V. Hull, 11 Mod. 391. S. C. R. v. Hearle, 1 Str. 627. R. v. Reeks, 2 Ld. Ray. 1447. Symmers v. Regem, Cowp. 510, R. v. Clarke, 2 East, S3. R. V. Courtenay, 9 East, 267. QUO WARKANTO. 501 he can make a perfect title he must be again legally elected as well as admitted, as though he had before been a stranger to the franchise. 490, But if the defendant have been in possession of Judgment of fine only, the office at first as a usurper, and since duly elected and admitted during his usurpation, there must be no judgment of ouster, for he has a good title to his office at the time of the judgment; but if the information charged him with a usurpation during the time when in fact he was a usurper, as well as the time subsequent, the judgment must be merely for a fine for the usurpa- tion, for if judgment were to be of ouster, it would conclude his present title. As if the information be for usurping from the 20th of August to the exhibiting of the information in the following Hilary term, and the defendant confess a usurpation from the 20th of August to the 29th of September, and plead a sufficient election and admission on that day, and this be found by the verdict. 491. There maybe judgment for a fine against one who has usurped an office which has some time ago expired or been relinquished by him. 492. When the proceedins; is founded on the assump- Of extln- *■ ° guishment. tion of a franchise which has never been created by the crown, as if individuals pretend to act as a Corporation or to have a market, when in fact no such Corporation was ever created or market granted by the crown, the judgment is quod extinguatur, and that the persons who usurped it nullatenus intromittant, &c. ; for by the judg- (490) R. V, Biddle, 2Str. 952. S. C. R. v. Taylor, 7 Mod. 172. S. C. 2 Barnard. 238. 281. (425 ATTACHMENT — continued. for not returning after peremptoryrule to return the first writ, II .3'22. after a frivolous return, II. 323. or return by one who has not authority, II. 323. application for, II. 324. on what service of writ, II. 32.5, 6. sufficiency of the affidavits, II. 327, 8. when not granted, but a feigned issue allowed, II. 329. kinds of, 11. 330. BOND, in aid of void bv-law, is void, I. 349. BRIBERY, avoids election, I. 551, 3, 4. See Amotion. BURGESS, duration of office, I. 763. See Amotion, Office, Election. BUSINESS, of charter day must not be postponed, T. 139. BY-LAW, who may make, I. 229. or repeal, I. 237. 285. body at large, I. 229. 230. in particular casps only, I. 231. 233. extent of their power, 238. in no case, I. 233. select body, I. 232. in name of corporation, I. 236. extent of their power, I. 238. no others may vote, I. 235. under the ancient, though professedly under a void charter, I. 239. guardians of the peace may not, I. 240. companies, I. 241. municipal corporation for companies, I. 242. power of making under custom, I. 242. extends to new franchise, I. 243. 252. transferred from bodv at large to select class by a by-law, I. 253, 8. ■ who bound by : freemen, I. 244, 5, 8. residents, &c. I. 244, G, 9, 50. 340, 6, 367. resident freemen, I. 248. notice of, 1.247. penalty of, by whom recoverable, I. 350. •nforced by fine, I. 449, 51. forfeiture, I. 450. imprisonment, I. 452. disfranchisement, I. 454. 52ii INDEX. BY-LAW — continued. on a special custom, I. 351. follows it strictly, I. 352, 3, 4, 5, 6. 7. what sufficiently special, I. 358, 9, 60. regulating admission, I. 361, 2, 3. porterage, I. 364. must not exceed it, I. 365, 6, 7. penalty on, reasonable, I. 368. recoverable from whom, I. 158. 369, 70. by whom, I. 350. 