
    * [Philadelphia, February 10, 1838.]
    THE COMMONWEALTH against GILL and Others.
    QUO WARRANTO.
    1. Amendments of the pleadings in quo warranto may be admitted at the discretion of the Court.
    2. On a quo warranto to show why the defendants hold and exercise a certain office, it is not sufficient, in general, to aver, that they were “ duly elected” to the office.
    3. But where a plea, in addition to this, set out the time and place of the election, and averred that it was held in pursuance of the authority granted by the charter, and of the provisions of an act of assembly, copies of which were annexed, it was held, that this was sufficient.
    
      ■its to show why they ex-lorporated company, they [January, 1837, they were p the original charter, and ly (which provided for an annual election,) and thereby became entitled to all the rights, privileges, &c., of directors; and further, that on the 1st of May, 1837, they were again duly elected directors, agreeably to the provision of a certain other act of assembly, and to certain resolutions of the corporation; and that on the 2d of May, 1837, at a meeting of the directors it was resolved, that in case the last mentioned election should prove to have been irregular and illegal, then, in obedience to the 4th section of the charter of incorporation, the persons so elected would continue to hold and exercise their offices by virtue of their election in January preceding. On demurrer to this plea, it was held, that as either election, if valid, would constitute a sufficient defence, the plea was bad for duplicity and uncertainty.
    5. An act of assembly incorporated in the first section certain persons therein named, and all other persons thereafter becoming members of “The Philadelphia Savings Institution,” in the manner thereinafter mentioned. The object of the corporation was declared to be to receive deposits of money, and pay interest thereon. Por the security of the depositors it was made the duty of the members to raise a certain capital, which was to be divided into shares. The fourth section provided, that there should be a meeting of the members annually in the month of May, for the choice of directors from among the members. The fifth section provided, among other things, that the directors should have power “to provide for the admission of members, and furnishing proofs of such admission.” By a subsequent act of assembly it was declared, that stockholders should have a right of voting for directors, and that they should be eligible for directors. A by-law was passed by the directors elected in pursuance of this last act, providing that every person holding one share of stock should be a member of the institution, and that upon a transfer of his stock, such person should cease to be a member: Held, (1st,) That the directors had not the power to elect members, but merely to provide for their admission; and (2d) that if they had the power, the by-law was an unreasonable exercise of it, and inconsistent with the design of the charter, and therefore invalid.
    A writ of quo warranto was issued at this term, by leave of tbe * Court, against William Grill, and others, at the relation of Peter Fritz, and others, upon the following suggestión filed.
    “ In the Supreme Court for the Eastern District of Pennsylvania, of December term, 1837.
    City and County of Philadelphia, ss. /
    
    Be it remembered, that Peter Fritz, Benjamin Duncan, Ilenry Huber Jr., Thomas Fletcher, John M. Burns, Thomas P. Huberts, Morgan Ash, John S. Warner, Charles ''Johnson Jr., Thomas T. Ash, Samuel Eckstein, Joseph L., Hutton, and William C. Hudman, who sue for the commonwealth in this behalf, come here into Court, and give the Court here to understand and be informed, th approved the fifth daincorporate the Phil together with certaii all and every other person or persons thereafter becoming members of the Philadelphia. Savings Institution, in the manner thereinafter mentioned, were created and made a corporation and body politic, with the name and style of the Philadelphia Savings Institution, with the franchises, privileges, and incidents of a corporation ; and it was provided, that thirteen directors should be annually chosen and elected from among the members of the said corporation, by the members thereof, to manage the affairs of the said corporation, all which in and by the said act of assembly, reference being thereunto had, will more fully and at large appear; and the relators annex hereto a copy of the said act of assembly, and pray that the same may be taken as a part of this suggestion and information, as if it were herein fully recited and set forth at large. And the relators further give the Court here •to understand arid be informed, that the members of the said corporation afterwards, viz. on the thirtieth day of June, A. D. 1834, at the county aforesaid, at a general meeting of the members thereof, duly convened and held, duly passed and enacted certain by-laws of the said corporation, one of which by-laws is in the words following, viz.: — “ Law 5. No person shall be eligible as a member, until he shall have been a depositor one year, or a stockholder six months. All elections for membership shall be by ballot, at a general meeting of the institution, at which the votes of two-thirds of the whole number of members of the institution shall be requisite for admission —which said recited bylaw remains in force and unrepealed.
