C. 45. The ftatute 22 G. 3. c. 41. f. 1. (commonly called Mr. St. 22 G. 3 Crewe's act) enacts, that "no poftmaster, postmasters general, or his or their deputy or deputies, or any perfon employed by or under him or them in receiving, collecting, or managing the revenue of the poft-office or any part thereof, shall be capable of giving his vote for the election of any knight of the fhire, commiffioner, citizen, burgefs, or baron to serve in parliament for any county, ftewartry, city, borough, or cinque port, or for chufing any delegate in whom the right of electing members to ferve in parliament, for that part of Great Britain called Scotland, is vested; and if any person, thereby made incapable of voting as aforefaid, fhall nevertheless prefume to give his vote, during the time he shall hold, or within twelve calendar months after he fhall cease to hold or execute any of the offices aforefaid, contrary to the true intent and meaning of this act, such vote, so given, fhall be held null and void to all intents and purposes whatsoever." for the petitioners, It was contended on the part of the petitioners that the Argument cafe of M'Symon fell within the words of this act for it could not be denied that he was employed by or under the postmaster general; that he was the subject of all that influence, the operation of which it was the purpose of this ftatute to fruftrate and prevent; fince he held his office at the pleasure of the postmaster general; and that the act extended to perfons employed in any capacity, in the postoffice, making ufe of the broadeft and most univerfal expreffions; and that it was a remedial act, and should be fo conftrued, as to fupprefs the mischief, and advance the remedy. It was contended that the cafe of John Arch, 2 Lud. 556. which seemed to apply to the prefent, was not rightly determined, Secondly, it was infifted, that if he were disqualified to If he could vote at the election, he could not be confidered as an effec- not vote, he could not tive or competent member of a meeting held for the purpose form a quoof an election. That fuppofing the rule of law to be, that rum. a majority must be prefent in order to act, the plain mean See 1 Black. Com. 87. and cafe of Harwich, post. That a majority mult be present at act. ing of that rule was, that the majority must be compofed of perfons competent to act. That the reafon for requiring the prefence of a majority was, that the concurrence of the voices of a majority might be obtained; but if those who could not vote were permitted to form a part of the majority, this object was defeated; for then it might happen, that the greater part of the legal electors might be only an inconfiderable part of those actually present. Secondly, it was contended that by the general law of Scotland no corporate act can be done unless a majority a corporate of the corporate body be prefent: and the fame cafes were cited in fupport of this propofition, as had before been adverted to in the cafe of Stranraer and it was infifted that in the present cafe, the ufage of the burgh of Dumbarton had been fufficiently fhewn to be conformable to the general rule of law. Election of corporate Laftly, that the election of a delegate was a corporate a delegate a act. It was obferved that the manner in which elections to parliament were conducted, before the union, was not much known that it was ftill more doubtful, who were the electors to parliament antecedently to the year 1469, when the ftatute of Ja. 3. vefted the power of electing the council, which had before belonged to the burgeffes at large, in the magistrates and council: but they confidered it as clear, that fince the year 1469 the election of a member to parliament had been the act of the council, and as much a corporate act, as the election of their own magistrates. That every circumftance relating to elections for burghs, fhewed them to be corporate acts, whether in ancient or in modern times: the writs were directed to the corporation": the returns made by them under their common feals; in more ancient times, the corporate officers, namely, the baillies, were fummoned to parliament; and before the union, when what is now the election of the delegate was in fact the election of the member of parliament, the Ante, p. 255. 