turbed possession of a franchise for twenty years, ought to be a bar to any application made to the Court of King's Bench, although it could not be a bar to the king himself, if he should think fit to prosecute the usurpation by his attorney-general; that twenty years was the ne plus ultra, beyond which the court would not disturb a peaceable possession of a franchise; but that in every case, within twenty years, their granting the rule, or refusing to grant it, would depend upon the particular circumstances of the case that should be in question before them', that within twenty years, length of time might weigh as presumptive evidence; or, as one circumstance joined to others, to shew the impropriety of granting an information". Hence, where the qualification was residence and paying scot and lot, and the fact of residence was doubtful, but there had been an acquiescence on the part of the persons applying, and a concurrence in the election of the corporator, and in many subsequent acts, the court discharged the application for a removal with costs*. So where an information was prayed against a person who had served the office of mayor, the relator alleging, that he believed the defendant had not been duly sworn in; twelve years having elapsed without any interference, and it appearing by the corporation books, that the defendant had been sworn in, the court refused to grant the information'. At a subsequent period, viz. in Hil. Term, 1791, the court were of opinion, that the limitation of twenty years, within which time these applications might be granted, was much too long a period, and contrary to the intent of the 9 Ann. c. 20. That at the time when the rule was laid down in the Winchelsea cases, the court were certainly unapprized of several cases, which had been determined before that time: R. v. Pike and Prideaux, Tr. 10 Geo. 1. Rex v. Johns there cited; and Rex. v. the mayor of Helleston, Hil. 12 Geo. 1. 3 T. R. 311. which were decided entirely on the ground of length of time though considerably within twenty years. The court, therefore, with a view to prevent corporations being thrown into confusion, t Winchelsea causes, 4 Burr. 1962. See also R. v. Stacey, 1 T. R. 1. and R. v. Newling, 3 T. R. 314. u R. v. Dawes, 4 Burr. 2121. x R. v. Edw. Wardroper, M. 7 Geo. 3. 4 Burr. 1963. y R. v. Newling, 3 T. R. 310. Bonds allow the redemption of a mortgage after twenty years. Bills of review have been generally disallowed after twenty years. which have lain dormant, shall be supposed to be satisfied after twenty years. Ejectments require a proof of possession within twenty years. resolved, and expressed their resolution in the form of a general rule, that, in future, they would limit their own discretion in granting applications of this nature to six years; beyond which time, they would not under any circumstances, suffer a party who had been so long in possession of his franchise to be disturbed. And, in a subsequent case", the court refused to grant a quo warranto information to impeach a derivative title, where the person claiming the original title, had been in the undisturbed possession of his office six years. An act of parliament has since been passed, grounded on the spirit of the above rule, (stat. 32 Geo. 3. c. 58.) by which it is enacted, 1st, that it shall be lawful for any defendant to plead to an information in the nature of a quo warranto, that he held or executed the office or franchise six years or more, before the exhibiting of the information; and that if the issue joined, on such plea, be found for the defendant, he shall be entitled to judgment and costs. The six years before exhibiting the information, mean six years before making the rule absolute for the information, and not six years before obtaining the rule nisi. And 2dly, that titles derived under an election, nomination, swearing into office or admission of any person, shall not be affected by reason of any defect in the title of the person electing, &c. in case such person has been in the exercise of his office six years before the time of filing the information. A title to one office which is a qualification to hold another is not within this clause. IV. Of the Construction of Charters, and of the Opera-· tion and Effect of a new Charter. CONTEMPORANEOUS usage has always been considered as of great importance in the construction of charters: not that usage can overturn the clear words of a charter, but if they are doubtful the usage under the charter will tend to explain the meaning of them. If a corporation by prescription accept a charter, whereby z 4 T. R. 284. a R. v. Peacock, 4 T. R. 684. b R. v. Stokes, 2 Maule & Selwyn, 71. nion of court, R. v. Bellringer, T. R. 821. e Per Ld. Mansfield, C. J. in R. v. Varlo, Cowp. 250. the election of burgesses is directed to be made in a manner different from what had obtained by ancient usage, the usage being inconsistent with the charter, can no longer subsist; but is determined by the acceptance of the charter, which must afterwards be the only measure, by which the election of burgesses is to be governed'. If a corporation has franchises and privileges by grant or prescription, and afterwards they are incorporated by another name, as if they were "the bailiffs and burgesses" before, and afterwards they are to be styled, "the mayor and commonalty" yet the newly-named body shall enjoy all the franchises, privileges, and hereditaments, which the old corporation had either by grant or prescription. Where the king grants a charter to a corporation, there being a prior charter existing at the time, the new charter is void ab initio; because two corporations for the same purposes of government, cannot exist within one and the same place, and at one and the same time. While a corporation exists capable of discharging its functions, the crown canuot obtrude another charter upon them'. It is competent to them, either to accept or reject the proffered charter. If there be an old charter surrendered, but the surrender is not inrolled, and a new charter, in consideration of the surrender, granted, the second charter is void; and if there be any other persons named in the new charter who were not in the old, any law made by them is void; because they act under a void charter; but otherwise if the members nominated are the same as in the old charter, because then they act by their first charter, which still remains good'. Upon a quo warranto against the town of Liskeard, in the reign of Charles the Second, they surrendered their charter, which was not inrolled until the reign of king James the Second," who, in consideration of the surrender, granted a new charter to them. It was holden, that the second charter being in consideration of a void surrender, was also void". An information, in nature of a quo warranto, was brought f Powell v. the King, D. P. 3d Mar. 1728, 2 Bro. P. C. 298. Tomlin's ed. Borough of Brecknock. 