But

1823.

The KING

v.

so clear as to exclude all doubt. Rex v. Hoyte (a). the recent case of Rex v. Bower is decisive of the present question. There the words were, "the mayor and aldermen for the time being, or the greater part of THEM," and WYLLYAM, the Court held, that that did not mean the greater part of the aldermen who happened then to be existing, but the greater part of the whole definite body. The onus of taking this case out of the general rule of construction lies upon the other side, and unless a sound distinction is established, the Crown is entitled to judgment.

Tindal was to have argued on the other side, but not being present, the Court proceeded to give judgment.

ABBOTT, C. J.-In this case it does not appear that all the existing capital burgesses were present at the election, but only a part. The general rule has been long established, that where a corporation consists of a definite and indefinite body, a good elective assembly cannot be legally constituted unless a majority of the definite body be present. In Rex v. Bower, an attempt was made to distinguish that case from the general rule, by reason of some particular words in the charter. The Court on that occasion observed upon the wisdom of the general rule, and we were of opinion that the particular words in that charter were not sufficient to take the case out of it. We were of opinion that the chartc. did not manifest any clear intention on the part of the Crown, that the elective meeting should be composed of less than a majority of the entire number of the definite body, and that a less number would be sufficient to constitute a valid election. Adverting to the language of the charter in this case, I entertain the same opinion. I cannot see any clear or unambiguous intention expressed on the part of the Crown, that less than a majority of the twentyfour capital burgesses should be sufficient to constitute a valid election. I am of opinion, therefore, that on these (a) 6 T. R. 430.

pleadings, judgment must be given for the Crown. Another question might arise upon the charter, which does not arise on this record, namely, supposing the definite body to be reduced to less than one half its entire number, or only twelve had survived, whether that would be a good elective assembly. That point, however, is not raised upon the present pleadings, and therefore it is not necessary to pronounce any opinion upon it.

In

BAYLEY, J.-I think there is no substantial difference between this case and Rer v. Bower, decided in the course of the present Term. The general rule is that which has been already stated by my Lord Chief Justice, and is established by Rex v. Bellringer, and a variety of other cases. The case of Rex v. Hoyte establishes that a charter may be so worded as not to make it necessary that the major part of the definite body should meet; but then there should be plain and distinct words to shew, that such was the intention of the Crown at the time the charter was granted. Rex v. Bower the words were, "the capital burgesses for the time being, or the greater part of them." It might be said, that meant the major part of the capital burgesses for the time being, and that less than the majority of the definite body might be sufficient; but the Court held, that such was not the construction to be put upon the words greater part of them," but that they must be referred to the greater part of the entire number of capital burgesses. Here the words are," the other capital burgesses at that time surviving or remaining, or the greater part of the same," which are exactly synonymous with "the time being," for "the burgesses at that time surviving and remaining," will mean "burgesses at that time being," or "for that time being," or "the major part of the same." The difference between the one case and the other is, that in the one, the words are," the greater part of them," and in the other, the "greater part of the same." The words "the same," I admit, generally refer to the last antecedent, and I should say that such was the construction which might be

66

in the

given here, but I think the words "the same" may be satisfied by referring them to the words "the same, or the major part of the capital burgesses surviving and remaining;" and if they are equivocal, and may be referred to one or the other, then the general rule established in Rex v. Bower should be adopted, and consequently this case governed by that decision.

HOLROYD, J.-I think this case comes distinctly within the principle of Rer v. Bower. There the Court construed the words "or the greater part of them" not to refer to the antecedent passage," for the time being," but to the whole number of the definite body. Upon the same principle we must in this case construe the words " greater part of the same," in like manner as the words " greater part of them." Our judgment in the present case will not decide, that if the whole surviving body of capital burgesses be less than the majority of twenty-four, they may or may not have the power of election by this charter; for it seems to me, that in order to render this election valid by a majority of the capital burgesses, the words " the greater part of the same," must have reference to the major part of the whole elective body; and as this defendant has not been elected by the major part of the elective body, I think judgment must be given for the Crown (a).

On a subsequent day, Abbott, C. J., delivered the opinion of the Court more elaborately in favor of the Crown.

sill The KING v. RICHARD DEVONSHIRE.

THIS was a similar proceeding upon the same charter, under circumstances somewhat different, but the main question being the same as in the case above mentioned, the like judgment was given.

1823.

The KING

v.

WYLLYAMS.

