their corporate capacity, were sole commissioners or trustees before the election of the town-council (r).

V. By-Laws.

This power,

EVERY corporation has power to make by-laws. 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 (s). It is incident to the whole body of every corporation; and, therefore, if a charter give to a select body power to make by-laws touching certain matters therein specified, that does not take away from the body at large their incidental power to make by-laws touching other matters not specified in the charter (t). 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 commonalty (u); 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; 2ndly, the aldermen; 3rdly, 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 (x).

By the Municipal Corporation Act (y), the council of any of the boroughs mentioned in the schedules of that act, are empowered to make such by-laws as to them shall seem meet for the good rule and government of the borough, and for suppression of all such nusances as are not already punishable in a summary manner, by virtue of any act in force throughout such borough, and to appoint such fines as they shall deem necessary for the prevention of such offences, under certain limitations.

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,

(r) Staniland v. Hopkins, 9 M. & W. 178.

(8) Hob. 211.

(t) R. v. Westwood, B. & C. 781. Judgment affirmed on error, D. P., 21st July, 1830, 7 Bingh. 1, Borough of Chepping Wycomb.

(u) Case of Corporations, 4 Rep. 77, b. See also Bather v. Boulton, 1 Str. 314; R. v. Bird, 13 East, 375.

(x) R. v. Head, 4 Burr. 2515, Borough of Helston.

(y) 5 & 6 Will. IV. c. 76, s. 90.

1st, that a majority of that definite body should exist (z) 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 (a). 2ndly. That a majority of that body must attend the assembly, where such act is to be done (10). 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 (b). "It has now been for many years an established principle in corporation law, that if an election is to be made by a definite body alone, or by a definite together with an indefinite body, a majority of the definite body must be present. The general rule, however, that a majority of each definite part of the elective body shall be present at the election, does not apply to all corporations: e. g., it does not apply to Queenborough; for, from the peculiar constitution of that corporation (c), the application of the rule would lead to an absurdity or impossi bility. In the case of an election to an office by a select body, it is not necessary in the notice (d) to them to state the purpose of the meeting. 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 (11). 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 a 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

(z) R. v. Morris, 4 East, 17.

(a) Lord Kenyon, C. J., R. v. Grampond, 6 T. R. 302.

(b) R. v. Bellringer, 4 T. R. 819; R. v.

Miller, 6 T. R. 268.

(c) R. v. Greet, 8 B. & C. 369.
(d) R. v. Pulsford, 8 B. & C. 350.

(10) By stat. 5 & 6 Will. IV. c. 76, s. 69, all acts required by virtue of this act to be done by the council of any borough, shall be done and decided by a majority of the councillors present; the whole number present not being less than one-third part of the number of the whole council.

(11) See the notice of meetings of the council required by the Municipal Corporation Act, 5 & 6 Will. IV. c. 76, s. 69.

an absolute negative (e). 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 electors, 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 (ƒ), at the same meeting, without any particular summons to them for that purpose in their select capacity, proceed to an election of a common 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. When a meeting for election or amotion takes place on a day not appropriated to that purpose by the constitution of the borough, notice must be given to all the members. Where the custom was to serve a personal notice on all the resident burgesses; it was holden (g), that a qualification of the custom, that an accidental omission to serve a burgess was not a violation of it, was bad in law. 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 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 (h). 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 (12), 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 was competent to a corporation to make such ordinances only as are for

(e) Per Lord Hardwicke, C. J., in R. v. Kynaston, B. R., T. 8 & 9 Geo. II., MS. (f) R. v. Theodorick, 8 East, 543. (g) R. v. Langhorn, 4 A. & E. 538.

(h) R. v. Tucker, E. 14 Geo. II., MS. Serjt. Hill, vol. 27, p. 184, Borough of Weymouth. Affirmed D. P. 1742.

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

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 (i). So a by-law extending the number of persons eligible, if it varies the constitution of the corporation as prescribed by the charter is bad (k). 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 (1). 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 common councilmen 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 commoncouncil, and sixty others, who were senior common freemen; the by-law was holden to be bad (m). 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 (n). A bylaw which gives a voice in the election to any person to whom it was not given by the constitution of the borough, is bad (o). 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 (p). 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 di

(i) R. v. Phillips, Mayor of Carmarthen, H. 22 Geo. II.; Trin. 22 & 23 Geo. II., MS.; and Bull. N. P. 211, S. C., cited in 3 Burr. 1836, 1838, 1839 (13).

(k) R. v. Bumstead, 2 B. & Ad. 699. See R. v. Attwood, 4 B. & Ad. 481; 1 Nev. & M. 286.

(1) R. v. Mayor of Cambridge, H. 23 Geo. III., MS.

(m) R. v. Cutbush, Common Councilman of Maidstone, E. T. 8 Geo. III., 4 Burr. 2204 (14).

(n) R. v. Tucker, E. 14 Geo. II., B. R., MS.

(0) R. v. Bird, 13 East, 387. (P) Adm. per Lord Kenyon, C. J., in R. v. Fishermen of Faversham, 8 T. R. 365.

(13) "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, ubi sup.

(14) 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 churchwarden 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 connection with, their corporate character or capacity.

rected to presume its existence (q). 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 (r).

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 (s). The 35th section of the Municipal Corporation Act (t) directs that, when councillors are elected, "the mayor shall cause the voting-papers to be kept in the office of town-clerk during six calendar months at the least after every such election; and the town-clerk shall permit any burgess to inspect the voting-papers, on payment of is. for every search." Under the foregoing clause, the town clerk is not compellable to allow two persons at once to inspect the votingpapers, or to give two of them to one person at the same time. But he is bound (u) to allow any voter who brings a list of his own to compare it with the papers produced by the town-clerk, and mark it according to what he finds there. In an action for the breach of a by-law restraining persons from exercising trades within the limits of a corporate city, unless they become freemen, the court will compel the corporation (x) to allow the defendant to inspect the by-law in the corporation books. But now, by the Municipal Corporation Act (s. 14), notwithstanding any custom or by-law, every person in any borough may keep any shop for the sale of all lawful wares and merchandizes by wholesale or retail and use every lawful trade, &c. for hire, gain, sale, or otherwise within any borough.

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 (y). Hence he cannot plead not guilty (z).

In like manner he cannot

Comp. 2 B. & Ad. 129, ante, p. 1084. (t) 5 & 6 Will. IV. c. 76.

(u) Per Cur., R. v. Arnold, 4 A. & E.
663.
(x) Harrison v. Williams, 3 B. & C.
162.

(y) Per Holt, C. J., 12 Mod. 225.
(z) Ib.