    And the members of the said corporation, afterwards, to wit, on the thirty-first day of January, A. D. 1836, at the county aforesaid, at a general meeting of the members thereof, duly convened and held, duly passed and. enacted certain other by-laws of the said corporation, -one of which last mentioned by-laws is in the words following, viz.: — “ Law 5. Any person may be eligi- ' We as a member of this institution, who may have been a stock-bolder six months, or a ^weekly depositor for one year. Candidates for membership shall be ballotted for at the next general meeting after being nominated:” — which said last recited by-law remains in full force and unrepealed.
    And the rolators further give the Court here to understand and be informed, that William Gill, Samuel Chew, George J. Pepper, Abra-ham'.Hart, James Musgrave, Jr., John Leadbeater, Sr., William Sharpe,-.Edward D. Wolfe, George Guest, and Benjamin E. Hagner, nor any of them, were not originally, nor have not at any time been elected or admitted members of the said corporation. And the relators further give the Court here to understand and be informed, that at a meeting of the members of the said corporation, duly held on Monday, the first day of May, A. D. 1887, (agreeably to the charter and by-laws thereof, and to the provisions of a joint resolution passed by the Senate and House of Representatives, and approved by the governor of the common-' wealth, on the third day of April, A. D. 1837, by which it was enacted, among other things, that the directors of the said corporation should be elected on the first Monday in May then next, and on the first Monday in every May thereafter annually); the relators were by the members thereof duly chosen and elected directors, to manage the affairs of the said institution for twelve months thereafter, and until a new election shall take place. But notwithstanding the' premises, and the said elecction, the said William Gill, Samuel Chew, George J. Pepper, Abraham Hart, James Musgrave, Jr., John Leadbeater, Sr., William Sharpe, Edward D. Wolfe, George Guest, and Benjamin F. Hagner, have, during-all the time since the said first day of May, A. D. 1837, used, and still do use, the franchises, offices, privileges and liberties of directors of the said Philadelphia Savings Institution, and, during the said time, have usurped, and do usurp upon the commonwealth therein, to the great damage and prejudice of the constitution and laws thereof. Whereupon the said relators for the said commonwealth do make suggestion and com-, plaint of the premises, and pray due process of law against the said William Gill, Samuel Chew, George J. Pepper, Abraham Hart, James Musgrave, Jr., John Leadbeater, Sr., William Sharpe, Edward D. Wolfe, George Guest, and Benjamin F. Hagner, in this behalf, tó be made to answer to the said commonwealth, by what warrant they claim to have and enjoy the franchises, offices, liberties, and privileges aforesaid.
    Dec. 26, 1837.”
    A similar writ was issued against the same and other persons, to show why they claimed to be members of the Philadelphia Savings Institution.
    The act of incorporation referred to in the foregoing suggestion was passed on the 5th of April, 1834. The following provisions are all that are material to the understanding of the.present case.
    *The first section enacted that certain persons therein named and all persons thereafter becoming members of the Philadelphia Savings Institution should have the powers and privileges of a body politic and incorporate. The second section declared that the object of the corporation was to receive deposits of money and to pay interest thereon. The third section provided, that for the security of the depositors, a certain capital should be raised, to be divided into shares, which were to be transferable on the books of the company, in such manner as should be directed by the by-laws. The fourth section provided for a meeting of the members annually, on such day in the month of May, as the by-laws should direct, to choose from among the members thirteen directors, to manage the affairs of the institution for twelve months, and until a new election should take place. The fifth section declared the powers of the directors, which, among other things, were expressed to be,'“ to provide for the admission of members, and furnishing proofs of such admission to make by-laws, &c., provided that such by-laws might be altered or repealed by two-thirds of the members, at any annual meeting, or at any general meeting called in pursuance of any by-law made for that purpose, and that the majority of members might, at any annual or general meeting, pass by-laws-which should be binding on the directors. The seventh section made it the duty of the directors, at least once in every six months, to appoint from the members of the corporation five competent persons as a committee of examination; whose duty it should be to investigate the affairs of the corporation, &c.
