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 clections 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 vacancies, and the risk of dissolving the corporation'.

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 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

1 R. v. Mayor of Grampond, 6 T. R.

m R. v. Pasmore, 3 T. R. 199.

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 redundency 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 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 commonaltyP; 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.

a R. v. Bird, B. R. H. 51 G. 3. 13 East, 367.

o Hob. 211.

Case of Corporations, 4 Rep. 77. h.

See also Barber v. Boulton, 1 Str. 314. R. v. Bird, 13 East, 375.

q R. v. Head, 4 Burr. 2515. Borough of Helston.

In order to give validity to corporate acts, it is essentially necessary in all cases where by the constitution of the cor poration 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".

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 an inhabitant, might be elected mayor, was bad, inasmuch as it was inconsistent with the charter; because it was not intended, that aldermen

r R. v. Morris, 4 East, 17.

s Ld. Kenyon, C. J. R. v. Grampound, 6T. R. 302.

t R. v. Bellringer, 4 T. R. $10. R. v. Miller, 6 T. R. 268.

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

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 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 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

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

y 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.)

z R. v. Mayor of Cambridge, H. 23 G. 3. MS.

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

(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.

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.

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

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

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

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

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

e See 2 Vez. 330.

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

(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.