371, 2, 3, 4, 5. in what court, I. 376, 7, 8. by what process, I. 379. to enforce prescriptive right, I. 380. must be reasonable, I. 381. construed liberally, I. 382, 383. void in toto, I. 384, 5, 6, 7, 8. part only, I. 389. directory or permissive, and not imperative, I. 390. of companies must be allowed by judges, I. 393, 4, 5. justification under, I. 455. pleaded as not extant, I. 427. proved, I. 427. 441,2. remedy for injury under pretext of, I. 455. See Office, Election, Eligihility, Vote, Nomination, Fees, Admission, Penalty, Oath, Enrolment, Qualifica- tion, Talliage, Trade, Naisance, Bond. Action, Departure. CANDIDATES, must be elected singly, I. 544, 5. right to a poll, see Poll. CHARTER, title by the king's, I. 13. must be under the great seal, exception, I. 20. mode of incorporating by, I. 13, 14. words of creation, I. 19. effect of, I. 15. when it may incorporate de novo, I. 16. for a limited time, I. 31. acceptance indispensable, I. 25. pleaded, I. 21, 33. double, I. 22. profert unnecessary, I. 23. oyer not allowed, I. 23. copy not evidence, I. 24. record at the Rolls evidence, I. 24. void, being founded on an erroneous judgment, T. IS. a void surrender, I. 877. INDEX. 527 CHARTER — continued. what acts under a void charter are void, I. 877. See Acceptance, Confirmation, Plea, Revival, Surrender. CHARTER-DAY. See Assembly. CLASSES. See Integral Parts. COMMON-COUNCIL, nature of, \. 125, 6.764. when body at large, L 125, 6. 764. select body, must appear in the pleadings, L 764. powers of must appear, L 792, 3, 4. COMMON-COUNCIL-MEN, duration of their office, I. 764. See Amotion, Pleasure. COMMONALTY, construction of the word, I. 521. CONTRACT, cannot be avoided by a by-law, I. 453. CONFIRMATION, what, I. 835. by statute, I. 835. magna charta, I. 835. 1 Ed. III. c. 2. s. 9.— I. 836. effect of, I. 837. London, by 2 R. II. c. 7.— I. 839. 2 W. M. St. I.e. 8.— I. 183. Oxford and Cambridge, I. 840. by charter, I. 841. acceptance of, I. 842. operation as a grant, confirmation, or suiTender, I. 843. what alterations it introduces, I. 841, 4, 5, 7, 8, 9, 850, 51. granting a new franchise beyond the municipality, I. 846. CORPORATIONS, municipal origin of, I. 113. cannot be two in the same place, I. 16. 875. custos of during seizure on default, L 17. 31. 876. form when complete, I. 54, Br). incomplete, I. 56. integral parts, I. 54. COSTS, in mandamus, II. 258. under 12 Geo. III. when obeyed, II. 262. on discharge of rule, II. 263, 4. rejection of motion, II. 264. superseding writ, II. 265. withdrawing record, II. 266. with sheriff's poundage, II. 267. joint prosecutors jointly liable, II. 268. in action for a false return, II. 297. quo warranto. See Judgment. on amending instead of repleading, II. 505. omitted in judgment when amendable, IT. 509. 528 TNDKX. COSTS — conti?iued. in quo warranto — continued. for prosecutor, none at common law, 11. 510. under 9 Anne, — II. 511. on all the issues, though only one found for him, IT. 512, discharge from execution for, under lords' act, II. 513. for defendant under 4 & 5 W. M. II. 514, 5, 6. 9 Anne,— II. 517. 32 Geo. III.— II. 518, 19. on dismissing the rule, II. 520. not proceeding to trial, II. 521. proceedings staid until security given for, II. 522. to be paid by successful party introducing unnecessary matter, II. 523. allowed to neither on arrest of judgment, II. 524. on consent, rule to try an issue, II. 525. CUSTOMS, against common right not favored, I. 140. 141. can only be in prescriptive corporations, I. 168 188. but may extend to franchises newly acquired, I. 168. 170, 71. and to suburbs and liberties, I. 169. excluding foreigners from trade &c. I. 142, 3, 4, 5, 148. 