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1824.

The KING

v.

UPON-TRENT.

but. According to my construction of the statute, the several duties imposed upon the justices of the two jurisdictions will in every case be apparent, detailed in a plain and intelligible order, free from confusion of arrangement, and NEWARK perplexity of language. For these reasons, I am of opi nion, that notice to the overseers is not required when the master and the apprentice are resident in one county. The statute, upon which the question has arisen, is certainly not without ambiguity. If its directions are not complied with, I have before mentioned that a settlement cannot be acquired under circumstances in which, before the passing of this act, it might have been acquired. I have felt myself bound to form my judgment upon what appeared to me to be the real sense and meaning of the words of the statute, paying due regard to the order, arrangement, and connection of the several matters contained in it; and I have the satisfaction of knowing, that if my construction is erroneous, the error will not be of any practical importance, because the opinion of my learned brothers must of course prevail, and the rule for quashing the order of sessions must be made absolute.

Rule absolute for quashing the order of sessions.

The KING V. The MAYOR and ALDERMEN of the Bo

ROUGH Of PORTSMOUTH.

Monday,
July 5.

to the mayor

MEREWETHER on a former day obtained a rule, calling Mandamus upon the mayor and aldermen of the borough of Ports- does not lie mouth, to shew cause why a mandamus should not issue and aldermen directed to them, commanding them to assemble themselves of a borough, requiring them together within the borough, and consider of the propriety to assemble of removing certain persons, by name, from the office of for the purpose of considering the propriety of removing non-resident members of their body, no serious injury or inconvenience to the inhabitants being suggested, as resulting from such nonresidence.

1824.

The KING

v.

The MAYOR

of

alderman, on the ground of non-residence within the said borough.

On shewing cause, the case disclosed upon the affidavits PORTSMOUTH. Was this :-The town of Portsmouth is a borough by prescription; but by a charter of Charles I. that king, in the thirteenth year of his reigu, granted that the mayor, burgesses and inhabitants, should be incorporated by the name of "the mayor, aldermen, and burgesses, &c.;" that there should be within the borough one alderman elected mayor, and that there should likewise be within the borough twelve other burgesses to be elected as therein mentioned, who should be aldermen ; and that the aldermen for the time being should be called the council of the borough, and should be from time to time aiding and assisting the mayor in all matters and causes touching or concerning the borough; that whensoever any of the aldermen for the time being, should die or be removed from office, (which aldermen, or any of them, the king willed should be removeable for any offence, or default, or reasonable cause, at the discretion of the mayor, and the rest of the aldermen of the borough for the time being, or the greater part of them ;) then it should be lawful for the mayor aud the rest of the aldermen for the time being, or the greater part of them, to elect one other or more of the burgesses of the borough to supply the place of the alderman or aldermen happening to die or be removed; that any person elected mayor or alderman, refusing to accept the office after notice, should be subject to such fines and amerciaments as should seem reasonable to the mayor and aldermen, or the major part of them; that there should be a recorder elected by the mayor and aldermen ; and that the mayor, aldermen and burgesses, might have a court of record to be holden before the mayor, recorder, and aldermen, or any four of them, of whom the mayor or recorder should be one, every Tuesday; that the mayor and recorder, and every mayor for one year, after serving the office of mayor, and three other aldermen,

1824.

Ο.

The MAYOR of

should be justices of the peace for the borough, to be elected annually by the mayor, aldermen, and burgesses; The KING and in case of death or vacating the office of alderman, another to be elected in his room. There was no clause in the charter, expressly requiring that the aldermen when PORTSMOUTH. elected should be resident within the borough. It was alleged in the affidavits that the aldermen, against whom this application was directed, had resided out of the borough for a great many years; and that one of them, who had been elected one of the justices of the peace for the borough, resided seven miles distance from the town, but always attended to his magisterial duties when his attendance was necessary. No inconvenience to the inhabitants of Portsmouth was alleged, nor was any delay of justice complained of, as arising from the non-residence of the individuals named in the rule. The only instance pointed out of a delay of justice was, that in 1817 the borough court did not sit on the day appointed, and the court adjourned until the next day. Under these circumstances, the question was, whether the aldermen were bound to reside independently of the provisions of the charter.

