did not apply, for that there, a hundredor could not be a witnefs.-Scroggs, C. J. Dolben and Raymond, J. were of opinion, that the freemen ought to be admitted as witneffes, and Jones, J. that they ought not; on which a bill of exceptions was tendered by the counfel for the defendant, which the court proffered to feal, and to allow three or four days to draw it up; the plaintiff's counsel, however, produced other witneffes, which left the cafe of the freemen undecided (a). ON a fubfequent occafion, the Lord Keeper, Sir Francis North, alluding to this cafe of the water-bailage, faid, "he thought it very hard, that no freeman of the city of London could be admitted as a witness, in a cafe that did not concern him fixpence; but that there, indeed, the fee was in queftion." This was in the cafe of the corporation of Sutton Coldfield against Wilson, in which the question was, whether a bond in the penalty of 400l. was intended for the benefit of the corporation or of the defendant; and the witneffes for the plaintiffs being all members of the corporation, it was infifted that their depofitions could not. be read, because they swore for their own benefit, and the exception was allowed; and the Lord Keeper said, that a corporation ought to have a town clerk, or under clerks, who were not freemen, that they might be competent witneffes when occafion required. AT length, however, it appearing that the defendant` had crofs-examined fome of the plaintiff's witneffes, not only to questions, barely whether they were of the corporation or not, but to other queftions which affected the merits of the cause; the Lord Keeper declared that made them good witneffes, though they were members of the (a) The cafe of the city of London, concerning the water-bailage. 1 Ventr. 351. X corporation, corporation, and, on their evidence, the latter had a decree in their favour (a). Ir appears to be a general rule, that in actions where a corporation and a stranger are concerned, the latter shall not be affifted by the court to obtain inspection of the books of the former, but that, if he conceive he can derive any advantage from them, he must give the corporation notice to produce them on the trial. THE firft cafe we meet with on this fubject, was an action of covenant against the defendant, as fecurity for one Thompson, late warehouse-keeper to the charitable corporation, in which the issue was, whether Thompson actually did receive certain goods with which he was charged: an application was made on behalf of the defendant for liberty to infpect the corporation books, on the principle that they were public books: the court doubted whether they were of that defcription, and therefore made no rule; but told the defendant's counsel that he might give the corporation notice to produce them at the trial(b). THE next cafe, indeed, directly contradicts the rule: it was an action brought by the Brewers' Company, on a bye law, against the defendant for exercising the trade of a brewer without being a member of the company: on behalf of the defendant, application was made to the court for a rule to inspect the books of the company and take copies, which was granted, on the ground that strangers had an interest in bye laws which affected them (c). LITTLE regard, however, is due to this cafe, because the principle on which it is founded was impeached in a fubfequent cafe, which seems to have been more maturely (a) Sutton Coldfield v. Wilfon. 1 Vern. 254. (b) Tr. 8 G. 2. Charitable Corporation v. Woodcraft, B.R. H. 130. (c) Eaft. 19 G. 2. Brewers' Company v. Benson. Barnes, 236. confidered. See table of fintent page confidered. This was an action of trespass for taking the plaintiff's goods: the defendant, as fervant to the corporation of Shrewsbury, juftified the taking, as a diftrefs for toll through the ftreets of Shrewsbury, which the plaintiff refused to pay before the plaintiff replied, an application was made, on his behalf, for a rule to have liberty to infpect the public books and records of the corporation: in answer to this, it was urged, that the plaintiff, being a Stranger to the corporation, had no right to inspect their books; that iffue not being joined, it was not known what would be the point to be tried; that the plaintiff had not applied to the corporation and been refused the liberty of infpecting the books; and that therefore the motion was premature; and that it was the first of the kind, for it was a motion to furnish the plaintiff with matter for his reply to the defendant's plea. In fupport of the application, it was faid, that there had been cases where strangers had had rules for liberty to infpect the books of the adverse party, and the cafe of the Brewers' Company was particularly mentioned as an authority in point.-The Chief Justice (a) expreffed himself thus-"Do you lay it down in general, that a stranger has a right to infpect the books of a corporation? How has a ftranger to a corporation more right to inspect their books, than the books of a private person? While Lord Camden fat here, there was the like motion in the like action of trespass, where the defendant juftified, under the corporation of Ipswich, for diftraining for a toll for repairing the quay there, and the motion was refused, the plaintiff being a stranger to the corporation; and I ain fure, in many cases like the prefent, the motion has been refused; however, I fhall give no abfolute opinion on the present motion; becaufe iffue is not yet joined, nor has the plaintiff applied to be permitted to infpect the books of the corporation and been refused, and that is a fufficient reafon for not granting the rule at prefent" (a). SECTION III. By what acts a Corporation fhall be bound. MUCH of what naturally falls under this and the following fection, having an intimate connection with the fubjects of the preceding parts of this chapter, has already been unavoidably difcuffed at full length in order, therefore, to avoid repetition, it is intended to introduce here, only thofe points which have either been not confidered. at all, or which have been but flightly touched upon before. WHERE a collective body of men have a right to act in a matter which concerns the common interest, it seems to be the first fuggeftion of reason, that an act done by a fimple majority fhould be binding on the whole: this is the principle of the rule adopted by the common law of England, with respect to aggregate corporations: thus, in general, the majority of dean and chapter fhall bind the whole corporation of dean and chapter: So, the majority of mayor and commonalty fhall bind the whole corporation (b): but this rule is to be understood as confined to a majority of thofe, who, by the conftitution of the corporation, have a voice in the corporate deliberations; for it frequently happens, that the power of action does not ex (a) Tr. 13 G. 3. Hodges v. Atkis. 3 Wilf. 398. Bro. Corpor. 34. tend 3 tend to the corporation at large, but is confined to a felect body; and then the act of the majority of that select body, binds not only the whole of the felect body, but the whole corporation. IN different corporations too, the manner in which the majority shall be reckoned, varies according to the provifions of the conftitution; fometimes the act that is to bind the corporation, must be fanctioned by the affent of an abfolute majority of the whole body empowered to act; fometimes, it is fufficient if a majority of the whole body be affembled, and the majority of thofe affembled agree to the act; and fometimes a majority of those assembled, whether thofe affembled be a majority of the whole or not, may bind the whole corporate body. IN all these feveral cafes, the act of the major part, which is to bind the reft, must be done at one and the fame time, and at a regular meeting held for that purpose. Thus, where a chapter consisted of eleven, and the majority of the whole eleven was neceffary; a confirmation of a leafe of the poffeffions of the bishopric, by three at one time and three at another, was held to be void, because the members ought to have been affembled in full chapter (a). NOTWITHSTANDING this rule of the common law with respect to the majority, many founders of ecclefiaftical and eleemofynary corporations, in order the better to prevent the alienation of the poffeffions of these bodies, had frequently rendered neceffary the affent of a part greater than the abfolute majority of the whole, and fometimes the affent of every individual.-King Henry the eighth, finding these private regulations a great obstruction to his (a) Capitulariter congregati, as it is expreffed in Sir J. Davis, Rep. 48. a. b. |