brown case richard tucker plaintiff the king defendant in error saint December  Mews dig go way see Hoblyn v r bro p c the charter of a corporation direct the  mayor to be annual choose out of four of the burgess or inhabitant but by a  bylaw it be ordain that these four burgess or inhabitant shall be all of they  alderman this bylaw be void as be repugnant to the charter and judgement of  ouster shall be give against a mayor elect in consequence of such bylaw the  defendant in a quo warranto insist by his plea upon the charter of the  corporation and by his rejoinder rest his defence upon a bylaw of the same  corporation this rejoinder be no departure from the plea in Hilary term a  information in nature of a quo warranto be grant by the court of king bench  against Richard Tucker of the borough and town of Weymouth and Melcombe king  in the county of Dorset Esq to show by what authority he claim to be mayor of  the say borough and town to this information Tucker plead that king James by  his letter patent bear date the saint day of July in the that year of his  reign grant that the mayor alderman bailiff burgess and commonalty of the  borough and town of Weymouth and Melcombe king in the county of Dorset shall  be a body politic and corporate by the name of mayor alderman and bailiff  burgess and commonalty of the borough and town of Weymouth and Melcombe king  in the county of Dorset and that from thenceforth for ever there shall be  within the borough and town aforesaid one of the burgess or inhabitant of the  same town who shall be and shall be call mayor and also that there shall be  diverse man of the borough and town aforesaid who shall be alderman and in the  like manner there shall be two other man of the borough and town aforesaid who  shall be call bailiff and that there shall be twentyfour other man who shall  be capital and principal burgess of the say borough and town and the say king  by his say charter appoint a mayor eleven alderman two bailiff and twentyfour  capital and principal burgess name they particular the charter further grant  to the mayor alderman bailiff burgess and commonalty of the say borough and  town and their successor that the mayor and alderman for the time be or the  major part of they be assemble in the guildhall or in some other convenient  place within the say borough and town shall on the feast of saint Matthew the  apostle yearly choose and name four of the burgess or inhabitant of the  borough and town aforesaid out of which four so to be name and choose the  mayor alderman bailiff principal burgess and other burgess and inhabitant of  the borough and town aforesaid for the time be on the same day there assemble  for that purpose shall by the majority of voice of they so assemble elect one  to be mayor of the say borough and town and that he after such election shall  before he shall be admit to exercise that office take a oath before the last  mayor his predecessor brown or the recorder in the presence of so many of the  alderman bailiff and principal burgess as will be present for the due  execution of his office and that after such oath so take he shall execute that  office for one whole year and from thence until another shall be duly elect  and swear accord to the direction of the say charter The plea then state that  those letter patent be accept by the mayor alderman bailiff burgess and  commonalty of the say borough and town and that on the feast of saint Matthew  the then mayor and alderman of the say borough and town meet together at the  guildhall in order to name four of the burgess or inhabitant of the say  borough and town out of which the then mayor alderman bailiff principal  burgess and other burgess and inhabitant be on the same day there also meet  for that purpose may by the majority of voice of those so meet elect one of  they to be mayor and that the major part of they the say then mayor and  alderman be then and there meet as aforesaid for the purpose aforesaid do  brown er p then and there name John Tucker Esq the say Richard Tucker John  friend and John Carsewell then be four of the inhabitant of the borough and  town aforesaid in order that out of they so name the then mayor alderman  bailiff principal burgess and other burgess and inhabitant be also on the same  day there meet for the purpose aforesaid may elect one to be mayor and that at  a assembly of the then mayor alderman bailiff principal burgess and other  burgess and inhabitant of the say borough and town hold on the same day at the  guildhall they be meet together for that purpose they the say John Tucker  Richard Tucker John friend and John Carsewell be then and there duly declare  to the say then mayor alderman bailiff principal burgess and other burgess and  inhabitant of the say borough and town so assemble as aforesaid in order that  out of they so name the say then mayor alderman bailiff principal burgess and  other burgess and inhabitant may by the majority of voice of they so meet  elect one to be mayor and that at the say assembly he the say Richard Tucker  be then and there elect to be mayor of the say borough and town by the  majority of voice of they so assemble and that after such election and before  he be admit to exercise the say office to wit on the that day of October in  the year aforesaid he take his oath for the due execution thereof before  Richard jordan the then last mayor his predecessor in the presence of as many  of the alderman bailiff and principal burgess as will be present and by virtue  thereof on the say that day of October be admit into the say office of mayor  and take