    On an information in the nature of a quo warranto, granted by this Court at March term, 1836, it was held, 1st, That stockholders wei*e not, as such, members of the corporation, and consequently that the assignee of a stockholder did not, by the assignment, become a member ; and 2d, That persons originally members, continued to be such, although they never possessed stock, or had parted with it.*
    An act of the legislature, passed shortly after this decision, viz. on the 16th of June, 1836, provided that the fourth article of the third section of an act entitled, “An act to recharter certain banks,” passed on the 26th of March, 1824, (which fixes the scale of voting at elections for directors in reference to the number of shares of stockholders,) should be extended to the Philadelphia Savings Institution; and that thereafter stockholders should be eligible for directors, and that the election for directors should take place on the second Monday in January annually.
    the On April, 1837, the foregoing provision was repealed by a resolution of the legislature; and it was declared that the company should elect their directors on the first Monday in May then next, and on the first Monday in every May thereafter annually.
    The defendants in the writ of quo warranto, excepting 33. E. Hagner, filed the following answer on the 8th of January, 1838.
    
      “To the Honourable the Judges of the Supreme Court of the State of Pennsylvania, for the Eastern District.
    The answer of William (3-ill, Samuel Chew, Greorge J. Pepper, Abraham Hart, James Musgrave, Jr., John Leadbeater, Senr., William Sharpe and Erasmus D. Wolfe, to the suggestion and complaint of Peter Eritz, Benjamin Duncan, Henry Huber, Jr., Thomas Eletcher, John M. Burns, Thomas P. Roberts, Morgan Ash, John S. Warner, Charles Johnson,. Jr., Thomas T. Ash, Samuel Eckstein, Joseph L. Dutton and William C. Rudman, or to so much thereof as they are advised, that it is in any manner incumbent on them to answer — respectfully makes known,—
    That they admit that Peter Eritz and others, in the first section of the act of the 5th of April, 1834, incorporating the Philadelphia Savings Institution named, and all and every person or persons thereafter becoming members of the Philadelphia Savings Institution in the manner thereinafter mentioned, were truly created and made a corporation and body politic, by the name- and style of the Philadelphia Savings Institution, with all the rights, privileges, liabilities and immunities in the said section enumerated.
    The respondents further show, that by the fourth section of the said act, the election for thirteen directors to manage the affairs of the said institution for twelve months thereafter, was prescribed to take place from among the members on such day ip the month of May, then next ensuing, and at such place annually thereafter, as the by-laws of the said institution should provide ; the directors so elected to manage the affairs of the institution for twelve months thereafter, and until a new election should take place.
    And by the fifth section of the said act, the directors for the time being, or a majority of them, should have power, among other things, to provide for the admission of members and furnishing proof of such admission, to provide for paying all necessary expenses, conducting the affairs of the corporation, and generally to pass all such by-laws as shall be necessary to the exercise of the said powers, and of the other powers vested in said corporation by the said charter, and the said by-laws from time to time to alter and repeal. Provided, that all such by-laws as shall be made by the directors, may be altered or repealed by two-thirds of the members, at any *annual meeting, or at any general meeting called in pursuance of any bylaw made for that purpose.
    And the majority of the members may, at any annual or general meeting, pass by-laws which shall be binding on the directors.
    The respondents further show, that at a meeting of the board of directors, held May 5th, 1834, it was provided, that no person should be eligible as a member, unless he should have been a depositor one year, or a stockholder six months; all elections for membership, to be by ballot at a general meeting of the institution, at which the votes of two-thirds of the whole number should be requisite for admission.
    That by an act passed June 16th, 1836, (pamp. 681,) it was enacted, that the fourth article of the third section of an act entitled “an act to recharter certain banks,” passed the 25th of March, 1824, directing the mode of voting for directors, should be extended to the Philadelphia Savings Institution, and that thereafter stockholders should be eligible for directors.
