The King against John Monk
| Jurisdiction | England & Wales |
| Judgment Date | 02 June 1788 |
| Date | 02 June 1788 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 278
IN THE COURT OF KING'S BENCH
1 M. & S. 101.
the king against thomas amery. the king against john monk. Monday, June 2d, 1788. A judgment of seizure quousque, &c. against a corporation, in default of appearance, operates as a final judgment to dissolve the corporation, if they do not appear in the same term, or the next at furthest. And a new charter of incorporation granted after that time to a new body in the aame place is goad, notwithstanding a charter of restitution be afterwards granted to the old corporation ; and such charter of restitution is absolutely void.-A power reserved to the Crown, in a charter of incorporation, to amove, by Order of Council, one or more of the corporators, which declared that all or any of them so amoved should actually and without further process be amoved, and which also provided at the same time that upon such amotion the remaining corporators might proceed to fill up the vacancies, cannot be exercised to such an extent as not to leave a sufficient number to make a re-election ; and therefore an anioval of all is illegal and void.-See R. v. Pasmore, p. 3 vol. 199, as to the dissolution of a corporation by the loss of an integral part, which the corporation had no power of restoring. [1 M. & S. 101.] The first of these was an information in nature of a quo warranto against the defendant for exercising the office of alderman of the City of Chester. To which he pleaded letters patent granted by Car. 2, on the 4th Feb. in the 37th year of his reign, by which the citizens and inhabitants of Chester were incorporated; and that there should be a mayor, recorder, twenty-four aldermen, forty common council-men, two sheriffs, and certain other officers. The King, by those letters patent, appointed the first twenty-four aldermen; and prescribed the mode of electing a mayor, namely, on Friday after the Feast of St. Dennis, yearly, by a majority of the mayor, aldermen, and common couneilmen assembled. The plea then stated, that that charter was accepted and agreed to by the said citizens and inhabitants : and the defendant regularly deduced a title as alderman under it. The prosecutor replied, that King Charles the Second did not grant in manner and form, &c. That those letters patent were not duly accepted by the said citizens and inhabitants. That the defendant was not duly elected an alderman, as in his plea alleged. And that he was not admitted into the office of alderman, &c. And the prosecutor added two new replications. In the first of which he stated, that the said late King Charles the Second, in [516] the same letters patent in the said plea of the defendant above-mentioned, further willed, and by the same letters patent provided and reserved full power and authority to himself, his heirs and successors from time to time and at all times thereafter, at the free will and pleasure of the said late King Charles the Second, his heirs or successors, the mayor, recorder, common cierk, or any one or more of the aldermen, common couneilmen, sheriffs, coroners, and justices of the peace of the said city for the time being, by any order of the said late King, his heirs or successors, in Privy Council made, and under the seal of the said Privy Council, to them respectively signified, to amove or declare them or any of them to be amoved accordingly; and that as often as the said late King, his heirs or successors, by any such order made in Privy Council, should declare any such mayor, recorder, common clerk, and any one or more of the aldermen, common councilmen, sheriffs, coroners, or justices of the peace of the said city for the time being, to be amoved from his or their respective offices, that then and from thenceforth the mayor, recorder, common clerk, aldermen, and common couneilmen, sheriffs, coroners, and justices of the peace for the time being, and all or any of them so amoved, or declared to be amoved, from their respective offices, should in deed and in fact, and without any further process, actually and to all intents and purposes whatsoever, be amoved from their respective offices; and so from time to time as often as the case should so happen ; any thing in the said letters patent contained to the contrary notwithstanding : and that in every such case other fit person or persons, within a convenient time after such amotion or amotions, should be chosen, sworn, and appointed, in such manner as by the said letters patent was before directed, into the place and office, or places and offices respectively, of any such person or 2T. K.J17. THE KING V. AMERY 279 persons so amoved; as in and by the said letters patent, &c. That after the making of the said letters patent of the said late King Charles the Second, to wit, on the 12th day of August 1688, under and by virtue of the said last-mentioned letters patent, Hugh Starkey, Esq. was one of the aldermen of the same city, and