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REPORTS OF CASES

ARGUED AND DETERMINED

IN

The Courts of Exchequer,

AND

Exchequer Chamber.

HILARY VACATION, 4 VICTORIÆ.

IN THE EXCHEQUER CHAMBER.

Exch. of Pleas, RUTTER v. CHAPMAN.

1841 CASE.—The declaration stated, that before and at the A petition,

which had been time of the committing of the grievances thereinafter men

agreed upon at

a' meeting of the rate-payers of the parliamentary borough of Manchester, convened by public advertisement, and which was in fact attended by 1000, and which petition was afterwards signed by 4000 in. habitant householders of the borough, was presented to her Majesty, praying for the grant of a charter of incorporation to the inhabitants of such borough, under the provisions of the stat. 1 Vict. c. 78, s. 49. Afterwards, and before the day appointed for this petition being taken into consideration by the Privy Council, a counter petition, signed by 6000 of such inhabitant householders, was presented to her Majesty, praying her not to grant such charter. The whole number of inhabitant householders of the borough amounted to 48,000.

Held, (on error in the Exchequer Chamber):-1. That the second petition did not necessarily, in point of law, deprive her Majesty of the power to grant such charter upon the first petition: but that whether the first petition was, under all the circumstances, the petition of the inhabitant householders of the borough, so as to authorize the exercise of the powers conferred by the 1 Vict. c. 78, s. 49, was a question of fact for a jury; and that the determination of the Privy Council to advise the Crown to grant the charter upon such petition, was not conclusive of its validity.

2. The grant of such charter of incorporation is an exercise of the common-law prerogative of the Crown, although it also extends to the new corporation the powers of the Municipal Corporation Act, 5 & 6 Will. 4, c. 76, which the Crown has power to do only by virtue of the 1 Vict. c. 78, s. 49. 3. Such charter may be granted to a part only (to be defined therein) of the borough from the VOL. VIII,

M. W

B

Exch. of Pleas, tioned, and from thence until the commencement of this 1841.

suit, there were, and of right ought to have been and to RUTTER be, divers, to wit, six coroners of her Majesty the Queen CHAPMAN. in, of, and for the county palatine of Lancaster, of which

coroners the plaintiff, before and at the time of the committing of the grievances thereinafter mentioned, and from thence until &c., was one, and, during the time aforesaid, had of right been and acted as such coroner, and taken inquisitions for our lady the Queen as such coroner, on the view of the bodies of divers persons lying dead within divers places in the said county, and amongst others within the township of Chorlton-upon-Medlock, and during the time aforesaid, of right ought to have been and acted as such coroner, and taken inquisitions within the said township, and still of right ought so to be and act, and take inquisitions as aforesaid, and during all the time aforesaid, by reason of the premises, had been and was and still is of right entitled to divers fees, perquisites, and emoluments for so doing and being : And whereas, before the commencement of this suit, to wit, on the 14th of May 1839, Esch. of Pleas,

whole of which the petition emanated, and need not be conferred upon the inhabitant householders of the whole borough.

4. The Crown may, by its common-law prerogative, appoint, in such charter, the number, and set out the limits, of the wards in the new borough.

5. The Crown may also, by such charter, delegate to an individual the power of appointing the first members of such corporation ; or may, at all events, appoint a person to ascertain the individuals who compose the class to whom the charter is granted. [Lord Denman, C. J., and Williams, J., diss. ]

6. The provisions of the 5 & 6 Will. 4, c. 76, as to the machinery for the formation and revision of the burgess lists, being applicable only to then existing corporations, and to the particular period at which that act took effect, need not be precisely followed in the case of new corporations, created by charter under the powers conferred on the Crown by the 1 Vict. c. 78, s. 49, but may be followed cy près. Therefore, the appointment, in such charter, of individuals named therein, to make out and revise the lists, and to act as returning officer at the first election under such charter, is good. So also, days for holding the first elections, though not agreeing with those named for the elections in the 5 & 6 Will. 4, c. 76, may be appointed by such charter.

7. Nor is such charter void, because it directs the person appointed to make out the first list, to include in it only "all inhabitant householders within the borough who shall possess the qualification required by the 5 & 6 Will. 4, c. 76," instead of including also all persons occupying shops, &c., within the borough, and being inhabitant householders residing within seven miles thereof, according to the schedule to that act. [Williams, J., dubitante).

8. The stat. 5 & 6 Will. 4, c. 76, s. 103, empowers the Crown to grant a separate court of quarter sessions, on petition of the council of any borough, “setting forth the grounds of the application, the state of the gaol, and the salary they are willing to pay the Recorder in that behalf:"-Held, that a plea, stating that the application was “by petition to her said Majesty in council, setting forth the matters in and by the said act of Parliament, intituled, an Act, &c., in that behalf required and directed,” was sufficient after verdict.

