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1798.

GRINDLEY

BARXER.

the homage of a Court Baron where the suitors are judges and
jury, and the verdict of the majority binds. Where a mini-
sterial act is to be done, or a naked authority to be executed,
the concurrence of all those to whom the authority is committed,
is required. Nor is the distinction between the two fpecies of
authorities, viz. those which are discretionary and those which
are merely minifterial, without good reason. In the latter case,
where unanimity is required, the law provides the means of com-
pelling it; as in cases of private trusts, by the interference of
the Court of Chancery, and of public ones by mandamus from
the King's Bench; but there are no legal means of obliging men
to act contrary to their judgment. By analogy to the case of
elections it may be contended that this judgment is the judgment
of all the fix triers; for there a majority has no other way of
over-ruling the opinion of the minority but by voting on the op-
posite fide; if they give a mere negative they must be taken
to have virtually confented. The King v. Foxcroft, Burr. 1017.
and Rex v. Withers, Pafch. 8 Geo. 2. B. R. cited by Wilmot J.
Burr. 1020. In the new assignment it is stated that the two re-
fused to concur and that the four found a verdict, and in the plea
to the new assignment it is averred that the hides were found
“ by the said triers appointed as aforesaid” to be insufficient. If
therefore consistently with the allegation of the Plaintiff this
verdict can be considered as the finding of all the triers it must
so be taken; and on the authority of the above cafes it is clear
that if four find, and two refuse, the finding must be held the
finding of the fix. It has been decided in the case of a corpora-
tion, Attorney General v. Davy, 2 Atk. 212., that a majority may
act, though nothing be mentioned in the charter, of the major
part: and in the King v. Beeflon, 3 T.R.592., and Witnell v.
Gartham, 6 T.R. 398., which were not cases of corporations, the
acts of a majority were held sufficient. In the former of those
cases arguments ab inconvenienti were admitted, and in the latter
Mr. J. Lawrence stated it as a general principle, that " where a
body of persons is to do an act, the majority of that body will
bind the rest.” 2dly, The rigour complained of in the preamble
does not relate to any mode of trial, but to certain acts which by
former statutes were required to be done, and which could not be
done. No argument can be drawn from .15., for as the word
“ triers” is there used generally, the same construction which ap-
plies to the clause in question will apply to that. Admitting that

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1798.

GRINDLEY

BARKEK:

all the clauses, where the major part is not mentioned, must be understood in the same manner, a strong argument in favour of the Defendant may be drawn from s. 22., for the act required to be done is to be done by the wardens of two companies, who are select parts of two corporate bodies; and where an act is to be done either by a corporation or a select part of it, it is clear that a majority will bind : and though in this particular cafe it appears that the judgment cannot be given by the wardens of the curriers only, because the wardens of each company are to be considered as one arbitrator, and where there are two arbitrators, both muft join; yet the opinion of the wardens of each company must be determined by the majority. So the acts to be done under sections 24. and 27. are to be done by select parts of corporate bodies, and the same observation will therefore apply. The reason why " the more part” was mentioned in section 29. was not to give a power to the majority which they had not before, but to obviate a doubt which might arise, whether every one of the persons there mentioned would not be liable to a penalty if he did not go out four times in every year to view, 8c. Nothing therefore appears on the face of the act to thew an intention in the Legislature to control the general rule of law: nor has the particular clause by which the triers are constituted, kept in view the trial by jury as has been contended, having omitted one of its most leading features, the right of challenge. 3dly, Though the triers are made to confift. of equal numbers of each of the three trades, yet this appears to have been done with no other object than to compose a tribunal whose members should be acquainted with every ftate in which the leather might be when it came to be tried. The members belonging to one trade are to assist those of the other two by their information, and then the whole is to give one general verdia for the public: if it were otherwise it would be in the power of the members of either of the three trades to control the acts of the other two, in order to favour the members of their own trade, whose wares might come before them to be tried.

Reply. The King v. Foxcroft differs from this case: for the electors being met were bound to vote for some person if they meant toexercisetheir franchise; whereas here the triers being met to try a particular question, four gave an opinion in the negative and two in the affirmative. In the King v. Withers fome of the electors voted for two persons when there was but one vacancy,

and

1798.

GRINDLEY

BARKEL.

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and therefore their votes were thrown away. The construction
of 9 Geo. 1. c. 7. in the King v. Beeston, was expressly made with
reference to the 43 of Eliz. the poor laws being all in pari ma-
teriá. And the judgment of the Court in Wittnell v. Gartham
did not proceed on the words of the itatute, but on three other
grounds: viz. The intent of the founder, the resemblance of the
body to a corporation, and usage.

