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Exch. of Pleas, traverse on the petition; and it may be doubted whether this is a material allegation, which could be traversed, or whether it is not immaterial and superfluous: but if it be, the defect, if any, is cured by the statute of jeofails; 1 Saund. 227, n. (1). [The learned counsel then referred to and distinguished the cases cited on this point for the plaintiff.]

CHAPMAN.

The Court took time to consider the case; and the learned Judges differing in opinion, they now (Feb. 22nd, 1841) delivered their judgments seriatim.

COLTMAN, J.-The first question for consideration in this case is, whether there was such a petition by the inhabitant householders of the borough of Manchester as is required by the statute 7 Will. 4 & 1 Vict. c. 78, s. 49. It appears from many authorities, that to make a corporation at common law, the consent of the parties incorporated is necessary; Bagge's Case (a), Dr. Askew's Case (b); and the statute in question ought to be construed with reference to this provision of the common law, and in requiring as a condition a petition by the inhabitant householders, it must be understood to mean such a petition as can fairly be considered as representing the will of the majority of the inhabitant householders. But admitting this to be so, it was contended on the argument in this case, that the question whether there was a sufficient petition or not, was one which the Privy Council had jurisdiction to decide, and that their judgment upon it is conclusive. It can hardly be doubted that the Privy Council would have laid before them reasonable grounds for inferring that the petition did represent the will of the majority; and probably it is with a view to that object, amongst others, that a month's notice is directed to be given in the Gazette

(a) 1 Roll. Rep. 224; 2 Brownl. 109.

(b) 4 Burr. 2200.

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of the day on which the petition is to be considered, so Exch. of Pleas, that all persons dissenting may have an opportunity of testifying their dissent: still the proceedings of the Privy Council in this matter can hardly be considered as of judicial nature; their duty is rather to give advice in a matter of police and government, than to ascertain in a judicial course the rights of litigant parties. Their decision, therefore, cannot be considered as conclusive of the fact of a proper petition having been presented.

In this case, however, the jury have found the fact for the defendant, that the majority of the inhabitant householders did petition, and the verdict cannot be impeached, unless the Judge misdirected the jury in the point excepted to.

It is not open to the party objecting to the summing up of the learned Judge, to take any other objection to it than that which he took at the trial. This rule, which is one well recognised in practice, flows from the terms of the statute itself on which the bill of exceptions is founded.

By that statute it is enacted, "when one that is impleaded before any of the justices doth allege an exception, praying that the justices will allow it, which if they will not allow, if he that alleged the exception do write the same exceptions, and require that the justices will put to their seal for a witness, the justices shall so do; and if one will not, another of the company shall. And if the King upon complaint made of the justices, cause the record to come before him, and the same exception be not found in the roll, and the plaintiff shew the exception written with the seal of a justice put to it, the justice shall be commanded that he appear at a certain day, either to confess or deny his seal. And if the justice cannot deny his seal, they shall proceed to judgment according to the same exception, as it ought to be allowed or disallowed." Independently of the express words of the statute, there is this reason why the party should be bound to take the objec

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Exch. of Pleas, tion he relies on at the time of the trial, because exceptions taken at the trial are taken at a time when any wrong impression on the mind of the Judge may be corrected, and the jury rightly informed before they deliver their verdict.

RUTTER

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CHAPMAN.

The exception taken in the present case is in these terms:-"The counsel for the plaintiff excepted to the direction of the said Baron, and insisted that the facts proved were sufficient to shew that her said Majesty the Queen had no authority or power to grant such charter as aforesaid." The point insisted on, therefore, is, that the facts proved did conclusively, and as matter of law, shew that the Queen had no authority to grant a charter; and the plaintiff ought to succeed or to fail, according as the Judge was right or wrong in overruling this proposition thus contended for. It appears to me that the learned Judge was right in overruling the proposition so submitted to him, for the circumstances proved led to no conclusive inference either way, but were fit to be submitted to the jury, for them to determine on the whole matter, whether the proof supported the allegation that the inhabitant householders did petition. If that point was not left properly to the jury, that might have furnished ground for an exception, but it would be an exception quite of a different nature from, and inconsistent with, that which was actually taken.

The bill of exceptions, therefore, cannot avail the plaintiff; but it is still open to him to contend that the plea is bad, and his objections to the plea rest, in the first place, on alleged defects in the charter granted by the Crown; and secondly, on the alleged insufficiency of the mode of pleading the petition by the borough council to the Crown for a grant of a court of quarter sessions.

The objections which have been made to the charter rest mainly on an assumption, that in the constitution of any new borough, to which the Crown may think fit to extend the powers and provisions of the act for regulating muni

1841.

cipal corporations in England and Wales, the first elec- Exch. of Pleas, tion of officers must take place exactly in the mode appointed for the first elections in the boroughs enumerated in the act.

But it is to be observed, that the act contains no provision to this effect: it authorizes the Crown, in the most general terms, to extend to the inhabitants of the borough petitioning, all the powers and provisions of the act, but gives no directions as to the mode in which those powers and provisions are to be conferred; and on examining the machinery for conducting the first election in the enumerated corporations, we find that that machinery is inapplicable to corporations first constituted at any period subsequent to the year 1835. If no corporation subsequently erected can have extended to it the powers and provisions of the Municipal Act, unless the first elections are conducted in strict conformity with the act, the clauses in the statute giving power to the Crown to that effect, will be found to be incapable of being put in execution.

The most important act preliminary to the election of officers in the new boroughs, is the proper constitution of a burgess list; but no burgess list can by possibility be made out in strict conformity with the provisions of the Municipal Corporation Act. That act (s. 20) contains a special provision for revising the burgess list, applicable to the year 1835; and in all future years the list is to be revised by the mayor and assessors. But who are the assessors? They are officers annually elected by the burgesses; so that the due revising of the burgess list presupposes the existence of assessors, and the existence of assessors presupposes the due revision of the burgess list:-and this original defect, if it be a defect, will equally apply to subsequent elections as to the first election; for, if the revision of the first list of burgesses is defective, the election of assessors by that list will be equally defective, and the subsequent revision of the lists in a future year, by officers defectively

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CHAPMAN.

Exch. of Pleas, appointed, will partake of the original inherent vice of their appointment. In construing an act of Parliament, it is our duty, I conceive, to adopt any possible construction rather than to hold that it is incapable of being carried into effect; and as the statute in question gives power to the Crown to extend to the inhabitants of any town, &c., the power and provisions of the Municipal Act, without specifying at what time or in what way it is to be done, it does by implication give to the Crown all necessary powers for that purpose, of which the power to make reasonable regulations for conducting the first election of municipal officers appears to me to be one.

But it may be fit, in a case so important, to consider in succession the objections which were relied on.

The first objection was, that the charter was not granted to the persons who petitioned for it, but to a part of them only, excluding the rest. The question turns on this, whether the act, in authorizing the Crown to extend to the inhabitants of the town or borough, within the district to be set forth in the charter, the powers and provisions of the act, does not expressly authorize the incorporating of a less district than the whole of the town or borough, considered with reference to its ancient limits.

It seems to me that this is the true construction of the act, and that such construction is most in analogy with the provisions of the 5 & 6 Will. 4, with respect to the boroughs specified in that act. By the 7th section of that act, the boundary of the boroughs specified in the first section of the schedules A. and B., are for the purposes of the act to be the same as limited by the act of 2 & 3 Will. 4, c. 64; the boundaries of the other boroughs are to remain as they were then taken to be, till altered by Parliament. By the 8th section, every place included within the metes and boundaries of any borough, and none other, are to be part of such borough.

From the provisions it appears, that it was no part of the