Of the Number and Qualifications of the Electors neceffary to render an Election under a Charter valid. 14. By the charter granted to the borough of Denbigh, there are to be two bailiffs, two aldermen, and twenty-five capital. burgeffes; and in cafe of a vacancy among the laft, it directs that the bailiffs, aldermen, and capital burgeffes for the time. being, or the major part of them, quorum unum ballivorum et unum aldermannorum duos effe volumus, to elect another. By this charter nothing is required but the prefence of one bailiff and one alderman at every election, and their confent to the perfon chofen is not neceffary. Sir Robert Salisbury Cotton v. Davis, 1 Str. 53. 15. The corporation of Malden confifts of three integral parts, viz. two bailiffs, fix aldermen, and eighteen head burgeffes. Two perfons prefided as bailiffs when the defendant was elected an alderman, against one of whom judgment of outer was afterwards given for want of a proper fwearing in. The court were of opinion, that under the charter, the words of which were, " that "the bailiffs and head burgeffes, or the major part of them, for "the time being, fhould elect," &c. two bailiffs were neceffary as prefiding officers, and therefore that the defendant was not duly elected. Rex v. Smart, 4 Burr. 2241. 16. The charter of the borough of Macclesfield directed the mayor to be chofen by the capital burgeffes out of their body. The ufage was for fifty years that the common burgeffes have put five of the capital burgeffes in nomination, out of whom the capital burgeffes chofe a mayor, and this was found by the jury to be in confequence of a bye-law not now extant in writing. Per cur. It is a good ufage, being to prevent popular confufion. Barber v. Boulton, 1 Str. 314. 17. But where the common burgeffes put eight of the capital burgeffes in nomination, the election is bad, for it neither purfues the charter nor the custom. Ib. 18. The charter of Eaft Retford directs the election of sewer bailiff, to be made by a majority of a felect body; a bye-law, which gives a cafting vote to the prefiding officer when the votes are equal, is bad. Rex v. Ginever, 6 Term Rep. B. R. 732. 19. By the charter granted to Maidstone, the election of the mayor is appointed to be by the jurats, and of the jurats by the mayor, jurats, and common council men (excluding the commonalty), and of the common council-men by the mayor, jurats, and commonalty. Power is likewife granted by it to the mayor, jurats, and common-council to make bye-laws. They made a bye-law, that only fuch of the commonalty as had ferved the office of either churchwarden or overfeer of the poor for a year should meet and elect common council-men. This is a bad byelaw. First, because the common-council is no part of the commonalty, (whose rights are affected by it,) but a distinct body. Secondly, because the qualification is confined to what does not relate relate to or concern the corporation. Rex v. Spencer, 3 Burr. 1827. 20. The number of the electors may be reftrained by a byelaw. But a bye-law cannot ftrike off an integral part of them; neither can it narrow the number of the perfons out of whom the election is to be made. Per Lord Mansfield, C. J. and Wilmot, J. who cites Rex v. Philips, Mayor of Caermarthen, 22 & 2 23 G. 2. B. R. cited Ib. But fee Rex v. Giniver, 6 Term Rep. B. R. 735. 21. Ufage is not fufficient in a corporation by charter to fupport an election made otherwise than according to the charter; as where the charter directs election by the commonalty, and it is done by a select number, there must be a bye-law, and the court will not determine that on motion. Rex v. Tomlyn, Cafes Temp. Hardw. 316. 22. But in a prefcriptive corporation it is good evidence of a charter directing an election to be made by the remaining members of a definite body; and a perfon is well elected by a majority of such fubfifting members, as diftinguished from a majority of the full body. Rex v. Hoyte, 6 Term Rep. B. R. 430. 23. A mandamus was granted, commanding the defendant to proceed to an election of a new mayor upon the next charter day; it appearing by affidavit, that, under a clause for holding over, he had been in poffeffion four years. Rex v. Robbifon, Mayor of Helftoun, 1 Str. 555. 24. Upon an information in nature of a quo warranto for the office of mayor of Christ Church, it was found that the perfon who prefided at the defendant's election was never elected mayor, or ever had any lawful right to the office, but that, under colour of being elected, he was in fact presented and fworn at a courtleet, and acted all the year, though an information was depending against him, in which, after the year, there was judgment of oufter; but it did not appear that there was any rightful mayor at the fame time. The court were of opinion, that he was a (a) Vide the mere ufurper, and that to conftitute a man an officer de facto there must be at least the form of an election (a), and that therefore the defendant was not duly elected. Rex v. Lifle, 2 Str. opinion of Aiton, J. 4 Burr. 2140. 