CA
CASES

IN THE

COURT OF KING'S BENCH,

FOR THE USE OF

Justices of the Peace.

HILARY TERM, 1825.

The KING v. The Mayor, Masters and Councillors

of TOTNESS.

G. CROSS moved for a rule calling on the Mayor, &c

1825.

Monday, January 24. Mandamus re

pel a corporation to meet for the pur

fused to com

resident mem

terms re

of Totness, to shew cause why a mandamus should not issue to them, commanding them to assemble themselves together within the borough, and consider of the pro- pose of consipriety of removing certain persons, by name, from the dering the propriety of office of masters and councillors of the said borough, on removing nonthe ground of non-residence. It was stated in the affibers, where davits in support of the motion, that of fourteen masters the charter in and councillors chosen under the charter, but ten resided quired resiwithin the borough; that of these, four were unable to dence. attend corporate meetings from age and infirmity; that by the charter the presence of eight masters and councillors was necessary to constitute a corporate meeting, and that the charter, in terms, required that the masters and councillors should be resident within the borough. Two instances were mentioned in which masters and councillors had been removed from their office, on the

1825.

The KING

V.

TOTNESS.

ground of non-residence. Great inconvenience was sug-
gested as arising to the inhabitants from the infrequency
of corporate meetings, by reason of the non-residence of
members, and the illness of others, who were unable to
attend; and it was alleged, that such meetings were
only called when they suited the interests or convenience
of the resident masters and councillors. This case, it
was urged, was much stronger than Rex v. the Mayor of
Portsmouth (a), because here the charter in terms re-
quired that the masters and councillors should be resi
dent. [Abbott, C. J. But the difficulty is, that supposing
a meeting of the corporation is called, and they do not
chuse to remove the non-resident members, what bene-
fit will be derived from this application? If they
refuse to amove, a mandamus will afford no remedy
whatever for the alleged evil.] If a legal meeting is
called, and they do not think proper to amove, then
they will subject themselves to a criminal informa-
tion. [Abbott, C. J. I am not satisfied of that.] The
charter requires that the masters and councillors shall
reside. It is a duty imposed upon them, and if they ne-
glect to perform it, they are liable to amotion; and if
those whose duty it is to amove refuse so to do, a crimi-
nal information will lie. In granting the charter to this
corporation, the crown must be supposed to have done
so for a beneficial purpose, with a view to the interests of
the inhabitants, but if the members of the corporation
have disqualified themselves by non-residence, that pur-
pose must fail. If the court refuses this application,
the effect will be that this corporation will cease to be
of any use for the purposes for which it was originally
incorporated. This is the strongest case which has
been presented to the court. The charter requires that
the masters and councillors shall be inhabitants, and the
(a) Ante, 392.

public sustain a real inconvenience from the non-residence of some of the members. This is a very important question, and deserves at least more serious consideration than can be given it on motion. [Abbott, C. J. The Court has been of opinion, and is still of opinion, that if it were to assume to itself the power of granting applications of this kind it would exceed its jurisdiction. This court never thought of entertaining such an application until very lately indeed. In former times no instance of the kind is to be found. If we were now to accede to it, we should be opening a door to litigation which would be quite endless.] The absence of precedents may be accounted for, by observing that in former times corporators were more astute in upholding their corporate rights than in modern times. The only remedy for the grievance complained of is by mandamus. Until Rex v. Heaven (a), it was thought that a quo warranto information would lie for non-residence, but that case decides, that, until the corporate officer is removed, such an information will not lie. Unless, therefore, a mandamus issues, this corporation will become useless. There is no other method of compelling the corporators to do their duty. It is an unquestionable rule of law, that whenever a corporate body is guilty of a breach of duty, this court will set them in motion. Here there has been a breach of the charter, and this court has authority to compel the execution of its provisions.

ABBOTT, C. J.-The question is not properly, what the members of this corporation ought to do, but whether this court has power to do that which is now required of us. It is extremely difficult to define the precise limits of our authority; but it is our duty to take care not to exceed that which is a reasonable limit. In

(a) 2 T. R. 772.

1825.

The KING 0.

TOTNESS.

1825.

The KING

0.

TOTNESS.

governing our discretion we must refer to that which has been the ancient practice of the court; and certainly the ancient practice has been not to grant applications of this kind. Under circumstances like the present, I think we ought not to take upon ourselves to establish a precedent, so likely to be attended with serious inconvenience. Speaking individually, I should be extremely unwilling to take upon myself the authority which the court is now called upon to exercise.

HOLROYD, J. and LITTLEDALE, J. concurred (a)(b).

(a) Bayley, J. was gone to chambers.

(b) See Rex v. the Mayor of West Looe, post.

Monday January 24. Mandamus granted to the steward of a manor to allow

inspection of the court rolls

to two tenants, litigating a

right of com

mon in the

manor, although the

cause was not at issue.

ROGERS V. JONES.

R. V. RICHARDS moved to discharge a rule obtained last term for a mandamus to the steward of the manor and lordship of Writhin in Denbighshire, commanding him to allow the plaintiff an inspection of the rolls of the manor as far as they related to the matters in issue in this cause. Both parties were freeholders and tenants of the manor of Writhin, doing suit and service to the lord. The plaintiff had declared in trespass, quare clausum fregit, to which the defendant pleaded a prescriptive right of common over the locus in quo. Issue had not been joined at the time the rule for a mandamus was obtained, and it was now contended, first, that in point of practice the mandamus could not issue in the present stage of the proceedings, and second, that as far as they had gone, no question appeared to be involved in the cause, which could justify an inspection of the court rolls.

PER CURIAM.-Whether the rule nisi for a mandamus was regularly obtained in the first instance, it is unnecessary to decide, but we are clearly of opinion that it is for the interest of all parties that it ought to issue.

Rule refused.

1825.

ROGERS

2.

JONES.

The KING v. WARNFORD.

Tuesday, January 25.

game convic

out the evi

CHITTY, in Michaelmas Term, obtained a rule calling Mandamus lies to justices upon a justice of the peace for the county of Wilts, to to amend the shew cause why a mandamus should not issue, directed record of a to him, commanding him to amend the record of a con- tion, by setting viction on the game laws, by setting out the evidence on dence on which the conviction was founded, as nearly as possible which it is in the words used by each of the witnesses examined nearly as posfounded, as before the justice, in pursuance of the 3 Geo. 4. c. 23., sible in the words used by it being suggested that the record, as it stood at present, the witnesses. made the witnesses swear in the technical language of the statute, and not in the words alleged to have been used by themselves.

Merewether now shewed cause and contended, that the justice, having once drawn up the conviction, had no control over and could not alter it. He had always understood it to be an universal rule that a conviction once made matter of record could never be altered; and if erroneous, the relief could only be by appeal to the sessions. The question was whether the court had authority to gr grant a mandamus in such a case for such a purpose, and he submitted that it would be a dangerous practice to allow justices in any case to alter their