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and on his behalf it was insisted (P. Yorke, J. Willes) to be erroneous, because the first issue was plainly found for him; namely, "that he was duly sworn a capital Burgess." And as to the second issue, "Whether he was a Burgess at the time of his being elected a capital Burgess or not;" it appeared, that he was chosen a Burgess on the 29th of September 1707; that he was afterwards sworn a Burgess on the 21st of May 1708; that on the 27th of September following, he was chosen, sworn, and admitted a capital Burgess; and that since that time he had been twice chosen and sworn Bailiff of the said borough, and executed that office two several years. It likewise appeared, that this was a corporation by prescription, as well as by charter; that the charter confirmed all their ancient customs, etc. and that from the 15th of Eliz, down to the present time, without interruption, it had been usual to elect Freemen or Burgesses out of persons inhabiting, as well without as within the borough, who had accordingly enjoyed that office. It was therefore conceived to be of dangerous consequence to set aside such an usage, after so great a length of time; and more especially, as it might be the cause of disfranchising many other members of the corporation, who had been chosen in the same manner, or whose elections depended on the same usage; and it might also tend to destroy the whole body, if after the plaintiff had been twenty years in possession of the superior office of a capital Burgess, and had twice served the office of Bailiff, it should be drawn into question, whether he, or any other person under the like circumstances, was a legal Burgess at the time of such election into the office of capital Burgess.

On the other side it was said (T. Reeve, N. Fazakerley), that the only question in this case was, Whether the plaintiff in error was a Burgess at the time of his pretended election to be a capital Burgess, or not? If he was not, he was incapable of being elected a capital Burgess; the charter having directed the choice of such officers to be [303] out of the Burgesses. Since the acceptance of this charter, no one can be a Burgess, unless his election into that office is warranted by the charter: now it plainly appears, that the plaintiff was not capable of being a Burgess, not being an inhabitant of the borough, which is a necessary qualification; for it is expressly required by the charter, that the Burgesses shall be chosen out of the inhabitants of the borough.—But it is objected, that notwithstanding the words of the charter are so, yet, that the usage has been to elect Burgesses who live out of the borough. No usage can be sufficient to establish a right, but an immemorial usage, which does not appear in the present case, this usage being only from the 15th of Eliz. and therefore not sufficient to establish a right. Supposing, however, that this could be taken to be such an usage, as would amount to a prescription; yet, when a charter has been accepted, directing an election inconsistent with such an usage, as in the present case, where the election of Burgesses is confined to be out of the inhabitants, the prescription inconsistent with the charter can no longer subsist, but is determined by the acceptance of the charter; which must afterwards be the only measure by which the election of Burgesses is to be governed. Corporations are merely creatures of the Crown, and where they subsist under charters, they must be guided and governed by such rules and directions as are thereby prescribed; and therefore where any charter has directed, as in the present case, that certain members are to be elected out of persons under any particular description, such persons and no others are capable of being elected. Though in some corporations, practices inconsistent with the rules prescribed by the charters may have long prevailed, yet they are no better than so many instances of usurpation upon the Crown; and such a wrongful practice can no more create a right, contrary to the words or directions of a charter, than the first instance of that kind after the acceptance of the charter could be legal; since it would be difficult to maintain that the first election, after the acceptance of a charter, of a person not within the description of it, was legal; and if not, it would be equally difficult to fix upon any period of time, when such a practice would first begin to be legal. It was therefore prayed, that the judgment of the Court of King's Bench might be affirmed.

Accordingly, after hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the Court of King's Bench should be affirmed; and that the record should be remitted, to the end execution might be had thereupon, as if no such writ of error had been brought into the House. (Jour. vol. 23. p. 339.)