    That in pursuance of the said last mentioned act, the respondents were on the 9th day of January, 1837, diily elected directors of the Philadelphia Savings Institution, and were entitled to all the rights, privileges, franchises and offices of directors, as •provided by the charter, acts of incorporation, supplements and by-laws of the said institution.
    That on the 6th of February, 1837, in obedience to, and in pursuance of the 'said act of the 5th of April, 1834, and of the said act of the 16th of June, 1836, the respondents enacted a by-law in terms following: — that is to say, Law 4:—
    “ The directors, in accordance with the power to them given by the charter to provide for the admission of members, and furnishing proofs of such admission, do declare, that every person holding one share of stock, shall be a member of the said institution, and that upon a transfer of such stock, such person shall cease to be a member.”
    That at a meeting of the board of directors, duly convened on the 20th of April, 1837, the following resolution was submitted: “Resolved, That all the by-laws of the institution, passed prior to the 1st day of February, 1837, which have not been heretofore legally repealed, be and the same are hereby repealed.” And on motion duly seconded, it was ordered, “ That this resolution be laid over to the next meeting, and notice be given to absent members,” which was given accordingly. “ And further resolved, That so much of the following by-laws, as have not been heretofore legally enacted, be, and the same are hereby enacted, as the by-laws of the institution.”
    Wherein was included
    Law 3: — “ The directors, in accordance with the powers to them given by the charter, to provide for the admission of members, and of such admission, do declare, that every Person ^holding one share of stock, shall be a member of the said institution.” — And
    Law 32. — “ The proofs of admission of members, shall be furnished by their appearing to be stockholders on the books of the institution.”
    And that the said resolutions and by-laws, afterwards, at a regular meeting of the board of directors, duly held and convened on the 24th of April, 1837, the said resolutions inter alia, were unanimously adopted, and by-laws passed previous to the 6th of February, 1837, which had not been legally repealed, were thereby repealed,' and the code of laws passed, February 6th, 1837, was confirmed and re-enacted.
    And the respondents admit, that a resolution was passed on the night of the 3d of April, 1837, marked No. 22, entitled, “A resolution relative to removing the Schuylkill Bank at Port Carbon to Pottsville,” as follows, to wit:
    “ Besolved, that the tenth section of the act to authorise John Gfamber, of Dauphin county, to construct a canal or slip, from, the Pennsylvania Canal to his furnace, and for other purposes, passed the 16th of June, 1836, be, and the same is hereby repealed.”
    “ And that the company, in the said section mentioned, shall elect their directors on the first Monday in May next, and on the first Monday of every May thereafter annually.” And the respondents show, that at a meeting of the board of directors, duly convened and held on the 28th of April, 1837, it was duly resolved, that all stockholders now holding one or more shares, are declared to be members of the institution, and entitled to all the benefits of the by-laws of the institution.
    That on the 1st of May, 1837, the respondents (together with Charles Bobb and Samuel J. Curtis,) were duly elected directors for twelve months, to manage the affairs of the institution, and as such entered upon and held and hold the offices, franchises, rights and privileges as directors of the same. And the respondents further show, that at a meeting of the board of directors, duly convened and held on the 2d of May, 1837, it was duly resolved, that in case the said election should prove to have been irregular and illegal, then in obedience to the fourth section of the charter, they continue to hold and' exercise their offices, by virtue of their election in January preceding.
    And the respondents do not admit, but on the contrary, expressly deny, that the said by-laws so as aforesaid passed by the directors nor any of them, were at any time in due form of law altered or repealed by the members : and they do not admit, but on the contrary expressly deny, that the members of the said corporation, on the day of June, or any time in June, 1834, at a general meeting of the members thereof duly convened and held, passed and enacted the by-law five, in the said suggestion an<^ res°l'ution set forth. And *fhey do not admit, but on the contrary expressly deny, th.at the members of the on or any in January, 1836, at a general meeting of the members thereof duly convened and held, passed and enacted the by-law in the said suggestion and relation recited and set forth law fifth in the words or to the tenor or effect in the said suggestion or relation set forth. And they do not admit, but on the contrary expressly deny, that at a meeting of the members of the said corporation, duly held on Monday, the 1st of May, 1837, the relators or any of them, were by the members thereof duly chosen and elected directors to manage the affairs of the said institution; but the respondents aver, that they were at an election duly held on Monday, May 1st, 1837, elected directors of the said institution to manage the affairs thereof, twelve months thereafter, or until a new election should take place; without this, that there is any other matter or thing in the said suggestion and relation contained, which these respondents are required by law to admit, answer or deny.”