1090. 25. The court alfo inclined ftrongly that the prefence of a mayor de facto, recently profecuted, and against whom judgment of oufter had been obtained, would not be fufficient to authenticate the defendant's election. lb. 1091. 26. Where, by the charter granted to the borough of Ipfwich, the election of a portman was given to the residue of the portmen or the greater number of them affembled in the council-chamber; and the election was made by one fingle portman, he being the only one left. The court faid they were inclined to fupport it, but gave no exprefs opinion, the cafe being decided on another point. Rex v. Richardfon, 1 Burr. 517. 27. Where 27. Where an integral part of a corporation, compofed of a definite number, is required to vote at an election of a corporate officer, a majority of fuch integral definite part must attend, otherwife there can be no elective affembly; although other parts of the corporation also join in such election, and the majority of the whole exifting body actually attend. But a majority of thofe prefent, when legally affembled, will bind the rest. Rex v. Miller, Eaft. 35 G. 3. 6 Term Rep. B. R. 268. 28. In an information in nature of a quo warranto for defendant to fhew by what authority he claimed and exercised the office of port-reeve of the borough and manor of Fowey, the defendant relied upon an election by an homage confifting of twenty-three free tenants. The jury found that twenty-one of those persons were not free tenants; and the court held the election to be void. Rexy. Mein, 4 Term Rep. B. R. 480. 29. A regular fummons having iffued, appointing a meeting to elect a town clerk for Nottingham, twenty-one electors affembled, the whole number being twenty-five. The mayor put T. S. in nomination, and no other perfon was nominated. Nine voted for him, twelve did not vote at all, and eleven of these protefted against any election being had at that time, alleging the office to be already full. The court were of opinion, that he was duly elected; and that wherever electors are prefent and do not vote at all, they virtually acquiefce in the election made by those "who do." Oldknow v. Wainwright, and the cafes there cited, 2 Burr. 1017. 1 Blackft. 229. 30. The corporation of Plymouth confists by charter of a mayor, twelve aldermen, &c.; and if a vacancy happens among the aldermen, the charter directs, that the mayor and the rest of the aldermen for the time being, or the greater part of them, are to elect one of the burgeffes in his or their places. There being seven offices of aldermen vacant, the mayor and four aldermen affembled to fill up the vacancies. The mayor and one alderman delivered in a list of seven burgeffes, of which the defendant, being duly qualified, was one, and voted for them, but the other three protested and voted against them. Then the three aldermen gave in a list of seven other burgeffes, three of whom were objected to as not having taken the facrament, and three others for nonrefidence, both which grounds of objection were known at the time to the aldermen propofing them. On the question whether defendant was duly elected an alderman? per cur.-There are different kinds of elections, and different queftions may arife out of each. Upon those of a member of parliament, or a verderor, where the electors must proceed to an election, because they cannot defer it to another time, there must be a candidate or candidates, and there is no way of defeating the election of one candidate propofed but by voting for another. But in the bufinefs of a corporation it is a different thing. The present is a propofal made to the body by the mayor, and he proposes feven perfons together to fill up feven vacancies. The queftion put upon Vide Craw- upon these feven is not which of them fhall be elected alderbut whether the feven fhall be fo. The only answer is yes or no; and upon that motion there is a majority against them, both in fubftance and form. Judgment for the crown. Rex v. Monday, Cowp. 530. 