1825.

JONES

0.

equally unsuitable person; and the consequences to the public might be very injurious, for as the deputies are not required to be sworn, there would be no check upon their conduct: nor can any inconvenience arise, because WILLIAMS. as there is a power of electing new aldermen in case of the absence of the original aldermen, and as those new aldermen would be empowered to act as justices, no defect of justice can take place, and the language as well as the object of the charter will be fully satisfied. For these reasous I am of opinion that the nonsuit was wrong, and that the rule for a new trial ought to be made absolute.

HOLROYD, J.-I am of opinion that the defendant, as the deputy of an alderman, was not invested either with the office or the power of a justice of the peace. The charter appoints two particular persons justices for the borough, so to continue till others are appointed in their stead; and though it annexes thereby the office of justice to that of alderman, it does not follow that the former becomes part and parcel of the latter. An alderman has not, virtute officii, the power of appointing a deputy, as a sheriff, and some other public officers have; nor do I know that an alderman has, virtute officii, or quà alderman, any known duties to perform; his duties and his powers are generally defined in the charter from whence his official existence springs. The powers of an alderman are corporate powers only, and can be exercised only on members of the corporation, but the powers of a justice are not bounded by the corporation, but are much more extensive both in their nature and operation. Then where an alderman has by his charter power to appoint a deputy, the latter will have all the powers of the former, that is, all his corporate powers, for those only can he transfer; but that is essentially different

1825

JONES

v.

from the present case, because here the office of justice. is annexed to that of alderman, and does not make part of it. I think, therefore, that the intention expressed by WILLIAMS. this charter is, that the deputies shall act as aldermen only; but at all events, considering that the general power of making justices is vested exclusively in the crown, it seems to me that there certainly are not words so clearly expressive of an intention to delegate that power, even if it can be delegated, which I doubt, as to justify us in holding that the defendant is in the eye of

the law a justice of the peace. I agree therefore that

the rule for a new trial must be made absolute.

LITTLEDALE, J. concurred.

Rule absolute.

Where the

charter of a corporation declared that

"it shall be

for non-resi

dence within

The KING . The MAYOR and BURGESSES of the
Borough of WEST LOOE.

WILDE, Sergt. moved for a rule to shew cause why

a writ of mandamus should not issue, directed to the Mayor and Burgesses of the Borough of West Looe, in lawful for the the county of Cornwall, commanding them to assemble mayor and ca- themselves together within the borough, and consider of pital burgesses to remove any the propriety of removing certain persons by name, from of their body the office of a capital burgess, on the ground of non-residence within the said borough. The corporation of West Looe consists of a mayor and twelve capital burgesses, with power of making bye-laws, and of removing any of their body for any offence, or default, or reasonable cause, &c. The affidavits in support of the motion alleged, that for the last ten years, five only of the capital burgesses had been resident within the borough, and that the remainder resided wholly out of the borough, some at a

the bo-
rough:"-
Held, that this

gave them a
discretionary,
and not a
compulsory
power of
amotion.

very considerable distance, and in one instance the party resided permanently in India. No inconvenience was stated to result to the inhabitants from the non-residence of the capital burgesses, but it was contended that, inasmuch as by the charter the mayor is to be selected annually out of the resident capital burgesses, and as that number consisted now but of five, it was impossible to exercise the fair right of selection. The learned Sergeant adverted to the late case of Rex v. The Mayor of Portsmouth (a), and submitted that the principle on which that case was decided ought not to govern the present case. The Court cannot speculate upon the question of convenience or inconvenience resulting to the inhabitants of a borough from the non-residence of its capital burgesses. If residence be the condition on which a capital burgess holds his office, and that condition be broken, it is a sufficient ground of amotion. Here the crown by its charter imposes residence as the condition of holding the office, and it has vested in the capital burgesses the power of removing its non-resident members. That power has not been exercised in the present instance, and the only mode of setting the mayor and capital burgesses in motion is by mandamus.