upon himself the execution thereof and by that warrant he claim to be  mayor to this plea the coroner and attorney reply and thereby admit the letter  patent mention in the plea and then set forth that the say king James by his  letter patent will that the mayor alderman bailiff and principal burgess of  brown the say borough and town for the time be or the major part of they shall  on saint Matthew day yearly elect two of the burgess or inhabitant of the say  borough and town to be bailiff who shall take the oath of office and shall  exercise those office for one whole year and from thence until two other shall  be duly elect thereto accord to the direction of the say charter and that if  the mayor shall die or be remove from his office within the year the alderman  bailiff principal burgess and other burgess and inhabitant for the time be or  the major part of they shall elect another of the burgess or inhabitant to be  mayor who shall exercise the office for the residue of the year and until  another shall be duly elect thereto accord to the direction of the say charter  have first take a oath for the due execution of his office that if any of the  alderman shall die or be remove or depart from that office and at the time of  the death amotion or departure of such alderman there shall not be eight  alderman survive that the mayor and survive alderman as also the bailiff and  principal burgess for the time be or the major part of they shall elect so  many as shall be want of that number out of the burgess or inhabitant to be a  alderman or alderman of the say borough and town and that he and they so elect  have first take a oath faithful to execute the say office shall exercise the  same during his or their natural life or life unless in the mean time remove  accord to the direction of the say letter patent and the say king further will  that every person who at any time thereafter shall exercise the say office of  mayor if not amoved for misbehaviour shall immediate after the expiration of  the same become a alderman to continue in the same for life if he shall so  long behave himself well in the same That if the bailiff or either of they  shall die or be remove from that office within the year the mayor alderman  bailiff and principal burgess and other burgess and inhabitant of the say  borough and town for the time be or the major part of they shall elect one  other or two other out of the burgess or inhabitant to be bailiff or  Bailiffs That if any or either of the twentyfour capital or principal burgess  shall die be remove or depart from that office that the mayor alderman bailiff  and the rest of the principal burgess for the time be or the major part of  they shall elect one or more other out of the burgess or inhabitant of the say  borough and town into the place or place of such principal burgess or burgess  so happen to die or to be remove the replication further set forth that ever  since grant the say letter patent the usage have be within the say borough and  town that upon the day appoint brown er p for the election of mayor in case  the number of alderman then in be be at that time less than eight the then  mayor and survive alderman as also the then bailiff and capital and principal  burgess or the major part of they be meet together in the guildhall for that  brown purpose always proceed to elect so many as be then want of that number  out of the burgess or inhabitant of the say borough and town to be a alderman  or alderman before the say then mayor alderman bailiff principal burgess and  other burgess and inhabitant proceed to the election of a mayor for the year  then next ensuing That on saint Matthew day be the day on which the say  Richard Tucker be suppose by his plea to have be so nominate elect and prefer  to be mayor as aforesaid the number of alderman then survive and remain  exclusive of the say Richard jordan who then pretend to act as mayor be less  than eight that be to say John Carsewell John friend John Tucker Richard  Tucker and Edward Tizard and that the say Richard jordan and the say alderman  upon saint Matthew day aforesaid do not proceed to elect so many as be then  want of the say number of eight alderman out of the burgess or inhabitant of  the say borough and town the replication then admit that the defendant Richard  Tucker and also the say John Tucker John friend and John Carsewell be all of  they inhabitant of the borough and town aforesaid at the time when they be  suppose by the say plea to have be nominate as aforesaid yet it allege that  they and every one of they be also at that time alderman of the say borough  and town then the follow matter set out in the plea be traverse viz I that the  mayor and alderman do not assemble for the purpose mention in the plea as  thereby be allege and thereupon a issue be joined II that the major part of  the mayor and alderman do not choose and name the say John Tucker Richard  Tucker John friend and John Carsewell for the purpose in the plea mention and  thereupon a second issue be join III that the say John Tucker Richard Tucker  John friend and John Carsewell be not declare to the mayor alderman bailiff  principal burgess and other burgess and inhabitant of the borough and town  aforesaid for the purpose in the say plea mention and thereupon a three issue  be joined IV that the say Richard Tucker be not elect to be mayor of the  borough and town aforesaid as he have by his plea allege and thereupon a four  issue be joined V that the say Richard Tucker do not take his corporal oath  for the due execution of the say office as he by his say plea