    Benjamin E. Hagner on the same day filed the following disclaimer.
    “To the Honourable, the Judges of the Supreme Court of Pennsylvania.
    The answer of Benjamin E. Hagner to the suggestion and relation of Peter Eritz and others, respectfully shows,
    That he has not at any time exercised any of the office or privileges of a director of the Philadelphia Savings Institution.”
    To the answer of the first named defendants, the following demurrer was filed.
    “And the said relators, who for the said commonwealth prosecute, having heard the said answer of the said defendants, by them in manner and form aforesaid above pleaded, say, that the said commonwealth, by any thing by them respectively above alleged, ought not to be barred from having the aforesaid suggestion and information against them, because the said relators say, that the said answer, and the matters therein contained, are not sufficient in law to bar the said commonwealth from having the aforesaid suggestion and information maintained against them, and to which said answer and the mattei’s therein contained, they the said relators, have no occasion, nor are they bound by the law of the land to answer; and this the said relators are ready to verify: wherefore for want of a sufficient plea in this behalf, the said relators pray judgment; and that the said defendants, and every of them, be respectively convicted of the premises above complained of again A them; and that they, and every of them be respectively ousted of and from the franchises, offices, privileges, and liberties aforesaid.”
    *The following cat\ses of demurrer were assigned:
    “1st. Duplicity and uncertainty in the answer, in -* pleading and relying upon the two alleged elections of the 9th of January and 1st of May, 1837.
    2nd. That the answer traverses the times of making the two by-laws mentioned in the suggestion.
    3rd. That the answer is multifarious, &c., in other respects.”
    Mr. J. R. Ingersoll, for the defendants,
    now applied for leave to amend, by withdrawing the answer, and filing a plea in lieu of it. He said that the amendment was offered at the earliest possible time after notice of the demurrer. The informality of the answer was admitted. The act of 1806 requires the Court to allow amendments in all stages of pleading; and the act applies, to cases of quo toarranto, as well as to other actions.
    Mr. Meredith, contra.
    
    This is a matter of substance. In England these proceedings are amendable, because the statute extends expressly to quo warranto. Willcock on Corporations, vol. 2, pl. 272. The Courts there require an affidavit that the bad pleading arose from error, and was not intended for delay. Id. pi. 503. The act of 1806 does not apply, because at the time of its passage these proceedings were not in the nature of civil suits. By the act of 1836, regulating proceedings upon quo warranto, the method of proceeding is the same, whether it is at the suit of an individual, or of the commonwealth. Amendments must be allowed in both cases, or not at all. It would be very inconvenient in the ease of a corporation holding annual elections, if it were allowable, on the eve of an argument, to withdraw one plea or answer, and substitute another.
    Curia. — We think that the amendment should be allowed in this case. There is no affectation of delay apparent. This is in the nature of a civil proceeding; and whether the act of 1806 applies, or not, which may be considered doubtful, we have the power to authorise amendments in pleadings, which we are always disposed to exercise in furtherance of substantial justice.
    Leave to amend having been granted, the following plea was filed.
