his office. As the effect of the restoration is not to create the person an officer de novo, and give him a new title, and as it replaces him exactly in the same situation in which he stood. before the attempted amotion; all corporate acts, in which he has concurred between the moment of his amoval and restitution, are of equal validity as if he had never been amoved. If he were before a legal officer, such acts are legal; if he were only an officer de facto,' his acts before his amoval, during the amotion and subsequently to the restoration, are equally voidable, and he may be ousted in quo warranto for any defect in his original title. If he were originally a legal officer, and amoved for sufficient cause, but restored on account of informality in the amotion, all his corporate acts, both before and since the amotion, are valid; but he may again be amoved in a more formal manner, which vacates his office from the time of the second amotion, but has no retrospective effect upon the former irregular amotion. Indeed if the amotion were voidable on account of an insufficient cause, or insufficiency, in the form in which it was effected, the person has not been. ousted; and if he continues to be treated as an officer, and acts as such, there is no need of a writ of restoration."

$10. The power of disfranchisement and amotion, unless it has been expressly confided to a particular person or class, is to be exercised by the corporation at large, and not by the person or class in whom the right of appointing or admitting is vested. For this reason, when an amotion is pleaded, if the authority by which it has been transferred to a select class be not shown, it will be construed to be in the body at large, and must be proved to have been exercised by the whole corpora

'To constitute even an officer, de facto, there must be at least the forms of election, though these may, upon legal objections, be afterwards found defective. Willcock on Mun. Corpor. 280.

The principles we have just stated are laid down by Mr. Willcock, who cites in support of them Taylor v. Gloucester, Cowp. 503; Rex v. Ipswich, 2 Ld. Raymd. 1283; S. C. Salk. 448; Symmers v. Regem, Cowp. 503; and see Mr. Willcock's Treatise, p. 260 to 270.

tion.' If the power of amoving certain officers be antecedently in a select body; and the corporation accept a new charter, silent upon that head, but making other alterations and recognizing or confirming such body, although under a different name, and in general terms confirming the corporation in all cases where no alterations are introduced, the right of amotion still continues in this select body. It has not been directly determined, says Mr. Willcock, though it was assumed by Lord Mansfield, that the power of amotion may be transferred to a select body by a by-law in the same manner as the right of election. It was said that when a common council had the sole right of election and making by-laws, there is some foundation for thinking that they possess the power of amoving those whom they elect, though claiming it neither incidentally nor by grant of the charter. Mr. Willcock apprehends, that, when the corporation is prescriptive, this is evidence for a jury to presume a custom, if nothing contradictory appear; but in a corporation by charter, such a power, he is confident, must be shown to have been expressly granted by the charter, or a subsequent by-law, or at the utmost these facts should be left to a jury as evidence of a lost by-law.*

3

§ 11. It is said that an office may be resigned in two ways, either by an express agreement between the officer and the corporation, or by such an agreement implied from his being elected to another office incompatible with it. And some of

1 Willcock on Mun. Corpor. 245, 246; Lord Bruce's case, 2 Str. 819; Rex v. Lyme Regis Doug. 153; Rex v. Doncaster, Say. 38, 249; Rex v. Richardson, 1 Burr. 539; Rex v. Ponsonby, 1 Kenyon, 29; Rex v. Feversham, 8 T. R. 536; Bagg's case, 11 Co. 99; Rex v. Sadler, Styles, 477: Rex v. Oxford, Palm. 452.

* Willcock on Mun. Corpor. 246; Haddock's case, T. Ray. 239; Rex v. Knight, 4 T. R. 429.

Willcock, ut supra; Rex v. Richardson, 1 Burr. 539; Cowp. 502.
Rex v. Doncaster, 1 Barnard, 265.

Willcock, ut supra, 247, 248.

• Willcock on Mun. Corpor. 238.

the acts and delinquencies, such as removing and residing at a distance, which have been mentioned as causes of amotion, may be properly regarded as an implied resignation. To complete a resignation, it is necessary that the corporation manifest their acceptance of the offer to resign, which may be done by an entry in the public books, or electing another person to fill the place, and thereby treating it as vacant. Every corporation has an incidental power of accepting the resignation of its officers; and therefore, when it is averred generally, that the resignation was made to a corporate assembly, if the right to receive it be in a select body, that should appear on the pleading, and how it was acquired by them. It is presumed that the right to accept a resignation passes incidentally with the right to elect; for it is not a power to be compared with that of amotion, and it seems that an office should be relinquished by the consent of those in whose authority it originated.*

