who were to nominate the candidates for the mayoralty, and who were to commence aldermen by serving the office of mayor, should be chosen mayors, because they happened to be inhabitants".

A by-law, though made by the whole body, if it narrow the number of those out of whom the election is to be made, is void. Hence, where the power of electing the mayor was given, by the charter, to the mayor, burgesses, and cominonalty, who were to choose the mayor out of the burgesses, and a by-law directed, that the mayor and common-council, (11) or the major part of them, of which the mayor to be one, should elect one of the common council to be mayor; it was holden, that such by-law was bad; because it is competent to a corporation to make such ordinances only as are for the better government of the corporation; and the present by-law was prejudicial, inasmuch as it confined their choice; for, on the terms of the charter, they were at liberty to choose out of the burgesses at large. And Lee, C. J. observed, that a corporation could not alter the charter as to the persons eligible, neither could they set up another government than the charter had prescribed. And upon the same principle, a by-law directing that no person shall be elected mayor a second time within six years, has been holden to be void.

A by-law made by a part of the corporation to deprive the rest of the right of electing, without their assent, is bad. Hence, where by the charter the power of electing commoncouncilmen was given to the mayor, jurats, and commonalty, and a by-law was made by the mayor, jurats, and commoncouncil, restraining the election of common-councilmen to the mayor, jurats, such of the commonalty as were of the

x R. v. Tucker, E. 14 G. 2. MS. Borough of Weymouth.

y R. v. Phillips, Mayor of Carmarthen, H. 22 G. 2. Trin. 292 & 23 G. 2. MS. and Bull. N. P. 211. S. C.

cited in 3 Burr. 1836, 1838, 1839. (12.)

z R. v. Mayor of Cambridge, H. 23 G. 3. MS.

(11) N. The charter contained a provision, that the corporation might elect out of the burgesses twenty to be common-council. MS.

(12) This case was argued several times, and settled the point, that the number of the eligible cannot be narrowed, although on the authority of the case, in 4 Rep. 78. the number of electors may.” Per Buller, J. in R. v. Mayor of Cambridge, ub, sup.

common council, and sixty others, who were senior common freemen; the by-law was holden to be bad.

A by-law cannot explain a doubtful charter: if there be any ambiguity on the face of the charter, it is the province of the court to expound it.

A by-law which gives a voice in the election to any person to whom it was not given by the constitution of the borough, is bad.

It remains only to observe, that a by-law may be good in part, and bad in part, provided the two parts are entire and distinct from each otheid.

Although there do not remain any traces of a by-law in the corporation-books, and although there cannot be any proof given of the loss of it, yet, upon evidence of constant usage, a jury may be directed to presume its existence. See R. v. Head, 4 Burr. 2518., and R. v. Bird, 13 East, 368, where defendants pleaded a by-law not now extant in writing. Sixty years usage has been considered as evidence of a by-law'.

VI. Of the Inspection of the Records of the Corporation.

EVERY member of the corporation has, as such, the right to inspect the books belonging to the corporation for any matter that concerns himself, although the corporation are

a R. v. Cutbush, common-councilman of Maidstone, E. T. 8 Geo. 3. 4 Burr. 2204 (13).

b R. v. Tucker, E. 14 Geo. 2. B. R. MS.

c R. v. Bird, 13 East, 387.

d Adm. per Ld. Kenyon, C. J. in R. v. Fishermen of Faversham, s T. R. 356.

e See 2 Vez. 330.

f Per Ld. Mansfield, C. J. in Perkin v. Master, Warden, &c. of the Company of Cutlers, in Hallamshire in the county of York, 21 MS. Serjeant Hill, p. 65.

(13) See also R. v. Spencer, 3 Burr. 1827. (the same corporation,) where a by-law excluding all the commonalty, except such as had served the office of church-warden and overseer, for one year, was holden void; inasmuch as it superadded a qualification not required by the charter, and which had no relation to, or connexion with, their corporate character or capacity.

not parties to the dispute which renders the inspection necessary; but the court will not grant the rule generally, but only to inspect the particular book in which the information sought for is to be found.

VII. Of the Pleadings.

A QUO WARRANTO being in the nature of a writ of right, the defendant cannot plead any plea, except to justify or disclaim. Hence he cannot plead, not guilty'. In like manner, he cannot plead, non usurpavit, or that he did not usurp the office in question. This appears from the nature of the charge, which calls on the defendant to shew by what authority he exercises the office in question, to which charge the pleas of not guilty and non usurpavit do not afford an

answer.

