certain number of aldermen, and a certain number of capital burgesses. It is admitted that, if any of the capital burgesses are removed so as to become good aldermen, they cease to be capital burgesses from the time when they accept the office of aldermen. So, if a capital burgess be removed and become an alderman de facto, I apprehend he ceases to be a capital burgess, and another person is to be elected in his stead; for, otherwise, there would not be the full number of corporate officers. If the acceptance of the office of alderman did not operate as a vacating of the inferior office, one of those consequences pointed out by my brother Bayley, would follow, namely, there would be more than the full number of capital burgesses authorised by the charter, or two persons must have held the incompatible offices of aldermen and capital burgesses at the same time. I fully concur in the opinion delivered by my brother Bayley, and think with him that judgment must be entered for the crown.

LITTLEDALE, J.-I am entirely of the same opinion. In this case, in order to make a valid objection, it was necessary that there should be six capital burgesses. In point of fact there were only four persons who were at that time in possession of, and discharged the duties of, that office. But, it is said, that there were two other persons present, who were then discharging the duties of aldermen, but who, being afterwards ousted from that office by judgment in a quo warranto, are to be remitted to their original character of capital burgesses, from which they were elected into the office of aldermen; and that being so remitted, although they appeared and filled the character of aldermen at the election, yet the law will refer their votes to the legal right which they had, and they ought to be consi

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1826.

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dered as having voted in their character of capital burgesses. I should doubt if that would be so, even if they could be remitted by law to their original character. It is true, they did not deliver in any statement to the presiding officer, intimating in what character they voted: but assuming that if it could be made out on the part of the defendant that they had a right to be remitted back to their original character, and assuming that their votes ought to be considered as having been given in that character which the law would allow, still the question is, whether they had a right to consider themselves as capital burgesses at the time of the election. The general rule is, that if a man accepts one office incompatible with another, it operates as a surrender, or abandonment, or deprivation of the first office. Besides the authority referred to by my brother Bayley, in Rex v. Trelawney (a), Lord Mansfield said, he should be inclined to think that if the two offices of steward and burgess are imcompatible, the acceptance of the latter would be an inplied surrender of the former. That point is certainly not expressly decided there, but I concur entirely in the opinion so intimated. It is conformable to all the notions I have ever entertained of corporation law; it is founded in reason and principle, and the greatest confusion would be produced if it were not so. Now, it seems to be admitted on the part of the defendant, that if a person had accepted an office to which he had a good title, such acceptance must be considered a deprivation or surrender of the first office; but it is said, that this rule does not apply if it turns out that the party cannot make a good title; and in that case, he may go back to his original seat. But I do not concur in that position. It seems to me that if he accepts an incompatible office, no matter (a) 3 Burr. 1616.

by what title, he is to be concluded by the vacancy he
has occasioned, and he shall not be at liberty after-
wards to take advantage of his own wrong, and turn
out persons who have been rightfully elected in his
stead. He was bound in point of law to take care that
he had a good title to the new, before he abandoned
the old office. He vacates the old office at his own
peril. In the case of Roe d. Lord Berkeley v. The
Archbishop of York (a), a question arose as to the
effect of a surrender of a lease. That was the case of a
private right. The question there was merely in what
nature or character a person had title to land, of which
he had never abandoned the possession; but here
the question concerns public rights; it is not a mere
question of a man's own title. A man has title to the
office of an alderman, not for his own benefit, but for
the purpose of discharging a public duty, in the good
government of the borough. Another thing to be
observed here is, that the parties actually abandon the
former office, and accept another, the duties of which
they cannot exercise consistently with the duties of the
old office; and not only so, but these two persons
actually concur in nominating their successors to the
office which they have given up. It seems to me, that
if there had been an issue to try whether Turnock and
Knight had resigned their office of capital burgesses,
there would be abundant evidence to make out the
affirmative of that proposition. It is not necessary that
a resignation of such an office should be by deed or
writing. In Rex v. The Mayor of Rippon (b), it was
held, that a resignation by parol was sufficient, it
having been made at a corporate meeting, and the
resignation being accepted, and another chosen into
the place of the person who so resigned. If, then, a
(a) 6 East, 86.
(b) Salk. 435.

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The KING

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HUGHES.

parol resignation be sufficient, it is clearly not necessary for a party to say "I resign my office," any more than it is necessary in the delivery of a deed, to say, “I deliver." The fact of giving up the office, and accepting another, is quite decisive. It seems to me, therefore, on the whole, quite impossible for the defendant to avail himself of the votes of Turnock and Knight as capital burgesses, and consequently that he had not a sufficient number of votes to entitle him to his election.

Rule absolute for entering judgment for the crown.

ty sessions

The KING V. The JUSTICES of SOMERSETSHIRE. Where the THIS was a rule nisi for quashing an order of justices justices at pet- at petty sessions, for the allowance of the accounts of made an order the surveyor of highways for the parish of Churchill, in allowing the the county of Somerset, and which had been removed into this Court by certiorari, pursuant to a rule of Triwhichaccounts nity term, 1825 (a). The affidavit on which the rule had not previ- was obtained stated, that the accounts were produced

accounts of a surveyor of highways,

ously been ve

trate, pursu

rified before a at a vestry meeting held on the 24th September, 1824, single magiswhen the surveyor was directed to lay them before the ant to the Ge- Rev. Mr. Wilde, the nearest resident magistrate; which neral Highway Act, 13 G. 3, he promised to do; but instead of so doing, he laid c. 78. s. 48:- them before the justices at petty sessions on the 4th October following, who made the order in question for

Held, that they

had no juris

diction; that

the whole pro- allowing them. The return to the certiorari merely set out the order, which was dated the 4th October, 1824, coram non judicia; and that and purported to be signed by two magistrates.

ceeding was

the order must

be quashed.

Adam shewed cause. The objection raised to the

(a) 6 D. & R. 469.

order is founded upon the General Highway Act, 13 Geo. 3, c. 78, s. 48, which, it is contended, makes it imperative on the surveyor to lay his accounts before a single magistrate for examination, previous to their allowance by the magistrates at petty sessions. The objection, however, is not tenable. The mode pointed out by that clause of the statute, is mere matter of form, and the clause itself must be regarded as merely directory. It has always been considered as perfectly immaterial, whether the accounts were laid before one magistrate, and afterwards taken to the petty sessions; or whether they were taken to the petty sessions at once and properly so; for there is no appeal to the quarter sessions in either case; Rex v. The Justices of the West Riding of Yorkshire (a), Rex v. Mitchell (b) ; in the former of which cases, Buller, J., said that the justices at petty sessions had the same power over the surveyor's accounts as any one justice had. [Bayley, J. If the accounts are allowed by one justice, have the justices at petty sessions any jurisdiction at all over them?] In that case they clearly have not. [Bayley, J. Then they have jurisdiction only over those items which are disallowed by one justice: but if the accounts are never laid before one justice, he can never disallow any of the items, and the jurisdiction of the justices in petty sessions can never begin].

Campbell, contrà, was stopped by the Court, and

Per Curiam. It is quite clear that the justices at petty sessions have no original jurisdiction over the surveyor's accounts; they are only to examine into such items as have been disallowed by a single magistrate. The accounts, therefore, must, both by the express words (a) 5 T. R. 629. (b) 5 T. R. 701.

VOL. IV.

1826.

The KING

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The JUSTICES of SOMERSET

SHIRE.