256. In the margin of the latter page, the note fhould more properly have been, "The fixing a day for the election of a delegate is a corporate act." d Wight, App. No. xliii. town town council was fummoned by the provost to make the election, in the fame manner as if the purpofe of their meeting had been any other corporate act. In the cafe of Edinburgh 1781, reported by Mr. Wight, p. 38+ to Cafe of E397, the election was throughout confidered and reafoned dinburgh, 1781. upon as a corporate act: and he gives his own opinion to the fame effect, with the reafons for it in a note to p. 397. It had been obferved by the counfel, in arguing the cafe of Stranraer, that it was rather the act of an individual than of a corporation; but this was contradicted by the language both of the precept and the return, which, as before had been obferved, were addreffed to, and made by the corporation. That it might alfo be faid, that the inconvenience would be great, if the election of a delegate, or of a member of parliament could be defeated by the wilful abfence of a majority of the corporators: but this argument would prove too much; becaufe the inconvenience which it alludes to, would be felt much more ftrongly on other occafions, and in the performance of other acts, confeffedly corporate; fuch for inftance as the election. of annual magiftrates; for if that did not take place, a diffolution of the corporation would enfue. for the ût ting mem The counsel for the fitting member, without entering at Argument large into the queftion, whether or not an election was a corporate act; and briefly contending upon the fame ber. grounds as in the cafe of Stranraer, that the prefence of a majority was not indifpenfably neceffary, infifted that in the cafe of the election for Dumbarton, a majority of the corporation were actually affembled, both becaufe M'Symon was qualified to vote at the election, and becaufe fuppofing him not qualified, he was ftill competent to form a quorum; but they principally relied upon his ability to vote. M'Symon They faid that the ft. of G. 3. was a penal, and a difabling qualified to ftatute, and to be conftrued ftrialy. That the obvious application of it was to perfons employed by and acting under the authority of the poftmafters general, and not to persons who were employed by or under their deputies. That it appeared M Symon was but the fervant of Campbell, paid by him and liable to be difcharged at his pleafure; and they vote. If difqualified, ftill he a quorum. relied upon the cafe of John Arch, 2 Lud. 552. Letha bridge, 1 Fraser, 164. Barringer, 2 Lud. 540. James Wilfon, 2 Lud. 562. and Samuel Morris, 2 Frafer, 454. as decifive of the prefent. Further, that upon no principle could it be faid that even might form admitting he was difqualified to vote, he was not a good corporator, for the purpose of constituting a corporate affembly: that there were many cases, in which perfons not competent to act, were competent to form a quorum; and the cafe of the appointment of a select committee was mentioned, in which many perfons were difabled to become members of the committee, who nevertheless, by their prefence in the house, might help to form the number required by the ftatute to be prefent before the ballot could take place. That a penalty was impofed upon a perfon employed in the poft-office, if he voted at elections: but could this perfon have been fued for the penalty, merely for being prefent at the meeting? if not, the difability could not be extended further than the penalty. His prefence therefore at that affembly, was the prefence of a legal and effective corporator, whatever the purpose of the meeting might be: his corporate rights being in no respect abridged by the statute, except in the particular circumstance of his being incapable to give his vote. Decifion of 30th Mar. The committee decided generally, that the the commit- petitioner was duly elected: by that decifion, they in effect, points there- avoided the election of the delegate for Dumbarton, and tee, and the by determined. neceffarily determined the following points: Firft, that the election of a delegate is a corporate act; fecondly, that the attendance of the major part of the council is neceffary at fuch election in Dumbarton; thirdly, that fuch major part must be compofed of perfons duly qualified to vote at the election; and fourthly, that M'Symon was not qualified to vote. CASE XX. THE BOROUGH OF OKEHAMPTON, IN THE COUNTY OF DEVON. 1 The Committee was appointed on the 24th of March 1803, and confifted of the following Members: Henry Bankes, Efq. Chairman. Rich. Jof. Sullivan, Efq. Hon. Tho, Fane. Hon. Chr. Hely Hutchinson. J. Spencer Smith, Efq. Reg. Pole Carew, Elq. 1. Peter Ifaac Thelluffon, Efq.; Geo. Woodford Thelluffon, Sitting Members. Henry Holland, Jun. Efq.; James Strange, Efq. Counsel for the Petitioners: Mr. Adam; Mr. Serjt. Heywood; Mr. Dam- for the Sitting Members: Mr. Plumer; Mr. Serjt. Lens. In the a EACH of the petitions contained a claim to the majority Petitions. of votes in favour of Mr. G. W. Thelluffon, and Mr. P. I. Thelluffon; a charge against the returning officer of partiality in favour of the fitting members; and a charge against the fitting members themselves of bribery and treating. Evidence was offered in fupport of that allegation only, which respected the majority of votes. There was no difpute concerning the right of election; Right of it was determined 24th Feb. 1710, to be "in the freeholders election. * Prefented 29 Nov. 1802. and |