information in the nature of quo warranto: it was therefore made a queftion whether Smart's election was good, as in reality one bailiff only prefided at the meeting. It was agreed, that if two bailiffs had prefided, the affembly would have been good, and that an election by a majority of the whole body affembled would alfo have been good; but it was contended that the election in the prefent cafe was void, and the court was of that opinion, because the two bailiffs made but one officer. They confidered the cafe in the fame point of view, as if the head officer had been a mayor.

ayor's consent

is necessary to the vaciver

of a corpor act.

WHERE the provifions of a charter direct that the new where the mayor shall be sworn before his predeceffor, the presence of the latter is not fufficient; there must also be his affent; at least nothing must appear from whence his dissent is manifeft. By the charter of New Romney, the new mayor was to be fworn before his predeceffor. At the election there were two candidates, Ellis and Whitwick; Ellis had the majority, notwithstanding which the mayor ordered Whitwick to be fworn: the town clerk read the oath, and both Ellis and Whitwick laid their hands upon the book and kiffed it. On a trial of the iffue, whether Ellis was duly fworn, the judge ruled that he was not; for that there was no difference between being sworn by the mayor and before him, and that as it was to be his act, his affent muft go along with it (a); and on a motion for a new trial, the court were of the fame opinion.

(a) Rex v. Ellis. 2 Str. 994.

SECTION

SECTION VII.

Of the regularity of corporate proceedings.

EVERY corporate act must be done in a corporate affembly, properly constituted and duly affembled. Of the proper conftitution of a corporate, assembly fomething has been faid in the preceding fection, and fomething further will be faid in the prefent; but the first object of confideration is that it be duly affembled. This depends on the members having had fuch notice of the meeting, as the nature of the affembly itself, the time of its being held, and the nature of the bufinefs to be tranfacted, require.

WHEN a corporate act is to be done not on a charter day, and by a felect number, all the members who, by the conftitution of the corporation, compose the affembly, except those who have abfolutely deserted the town, should have notice that fuch particular affembly is to be held for the purpofe of doing fome corporate act, though it be not in general neceffary that the particular business should be fpecified. And where there are different affemblies in a corporation with diftinct powers, and all the members of the smaller affembly are members of the more numerous; if the more numerous affembly be fummoned to meet to exercise the powers lodged in them, those who are members of the fmaller affembly cannot feparate from the reft, and exercise their diftinct powers: but there must be a fummons for that purpose of the smaller affembly by itself.

THE Corporation of the city of Carlisle confifted of a mayor, aldermen, bailiffs, and capital citizens, who together formed the common council, and had the power of electing

electing capital citizens; the power of amotion was in the mayor and aldermen only, or the major part of them. The common council met for the purpose of transacting the bufinefs of that affembly; and the mayor and aldermen made an order for the amotion of one Poulter, a capital burgefs, for a cause which was allowed to be legal. The cafe coming before the court on the application of Poulter to be restored, the Chief Juftice (a) obferved, that the powers of the common council, and of the mayor and aldermen, were diftinct; that the common council could do no as, unless affembled in that capacity; neither could the mayor and aldermen, unless they met only in that cha racter, on a regular fummons for that purpofe; and that as thefe two bodies had diftinct authorities, they must be fummoned in their diftinct capacities; that here was no fummons to meet as mayor and aldermen only, of which the confequence was, that the acts done by them in that diftinct capacity were void. An alderman, when he received a fummons to the common council, might confider with himself, that there were a great many members, and that probably his fingle voice might not be wanted, and therefore he might ftay at home: but when he was fummoned to meet with the mayor and aldermen only, he might fay, there are but twelve of us in all, and therefore my voice and advice, to which others have a right, may have its weight: he might likewise reflect, that the powers lodged in the court of mayor and aldermen were of a higher nature than their other powers; and therefore, as his prefence might, on both accounts, be neceflary, he might make a point of being there. Was it reafonable, then, that the others fhould proceed to act as mayor and aldermen only, when they affembled as members of the (a) Pratt.

common

common council?

What confufion would this make in

the city of London, if, when the whole body was affembled, they should fuddenly draw off into different parties, and execute their diftinct powers?

SOME difference arifing on a collateral point, the matter was adjourned; but afterwards the Chief Juftice delivered the opinion of the court, that the removal in this cafe was not regular, and that there ought to have been a fummons for the mayor and aldermen to meet in their distinct capacity (a).

THE Corporation of Appleby confifted of a mayor, twelve aldermen, and fixteen common councilmen, befide the freemen at large: the mayor was to be chofen by the common council out of the aldermen, and the common councilmen likewife by the common council out of the freemen: the members used to be summoned to meet for the election of a mayor, by order of the old mayor, not on any fixed day, but fome time about Michaelmas: on the 26th of May, 1674, an order was made by the mayor, aldermen, and common councilmen, that they should for the future meet on the Monday before Michaelmas day, every year, to choose a mayor: on other days for filling up vacancies of aldermen or common councilmen, the mayor used to fummon the body, and they never used to meet without fuch fummons; when they met, he acquainted them with the vacancy, and with the occafion of the meeting on the 23d of September, 1723, being the Monday before Michaelmas, the mayor, eleven aldermen, and fifteen common councilmen met in the Moothall: the mayor declared their meeting was to elect a mayor; on which fome of the common council faid, there was a vacancy of an alderman and common councilman, and they

(a) Rex v. mayor of Carlisle. I Str. 385.

4

Would

would firft proceed to fill up thofe vacancies: the mayor replied they were filled up; on which nine of the common council withdrew into the council chamber, the other fix ftaying in the moothall with the mayor; the nine elected a common councilman, figned a paper purporting their election, brought it into the moothall, tendered it to the mayor, and defired him to fwear the perfon they had chofen.-On a trial at bar, on the validity of this election, it was attempted to be proved, on behalf of the plaintiff, that it was usual to fill up vacancies on the Monday before Michaelmas, before the election of the mayor; but only. one inftance was given in evidence of fuch a thing having been done; and that was but two years before the election of the plaintiff; and it did not appear but that the mayor directed the going to that election, and that all the common councilmen then living were prefent and confenting. But all the witneffes agreed, they never knew, before this time, an instance of proceeding to fill up a vacancy, with`out the mayor's declaring the vacancy, and directing them to proceed to fill it up.

THE Counsel for the defendant contended, that on this evidence the plaintiff's election was void; for that this being a corporation by prescription, the right and manner of election was to be governed by the ufage; that for the election of aldermen and common councilmen at any other time but this Monday before Michaelmas, it was agreed there ought to be a preceding fummons from the mayor for the corporation to meet; that it had been the fame in the cafe of the election of a mayor, till the order in 1674; and that that order did not affect the prefent cafe; that the mayor's prefence being neceflary at the meeting, he ought to prefide, though he had no vote; that as this was not a day appointed for choofing common councilmen, and no fummons

F f