Page:The English Reports v1 1900.pdf/1018

not appear, whether the exercise of the franchise commenced by right or by wrong, there may in such case be a judgment of seizure. Yelverton, 192. 15 Edward IV. And even if a judgment of [368] ouster were the more proper judgment, there is no colour to contend, that the judgment of seizure unreversed is absolutely void.

7th Objection: That the judgment of seizure was not followed by a writ of seizure. Answer: It does not appear that a writ of seizure did not issue; and as the King had a right to seize, and the grantees under the charter of Charles the Second have been long in possession of the franchises granted by that charter, it is to be presumed, if a writ of seizure were necessary to effectuate that grant, that such writ duly issued. But it seems wholly unnecessary that any writ of seizure should in fact have issued. The King's grant of the franchises that were forfeited, is equivalent to a writ of seizure; and though the writ of seizure is applicable to cases where the subject of forfeiture is corporeal, and capable of being actually taken, it is inapplicable where the subject is incorporeal, like the franchise of being a body corporate. 1 Shower, 275. Upon these several grounds the old corporation being extinct, King Charles the Second had an undoubted right to create a new one in the city of Chester, where there was at that time no body corporate existing; and he legally exercised that right by the charter stated in the plea, granted not to the old corporation, but to an entire new body, in which several of the members of the old corporation were particularly excepted.

But it is further objected, that if King Charles the Second had a right to grant such charter, it was void, as containing a power of removing, by the mere signification of an order of privy council, all the corporate officers, and thereby dissolving the corporation at the will of the Crown, which is repugnant to the nature of the grant itself, and absolutely void; and that the King intending to reserve a power which he could not do, he was deceived in his grant, and the whole is void also upon that ground. Answer: That the grant contains no such power of removing all the corporate officers at once, so as to dissolve the corporation, as appears from the provision expressly made for supplying the vacancies occasioned by removal under the directions of the charter, which could not be done if all the Members were to be removed; it seems therefore to be the import of the grant, to reserve a power of removing so many of the corporate officers only, as would leave & sufficient number to fill up vacancies, and as was consistent with the existence of the corporation, which it was evidently not the intention of the charter to reserve a power of destroying. Under this construction of the charter, it contains nothing repugnant or illegal; and it is a settled rule in construing the King's grant, that if there can be two constructions of the grant, of which one will make it good, and the other will make it bad, the first shall be adopted, 1 Co. 45. a. 10 Co. 67. b.; but if the King did reserve a power of removing all the corporate officers, the reservation is repugnant to the antecedent clause, whereby he grants to the Mayor and Citizens for ever; and of two repugnant clauses, the latter is to be rejected, Hard. 94. but it does not avoid the whole grant; and though the King were in this re-[369]-spect deceived in his grant, it does not arise from the false suggestion of the grantee, nor from any deceit or mistake in fact, nor in the condition on which the grant was made; but was a mistake in law of the King himself; and in a grant like this, purporting to originate ex certá scientiâ and mero motu, such mistake in one part of the charter does not affect the validity of the rest, according to the distinction adopted in a variety of cases; and, at all events, the grant is valid till it is repealed by a petition, or a scire facias.

Another objection is. That all the corporate officers were removed under the power reserved by the charter of Charles II. whereby the power of electing Aldermen deter mined. Answer: The power exercised by King James, of removing all the corporate officers at once, was not reserved by the charter; and if it were, the reservation of such power was illegal; and consequently the removal was illegal and void.

Lastly, it is objected, That the charter of pardon and restitution did away the judgment quosque, determined the charter of Charles II. and restored the ancient constitution of the city of Chester. Answer: The charter of restitution is granted to and accepted by not the corporation created by Charles II. but the Members of the old body; and King Charles II. having granted to the new corporation the franchises held formerly by the old one, had thereby precluded himself, and consequently his successors, from re-granting the same franchises to another set of men; nor could