1792. It has also been admitted, not as evidence of an usage since, but before the charter, which was the subject of consideration: and as the corporation claimed rights by virtue of the usage BELLRINGER. which presupposed a former charter, the only question has been, The KING against Whether the words of the subsequent charter have been explicit enough to overthrow the former usage? Again, where recourse has been had to it at all, it has been to preserve the corporation, and not to destroy it, as it is attempted now. In the next place, even where the usage has been on the same side to which the Court leaned in the construction of the charter, they have expressly waved it as the ground of their opinion, and only adverted to it as confirmatory thereof; but if on the words of the charter itself they have been of a different opinion, they have always treated the usage with neglect, and disavowed its being binding upon them: and it has been often said, that where the words of a charter were plain, usage could not alter them; if doubtful, they might be explained by it. This furnishes another strong objection to the replication: for it is a clear rule in pleading, that no matter can be pleaded which, admitting it to be true, is inconclusive: and it will not be pretended that if the Court, independent of the usage would construe the charter one way, they are bound by force of the usage to construe it another. This brings the argument to the true and only question, namely, Whether by the true construction of the charter of the 36th Eliz. a majority of the whole number, or only of the existing body of the corporation, are necessary to form an election to the office held by the defendant? The words, on which that question more immediately turns, are "That the mayor, and the common clerk for the time being, "and the common council for the time being, or the major "part of them, should elect all the officers and ministers," &c. The corporation consisting of the mayor and thirty-six capital burgesses, it is contended on the other side that the major part of them must mean the major part of the whole body consisting of the definite number of thirty-seven; and consequently that no less than nineteen can form the election; but the words before used "for the time being," necessarily refer to the existing body at the time; and therefore the major part of them must mean the major part for the time being, or of the existing corporation. This is the plain grammatical construction; a construction the more proper, because, as Lord Coke says (a), the king's grants ought to have a liberal and favourable construction, usque ad plenitudinem; but even if that were more doubtful than as 1792. The KING against BELLRINGER. as occurs in this case. That charter afterwards stated that they should assemble at the Guildhall, and that the major part of them then there assembled should elect. There were at that time only eleven capital burgesses, including the mayor, existing; and Leigh's election was made by four only, who were assembled at the Guildhall, in the absence of the rest. The Court held the reasonable construction of the charter to be, that the mayor and a major part of the subsisting burgesses should meet to form the election. Now the major part of the subsisting body would have been six; whereas seven were necessary to make a majority of the whole number. (BULLER, J. remarked, that Aston, J. had said in that case, that though a majority of the subsisting body was sufficient to form the election when met, yet that there still must remain enough of that subsisting body to form a majority of the whole body when the corporation was full.) To this it was answered, That, whatever opinion Aston, J. might have thrown out in that case upon the subject, it does not appear that the rest of the Court adopted it: indeed in the printed report, their reasoning, which is stated to be the reasoning of all the judges, proceeds upon a different foundation.— And in two subsequent cases Aston, J. himself seems to have adopted a different opinion; first in R. v. Varlow, Cowp. 248, where the election of mayor being by the mayor, aldermen, and burgesses, or the greater part of them, Aston, J. and the rest of the Court expressly declared their opinion, That an election by the major part of those assembled was sufficient, although it might not form a majority even of the subsisting body; that being indefinite. There too, the words for the time being were wanting, which makes it stronger than this case. And those very words were afterwards strongly relied on by Aston, J. Rex v. Monday, Corp. 538; who, in answer to a question of Lord Mansfield, whether in a case of a definitive body a majority of the whole number was not necessary to constitute an election, answered that it was so conceived in Rex v. Reese; and Rex v. Newsham: but that in the case before them the words seem to confine it to a majority of the members for the time being. And there the words referred to were exactly the same as these.