act; it is sufficient if it be done by a majority of the whole when so properly assembled (z). "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 (a), the application of the rule would lead to an absurdity or impossibility." In the case of an election to an office by a select body, it is not necessary in the notice to them to state the purpose of the meeting (b). 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 (c). 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 an absolute negative (d). 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 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 (e). When a meeting for election or a motion 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

(z) R. v. Bellringer, 4 T. R. 819; R. v. Miller, 6 T. R. 268. As to what will constitute a majority, see R. v. Overseers of Christchurch, 7 E. & B. 409; and see ante, p. 1180.

(a) R. v. Greet, 8 B. & C. 369.
(b) R. v. Pulsford, 8 B. & C. 350.

(c) See Roberts v. Price, 4 C. B. 231; and see the notice of meetings of the council required by the Municipal Corporation Act, 5 & 6 Will. IV. c. 76, s. 69. (d) Per Lord Hardwicke, C. J., in R. v. Kynaston, B. R., T. 8 & 9 Geo. II., MS. (e) R. v. Theodorick, 8 East, 543.

to serve a personal notice on all the resident burgesses; it was held, that a qualification of the custom, that an accidental omission to serve a burgess was not a violation of it, was bad in law (f). 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 held, 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 (g). 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, or the major part of them, of which the mayor was to be one, should elect one of the common-council to be mayor (h): it was held, that such by-law was bad; because it was 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 (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 held 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

(f) R. v. Langhorn, 4 A. & E. 538.

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

(h) The charter contained a provision that the corporation might elect out of the burgesses twenty to be commoncouncil. MS.

(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. "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, infra; and see ante, p. 1188.

(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.

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 held 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 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 (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 directed to presume its existence (q); for it is an "invariable principle that, when we find a very ancient usage, we are to presume anything which will support it" (r). 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 (s).

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 (t). The 35th section of the Municipal Corporation Act (u) 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 ls. for

(m) R. v. Cutbush, Common Councilman of Maidstone, E. T. 8 Geo. III., 4 Burr. 2204. See also R. v. Spencer, 3 Burr. 1827, (the same corporation,) where a bylaw excluding all the commonalty, except such as had served the office of churchwarden and overseer for one year, was held 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.

(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. 356. (q) R. v. Powell, 3 E. & B. 377.

(r) Per Coleridge, J., 3 E. & B. 389. (s) Per Lord 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.

(t) R. v. Hostmen, in N. upon T. Str. 1223. And see R. v. Merchant Tailors' Company, 2 B. & Ad. 129, ante, p. 1092. (u) 5 & 6 Will. IV. c. 76.

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 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 (x). 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 would compel the corporation to allow the defendant to inspect the by-law in the corporation books (y). But now, by the Municipal Corporation Act (sect. 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 (z). Hence, he cannot plead not guilty (a). In like manner, he cannot plead non usurpavit, or that he did not usurp the office in question (b). This appears from the nature of the charge, which calls on the defendant to show by what authority he exercises the office, to which charge the pleas of not guilty and non usurpavit do not afford an answer. By 32 Geo. III. 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 or franchise which is the subject of such information six years (c) 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 (d); 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

(r) Per Cur., R. v. Arnold, 4 A. & E. 663.

(y) Harrison v. Williams, 3 B. & C. 162.

(z) Per Holt, C. J., 12 Mod. 225. (a) Ibid.

(b) Queen v. Blagden, 10 Mod. 296.

(c) By 7 Will. IV. & 1 Vict. c. 78, s. 23, proceedings by quo warranto against mayor, &c. must be commenced within twelve months. See ante, s. III. p. 1182; and see 6 & 7 Vict. c. 89, s. 5, ante, p. 1183.

(d) See R. v. Brooks, 8 B. & C. 323.

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 exhibiting of the information, whereon the defendant may take issue, and shall be entitled to costs in manner aforesaid. The preceding statute having been made in pari materia with 9 Ann. c. 20, is confined to corporate officers (e). 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 (f). 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 (g). In an information against the defendant for usurping the office of portreve, defendant showed 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 coroner replied, that he did usurp in manner and form, &c. The replication was adjudged to be bad (h).

VIII. Evidence.

Corporation books are generally allowed to be given in evidence, when they have been publicly kept as such, and the entries made by the proper officers (i); not but that entries made by other persons may be good, as if the town-clerk be sick, or refuse to attend; but then the circumstances under which the entries have been made must be proved. Corporation books being of a public nature, examined copies of the entries therein may also be given in evidence: and consequently the court will not enforce the production of the original books, unless it appear to be necessary that they should be inspected on account of a rasure, new entry, or the like, which must be verified by affidavit (k). An entry in the public books of a corporation, is not evidence for them unless it be an entry of a public nature (1). The deed of a corporation cannot be given in evidence, without some evidence that the seal affixed to it

(e) R. v. Richardson, 9 East, 469, recognized in R. v. M'Kay, 5 B. & C. 645, 646.

(f) R. v. Autridge, 8 T. R. 467. (g) This applies equally to proceedings arising on mandamus (see ante, p. 1105) and to pleadings in ordinary actions.

(h) R. v. Portreve of Honiton in Devonshire, E. 1 Geo. I., MS.

(i) Per Cur., R. v. Mothersell, 1 Str. 93. (k) Brocas v. Mayor, &c. of London, 1 Str. 307.

(1) Marriage v. Lawrence, 3 B. & A.

142.