31. Upon an information in nature of a quo warranto against the defendants, the question as to the validity of their election turned upon this point: the charter prescribed no particular place of election, but the ufual one was the Guildhall, and the usual notice was by the ringing of a bell, which used to ring at 8 and at 9 o'clock, and from 10 to the time of meeting. The election in queftion was made at an inn in the town, on a bye day, and without the usual notice of ringing the bell: but all the electors entitled to notice had perfonal notice of the meeting at the inn, and of the business to be transacted. All the electors were prefent, except two, (who did not live within reach of fummons,) and they were unanimous in the election. The court were of opinion, that the want of ringing the bell, being part of the ufual notice, vacated the election; for it could not be difpenfed with unless every member were prefent, and confented to waive it. Rex v. May and Little, Freemen of Saltaf, 5 Burr. 2681. 32. Quare, Whether an infant is capable of being elected a burgefs of a corporation? Rex v. Sir John Carter, Corp. 58. 33. 7. S. having fair connections with the borough of S. previous to his election to the office of bailiff, for which refidence is a neceffary qualification, took a house at first for four years, afterwards at his landlord's request for one, and flept there one night before the election, and did not return for near a month afterwards, when he stayed two days, but retained poffeffion of his houfe under the leafe the whole time. On a motion for leave to file an information in nature of quo warranto, B. R. was of opinion that this appearing to be done bona fide, it was a fufficient legal refidence to fatisfy the qualification, and refufed the rule. Rex v. J. Sergent, 5 Term Rep. B. R. 466. 34. The ftatute 5 G. 1. c. 6. operates rather to the protection of the poffeffion of a perfon who has been elected into a corporate office, (not having taken the facrament,) after he has been fix months in it, than as a bar to the remedy. So that if the objection was recently made before any poffeffion; as if the party upon being refused to be fworn in, was to apply for a mandamus, and the anfwer to the application fhould be, that the ground of the refufal was because he had not taken the facrament, I should think it a fufficient objection. Per Lord Mansfield in Rex v. Monday, Corp. 539. Of the Power of the Corporation to regulate the Form of the Election in particular Cafes. 35. When the mode of electing officers is not regulated by charter or prefcription, but has been varied from time to time, the corporation Ε corporation may make bye-laws to regulate the election. New 36. The court will not decide the validity of the election of a 37. If the bailiff and burgeffes are empowered to appoint a fchoolmafter, and to make laws, &c., though they cannot delegate their authority, they may make a regulation that another (as a college, &c.) fhall name a proper person whom they will appoint with power referved to themselves, to approve or difapprove. Attorney General v. Shrewsbury, Bunb. 215. Offwearing the Perfon elected into Office. 2 Str. 1097. 38. The defendant was duly elected mayor of Penryn, but hav- Caftel and ing acted before he was fworn in, the court held it an ufurpation, Carter, and that judgment of ouster must be given against him. After Andr, 120. which they refused to grant a mandamus to fwear him in, there 241. being no new election fubfequent to the judgment. Rex v. Herle, Mayor of Penryn. Affirmed in Dom. Proc. 1 Str. 582.-625. 39. The prefiding officer at an election for bailiffs was chofen as one of them, and in his plea to an information in nature of quo warranto to fhew by what authority he exercised the office, he fet out his election, and that before his admiffion into or executing the office, he was fworn in before J. M., W. S., and J. E., three other senior aldermen; who were all that were prefent at the meeting. It was held that he was not properly fworn in before the prefiding officer, which is abfolutely neceffary where the election is made under 11 G. 1. c. 4.; and it not being alleged that he was fworn before himself, the court did not enter into the question whether he might be fo. Rex v. Charles Malden, 4 Burr. 2136. 40. Where the question of being duly fworn in has not been fully before the jury, and it is material to determine the right of franchife, the court will grant a new trial. After which the defendant may apply for an amendment of his pleadings or not, as he thinks proper. Rex v. J. Malden, 4 Burr. 2135. 41. By the charter of New Romney the new mayor is to be fworn before his predeceffor. There were two candidates for the office, and the mayor ordered him who had the least number of votes to be sworn in. But the fuccessful candidate kept his hand on the book, and kiffed it, as well as the other. He is not well fworn in, for as it is to be the act of the mayor, his affent must go along with it. Rex v. Ellis, 2 Str. 994. Of the right of Amotion of Offices. 42. The power of amoving its officers or members is incident to corporations as much as that of making bye-laws. Lord Bruce's cafe, 2 Str. 819. Rex v. Richardfon, 1 Burr. 517. S. P. VOL. II. A a 43. There Vide alfo then, |