— The question of construction there seems entirely concluded by these authorities. Against the demurrer, it was insisted to be hardly necessary to refer to the usages at all, the words of the charter itself being plainly plainly against the defendant; but if they were only proved to be doubtful, and to be capable of either construction, then the usage was a proper and legal expositor of them; and being so, was properly put upon the record. First, it was contended, That the construction of the charter would be uniform, consistent, and sensible, by referring the words for the time being, upon which the main stress is laid, to the different individuals of whom the corporation might be composed in after-times from the granting of the charter. Those words can have no other signification in many parts of the charter; as where applied to the mayor, or common clerk, for the time being; that is, the mayor, &c. whoever he may happen to be at such a time. If that be so with respect to those officers, the same words ought to have the same construction, when applied to the other members of the corporation, namely, the body composed of twelve, and that of twenty-four. These are expressly directed to form the common council of thirtysix. Each of the persons there named was first to take upon him one of these offices; and when the charter directs how the elections shall be made in after-times, it naturally, though perhaps only superfluously, describes those bodies with the addition of the words "for the time being;" and meaning no more than in the other cases before alluded to, that those who for the time being filled those thirty-six offices, which formed the common council, should elect. If the charter be read with this view, all the difficulties started on the other side are removed at once; and the same words will have the same construction throughout the charter, which will not be the case according to the construction contended for by the defendant. In several parts of the charter, where the words "for the time being, or the major part of them," occur, it is with express reference to the common council, as consisting of thirty-six; as in the election of mayor, &c. Now the major part for the time, being of thirty-six can have but one interpretation. With respect to the King v. Grimes (a), it may be observed, that this point was never agitated there. It was enough to say that at all events the election had not been made even by a majority of the subsisting body; and the expressions there made use of have a reference to that fact. Besides what has been stated by Buller, J. as said by Aston, J. in that case, is decisive against the defendant; and in the King v. Varlo (b), the Court expressly took the distinction between corporations consisting of a definite and an (b) Cowp. 248. (a) 5 Burr. 2598. 1792. The KING against BELLRINGER. VOL. IV. 3 G indefinite 1792. The KING against 66 66 indefinite number; in the former they considered it necessary for a majority of the whole body to meet, in order to form the election; though when such a majority were met, a majority BELLRINGER. Of those might do the act. What is there said in the argument by Wallace respecting the King v. Grimes, which was recent and in the recollection of the Court and Bar, is confirmatory of Mr. J. Buller's note of it. Arguing upon the distinction above alluded to, he says, "But if the number of the electors be definite, as in Grimes's case, there the majority of the whole body must first meet, and then the major part of those so "assembled may elect." This statement of that case is not denied by the Court, and is conclusive. With respect to what is supposed to have been said by Aston, J. in Rex v. Monday (a), it is singular enough that he should refer to Rex v. Reese, and Rex v. Newsham, as confirmatory of the idea, that if a majority of the whole of a definite body were not left, the corporation would be dissolved, and yet suppose a difference in the case before him from those, because of the words for the time being; for upon reference to the paper-book in Rex v. Newsham, it appears that the election was under a bye-law, which directed that the mayor and common council for the time being, or the major part of them, should elect. There must, therefore, be some mistake in that point: at all events it is no more than a loose suggestion, without expressing any opinion upon the subject; but the distinction between a definite and an indefinite body in this respect, is founded upon older authorities than these; Freem. 504. 6 Vin. 269.; where many authorities are collected, as well respecting the legal operation of usage to construe grants and charters as to this point; amongst others, a case of the Queen v. Lock, M. 6 Ann. B. R. where it is said, that if an act to be done refer to the constituent members of a corporation, nothing can be done but by a majority of those who are the constituent parts of the corporation: but where a thing is referred to be done by the commonalty, there the majority of those present, all being duly summoned, will bind the rest; and in the preceding section it is said, that if a corporation consist of thirteen, there ought to be seven to form a chapter, though the majority of those seven will bind. Next, if the Court still think the words of the charter doubtful, it cannot be denied but that they may look at the usage by which to construe them. It is true that most of the authorities on this subject are where the questions have turned upon the pro (4) Corp. 537. |