    “And the said William Gill, Samuel Chew, George J. Pepper, Abraham Hart, James Musgrave, Jr., John Leadbeater, Sr., William Sharpe, and E. D. Wolfe, come into Court, protesting that the suggestion aforesaid is not sufficient in law, and that they are not under necessity, by the laws of the land, to answer thereto.; for a plea they, nevertheless, say, that on the ninth day of January, one thousand *eight hundred and thirty-seven, they were duly elected and chosen directors of the Philadelphia Savings Institution, agreeably to the original charter created by act of assembly of the commonwealth of Pennsylvania, dated the fifth day of April, one thousand eight hundred and thirty-four, and to the provisions of the tenth section of the act of assembly, passed the sixteenth day of June, one thousand eight hundred and thirty-six, entitled, an act authorising John Garnber, of Dauphin county, to construct a canal or slip from the Pennsylvania canal to his furnace, and for other purposes; (of which several acts of assembly, true copies are hereto annexed for greater certainty; and to them the said respondents refer, and pray that they may severally be received .as parts of this their plea) and the said respondents thereby became and were entitled to all the rights, privileges, franchises, and offices of directors of the said corporation. And the respondents farther say, that on the first day of May, one thousand eight hundred and thirty-seven, they, the said respondents, were again duly elected and chosen directers of the said corporation, by the members thereof, convened for that purpose, agreeably to the provisions of a resolution of the General Assembly of the- commonwealth of Pennsylvania, passed on the night of the 3d of April, 1837, entitled, “ a resolution relative to removing the Schuylkill Bank at Port Carbon to Pottsville;” and to resolutions of the said corporation, passed at meetings of the directors thereof, duly convened and held on the 20th, 24th, and 28th days of April, 1837; (of which resolutions, copies are, for greater certainty, hereto annexed, to which the respondents refer, and pray that they may be received as part of this their plea) and on the 2d day of May, 1837, at a meeting of the directors of the said corporation, duly convened and held, it was resolved, that in case the said last mentioned election should prove to have been irregular and illegal; then in obedience to the fourth section of the charter of incorporation, the persons so elected continue to hold and exercise their offices by virtue of their election in January preceding. And the respondents aver, that they were, on and before the 1st day of January, 1837, and have so continued to be, stockholders; and on and before the 1st day of May, 1837, they were, and have so continued to be, members of the said Philadelphia Savings Institution, agreeably to the acts of assembly and by-laws aforesaid; and since the said elections, respectively, they, the said respondents, have used, during all the said time, and still use, the liberties, franchises, offices, and privileges of directors of the said corporation, as they well might, and still may: without this — that the said respondents have usurped, or now usurp, the said franchises, offices, liberties, and privileges of the said corporation, in manner and form, as by the suggestion aforesaid is supposed — all which they are ready to verify.
    And the said respondents expressly deny, that the members of the said corporation at the time or times stated in the said suggestion, or *at any other time or times whatever, at a general meeting of the members thereof duly convened and held, passed and enacted certain by-laws of the said corporation as set forth in the said suggestion, and termed respectively, “Law 5.” And the respondents expressly deny that any such by-laws in substance or in letter are in force or existence as by-laws, regulations, enactments, or resolutions of the said corporation. On the contrary, the said respondents aver, that on the sixth day of February, 1837, certain by-laws were enacted by-the directors of the said corporation in pursuance 'of the authority vested in them by law, whereof a true copy is hereto annexed (which the respondents refer to, and pray may . be received as part of this their plea,) among which by-laws is law 4. Whereby it is provided, that every person holding one share of stock shall be a member of the said institution, and that upon a transfer of such stock, such person shall cease to be a member. And at a meeting of the said directors duly held and convened on the 24th day of April, 1837, the said code of laws passed on the sixth day of February, 1837, was confirmed and re-enacted, and the by-laws which were passed previously to the sixth day of February, 1837, and had not been legally repealed, were then repealed agreeably to the resolutions and enactments, of which copies are hereto annexed, to which the respondents refer, and pray that they may be received as parts of this their plea. Which several by-laws are inconsistent with, and contradictory to the alleged by-laws “5,” stated by the relators to have been duly passed and enacted, and to remain in full force and unrepealed; and the respondents aver that the by-laws, so by them stated to have been enacted by the directors, are and remain in full force and virtue, unaltered and unrepealed. All which, the said respondents
    
      The following by-laws and proceedings were annexed to this plea.
    “ Bylaw, No. 32. — The proof of the admission of the members, shall be furnished by their appearing to be stockholders on the books of the institution.
