*

The KING against HARPER.

1801.

Friday,
May 11th.

of them, to choose one of

themselves to

be mayor: but the same

charter appointed the first mayor to

continue for a year, and until some other burgess should be elected and sworn, and the two first bailiffs to con

two other bur

tinue until

AN information in nature of a quo warranto was exhibited A charter against the defendant for exercising the office of mayor granted to the mayor, bailof Liverpool, in the county of Lancaster; to which he iffs, and burpleaded that King Charles 1., by his charter of the second gesses, or the greater part year of his reign, reciting that the town of Liverpool was an ancient town, and that the mayor, bailiffs, and burgesses of the town from time immemorial had enjoyed divers liberties, &c. by prescription, charters, and custom, granted that the burgesses and their successors should be incorporated by the name of the mayor, bailiffs, and burgesses of the town of Liverpool, &c.; and the king further granted to the said mayor, bailiffs, and burgesses, that there should be one of the burgesses, in form thereinafter mentioned to be chosen, who should be called Mayor; and that there should be two of the said burgesses, in form thereinafter mentioned to be chosen who should be called Bailiffs; and that the mayor, bailiffs, and burgesses for the time being, or the greater part of them (of whom the said mayor and one of the bailiffs for the time being should be two) should have power to make by-laws. And the king nominated Lord Strange to be the first mayor, to continue till the Feast of St. Luke then next rected the following, and until some other burgess to that office should be elected and sworn, according to the provisions after pressed; and the king also nominated R. Tarleton and J. Southern to be the two first bailiffs, to continue in the same offices unto the said feast, and until two other of the bur. gesses to that office should be in due manner chosen and and the bur preferred according to the provisions after expressed, if the gesses presaid R. T. and J. S. should so long live, unless in the mean like manner sent; and in time from that office they, or either of them, should, for the new bailreasonable cause, be amoved. And the king further granted sworn in beto the said mayor, bailiffs, and burgesses, that the mayor, fore the bailiffs, and burgesses aforesaid for the time being, or the mayor and the greater part of them, from time to time should have power and the bur yearly, upon the Feast of St. Luke, to choose and nominate gesses pre

gesses should be elected and it also di

and sworn;

new mayor to ex- before the last

be sworn in

mayor, his predecessor, and the bailiffs for the

time being,

iffs to be

last bailiffs

sent. These latter provi

sions explain the first, and shew that the mayor must be chosen out of the burgesses at large, and not out of the bailiffs; and this avoids any que tion as to the validity of a swearing in of an officer before himself by his name of office.

M 2

[209]

one

A

1804.

The KING against HARPER.

Election of mayor.

Election of bailiffs.

one of themselves who should be mayor for one whole year then next following, and that after nomination and before admission to that office, he should take a corporal oath before the last mayor, his predecessor, and the bailiffs for the time being, and the burgesses, or so many of them as should be then present, to execute his office rightly, &c.; and if during the year the mayor should die or be amoved, the aforesaid bailiffs and burgesses, or the greater part of them for the time being, one other of themselves into the office of mayor might choose, &c. for the residue of the year, having first taken a corporal oath in form aforesaid. The king further granted that the said mayor, bailiffs and burgesses, [210] yearly, on the Feast of St. Luke, should choose and name two of themselves who should be bailiffs for the year ensuing, and that after such election, and before admission to that office, they should take a corporal oath before the mayor and last bailiff (a) for the time being, and the burgesses, or so many of them as should be then present, to execute that office justly, &c. for one year next ensuing, unless in the mean time, for reasonable cause, by the mayor and burgesses of the said town, or the greater part of them, they or either of them should be amoved. And in case of the death or amotion of the bailiffs, or either of them, within the year, it should be lawful for the said mayor and burgesses for the time being, or the greater part of them, one other or two others of themselves bailiff or bailiffs to choose, &c. The plea then stated the acceptance of that charter; and set forth another charter, granted in the 7 Will. 3; which ratified the former charter: and, in order to do away doubts which had arisen by an unauthorized acceptance (without surrender of the former) of another charter in the 29 Car. 2., by which material changes in the government of the town had been introduced, the charter of King William gave the corpora

Charter of

W. 3.

(a) The original charter had here the word bailiff in the singular number; and some argument was at first attempted to be drawn from this by the defendant's counsel, in favour of the supposition that the case might have been contemplated of an election of one of the bailiffs to be mayor: but this was waved on an intimation by the Court, that the word was probably put in the singular by mistake, as otherwise the word last (Jast bailiff) as applied to bailiff in the singular number, was insensible.

1804.

The KING against HARPER.