allege and  thereupon a five issue be joined VI that Richard jordan be not mayor of the  say borough and town as the say Richard Tucker by his plea allege and  thereupon a six issue be joined VII that he the say Richard Tucker be not  admit into the say office of mayor as he have by his say plea allege and  thereupon a seven issue be join to this replication Tucker rejoin and thereby  deny the custom of fill up the number of alderman before the election of mayor  as set out in the replication and insist that on the say feast of saint  Matthew the apostle be the day appoint brown by the say letter patent for the  election of a mayor and at the time of the nomination and election of the say  Richard Tucker to be mayor there be eight alderman then survive and remain and  thereupon the eight issue be join by this rejoinder it be admit that the say  Richard Tucker John Tucker John friend and John Carsewell be alderman as  allege in the replication and likewise that the king do by his say letter  patent further grant to the mayor alderman bailiff burgess and commonalty of  the say borough and town in manner as set out in the say replication but the  say Richard Tucker allege that the say king do by his say letter patent  further will and grant that the mayor alderman bailiff and principal or  capital burgess of the borough and town aforesaid for the time be or the major  part of they of who the mayor to be one upon public summons to be make by the  mayor shall assemble in the guildhall to make bylaw for the good rule and  government of the say borough and town and of all officer and minister  whatsoever within the same and that after the make and acceptance of the say  letter patent videlicet on the saint day of September in the that year of the  reign of the say king James I the then mayor alderman bailiff and principal or  capital burgess upon public summons by the mayor assemble together and there  make a certain ordinance in write call a bylaw brown er p although the same be  not now extant in write that from thenceforth for ever the mayor and alderman  of the say borough and town for the time be or the major part of they from  time to time in all future time be meet together and assemble in the guildhall  of the say borough and town or in any other convenient place within the say  borough and town for the nomination of a mayor of the say borough and town may  and shall be at liberty whenever and as often as it shall seem meet and  convenient to they to choose and name four of the burgess or inhabitant of the  say borough and town who shall be then all of they alderman of the say borough  and town or whereof any one or more shall be then alderman or alderman of the  same borough and town and the other or rest of they not alderman or alderman  of the say borough and town in order that out of the say four so to be name  and choose the mayor alderman bailiff principal burgess and other burgess and  inhabitant of the borough and town aforesaid for the time be be also there on  the same day meet together and assemble for that purpose may by the majority  of voice of they so meet together elect and prefer one to be mayor of the  borough and town aforesaid and that the say mayor alderman bailiff principal  burgess and other burgess and inhabitant of the say borough and town for the  time be shall elect and prefer one of those four so to be name to be mayor of  the say borough and town for the year then next ensue which say bylaw the then  mayor alderman bailiff principal or capital burgess and other burgess brown  and inhabitant of the say borough and town on the say saint day of September  in the that year of the say king James accept and assent thereunto and have  ever since conform themselves thereto And then set forth a usage agreeable to  the say bylaw to this bylaw the say coroner and attorney demurred And the say  Richard Tucker join in demurrer the several issue above join be try at the  assize hold at Dorchester on the that of march when a verdict be find for  Tucker upon every one of they the demurrer be argue in easter term when the  court be unanimous of opinion that the bylaw set up by Tucker be not a good  bylaw and that he be a alderman of the say borough and town at the time of his  election to be mayor be by the charter incapable of be choose mayor and  therefore judgement of ouster be give against he to reverse this judgement the  present writ of error be bring and on behalf of the plaintiff in error it be  argue n Gundry W Murray that a alderman be as much a burgess or inhabitant as  any other burgess or inhabitant whatsoever that his be choose into the office  of alderman do not make he cease to be a burgess or inhabitant and if he be a  burgess or inhabitant he be qualify by the word of the charter to be elect  mayor that if the word and letter of the charter allow this construction the  sense and spirit of the charter plain require it for there be nothing more  evident than that the charter be as it be a key to itself consider alderman or  capital burgess as not cease to be burgess or inhabitant but as continue  capable of any office which any inhabitant may enjoy that Henry Mitchell and  Robert fry be appoint the first two bailiff under the charter notwithstanding  they be also among the fourandtwenty first name capital burgess in the charter  and the clause relate to the election of bailiff be in the same word as that  relate to the mayor videlicet that the bailiff be to be choose out of the  burgess or inhabitant which as strong exclude a capital burgess from the  office of bailiff as the other clause relate to the