By stat. 32 Geo. 3. c. 58. s. 1. "the defendants to any information in the nature of a quo warranto, for the exercise of any office, or franchise, in any city, borough, or town corporate, whether exhibited with leave of the court, or by his majesty's attorney-general, or other officer of the crown on behalf of his majesty, and each and every of them, severally and respectively, may plead, that he or they had first actually taken upon themselves, or held or executed the office or franchise, which is the subject of such information, six years or more before the exhibiting of such information, such six years to be computed from the day on which such defendant was actually admitted and sworn into such office or franchise; which plea may be pleaded either singly, or together with such plea as they might have lawfully pleaded before the passing of this act, or such several pleas as the court, on motion, shall allow; and if, upon the trial of such information, the issue joined upon the plea aforesaid, shall be found for the defendants, or any of them, he or they shall be entitled to judgment, and to such costs as they would by law have been entitled to, if a verdict and judgment had been given for them upon the merits of their title.

The second section provides, that the prosecutor may reply a forfeiture, surrender, or avoidance, by the defendant,

g R. v. Hostmen, in N. upon T. Str. i Per Holt, C. J. 12 Mod. 225. k Queen v. Blagden, 10 Mod. 296.

1223.

h Per Holt, C. J. 12 Mod. 225.

of the office, or franchise happening within six years before the exhibition of the information, whereon the defendant may take issue, and shall be entitled to costs in manner aforesaid.

The preceding statute having been made in pari materiâ with stat. 9 Ann. c. 20. is confined to corporate offices'. But the defendant is entitled, by this act, to plead several pleas, although the limitation of time does not form the subject of one of his pleas".

Where the plea consists of several facts, from which the defendant infers that he is entitled to the office, the replication may contain a denial of any of the facts stated in the plea; but if it contain merely a denial of the inference drawn by the defendant from those facts, it will be bad; for that amounts merely to a denial of the law; for the judges are to determine, whether the inference drawn by the defendant is fairly drawn.

In an information against the defendant for usurping the office of portreeve, defendant shewed a title, and concluded his plea, "and so he says that he did not usurp in manner and form as in the said information is alleged;"-the coroner replied, that he did usurp in manner and form, &c. The replication was adjudged to be bad".

VIII. Evidence.

CORPORATION books are generally allowed to be given in evidence, when they have been publicly kept as such, and the entries made by the proper officer; not but that entries made by other persons may be good, as, if the town-clerk be sick, or refuse to attend; but then the circumstances under which the entries have been made, must be proved. Corporation books being of a public nature, examined copies of the entries therein may also be given in evidence; and consequently the court will not enforce the production of the original books, unless it appear to be necessary that they should be inspected on account of a rasure, new entry, or the like, which must be verified by affidavit.

1 R. v. Richardson, 9 East, 469. m R. v. Autridge, 8 T. R. 467.

11 R. v. Portreeve of Honiton, in Devonshire, E. 1 Geo. MS.

o Per Cur. R. v. Mothersell, 1 Str. 93, p Brocas v. Mayor, &c. of London, 1 Str. 307.

In a case, where it was insisted, that by the constitution. of a corporation by prescription, no person was capable of being elected a common-councilman, who did not inhabit within the borough, and also hold a burgage tenure; to prove that such was the constitution, a witness was called, who was an inhabitant of the borough, but had no burgage tenure. The court were of opinion, that he was a good witness, observing that there was a necessity of allowing such people in a question of this nature, since they must best know the right; besides, he was in effect a witness against himself, by saying, "though I am an inhabitant, yet I have no right to be chosen, because I have not a burgage tenure." A person having a bare authority, and not being a party to the record, is not prevented from being a witness.

The custom of a corporation, in the election of a mayor, was, that at a court leet, held within the town, the old mayor nominated one elisor, and the town-clerk another; and in case the town-clerk refused to do it, or was absent, then the mayor chose both the elisors, which elisors, so chosen, nominated the jurors, who were to elect the mayor for the subsequent year. An information in the nature of a quo warranto was brought against the defendant, to shew by what authority he claimed to be mayor of Tintagel. And there was likewise an information granted against one James Hoskins, for exercising the office of an elisor; and a third information against one Pascho Hoskins, for executing the powers of juror in that corporation. These informations were carried down to Cornwall to be tried there before Baron Thompson. And when the information against the mayor came to be tried, his right depending upon the validity of this custom, upon which one of the issues was joined, he called James and Pascho Hoskins, to prove the custom of this borough to be as set forth above. But the counsel for the king objected to the competency of their testimonies; because they were called to support a custom, which they were concerned in interest to maintain; for if there was no such custom, then James Hoskins, who was chosen an elisor by the late mayor, in the absence of the town-clerk, was wrongfully chosen; and so likewise must Pascho Hoskins be, being nominated a juror by James Hoskins. And Thompson B. thinking this was a suficient objection to their competency, refused to admit their testimony, whereupon a

q Stevenson v. Nevinson, Str. 583. Ld. r R. v. Gray, Mayor of Tintagel, B. R. Raym. 1353. Hil 10 Geo. 2. MS. S.C. by the name of R. v. Bray, C. T. H. 358.