a justice of the peace of and within the said City of Chester, and county of the same city; and that Eicbard Leving, Esq. was then and there recorder of the said city, and also one of the aldermen of the said city, and a justice of the peace of and within the said City of Chester, and county of the same city ; and that the Eight Honourable William Earl of [617] Derby, &c. (mentioning them by name severally) were also aldermen, and each of them was an alderman of the said City of Chester (arid thus enumerating all the other officers in the corporation); and that no other persons or person whomsoever then were or was aldermen, or common councilmen, or an alderman, or common councilman, of the said City of Chester. That the said last-mentioned persons, so being aldermen and common councilmen of the said city, and there being no other persons or person whomsoever, aldermen or common councilmen, or an alderman or common councilman, of the said City of Chester, His said late Majesty King James the Second, afterwards, to wit, on the 12th day of August 1688, by his Order in Privy Council made, in execution of the power reserved to the said late King Charles the Second, his heirs or successors, in and by the said letters patent, made in the thirty-seventh year of King Charles the Second, in the defendant's plea mentioned, was pleased to order, and did thereby order, that the said Hugh Starkey, &c. &c. (naming them) as before, should be, and they were thereby removed and displaced from their aforesaid offices and employments in the said City of Chester. The replication then stated, that that order was signified to each of them respectively (naming them), and thereby they and each of them, severally and respectively, became and were amoved from their respective offices and places of aldermen and common councilmen before-mentioned ; wherefore the said power in the said last-mentioned letters patent, as to the election of aldermen of the said City of Chester, ceased and determined. The second replication set forth a charter of incorporation granted by King Henry the Seventh, in the 21st year of his reign, to the citizens and commonalty of Chester ; who were to elect, annually, a mayor, recorder, twenty-four aldermen, forty common councilmen, two sheriffs, &c. ; which letters patent were accepted, &c. It then stated a charter of confirmation in the 16th of Elizabeth, which was also accepted. And that both these charters were in full force, strength, and effect, before, and until, and at the time of, the judgment hereinafter next mentioned, &e. The replication then stated, that in Trinity term, in the thirty-fifth year of the reign of Charles the Second, Sir Eobert Sawyer, Knight, then Attorney-General, filed a certain information in the Court of King's Bench against the said mayor arid citizens, by the name of the Mayor and Citizens of the said City of [518] Chester, by which said information the said Attorney-General of the said late King gave the said Court there to understand, and be informed, that the said Mayor and Citizens of the said City of Chester, by the space of one month then last past, and longer, had used, and did then use, and claimed to have and use, without any warrant, or Royal grant, within the said city and the liberties and precincts of the same city, divers liberties, privileges, and franchises, in the aaid information mentioned, that is to say, to be in themselves one body corporate and politic, in law, fact, and name, by the name of the Mayor and Citizens of the City of Chester; and by the same name to plead and be impleaded, answer and be answered unto; and also to have sheriffs of the said city, and the county of the same city, &c. (specifically stating all the privileges claimed): all and singular which liberties, privileges, and franchises, the said mayor and citizens of the said city, for all the time aforesaid, against the said lord the late King had usurped, and did then usurp, in contempt of the said lord the late King, &c.: and thereupon the said Attorney-General for the said lord the late King prayed the advice of the Court there in the premises, and that due process of law might issue in that behalf against the said mayor and citizens, to answer to the said lord the late King, to shew by what warrant they claimed to have and exercise the liberties, privileges, and franchises aforesaid, &c. It then stated, that such proceedings were thereupon had in the same Court, that afterwards to wit, in the term of Saint Hilary, in the 35th and 36th years of the reign of the said late King Charles the Second, for the default of the said mayor and citizens in not appearing in the said Court of the said lord 280 THE KING V. AMERY 2 T. R. 519. the late King, before the King himself, to answer to the said lord the late King, touching and concerning the premises, it was then and there by the same Court of the said lord the late King, before the King himself, considered that the liberties, privileges, and franchises, in the said last...
To continue reading
Request your trial