EYRE Ch. J. The true question in this case lies in a very
narrow compass; it is this: What is the operation in law of a
judgment of fourout of fix triers, fix being the number constituted
to be the triers, and the fix being assembled to inquire and try;
whether it is to be deemed the finding and judgment of the body,
or merely the finding and judgment of the four individuals who
concurred? If it is the mere finding of the four who concurred,
then this leather is not found insufficient, but if the operation of
law on the finding of four, who are the majority of the body
duly assembled, be, that their judgment is the judgment of the
whole, and therefore the judgment of the triers; then the leather
must be taken to have been found insufficient, and the Defen-
dants are justified. On the first argument I thought this quef-
tion would turn on two general heads of inquiry. ift, What
the general rule of law was in the case of bodies of men entrusted
with powers of this nature; whether they must all concur, or
whether the decision of the majority would bind the whole ?
2dly, Suppofing the latter to be the general rule, whether that
general rule is to be controlled by the intent of the legillature as
collected from the scope and provisions of this act ?

With respect to the first question, I think it is now pretty well eftablished, that where a number of persons are entrusted with powers not of mere private confidence, but in some respects of a general nature, and all of them are regularly assembled, the majority will conclude the minority, and their act will be the act of the whole. The cases of corporations go further: there it is not necessary that the whole number should meet; it is enough if notice be given; and a majority, or a lesser number, according as the charter may be, may meet, and when they have met, they become just as competent to decide as if the whole had met. With a view to this case, thofe who have met resemble the fix triers who have authority to decide: and then a question arises, how they may act when they have met. The case in Atkyns shews the opinion of a great Judge, Lord Hardwicke, who was much conversant with this subject in one part of his judicial

,

1798.

life, that the majority of persons afsembled will conclude the minority, and an act done by them will be the act of the whole body. And that part of the Law of Corporations applies to this case; that with regard to powers not merely private, which are to be exercised by many persons, provided a fufficient number be assembled, the act of the majority concludes the minority, and becomes the act of the whole body. If that be so, the argument drawn from the word “triers” being used generally, in the 33d and 46th sections, will not stand much in our way: because the judgment of four triers in this case is the judgment of all, as much as if all had concurred. There is nothing then in the general rule of law to prevent this finding from being held good. But the question is still open, whether on the construction of this particular statute, it does not appear that not only all the persons muft be assembled, but that every one of them should concur, or at least that one of each class should concur. There was fomething very plausible in that last argument, but I am now clearly satisfied, either that all must concur, or that a majority may decide for the whole. There is nothing in the act which necessarily leads to a construction, that the majority must be composed in any particular manner. With regard to the general question, it has been argued moft weightily, that as the leather might be seized in all the stages of the manufacture, it was right that the authority which was to determine should be delegated to persons of all the different trades, in order that the body might be aided and assisted by the united experience of all the branches, whenever the inquiry should come before them. But it ftruck me that when the body was fo conftituted and had assembled, and could have the aslistance of the united experience of all, the necessity of all concurring in the final judgment was not fo apparent, and might be attended with inconvenience. It is indeed a truth, that in a body composed of three claffes of trade, those who are of the particular trade of which the owner of the goods happens to be, may feel an inclination to favour the menubers of their own trade, and may hesitate to condemn, when they themselves might be liable to condemnation the next time. And this might be attended with a great deal of inconvenience, since the searchers are obliged to execute a public duty, and the validity of their acts must depend upon the judgment of the triers (a). It seems better that when all the knowledge which each class can afford has been communicated, the

GRINDLEY

BARKER."

(a) Warre v. Varley, 6 Term. Rep. 443.

whole

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whole should be governed by the majority. This case has been compared to the case of juries, and in many respects it is analogous; but in an abundance of particulars it is unlike. On the abstract question it has often been debated, whether there is policy and good reason on the fide of the rule which requires unanimity in a jury. However good therefore the rule may be found in practice when applied to juries, yet if it be doubtful in theory we ought not to force the analogy, and apply the rule to other cases where it may be found inconvenient. It is impossible that bodies of men should always be brought to think alike: there is often a degree of coercion, and the majority is governed by the minority, and vice versa, according to the strength of opinions, tempers, prejudices, and even interests. We shall not therefore think ourselves bound in this case by the rule which holds in that. I lay rio great stress on the clause of the act which appoints a majority to act in certain cases, because that appears to have been done for particular reasons which do not apply to the ultimate trial: it relates only to the assembling the searchers; now there is no doubt that all the fix triers must afsemble; and the only queftion is, what they muft do when assembled? We have no light to direct us in this part, except the argument from the nature of the subject. The leather being subject to seizure in every stage of the manufacture, the tribunal ought to be composed of persons skilful in every branch of the manufacture. And I cannot say there is no weight in the argument, drawn from the necessity of persons concurring in the judgment, who are possessed of different branches of knowledge, but ftanding alone it is not so conclusive as to oblige us to break through a general rule: besides, it is very much obviated by this confideration, that when all have assembled and communicated to each other the necessary information, it is fitter the majority should decide than that all hould be prefled to a concurrence. If this be so, then the reasons drawn from the act, and which have been supposed to demand, that the whole body should unite in the judgment, have no fufficient avail, and consequently the general rule of law will take place; viz. that the judgment of four out of fix being the whole body to whom the authority is delegated regularly assembled and acting, is the judgment of all.

BULLER J. The first question to be considered in this case is, what is the legal effect and understanding of the facts disclosed upon this record, and I think this point has been extremely well

argued

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