ABBOTT, C. J.-I am of opinion that we cannot grant a mandamus in the present case, and that opinion is grounded upon the terms of the charter which gives the power of amotion. The charter says "It shall be lawful for the mayor and the rest of the capital burgesses for the time being, to remove any capital burgess for any offence, or default, or reasonable cause, at the discretion of the mayor and the rest of the capital burgesses of the borough for the time being, or the greater part of them, &c." It has never been thought, or even suggested, ́(a) 4 D. & R. 767.

1825.

The KING

V.

that, under such words, this Court has authority to interfere, and order the removal of non-resident capital burgesses; for that is the effect of the present application. The MAYOR In the case of Rex v. The Mayor of Portsmouth, the and BURGESSES of effect of similar words in the Portsmouth charter was WEST LOOE. under our consideration, and we thought we could not exercise the authority which we were then called upon to exercise, namely, to command the removal of the nonresident aldermen. That was our opinion then, and we are of the same opinion still. If we were to interfere in the manner now desired, we should be usurping a power which does not belong to us. No injury is suggested as resulting to the inhabitants from the non-residence complained of. If there had been any mismanagement or misgovernment of the borough arising from this cause, that would be a different thing, but we have no authority to interfere on the ground now suggested.

BAS

BAYLEY, J.-I am of the same opinion. I took no part in the decision of Rex v. The Mayor of Portsmouth, but I concur entirely in the principle on which that case was decided. The impression on my mind is, that there may be many cases in which the non-residence of certain members of a corporation will work no mischief to the body of the corporation at large. If a capital burgess does not reside within the immediate limits of the borough, that will not render his holding the office incompatible, provided he resides within such a convenient distance as will enable him to discharge the duties of his office. Non-residence, in the strict sense of the word, would be a ground of disqualification in a great many boroughs, but though a party may be literally non-resident, that is, does not dwell within the borough, yet if he resides within such a distance as will allow him to discharge his corporation duties, a reasonable interpretation of the word must

1825.

The KING

be admitted. Where a charter says "it shall be lawful for the mayor and capital burgesses to remove for nonresidence," I think that gives them a discretionary power to remove or not, as they shall think fit, and does not render it compulsory on them absolutely to remove for BURGESSES of non-residence.

HOLROYD, J.-The words "it shall be lawful for them, &c." certainly are very strong, but still it is for the consideration of the mayor and burgesses whether they will or will not take steps towards removing a non-resident.

LITTLEDALE, J. was absent.

Rule refused (a).

(a) Vide Cowp. 530; Carth. 227; 4 Mod. 33; Holt. 435; 2 T. R. 772; 2 Lord Raym. 1275; Ca. temp. Hard. 147; 4 Burr. 2087; 1 Ves. jun. 1; Rex v. Hastings, ante, vol. i. 148; Rex v. Havering Atte Bower, ante, vol. ii. 176; and Rer v. Eye, id. 172.

v.

The MAYOR and

WEST LOOE.

SPENCELEY v. ROBINSON.

Tuesday, February 8.

IN debt on the statute 17 Geo. 2. c. 3., the first count A rated inha

of the declaration stated that plaintiff was an inhabitant

of the township of Coxwould, in the north riding of the County of York, and that defendant was one of the overseers of the poor of said township; that on 26th March,

1824, the churchwardens and overseers of the

poor of

bitant of a pa

rish cannot

sue an over

seer for the penalty given by 17 G. 3.

c. 3. s. 2., for refusing an inspection of

the rate books, unless he shews that he has been injured by the refusal. The demand of an inspection under this statute must be made at a reasonable time and place; therefore where the demand was made at a parishioner's own house at eight o'clock in the evening, and not at the house of the overseer:—Held, that the overseer incurred no penalty by refusing.

A parishioner is entitled by the same statute to have, on demand, a copy of the rate forthwith delivered to him, upon paying 6d. for every twenty-four names:Held, that the overseer is entitled to a reasonable time to make the copy.