election of a mayor  exclude a alderman or capital burgess from the office of mayor that it be  scarce possible to conceive that the crown after have by their charter select  out and name thirtyeight of the principal burgess or inhabitant of the town  videlicet one for mayor two for bailiff eleven for alderman and twentyfour for  capital burgess shall thereby intend to make those principal inhabitant  incapable for ever after of bear the office of mayor or of justice of the  peace for the unavoidable consequence will be that in so small a town as  Weymouth after thirtyeight be make incapable the office of the great trust and  power and of most consequence to the public in general as well as to the town  in particular must devolve upon the mean of the inhabitant it be undeniable  that if by the charter a alderman brown er p be incapable of be choose brown  mayor a capital burgess be also incapable of be elect either mayor or alderman  and also that neither a alderman or capital burgess be capable of be elect a  bailiff that the charter appoint but eleven alderman as a number think  sufficient for the government of this town and direct that every mayor after  he have execute that office shall be a alderman for life if therefore the  charter be to be so construe as necessary to enforce the annual election of a  mayor to be out of the inhabitant and not the alderman there may have be  within fifty year after the charter and may very probable now have be fifty  alderman within this little town the charter also give no power to elect a  alderman until the number come to be under eight but if new alderman must of  necessity be introduce annual into the corporation by choose a inhabitant not  before a alderman into the office of mayor it can not be presume that this  power of elect a alderman shall ever take place that the election of Mr Tucker  be conformable to the constant and uninterrupted usage ever since the charter  a period of more than year a usage full prove upon the trial of the cause when  all the eight issue be find for Mr Tucker that he be duly nominate elect and  swear into his office of mayor and a usage confess also by the demurrer which  admit the bylaw though not extant in write last that it will be of very  dangerous consequence to corporation in general as well as to this in  particular if their charter be to be explain by nice and critical construction  upon word contrary to the sense in which such word have be understand for  century and to the interpretation of they by constant usage from the time of  grant the charter in support of the judgement it be contend I strange r Lloyd  that it appear clear by the charter in question the burgess or inhabitant be  in all election distinguish from every other branch of the body and be as much  a separate part of it as the mayor the alderman the bailiff or the principal  burgess that by this charter the four to be nominate out of who the mayor be  to be choose be to be so nominate not out of the alderman or bailiff or  principal burgess but out of the burgess or inhabitant that Tucker in his  plead insist at first that by the charter the four out of who the mayor be to  be choose can be nominate out of any part of the body so as they be burgess or  inhabitant but by this rejoinder he rest his defence upon a bylaw suppose to  be make by the mayor alderman bailiff and principal or capital burgess whereby  the alderman or bailiff be capacitate to be put in nomination for mayor but  sure this bylaw if any such exist be void in law for though the mayor alderman  bailiff etcetera may by mutual consent and to avoid popular election and the  confusion arise from they abridge any particular election to a small number  than the charter give the power to yet they can not transfer such franchise  from that part of the body in who it be brown vest by the crown to another  part who by the charter have nothing to do with it that Tucker by rely on this  bylaw have depart from his first defence which he be not by law entitle to do  and therefore if there be no other reason the judgement of the court of king  bench ought to be affirm after hear counsel on this writ of error it be move  to reverse the judgement which occasion a debate the follow question be agree  to be put to the judge videlicet whether a alderman of the borough of Weymouth  be a burgess of the say borough and be capable of be put in nomination in  order to be mayor of the say borough by virtue of the charter of the that year  of king James I and the judge present be direct to deliver their opinion with  their reason seriatim upon this question they be all hear accord and declare  their opinion to be that a alderman be a burgess but not to be consider as  capable of be put in nomination to be mayor the judge be then direct to  deliver their opinion upon this question videlicet whether the rejoinder be a  departure from the plea in bar and what be the consequence thereof in point of  law upon this record and they have confer together the Lord chief justice of  the common plea acquaint the house that they be unanimous of opinion that this  be no departure in plead and can be at all material in the present case  Then  after further debate the question be put whether the judgement shall be  reverse and it be resolve in the negative whereupon it be order and adjudge  brown er p that the judgement shall be affirm and the record remit jour vol p  it appear from a memorandum on this case that the judge present be will c j  Dennison burnet Abney Reynolds and carter and that the house divide upon the  question of reversal content not content