150. unless licensed, I. 147. when not violated, I. 149. for company to have livery, &c. I. 152. corporation to regulate carts, &c. I. 153. imposing a fee or expense on officers, I. 154. to file an information for an assault, I. 155. scandal, I. 155. 175. to disfranchise for scandal, I. 176. for steward to nominate a leet jury, I. 156. to distrain for penalty, I. 157. and sell, I. 157. seize as forfeited, I. 158, 159. fine for assault on corporators, 160. marrying orphan wards, I. 161. imprison for eloigning orphans, I. 162. refusing livery, I. 163. to be sheriff oralderman, Sec. I. 165. contempt of court, I. 163, 164. forestalling, I. 164. penalty of reasonable, I. 166. to whom, I. 167. void, unreasonable notwithstanding a general confirmation by statute, I. 172. to fine a town and levy on one inhabitant, I. 173. steward to make by-laws for homage, I. 174. leet jury to inquire at one court and present at next, I. 177. to certify a custom in their own cause, I. 178. to give judgment before appearance, J. 179. INDEX. CUSTOMS : — continued. lo try by six jurors, I. 180. to create a company, I. 181. enforced by action. See Action on Custom. pleaded with precision, I. 189. 423. in words not expressing usage, I. 190. how much, I. 191. with essentials, I. 193. 197. with exceptions, I. 192. 209. when not, in municipal court, I. 194. 403. ill as to time, I. 196.. demurred to in municipal court, I. 199, certified from London, I. 200. in Chancery, I. 202. sufficiently, I. 203, judicially noticed on error, I. 195. from London, L 201 , 205, 6. not examined by the court by inspection of books, I. 204. tried by a jury, L 205. only in courts of common law, L 206. returned on habeas corpus, L 207. 412. evidence of, from usage, L 208. of what antiquity, I. 210. proved as laid, L 209. not destroyed by discontinuance of usage, L 21 1 . exception, L 211. violation of, not indictable, L 212. trespass for seizure on void custom, L 213. CUSTOS, during seizure, L 17. 31. an individual, \. 876. a corporation, L 17. 31. 676. DAMAGES, in mandamus, H. 258, 9. must be found by the jury who try the cause, II. 259. DEBT, action of, on by-law. See Action on By-law. DECLARATION,' in action on by-law : must show capacity of plaintiff, I. 398. his right to recover, I. 428. by whom the by -lav/ was made, I. 424. their authority, I. 424. the by-law in debt, I. 425. replevin, I. 426. not in assumpsit, I. 425. defendant within its obligation, I. 429, 33. M M 529 530 INDKX. DECLARATION — co?i Pleasure. ^. RELATOR. See Quo Warranto, Amendment, Judgment. REPLEADER, amendment instead of, in quo warranto, II. 505. when not allowed, II. 506, 7. REPLICATION, to the plea to the return to a mandamus, II. 252. in quo warranto, to plea of six years' possession, II. 467. demurring to the whole plea and traversing particular fact, 11.468. may impeach title to another office, if a necessary previous qualification, II, 470. may put any number of matters in issue, II. 469. not in due manner assembled, good, II. 472. not duly elected, II. 475. so many votes for one, so many for another, argumentative, 11. 477. RESIDENCE, previous to election, 1, 481. during office, I. 481. N N 546 INDEX. R ESIDENCE - continued. what sufficient, I. 483, 4, 5, 6, 7, 8, 9. in several places, I. 489. RESIGNATION, of office punished by by-law, I. 308. what is, I. 612. by deed, I. 610. parol, I. 611,12. acceptance of incompatible office, I. 617, 23. Ad. IV. whether superior or inferior, 1. 618. though election voidable, I. 618. Ad. IV. second office, though not incompatible, I. 624. acceptance by corporation, I. 613, 16. when revocable, I. 613. 