4 Rep. 77. b. per Cur. Haddock's case, 1 Vent. 355. h R. v. Amery, D. P. 20th April, 1790, 2 Bro. P. C. 336. Tomlin's ed. i Ld. Kenyon, C. J. R. v. Pasmore, k R. v. Osborne, 4 East, 335. 1 Bully v. Palmer, 12 Mod. 247. Salk. m Piper v. Dennis, 12 Mod. 253. 1 against defendant", stating that king Henry the Fourth, by charter granted to the corporation of the city of Norwich, that the city should be a county by itself, and that the commonalty should choose two sheriffs;-that king Charles the Second confirmed the charter of Henry the Fourth, and granted over, that the mayor, sheriffs, and aldermen should choose one person to execute the office of sheriff, and that the commonalty should choose another ;-that the defendant had been elected sheriff by the mayor, sheriffs, and aldermen; but had refused to take upon him the office. The defendant pleaded that he was a protestant dissenter, and had not taken the sacrament within a year before his election (10). It was contended, on the part of the defendant, that the election was void; that the mayor, sheriffs, and aldermen, had no power to make such election, inasmuch as the liberties granted by the charter of Henry 4. could not be divested but by surrender or forfeiture, and neither the one nor the other appeared by the record; nor was it apparent, that the corporation had accepted the new charter. But Holt, C. J. and Sir Giles Eyre, were of opinion, that the defendant was duly elected; for, although the new charter had been void, if the corporation had refused to accept it, since the king could not take away liberties before granted by him, without the concurrence of the grantees, yet, if the corporation accepted such a charter, it was good ;-that here was evidence of their acceptance; for the commonalty used heretofore to elect both the sheriffs, and now they elected only one; and the election of the other, by the mayor, &c. shewed, primâ facie, that they accepted it. Besides, if the corporation had not accepted the new charter, the defendant ought to have shewn it; but here he had admitted it by his special plea. That the corporation might have used the new charter as a grant or confirmation; but having made their elections according to it, it was evidence of their consent to accept it as a grant. Where an application is made to the court for a mandamus, to direct the filling up any vacancies in a definite integral part of a corporation, the court will require strong grounds to induce them to refuse the writ, on account of the great inconvenience which may follow from the not filling up such vacan- / cies, and the risk of dissolving the corporation. n R. v. Larwood, Ld. Raym. 29. Salk. o R. v. Mayor of Grampond, 6 T. R. 167. Comb. 315. S. C. 301. (10) There were other pleadings; but as the points arising out of them are foreign to the subject of this chapter, they are omitted. When a corporation is reduced to such a state as to be incapable of continuing its existence and of doing any corporate act, it is extinct as a body corporate. In such case, it is competent to the crown to renovate it, by granting a new charter to the remaining members of the old corporation, in conjunction with others, or to others alone. It is not necessary that this charter should be accepted by a majority of the remaining members of the old corporation; it is sufficient if it be accepted by a majority of the grantees. Where a charter is silent as to the mode of continuing the succession, a corporation has a right of of necessity, or an incidental power to continue itself, and to make reasonable bylaws for that purpose; as by election. Where, however, there is a provision of such a nature as is calculated at all times to continue the succession, without ever proceeding by way of voluntary election, that may afford a ground for presuming that voluntary elections were meant to be excluded; but where there is no provision, affording a supply of burgesses to that extent, the corporation has the right of proceeding by election. Hence a provision for a supply of burgesses by the sources of birth and servitude, has been holden to be not incompatible with the existence of a power of election; for though these modes of supply may render a frequent recurrence to election less necessary, the supplies from all these sources are not likely so to overload the corporation, as to incumber its operations by a destructive or very inconvenient redundancy of its members; and without occasional supplies by election, the other sources, by birth and servitude, might be insufficient. V. By-Laws. EVERY corporation has power to make by-laws. This power, like the power of suing, or the capacity of being sued, is included in the very act of incorporation; and it is not necessary, although usual, for the crown to confer this power in express terms'. Where the corporation is by charter, such by-laws may be made as will enforce the end of the charter in a way more convenient, and tending more to the care and good government of the society, than what the charter has prescribed. Hence, where it is directed by the charter, that the mayor, or aldermen, or other principal p R. v. Pasmore, 3 T. R. 199. q R. v. Bird, B. R. H. 51 G. 3. 13 East, r Hob. 211. |