Scarlett, Adam and Erskine, (with whom was Selwyn,) shewed cause against the rule. If this case were to depend upon the merits as disclosed in the affidavits, there is no ground whatever for supporting the motion; because there is no pretence for saying that any inconvenience or delay of justice to the inhabitants of Portsmouth has arisen from the non-residence of the aldermen. But the decisive answer to it is, that there is not a word in the charter which imposes upon the aldermen the necessity of actually residing within the borough. The supposed authority for this application is Rer v. Truro (a); but that case is totally dissimilar. That was an application for a quo warranto information to

(a) Not reported. It was decided in Hilary, 1821, before this series of reports commenced.

1824.

The KING

an individual calling upon him to shew by what authority: he claimed to be a capital burgess of the borough of Truro, on the ground that by the express terms of the charter of The MAYOR that borough, no person could hold the office of a capitalPORTSMOUTH. burgess who resided out of the borough, the fact being that

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the defendant had gone to reside out of the town. The Court refused the application; but upon referring to the particular words of the charter, they said that a rule nisi for a mandamus might be granted, commanding the corporation to meet for the purpose of considering whether they would or would not remove a capital burgess who had gone out of the town to dwell. That case, however, depended entirely upon the particular wording of the charter, and certainly is no precedent by which the Court can be governed in this instance. Admitting, for the sake of argument, that the charter in the present case required the aldermen to reside, still unless there was a strong case made out of inconvenience or prejudice to the inhabitants, the Court would not interfere. Non-residence is not ipso facto a ground for amotion from the office of alderman. A real and substantial grievance must be made out before this Court can interfere, and even then it would be entirely a matter of discretion with the mayor and the rest of the aldermen, whether they would or would not remove the non-resident members of the corporation. The charter gives to the mayor and aldermen a discretionary power to remove "for any offence or default, or reasonable cause;" but if no inconvenience: resulted to the town from the non-attendance of some of the aldermen, they would not be justified in removing them. Here no inconvenience is suggested, no delay of justice is complained of, and therefore without some. express authority, shewing that non-residence merely, is a ground of amotion, this rule must be discharged. The charter declares, that five of the aldermen shall be justices of the peace. Now four of these actually reside, and the fifth lives within a short distance of the town, and always discharges his magisterial duties. This being an application'

of the first impression, and there being no pretence for it, the rule must be discharged.

1824.

The KING

V.

of

Copley, A. G., Gaselee and Merewether, contra. In The MAYOR Rex v. Monday (a), which arose upon the same charter, PORTSMOUTH. Lord Mansfield decided that when an alderman was once elected, it was his duty to reside. That learned judge, speaking of the provisions of the charter, said "residence is not a precedent qualification for a burgess to be elected an alderman. All the charter requires is, that after he is elected he shall be resident." [Abbott, C. J. That was certainly an obitur dictum. There is nothing in the charter which warrants that position.] The use, however, to be made of what was said by that learned judge is, that it confirms what has been laid down in a variety of cases, . namely, that when the charter of a corporation requires that the capital burgesses or aldermen shall be resident, it is nothing more than a declaration of the common law. In Vaughan v. Lewis (b), Lord Holt so expressed himself; and the same principle was laid down in the City of Exéter v. Glyde (c). Hence it follows, that whether a clause be or be not introduced into a charter, expressly requiring resi dence, is a matter perfectly indifferent, because at common law, residence is a duty incident to the office; and non-residence is a disqualification when it is satisfactorily proved. The persons against whom this motion is directed are not justices of the borough, but aldermen, whose duties necessarily require residence. By the charter, they are the council of the borough, and are required from time to time to aid and assist the mayor in all causes and matters touching or concerning the borough. Every alderman is bound to attend the court of record held in the borough, although five are sufficient to constitute a court. The only question then is, as to the course to be pursued to enforce the residence of absentees. This can only

(a) Cowp. 530. (b) Carth. 227. (c) 4 Mod. 33. Holt. 435, S. C.

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