officers shall be chosen by the burgesses or commonalty at large, the corporation may, by common assent, for the purpose of avoiding popular confusion, make a by-law, restraining the power of election to a select number of burgesses or commonalty'; that is, where the right of election is given to a whole class of men, they may restrain it to a part of themselves; but where a corporation consists of several integral parts, as, 1st, the mayor; 2dly, the aldermen ; 3dly, the commonalty; and the right of election is given to the three parts conjointly, a by-law excluding one integral part from the right of election, e. g. the commonalty, is void.

In order to give validity to corporate acts, it is essentially necessary in all cases where by the constitution of the corporation there is a definite body, who form an integral part of the corporation; 1st, that a majority of that definite body should exist" at the time when any corporate act is to be done. Hence if an integral part of a corporation is reduced by the death of its members, so that there does not any longer remain a majority of such integral part, there is an end of the corporation. 2dly, That a majority of that body must attend the assembly, where such act is to be done. It is not, however, necessary, when met, that there should be a majority of each of the integral parts, to give validity to the corporate act; it is sufficient if it be done by a majority of the whole, when so properly assembled. "If corporate acts are to be done by a select number of members upon a particular day, all who have a right to be present in that assembly ought to be summoned, and to have notice that they are to meet on the business (it is not necessary to specify what business) of the corporation. This rule admits of no exception, unless in the case where a member has absolutely deserted the town, by absenting himself and removing his family out of the town. It must be an entire departure from the place; for if the person has an house and family in a corporate town, though he be abroad at the time of holding the assembly, whether for his health, his diversion, or upon business, he ought to be summoned. When the notice is regularly given, a majority have power to do any corporate act

but if the whole assembly meet by accident, they may proceed on business, provided they are unanimous; but otherwise it is, if any one member of the corporation dissents, he has an absolute negative."

s Case of Corporations, 4 Rep. 77. b. See also Barber v. Boulton, 1 Str. 314. R. v. Bird, 13 East, 375.

t R. v.

Head, 4 Burr, 2515. Borough of Helston. u R. v. Morris, 4 East, 17.

x Ld. Kenyon, C. J. R. v. Grampond, 6 T. R. 302.

y R. v. Bellringer, 4 T. R. 810. R. v. Miller, 6 T. R. 268.

z Per Ld. Hardwicke, C. J. in R. v. Kynaston, B. R. T. 8 & 9 G. 2. MS.

But where the charter is silent on the subject, previous summons is only necessary for the purpose of preventing an election from taking place by surprise, i. e. by some of the elections without due means of attendance upon that occasion being equally afforded to all the others. Hence, where the whole corporation are summoned for a particular purpose, (e. g. to receive the resignation of a common-councilman) a select body who are all present and consenting, may at the same meeting, without any particular summons to them for that purpose in their select capacity, proceed to an election of a commou-councilman, in the place of the other resigned; the power of election being in such select body, and the charter not requiring any previous summons.

It is essential to the validity of a by-law, that it should be consistent with, and that it should not be repugnant to, or contradict the charter; for in a case where the charter directed that the mayor and aldermen, or the major part of them, should yearly nominate four of the burgesses, or inhabitants, to the commonalty at large, out of whom they were to elect one to be mayor, and who, at the end of his year, was to be an alderman; it was holden, that a by-law providing, that an alderman, who was au inhabitant, might be elected mayor, was bad, inasmuch as it was inconsistent with the charter; because it was not intended, that aldermen who were to nominate the candidates for the mayoralty, and who were to commence aldermen by serving the office of mayor, should be chosen mayors, because they happened to be inhabitants.

A by-law, though made by the whole body, if it narrow the number of those out of whom the election is to be made, is void. Hence, where the power of electing the mayor was given by the charter, to the mayor, burgesses, and commonalty, who were to choose the mayor out of the burgesses, and a by-law directed, that the mayor and common-council(11) or the major part of them, of which the mayor was to be one, should elect one of the common council to be mayor; it was holden, that such by-law was bad; because it is competent to a corporation to make such ordinances only as are for the better government of the corporation; and the present

a R. v. Theodorick, 8 East, 543.

b R. v. Tucker, E. 14 G. 2 MS. Borough of Weymouth.

(11) N. The charter contained a provision, that the corporation might elect out of the burgesses twenty to be cominon-council.

MS.

by-law was prejudicial, inasmuch as it confined their choice; for, on the terms of the charter, they were at liberty to choose out of the burgesses at large. And Lee, C. J. observed, that a corporation could not alter the charter as to the persons eligible, neither could they set up another government than the charter had prescribed. And upon the same principle, a by-law directing that no person shall be elected mayor a second time within six years, has been holden to be void.

A by-law made by a part of the corporation to deprive the rest of the right of electing, without their assent, is bad. Hence, where by the charter the power of electing commoncouncilmen was given to the mayor, jurats, and commonalty, and a by-law was made by the mayor, jurats, and commoncouncil, restraining the election of common-councilmen to the mayor, jurats, such of the commonalty as were of the common council, and sixty others, who were senior common freemen; the by-law was holden to be bad.