3

A resignation by implication may not only take place by an abandonment of the official duties as before mentioned, but also by being appointed to and accepting a new office, incompatible with the former one. It was supposed at one time, that such a resignation could only be where the second office is superior to the former. It has, however, been determined to be unimportant, and that if one holding a superior office, accept a subordinate one that is incompatible, the appointment to the second operates to vacate the former. But the election of

1 Ibid.

Ibid. 239; Rex v. Lane, 2 Ld. Raym. 1304; S. C. 11 Mod. 270; Rex v. Rippon, 1 Ld. Raym. 563; Jennings's case, 12 Mod. 402; Hazard's case, 2 Rol. 11.

Rex v. Tidderly, 1 Sid. 14.

See Willcock, ut sup., and Rex v. Tidderly, ut sup.

This is an absolute determination of the original office, and leaves no shadow of title to the possessor; so that neither quo warranto nor amotion is necessary before any other may be elected. Wilcock on Mun. Corp. 240; Gabriel v. Clarke, Cro. Car. 138; Verrior v. Sandwich, 1 Sid. 305; Rex v. Godwin, Doug. 383, n. 22; Milward v. Thatcher, 2 T. R. 87; Rex v. Pateman, 2 T. R. 779. The offices of mayor and aldermán, being

an officer to an incompatible office does not vacate the former, before acceptance by the officer; for although the corporation has a right to the service of all its qualified members, in any office to which they are elected, yet they having been already appointed to one, that is a temporary disqualification, which renders them ineligible to the other; and the corporation, having chosen to elect them, must be presumed to have been aware of that circumstance, and to have precluded themselves from calling again upon their services.' Where the offices are not in fact incompatible, acceptance of a second may be a resignation of the first, on account of the form of the constitution; for it is not to be presumed that when the government constitues a certain number of distinct offices, it means that the corporation may consolidate two or more of them in one person. A corporator is not bound to elect between resigning his corporate franchise and submitting to persons who have illegally seized upon the corporate authority."

judicial offices, are incompatible with that of recorder, who is an adviser to them. Rex v. Marshall, cited in Rex v. Trevenner, 2 B. & A. 34.

1 Willcock, ut sup. Barton's case, Popham, 176; Millward v. Thatcher, ut sup. Rex v. Pateman, ut sup.

2 Millward v. Thatcher, ut sup. If the corporation consist of mayor, recorder, town clerk, and twelve aldermen, the recorder or town clerk cannot be an alderman, though there be no inconsistency in the duties of the two officers, for such a method of electing would reduce the corporation to a mayor and twelve or thirteen other officers instead of fourteen, of which it ought invariably to consist. Ibid.; and Willcock, ut sup. 243.

3 Ebaugh v. Kendell, 5 Watts (Penn.) R. 43.

CHAPTER XIII.

OF THE BURTHENS TO WHICH THE BODY CORPORATE IS SUBJECT; AND OF ITS LIABILITY TO BE TAXED.

1

1. THERE is no reason why corporations should not be subject to the same burthens, in the character of owners or occupiers of lands and houses to which individuals are subject in the same character; and such has always been the understanding. Thus, Lord Coke, commenting on the word inhabitants, in the statute made in the time of Henry VIII., for the repair of bridges, says, that every corporation, residing in any county, riding, city, or town corporate, or having lands or tenements in any shire, riding, city, or town corporate, quæ propriis manibus et sumptibus possident et habent, are inhabitants within the purview of the statute. And where any general duty is imposed by the government, in respect to houses and lands, corporations are liable in respect to their houses and lands in the same manner as private persons." Corporations

1 1 Kyd on Corp. 317; McQuin v. Middletown Man. Co. 16 Johns. (N. Y.) R. 6.

22 Inst. 703.

Thus, where a duty was imposed upon hearths, and officers with a constable were empowered to distrain, if the party refused to pay the duty by the space of an hour; and in a special verdict in an action of trespass, brought by the Ironmonger's Company, it was found that the company was seised in fee of five messuages, in which were thirty-five hearths; that the company had never finished the messuages, but that from the time of building they had stood unoccupied; that the defendants, being lawfully authorized, had demanded the duty of the company, which they refused to pay, on which the defendants took the distress and kept it till the company paid the duty; the general question made was, whether the owner of a new house, uninhabited from the time of building, ought to pay this duty. But no question was made, whether as a corporation they were liable to the tax; it