SECTION VII.

Of the regularity of corporate proceedings.

EVERY Corporate act must be done in a corporate affembly, properly conflituted and duly affembled. Of the proper conftitution of a corporate affembly fomething has been faid in the preceding fection, and fomething further will be faid in the prefent; but the firft object of confideration is that it be duly affembled. This depends on the members having had fuch notice of the meeting, as the nature of the affembly itfelf, the time of its being held, and the nature of the bufinefs to be tranfacted, require.

WHEN a corporate at is to be done not on a charter day, and by a select number, all the members who, by the conftitution of the corporation, compofe the affembly, except thofe who have abfolutely deferted the town, should have notice that fuch particular affembly is to be held for the purpofe of doing fome corporate act, though it be not in general neceffary that the particular bufinefs fhould be fpecified. And where there are different affemblies in a corporation with diftinct powers, and all the members of the smaller affembly are members of the more numerous; if the more numerous affembly be fummoned to meet to exercise the powers lodged in them, those who are members of the fmaller affembly cannot feparate from the reft, and exercise their diftinct powers: but there must be a fummons for that purpose of the smaller affembly by itself.

THE Corporation of the city of Carlisle confifted of a mayor, aldermen, bailiffs, and capital citizens, who together formed the common council, and had the power of electing

electing capital citizens; the power of amotion was in the mayor and aldermen only, or the major part of them. The common council met for the purpofe of tranfacting the business of that affembly; and the mayor and aldermen made an order for the amotion of one Poulter, a capital burgefs, for a caufe which was allowed to be legal. The case coming before the court on the application of Poulter to be restored, the Chief Juftice (a) obferved, that the of the common council, and of the mayor and alpowers dermen, were diftinct; that the common council could do no ats, unless affembled in that capacity; neither could the mayor and aldermen, unless they met only in that cha_ racter, on a regular fummons for that purpose; and that as these two bodies had diftinct authorities, they muft be fummoned in their diftinct capacities; that here was no fummons to meet as mayor and aldermen only, of which the confequence was, that the acts done by them in that diftinct capacity were void. An alderman, when he received a fummons to the common council, might confider with himself, that there were a great many members, and that probably his fingle voice might not be wanted, and therefore he might ftay at home: but when he was fummoned to meet with the mayor and aldermen only, he might fay, there are but twelve of us in all, and therefore my voice and advice, to which others have a right, may have its weight: he might likewife reflect, that the powers lodged in the court of mayor and aldermen were of a higher nature than their other powers; and therefore, as his prefence might, on both accounts, be neceffary, he might make a point of being there. Was it reasonable, then, that the others fhould proceed to act as mayor and aldermen only, when they affembled as members of the (a) Pratt,

common

common council?

What confufion would this make in

the city of London, if, when the whole body was affembled, they should fuddenly draw off into different parties, and execute their diftinct powers?

SOME difference arifing on a collateral point, the matter was adjourned; but afterwards the Chief Juftice delivered the opinion of the court, that the removal in this case was not regular, and that there ought to have been a fummons for the mayor and aldermen to meet in their distinct capacity (a).

THE corporation of Appleby confifted of a mayor, twelve aldermen, and fixteen common councilmen, beside the freemen at large: the mayor was to be chosen by the common council out of the aldermen, and the common councilmen likewise by the common council out of the freemen: the members ufed to be fummoned to meet for the election of a mayor, by order of the old mayor, not on any fixed day, but fome time about Michaelmas: on the 26th of May, 1674, an order was made by the mayor, aldermen, and common councilmen, that they should for the future meet on the Monday before Michaelmas day, every year, to choose a mayor: on other days for filling up vacancies of aldermen or common councilmen, the mayor ufed to fummon the body, and they never used to meet without fuch fummons; when they met, he acquainted them with the vacancy, and with the occafion of the meeting on the 23d of September, 1723, being the Monday before Michaelmas, the mayor, eleven aldermen, and fifteen common councilmen met in the Moothall: the mayor declared their meeting was to elect a mayor; on which fome of the common council faid, there was a vacancy of an alderman and common councilman, and they (a) Rex v. mayor of Carlisle. I Str. 385.

would

would first proceed to fill up thofe vacancies: the mayor replied they were filled up; on which nine of the common council withdrew into the council chamber, the other fix ftaying in the moothall with the mayor; the nine elected a common councilman, figned a paper purporting their election, brought it into the moothall, tendered it to the mayor, and defired him to fwear the perfon they had chofen.-On a trial at bar, on the validity of this election, it was attempted to be proved, on behalf of the plaintiff, that it was usual to fill up vacancies on the Monday before Michaelmas, before the election of the mayor; but only one instance was given in evidence of fuch a thing having been done; and that was but two years before the election of the plaintiff; and it did not appear but that the mayor directed the going to that election, and that all the conmon councilmen then living were present and consenting. But all the witneffes agreed, they never knew, before this time, an instance of proceeding to fill up a vacancy, without the mayor's declaring the vacancy, and directing them to proceed to fill it up.

THE Counsel for the defendant contended, that on this evidence the plaintiff's election was void; for that this being a corporation by prescription, the right and manner of election was to be governed by the ufage; that for the election of aldermen and common councilmen at any other time but this Monday before Michaelmas, it was agreed there ought to be a preceding fummons from the mayor for the corporation to meet; that it had been the fame in the cafe of the election of a mayor, till the order in 1674; and that that order did not affect the prefent cafe; that the mayor's prefence being neceffary at the meeting, he ought to prende, though he had no vote; that as this was not a day appointed for choofing common councilmen, and no fummons

Ff

fummons had been iffued for that purpose, part of the common council, though the major part, could not elect to bind the reft. The court were unanimoufly of opinion that the election was void, for the reafons thus fuggested in behalf of the defendant; and that this cafe was almost the fame with that of Poulter, immediately preceding (a); which it certainly was in the circumftance of the fame body poffeffing diftinct powers, and attempting to act in one capacity, when they were fummoned to act in another.

In one place (b) it is faid, "that if all be present, though by accident, and without notice, their acts, * done by unanimous confent*, will be good; but that the acts of a majority present by accident will not be binding."

In another (c) it is faid, "that wherever notice is given for one particular bufinefs only, no other business can be tranfacted, unless the whole body be prefent, and every one confent:" which implies, that if all be present and confent, their acts will be good.

THIS propofition, "that if all be present by accident, or in confequence of a fummons to attend on one particular bufinefs, the acts done by unanimous confent will be. good," receives fome countenance from what fell from the court in the cafe Sir Chriftopher Mufgrave against the mayor of Appleby (d).

In this cafe iffue was joined on the question, whether the plaintiff was elected mayor, and a trial at bar was granted. It was admitted that, by the conftitution of the borough, the mayor was to be chofen out of the aldermen, and that the validity of the election depended on the quef

(a) Machell v. Nevinfon, mayor of Appleby: 2 Ld. Raym. 1355. (b) Pr. Lord Parker, in Rex v. Strangeways, Hil. 1 G. I, cited by Ld. Hardwicke. B. R. H. 151.

(c) Barnard, 80.

(d) 2 Ld. Raym. 1358. 1 Str. 584.