A by-law cannot explain a doubtful charter; if there be any ambiguity on the face of the charter, it is the province of the court to expound it.

A by-law which gives a voice in the election to any person to whom it was not given by the constitution of the borough, is bad.

It remains only to observe, that a by-law may be good in part, and bad in part, provided the two parts are entire and distinct from each other.

c R. v. Phillips, Mayor of Carmarthen, H. 22 G. 2. Trin. 22 & 23 G. 2. MS. and Bull. N. P. 211. S C. cited in 3 Burr. 1836, 1838, 1839. (12.)

d R. v. Mayor of Cambridge, H. 23 G.

3. MS.

e R. v. Cutbush, common-councilman of Maidstone, E. T. 8 Geo. 3. 4 Burr. 2204 (13.)

f R. v. Tucker, E. 14 Geo. 2. B. R MS.

g R. v. Bird, 13 East, 387.

h Adm. per Ld. Kenyon, C. J. in R. v. Fishermen of Faversham, 8 T. R. 356.

(12) "This case was argued several times, and settled the point, that the number of the eligible cannot be narrowed, although on the authority of the case, in 4 Rep. 78. the number of electors may." Per Buller, J. in R. v. Mayor of Cambridge, ub. sup.

(13) See also R. v. Spencer, 3 Burr. 1827. (the same corporation,) where a by-law excluding all the commonalty, except such as had served the office of church-warden and overseer, for one year, was holden void; inasmuch as it superadded a qualification not required by the charter, and which had no relation to, or connexion with, their corporate character or capacity.

Although there do not remain any traces of a by-law in the corporation books, and although there cannot be any proof given of the loss of it, yet, upon evidence of constant usage, a jury may be directed to presume its existence. See R. v. Head, 4 Burr. 2518., and R. v. Bird, 13 East, 368, where defendants pleaded a by-law not now extant in writing. Sixty years usage has been considered as evidence of a by-law.

VI. Of the Inspection of the Records of the
Corporation.

EVERY member of the corporation has, as such, the right to inspect the books belonging to the corporation for any matter that concerns himself, although the corporation are not parties to the dispute which renders the inspection necessary; but the court will not grant the rule generally, but only to inspect the particular book in which the information sought for is to be found".

VII. Of the Pleadings.

A QUO WARRANTO being in the nature of a writ of right, the defendant cannot plead any plea, except to justify or disclaim". Hence he cannot plead, not guilty. In like manner, he cannot plead, non usurpavit, or that he did not usurp the office in question. This appears from the nature of the charge, which calls on the defendant to shew by what authority he exercises the office in question, to which charge the pleas of not guilty and non usurpavit do not afford an

answer.

i See 2 Vez. 330.

k Per Ld. Mansfield, C. J. in Perkin v. Master, Warden, &c. of the Company of Cutlers, in Hallamshire in the county of York, 21 MS, Serjeant Hill, p. 65.

1 R. v. Hostmen, in N. upon T. Str.
1223.

m Per Holt, C. J. 12 Mod. 225.
n Per Holt, C. J. 12 Mod. 225.
o Queen v. Blagden, 10 Mod. 296.

By stat. 32 Geo. 3. c. 58. s. 1." the defendants to any information in the nature of a quo warranto, for the exercise of any office, or franchise, in any city, borough, or town corporate, whether exhibited with leave of the court, or by his majesty's attorney-general, or other officer of the crown on behalf of his majesty, and each and every of them, severally and respectively, may plead, that he or they had first actually taken upon themselves, or held or executed the office of franchise, which is the subject of such information, six years or more before the exhibiting of such information, such six years to be computed from the day on which such defendant was actually admitted and sworn into such office or franchise; which plea may be pleaded either singly, or together with such plea as they might have lawfully pleaded before the passing of this act, or such several pleas as the court, on motion, shall allow; and if, upon the trial of such information, the issue joined upon the plea aforesaid, shall be found for the defendants, or any of them, he or they shall be entitled to judgment, and to such costs as they would by law have been entitled to, if a verdict and judgment had been given for them upon the merits of their title.

The second section provides, that the prosecutor may reply a forfeiture, surrender, or avoidance, by the defendant, of the office, or franchise happening within six years before the exhibition of the information, whereon the defendant may take issue, and shall be entitled to costs in manner aforesaid.

The preceeding statute having been made in pari materiá with stat. 9 Ann. c. 20. is confined to corporate officers". But the defendant is entitled, by this act, to plead several pleas, although the limitation of time does not form the subject of one of his pleas".

Where the plea consists of several facts, from which the defendant infers that he is entitled to the office, the replication may contain a denial of any of the facts stated in the plea; but if it contain merely a denial of the inference drawn by the defendant from those facts, it will be bad; for that amounts merely to a denial of the law; for the judges are to determine whether the inference drawn by the defendant is fairly drawn.

In an information against the defendant for usurping the office of portreeve, defendant shewed a title, and concluded his plea, "and so he says that he did not usurp in manner and form as in the said information is alleged;"-the

p R. v. Richardson, 9 East, 469.

q R. v. Autridge, 8 T. R. 467.