[ 211 ]

council.

tion a common council of 41 of the burgesses, of which 41, one should be called mayor, and two should be called bailiffs of the town. The charter then named T. Johnson to be the first and modern mayor, to continue in office until the Feast of St. Luke, and until some other of the burgesses to that office should be duly appointed and sworn, according to the provisions of the charter of 2 Car. I., and nominated R. Norris and L. Hewston to be the two first and modern bailiffs, to continue until the Feast of St. Luke, and until some other two of the burgesses should be elected and sworn, according to the charter of Cur. 1. The king further granted Common that the mayor, bailiffs, and burgesses for the time being, or any twenty-five of them assembled (of whom the mayor and one of the bailiffs for the time being to be two) should be a common council, to execute all things, &c. And that if any the mayor, recorder, common clerk, or some or any of the bailiffs of the common council should die, or from his office be amoved, depart, or refuse to stand, another fit person into his office, &c. should be elected and sworn in manner as accustomed before the charter of the 29th Car. 2. The plea then stated the acceptance of the charter of King William, and averred that the election of mayor, recorder, common clerk, bailiffs, &c was, before the charter of Car. 2, used and accustomed to be had in the manner and by the persons prescribed by the charter of Charles 1. The plea then stated, that on the Feast of St. Luke, 18th October, 43 G. . 3, J. Bold being then mayor, and the defendant and J. Brooks then being bailiffs, assembled together with the burgesses, ať the Exchange in the town, for the purpose of electing a mayor and bailiffs; and that at the said assembly he, the defendant (so being one of the bailiffs) and also a member of the common council, was then and there, by the said mayor, bailiffs, and burgesses so assembled for the purpose aforesaid, and in due manner elected to be mayor for the year ensuing, and thereupon did then and there, and before he took upon himself to exercise the said office of mayor, and before any election had been made of bailiffs for the year next ensuing, take his corporal oath before J. Bold the then last mayor, his predecessor, and before the said J. Brooks and himself, the defendant, being the bailiffs for the time being, and before divers burgesses then and there also pre

[212]

1804.

The KING against HARPER.

sent at the said assembly, rightly to execute the said office of mayor, &c., and thereupon the defendant was then and there duly sworn and admitted into the said office of mayor, &c.; and so the defendant justified the user of the office. To this plea there was a general demurrer and joinder.

J. Clarke, in support of the demurrer, contended that the defendant, who at the time of his election was one of the bailiffs, was ineligible to the office of mayor on three grounds: 1. On the words of the charters. 2. By reason of the duties cast on him as bailiff, which, until discharged, disabled him from being mayor. 3. Because, according to the terms of the charters, he could not properly be sworn in. 1st, The corporation consists of one mayor, two bailiffs, and an indefinite number of burgesses. The charter of Car. 1. grants to the mayor, bailiffs, and burgesses, that one of the burgesses shall be chosen mayor. The word burgesses, though in itself a general term, is there used in contradistinction to mayor and bailiffs. The first mayor was ap pointed until some other burgess should be elected and sworn; and the two first bailiffs were appointed until two other burgesses should be chosen. If the question arose merely on these words, there could be no doubt: but the subsequent words will be relied on touching the election of the mayor, where power is given to the mayor, bailiffs, and [213] burgesses, or the greater part of them, to choose yearly one of themselves to be mayor; which relative, themselves, will be contended to include all the antecedent parts of the corporation, mayor, bailiffs, and burgesses. But this construction will not agree with what follows; and to make the word themselves consistent with the other parts of the charter, it must be restrained to the last immediate antecedent, namely, burgesses; for the mayor elect is to take the oath of office before the last mayor his predecessor, and the bailiffs for the time being. Of necessity, therefore, those before whom the newly elected officer is to be sworn, must be excluded from the persons eligible; and unless this be the construction, the old mayor would be as eligible to the same office again as the old bailiffs, which is excluded by the express terms of the charter, providing that the new mayor shall be sworn before the last mayor, his predecessor; for a man cannot be the predecessor to himself; neither can he

at

at one and the same moment represent the last and the present mayor in a scene where the two are required to be present. It is a settled rule in the exposition of deeds, that all the parts of an instrument shall be so construed as to stand with each other, if possible. Shep. Touch. c. 5, p. 84, pl. 4, 5. And this construction is fortified by the subsequent charter of Will. 3, which directs the mayor to continue in office until some other of the burgesses should be duly appointed and sworn according to the charter of Car. 1." 2dly, The bailiffs have certain duties to perform on the day of election of mayor, which render them respectively incompetent to be elected to that office. It is to be observed, that the defendant was elected mayor before any other election of new bailiffs took place; so that he was still in office as bailiff at the time of his election to be mayor. The new mayor is to be elected by the mayor, bailiffs, and burgesses; so that the attendance of the bailiffs, as an integral part, was necessary to form an elective assembly, and to the perfection of the election; and every definite integral part must attend by a majority at least of its number Reg. v. Lock, M. 6 Ann. (a), Rex v. Bellringer (b), R. v. Miller (c), and R. v. Morris (d), But when one of the bailiffs was chosen mayor, there ceased to be a majority of the bailiffs existing, so that no other corporate assembly could be holden to fill up the vacancy; and therefore the Court will not put a construction on the charter which would tend to a dissolution of the corpora tion. 3dly, The new mayor is to be sworn in before his predecessor in office, and the bailiffs for the time being; but as the defendant, would continue bailiff till he was sworn in, he must necessarily be sworn in before himself, which is incongruous and absurd. He cannot act in the double capacity of the person sworn in, and one of the persons before whom he is to be sworn in. That question incidentally arose in Rex v. Malden (e); but it was not necessary to determine it, as the Court thought, that at all events the swearing in under the stat. 11 Geo. I, c. 4, must be before the presiding officer; and the defendant, who had been elected to the

1801.

The KING against HARPER.

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