1841. the body of one Bridget Garratty, then lying and being dead in the said township, and within the jurisdiction of RUTTER plaintiff as such coroner as aforesaid, the said Bridget CHAPMAN. Garratty having heretofore, to wit, on the same day and year, died suddenly, and not from disease or in the course of nature, the plaintiff, as such coroner as aforesaid, was, before the committing of the grievances thereinafter mentioned, about to take an inquisition for our lady the Queen on the view of the said body, touching the death of the said Bridget Garratty, as he was lawfully entitled to do, and, but for the committing of the grievances thereafter mentioned, would have done, and had then and there, to wit, on the day and year aforesaid, duly issued his precept for summoning a jury for that purpose, and ought to and should have been entitled to receive divers fees and emoluments for so doing as aforesaid : Yet the defendant, not then being one of the coroners of our said lady the Queen of or for the said county, or having authority to take inquisitions as a coroner within the said township, but wrongfully intending to injure the plaintiff, and to disturb and annoy him in his said office of coroner as aforesaid, and to deprive him of the same, and of the profits, fees, and emoluments belonging thereto, and derivable in respect thereof, afterwards, and after the said plaintiff had so issued his precept as aforesaid, before the commencement of this suit, to wit, on the day and year last aforesaid, and within the said last-mentioned township, wrongfully, and without lawful authority in that behalf, took an inquisition for our lady the Queen as a coroner of and for our said lady the Queen, having authority to take inquisitions as coroner within the said township, on the view of the said body so being and lying dead as aforesaid, and thereby then and there greatly hindered, disturbed, and annoyed the plaintiff in the exercise and enjoyment of the said office of coroner, and thereby prevented the said plaintiff from having and

Exch, of Pleas, receiving the fees, profits, and emoluments belonging 1841.

thereto and derivable therefrom, and which the plaintiff RUTTER might and otherwise would have had and received; to the CHAPMAN, great nuisance of the plaintiff in his said office, &c.

The defendant pleaded, that heretofore, and after the passing of a certain act of Parliament passed in the year of our Lord 1837, intituled "An Act to amend an Act for the Regulation of Municipal Corporations in England and Wales” [7 W.4 & 1 Vict. c. 78. s. 49), to wit, on the 21st day of March 1838, the inhabitant householders of the borough of Manchester, in the county palatine of Lancaster, did petition her most gracious Majesty the Queen to grant to them the said inhabitant householders a charter of incorporation; that afterwards, to wit, on the said 21st day of March 1838, her said Majesty ordered that the same petition should be taken into consideration by her said Majesty's Privy Council on the 1st day of May 1838; that afterwards, to wit, on the 23rd day of March 1838, due notice of the said petition, and of the said time when the same was so ordered to be taken into consideration by her said Majesty's Privy Council, was accordingly duly published in the London Gazette, more than one month before such petition was to be considered, and more than one month before the said day on which the same was ordered to be taken into consideration, as aforesaid ; and that afterwards, and after more than one month after the said publication of such notice as aforesaid had elapsed, to wit, on the said Ist day of May 1838, being the said day on which the said petition had been so ordered to be taken into consideration as aforesaid, her Majesty's Privy Council did proceed to consider the said petition, and afterwards, and after the consideration thereof, to wit, on the day and year aforesaid, the said Privy Council did advise her Majesty to grant a charter of incorporation for the district comprised within the boundaries of the townships of Manchester, Chorlton-upon-Medlock, Hulme, Ardwick, Bes

wick, and Cheetham, in the said county palatine of Lan- Exch. of Pleas,

1841. caster; which said townships, together with the townships of Newton, Harpurhey, and Bradford, comprise the RUTTER boundaries of the parliamentary borough of Manchester, CHAPMAN. as the same were settled and determined by an act passed in the reign of his Majesty King William the Fourth, intituled, &c. [2 Will. 4. c. 64]; and thereupon afterwards, to wit, on the 23rd day of October 1838, her Majesty, by the advice of her said Privy Council, by certain letters patent under the Great Seal of the united kingdom of Great Britain and Ireland, the date whereof is the day and year last aforesaid, which said letters patent the defendant now brings into Court here, did grant such charter of incorporation as aforesaid.—The plea then set forth the substance of the charter, by which, after reciting the stat. 7 Will. 4 & 1 Vict. c. 78, s. 49, and the facts previously stated in the plea, her Majesty did grant and declare, that the inhabitants of the borough of Manchester, comprised within the district thereinbefore described, and their successors, should be for ever thereafter one body politic and corporate, in deed, fact, and name, and that the said body corporate should be called “The Mayor, Aldermen, and Burgesses of the Borough of Manchester, in the county of Lancaster,” and them, by the name of the mayor, aldermen, and burgesses of the borough of Manchester, in the county of Lancaster, into one body corporate and politic, in deed, fact, and name, did for her said Majesty, her heirs and successors, erect and constitute by those presents, and her said Majesty did grant to the said body corporate, that by the same name they should have perpetual succession, &c. &c. And her said Majesty did further will, grant, and declare, that the council of the said borough should consist of a mayor, sixteen aldermen, and forty-eight councillors, to be respectively elected at such times and places, and in such manner, as the mayor, aldermen, and councillors for the boroughs named in the schedules to the said act for the regulation

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