618. Ad. IV. averment of, generally, I. 610, 14. particular facts, when necessary, I. 615. acceptance of, 1.616. See Mandamus., Return. RESTORATION, mandamus for, after election to incompatible office, I. 623. mandamus for, I. 705. by whom, I. 706. when unnecessary, I. 708. effect of, I. 707. for what period when removed from mayoralty, I. 757. See Mandamus, Peremptory Mandamus. RETURN, to habeas corpus. See Habeas Corpus. mandamus : when under statute, II. 168, 9, 70, 73. in other cases, II. 171, 3, anciently, II. 167. time allowed for making, II. 174. how to be made court will not direct, II. 178. by whom made, II. 175. when writ to mayor and burgesses, II. 176, 7. 323. filed after death of him who made it, II. 172. must be certain, II. 179. 183. state facts, II. 180. negative constitution in the writ, when, II. 182. rely on misnomer, or wave it, II. 184. answer the writ in substance, II. 18.5. not be argumentative, II. 181. recitative, II. 181. show incapacity to obey not arising from collusion, tl. 186. all powers necessary to warrant their acts, II. 187. need not aver possible facts, which may more properly be shown by the other side, IT. 188. indt:x. 547 RETURN — continued. • to mandamus : need not set out proceedings on which a judgment is founded, II. 189. be good in all parts, II. 190. confined to one cause for not doing the act, II, 191.210. but if several causes, theymust be consistent, II . 1 92 . be signed or sealed, II. 193. if defective in substance cannot be cured by any inference, 11.212. ' cannot be taken ofF the file, II. 194, 5. to mandamus to elect : election on day after charter-day, II. 198. by steward, that he had held a court, empanelled a jury, and they found the office full, II. 199. or the prosecutor not elected, ib. insufficient number of electors, 11.197. charter-day slipped, and no election can be until the next, II. 196. to mandamus to admit : not elected, II. 201. at a certain time, II. 208. not duly elected, II. 201, 2. neither of the prosecutors elected, II. 206. ouster in quo warranto, II. 200. not received the sacrament, II. 204. taken the oath of allegiance, II. 205. paid the fee on admission, II. 211. ' must negative the constitution in the writ, if it rely on a dif- ferent, II. 203. take issue on some fact alleged in support of the elec- tion, II. 203. and not on the conclusion from the facts, II. 203. show the defect in the corporate assembly, if it admit one at the time apparently competent, II. 207. office full, II. 213. insufficient to be deputy, II 209. not free of the company of his trade, II. 214. admissible on certain days only, II. 215. to mandamus to restore ; outlawry of prosecutor, II. 217. resignation, II. 219,20, 1,2. amotion, essentials of, II. 223. of officer at pleasure, II. 224. 231. 244, 5. cause of set forth, II. 226, 7. non -residence, II. 228, 9. offence in his office, II. 230. power of, ill whom, II. 232. notice of to those who amove, II. 233. person amoved, II. 235. 6, 7, 8. 648 INDEX, RETURN— contiuued. to mandamus to restore : amotion, assembly lor, 11. 233, 4. charge on which founded, II. 239. proved or confessed, II. 240. by whom, II. 241. in what form, II. 242. office annual, II. 243. original disqualification, II. 246. false, action on : to habeas corpus, I. 422. to mandamus. See Action. REVIVAL, by Stat. 11 Geo. L— I. 854, 5. charter : in what name, I. 870. in what form, I. 874. acceptance of, ib. in what words, I. 870. re-grant of franchises, I. 872. effect of, I. 873. when cannot be, I. 875. by proclamation and acceptance, I. 871. RIOT, in proceeding to election, indictment for, I, 823. criminal information, I. 824. RULE, to inspect. See Documents. nisi, for mandamus, direction of, II. 117. enlarged, II. 117, 18. discharged on account of obedience, II. 119. cause shown to, II. 120. contradiction of prosecutor, II. 121. affidavits showing, must state when sworn, II. 122, absolute, when, II. 123. must describe the writ, II. 125. by whom drawn up, II. 127. affidavits of defendant produced to aid in drawing it. II. 126. to plead, &c. in quo warranto, II. 437, 8. See Mandamus, Quo Warranto. SACRAMENT, must be received within a year before election to office under 13 Car. II. I. 506. by officers, even common council-men, I. 507. not by mere freemen, I. 479. 