persons so voting had not voted at all. In such case, if there are other candidates, who are duly qualified, he who has the greatest number of legal votes will be duly elected: but until he be sworn in, the office is not legally filled up and enjoyed by him, within the exception in the annual indemnity act. And, therefore, if the disqualified person who had the greatest number of votes be sworn into office, and afterwards qualify himself by making the declaration, &c. within the time allowed by the indemnity act, he is hereby recapacitated, and his title to the office protected, such office not having been then vacated by judgment, or legally filled up and enjoyed by another person. Votes given before notice of the ineligibility are not to be considered as thrown awayɛ.

III. Of the Limitation of Time for granting an Information.

IN the year 1767, in the Winchelsea cases, the court of King's Bench determined that the period of possession after which a corporator ought not to be disturbed, by any information in the nature of a quo warranto granted under the discretion of the court, should be 20 years: this limitation was, in the year 1791, by rule of court, narrowed to six years, and that rule was afterwards confirmed by stat. 32 G. 3. c. 58 but now, by stat. 7 W. 4 and 1 Vict. c. 78. s. 23, (17th July 1837,) after the passing of this act every application to the court of King's Bench for the purpose of calling upon any person to shew by what warrant he claims to exercise the office of mayor, alderman, councillor, or burgess, in any borough, shall be made before the end of twelve calendar months after the election, or the time when the person against whom such application shall be directed shall have been disqualified, and not at any subsequent time.

e R. v. Hawkins, 10 East, 211. R. v. Parry, 14 East, 549.

f R. v. Parry, 14 East, 549.
g R. v. Bridge, 1 M. and S. 76.

VOL. II.

2 I

IV. Of the Construction of Charters, and of the Operation 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 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. Where a corporation takes its rise from the king's charter, the king by granting, and the corporation by accepting another charter, may alter it; because it is done with the consent of all the parties who are competent to consent to the alteration. But the constitution of a corporation, as settled by act of parliament, cannot be varied by the acceptance of any charter inconsistentm with it. A corporation cannot accept a part of the charter and not the whole." Per Yates, J. in R. v. Spencer, Hil. 6 Geo. 3. B. R. "An acceptance of a charter is like an attornment to a grant, which cannot be limited or qualified." Per Powell, J. in case of Malmsbury Corporation, Serjt. Hill's MSS. vol. 22. p. 271.

By the Municipal Corporation Act, 5 and 6 W. 4. c. 76. s. 1, so much of all laws, statutes, and usages, and of all charters, grants, and letters patent, relating to the several boroughs named in the schedules A. and B. as are inconsistent with that act, are repealed. This statute has been amended by a subsequent act 7 W. 4. and 1 Vict. c. 78, which enacts", that

after the passing of this act, (17th July 1837,) in case no election shall be made of any mayor, or any of the aldermen councillors, or other corporate officers in any borough in the said schedules, upon the day or within the time appointed by the Municipal Corporation Act, or by this act, for any such election, or such election being made, shall afterwards become void, whether such omission or avoidance shall happen through the default of the officer who ought to preside at such election, or by any accident or other means, the corporation shall not thereby be deemed to be dissolved or disabled from electing such mayor, alderman, or councillor, or other corporate officer, for the future; but in any case where no such election shall be made, the election for any such mayor, &c. may be had and proceeded with upon the day next after the day on which such election ought to have been made, unless such day shall happen to be on a Sunday, and then on the Monday following.

While a corporation exists capable of discharging its functions, the crown cannot obtrude another charter upon them. It is competent to them, either to accept or reject the proffered charter. A charter cannot be partially accepted, whether it be a charter of creation, or granted to a pre-existing corporation P. 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 voids.

Where an application is made to the court for a mandamus, to direct the filling up of 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 in

o Ld. Kenyon, C. J. R. v. Pasmore, q R.v. Osborne, 4 East, 335. 3 T. R. 240.

p R. v. Westwood, 4 B. & C. 781. Judgment affirmed on error, D. P. July 21st, 1830. 7 Bingh. 1. rough of Chepping Wycomb.

Bo

r Bully v. Palmer, 12 Mod. 247. Salk.

190. S. C.

s Piper v. Dennis, 12 Mod. 253.

convenience which may follow from the not filling up such vacancies, and the risk of dissolving the corporation. The court will grant a rule for an information in nature of quo warranto" at the suit of a private relator against an individual member of a corporation, although the affidavits on which the rule is moved disclose matter tending to dissolve 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 bye-laws 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.

By the Municipal Corporation Acty, after the passing of this act, 9th September, 1835, no person shall be enrolled a burgess of any borough for the purpose of enjoying the rights conferred for the first time by this act, in respect of any title other than by occupancy and payment of rates within such borough, according to the meaning and provisions of this act.

V. Bye-Laws.

EVERY corporation has power to make bye-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. It is incident to the whole body of every

t R. v. Mayor of Grampound, 6T. R. 301.

u R. v. White, 1 Nev. and P. 84.

x R. v. Pasmore, 3 T. R. 199.
y 5 & 6 W. 4. c. 76. s. 13.

z Hob. 211.

corporation; and therefore, if a charter give to a select body power to make bye-laws touching certain matters therein specified, that does not take away from the body at large their incidental power to make bye-laws touching other matters not specified in the charter". Where the corporation is by charter, such bye-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 bye-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; 2ndly, the aldermen; 3rdly, the commonalty; and the right of election is given to the three parts conjointly, a bye-law excluding one integral part from the right of election, e. g. the commonalty, is void d.

By the Municipal Corporation Act, the council of any of the boroughs mentioned in the schedules of that act, are empowered to make such bye-laws as to them shall seem meet for the good rule and government of the borough, and for suppression of all such nuisances 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; 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

b R. v. Westwood, 4 B. & C. 781. Judgment affirmed on error, D. P. 21st July, 1830. 7 Bingh. 1. Borough of Chepping Wycomb.

c Case of Corporations, 4 Rep. 77. b.

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

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

e 5 & 6 W. 4. c. 76. s. 90.
f R. v. Morris, 4 East, 17.