1823.

assessed taxes

may, by 43G. 3.

c. 99. s. 33.

person or per

sons so charg

ed, by his or their goods and chattels,

The Earl of SHAFTESBURY and Others v. RUSSELL (a).

The collector CASE for an excessive distress for assessed taxes. The of the personal first count of the declaration stated, that plaintiffs were owners and proprietors under and for certain trusts, of cerdistrain "the tain goods and chattels, consisting of household furniture, pictures, prints, statues, and busts, in and upon the mansion-house of Blenheim, and which were held and enjoyed by the Duke of Marlborough under the trusts, with the consent and permission of the plaintiffs; that defendant was the as they are by collector of certain taxes and duties payable to his majesty, that statute au- for a division or place which included the said mansion train ;" and by house; that certain taxes and duties upon windows, indies given by habited houses, male servants, carriages, horses, dogs, hair the bankrupt powder, and armorial bearings, had been assessed upon the

and all such other goods and chattels

thorised to dis

s. 38. the reme

laws, &c., are

the same taxes. Where the Duke of M. was by the trusts of his father's will,

t

extended to the said Duke, and were due from him to his majesty, and the collector, for enforcing the said taxes and duties upon windows and inhabited houses, payment of amounting to 672l. 15s. 6d. were due in respect of the mansion-house, and the rest of the taxes assessed upon the other articles, amounting to 12077. 15s. were returned by the said Duke to be paid for at Blenheim. The declaration allowed to use then stated, that defendant, under pretence that he was the mansion authorised to distrain upon the said goods and chattels for of B. during his natural life, the whole of the said taxes and duties, seized and carried them away, as a distress, as well for the taxes and duties

the furniture

and was pro

hibited from removing it thence, without the consent of the trustees :Held,that such furniture could

not be distrained for the Duke's personal taxes returned as pay.

upon windows and inhabited houses, as also for the taxes

0

(a) The king's warrant having issued in Easter Term, pursuant to 3 Geo. 4. c. 102. authorising any two or more of the Judges of this Court to sit for the despatch of business, from Wednesday the 21st, until Thursday the 29th of May, both days inclusive, Bayley, Holroyd, and Best, Js. accordingly sat in the room adjoining the Court House of the Guildhall, Westminster, and this and the following cases, ending with Priddy v. Henbury, post, were determined.

able at the mansion of B., and that it did not fall within the description of such "other goods and chattels," as might be distrained by force of s. 38:-Held also, that the jurisdiction of this Court to try the legality of a distress upon the goods of A. for an assessment upon B., was not taken away by s. 3. which enacts, that "if any question or difference shall arise upon taking such distress, the same shall be determined and ended by two or more of such commissioners."

and duties upon male servants, &c.; and that the said goods and chattels were of much greater value, and more than sufficient to satisfy the duties upon windows and inhabited houses, together with the costs and charges of the distress. There were other special counts in the declaration, and also a count in trover. Plea, not guilty, and issue thereon.

At the trial, before Abbott, C. J., at the Sittings in Middlesex, in Easter Term, 1822, a verdict was found for the plaintiff, with damages, subject to the opinion of the Court, on the following case:

George, late Duke of Marlborough, was in his life-time, and up to the time of his death, owner of the goods and chattels mentioned in the declaration, and was seised of the mansion-house of Blenheim for the term of his natural life, and by his will, dated 3rd March, 1812, bequeathed the said goods and chattels amongst other things to the plaintiffs, his trustees, upon trust, to permit the same to be held and enjoyed, so far as the rules of law and equity would admit, by the person or persons, who, for the time being, should be entitled to the possession of his freehold estates thereinbefore devised to the Marquis of Blandford, now Duke of Marlborough, for his life, with such remainders over as therein mentioned. The testator then directed, that whilst his freehold estates should, under the limitations in his will, belong to, and be held and enjoyed by the person or persons entitled by act of parliament to his mansion-house, garden, and pleasure grounds at Blenheim, the said chattels should be kept and preserved at or in the same mansionhouse, &c., and should not be removed therefrom, unless with the consent of the trustees; and the testator appointed his trustees executors of his will. Upon the death of the late Duke, the present Duke of Marlborough became seised of the said mansion-house for the term of his natural life, and he has ever since occupied, and still continues to occupy the same, and to use and enjoy the said goods and chattels. The defendant, at the time of the seizure in question, was the collector of certain duties payable to his majesty by

1823.

SHAFTESBURY

v.

RUSSELL.