507. not dispensed with as disqualification by 5 Geo. I. until after ad- mission, I. 508. or annual indemnity act, I. 508. INDEX. S49 SACRAMENT — continued. omission of equivalent to refusal of office, I. 509. 596, 7. acceptance of when must be shown in quo warranto, II. 464. SEIZURE, in quo warranto on default, II. 330, 1,2, 3. final judgment, II. 487. SELECT BODY, constituted by by-law, I. 253. 284, see Election, By-law. SERVICE, of mandamus on whom, II. 161. of personal, II. 162. STATUTE, title of corporation by, I. 10. mode of incorporating by, I. 10. needs no acceptance, I. 11. ordinances of unalterable, I. 11. may confer extraordinary powers, I. 12. See Conjirmation, Revival, Election, Ordinance. SUING, by-law restraining in king's courts void, I. 331. 683. for paying expense of for supporting election or interest of individuals void, I. 327. SUMMONS, on quo warranto, IK 430. SURRENDER, of charter void, I. 862, 3. unless enrolled, I. 877. See Dissolution. TALLIAGE, what may be levied by by-law, I. 318. 326. See Rate, Fees. TESTE. See Writ. TIME, of assembly by new calendar, I. 86. at what hours generally, I. 87. under 11 Geo. I. See Election. between teste and return. See Writ. on distringas in quo warranto. See Distringas. allowed for pleading &c. in quo warranto, II. 435, 6, 7. 466. See Mandamus, Return. TITLE, founded in election or inchoate right, I. 720. completed by admission, I. 720. by patent, &c. I. 723, without admission, I. 723, 4. examined in quo warranto, when defendant, I. 728. when another is defendant, I. 729. originally defective protected by the court, I. 732, 550 INDEX. TITLE — continued. originally defective: by omitting the sacrament how far aided I )y 5 Geo. 1. — 1,733, 6, 7, 8, 9. not aided until after admission, 1. 735. how far aided by annual indemnity act, I. 741, 2, 3, 6. though elected after the passing of the act, I. 744. what title within its protection, I. 745. protected after six years' possession under 32 Geo. III. — I. 747. time how calculated, I. 748, 9. similar to former rule of court, I. 749. as to former acts, I. 749. when second officer depending upon it, I. 751. See Quo Warranto, President. TOWN-CLERK, duration of his office, L 766. See Amotion, Pleasure. TRADE, by-law restraining members from trading on a separate account. L 329. regulating to prevent monopoly, L 333, 4. preventing fraud in, L 335. admitting foreigners to, 341. excluding foreigners from, L 342, 3. requiring apprenticeship to, 344, 5, 6. approval by company of, L 345, 6. See By-law, Custom, Qualification. TRAVERSE. See Replication. TRIAL, in mandamus at bar when moved for, II. 251. when it may be under statute, II. 253, 4. in next county, II. 255. new, even after trial at bar, II. 257, after verdict for prosecutor without damages, II. 259. 27 1 . in quo warranto in next county, II. 479. at bar, II. 480. new, even after trial at bar, II. 481. USURPER, is eligible during his usurpation, I. 512. VACANCY, must be at time of election, I. 526. of office to which the election is, I. 527. by illegal amotion avoided by restoration, I. 528. election to the next which shall happen gives no title, I. 526. See Plea, Quo Warranto, Mandamus. VOTE, of all in the corporate assembly equal, I. 133. Ad. V. INDLX. 661 VOTE, — coutinue