    Law, No. 33. — The books of the transfer of stock shall be closed fifteen days immediately preceding each of the days appointed for balancing the general accounts of the institution, and declaring the half yearly dividend: and they shall also be closed ten days previous to the annual election in May, to enable the treasurer to *furnish the judges of the election with an alphabetical list of the members of the institution.
    Law No. 34. The election of directors shall be held annually on the first Monday in May, at the office of the institution, and shall open at ten o’clock, a. m., and close at three o’clock p. M.
    The judges of the election shall be appointed by the board of directors for the time being; and at least ten days’ notice shall bo given of such election, in one or more newspapers of the city of Philadelphia. The judges of the election shall forthwith count the votes and declare the persons elected. The secretary shall without delay give them notice thereof, and the directors so elected shall assemble at the office of the institution as soon as convenient and elect a president.”
    “ April 20th, 1837.
    Board convened. Present Messrs. Robb, Pepper, Musgrave, Sharpe, Curtis, South, Grill and Chew.
    Mr. Chew submitted the following resolution:
    
      Resolved, That all the by-laws of this institution passed prior to the first day of February, 1837, which have not been heretofore legally repealed, be and the same are hereby repealed.
    On motion, ordered, that this resolution be laid over to the ne,xt meeting, and notice given to absent members. Adopted. Mr. Chew submitted the following resolution:
    
      Resolved, That so much of the following by-laws as have not been heretofore legally enacted, be, and the same are hereby enacted as the by-laws of this institution.
    Which was, on motion, laid on the table till the next meeting of the board. ary, 1837, which have not been heretofore legally repealed, be and the same are hereby repealed.
    And, on motion, the resolution was unanimously adopted.
    The board then proceeded to the consideration of the second resolution submitted by Mr. Chew at the last viz:
    
      ^Resolved, that so much of the following by-laws as have not been heretofore legally enacted, be and the same are hereby enacted as the Ijy-laws of this institution.
    And the same, having been discussed was unanimously adopted. Adjourned. v
    
      April 28th 1837.
    Board convened. Present Messrs. Bobb, Chew, Pepper, Sharpe, South and Hart.
    Mr. Chew offered the following resolution, which was unanimously adopted.
    
      Resolved, That all stockholders now holding one or more shares are declared to be members of the institution, and entitled to all the benefits of the by-laws of the institution.
    On motion, adjourned.
    The relators demurred at bar to this plea, assigning for causes of demurrer the same reasons already given, (see ante, p. 238).
    Mr. Meredith for the relators.
    One of the defendants, (Mr. Hagner) has filed a disclaimer; but upon the authorities we are entitled to a judgment against him. Coke’s Entries, 527, b., 2 Willcocks on Corporations, 499, &c.
    1. The first cause of demurrer is, that the plea is double. The respondents set up two inconsistent titles to the offices they hold. In Rex v. Powell, (8 Mod. 180,) a plea of right by prescription, and also by charter, was held to be inconsistent and bad. So, also, are the cases of Rex v. Weymouth, (7 Mod. 374; s. c. 4 Bro. Parl. Cas. 464); Rex v. Leigh, (4 Burr. 2143); Rex v. Grymes, (4 Burr. 2147); Symmers v. Regem, (Cowper, 506). Here the respondents claim, first, under the election of May, 1837, and then under the 4th section of the charter.
    2. The respondents aver merely that they were “ duly elected” directors, without setting outth^ law No. 4, by which every person holding one share of stock was made a member, was a good by-law. By the original charter, the control of the institution was with the members alone, and such was the construction given to it by this Court. (1 Whar^on 868.) The *aet of 16th June, 1836, certainly did not propria vigore, make the stockholders members; and this must have been the opinion of the respondents when they passed this by-law. It has been decided that the 2d clause of this by-law is invalid; and the rule is, that if part of a by-law is invalid, the i^hole is so. Case of the Taylors of Ipswich, (11 Rep. 54, a.); Norris v. Staps, (Hob. 211); Dodwell v. Oxford, (2 Ventris, 34); Guilford v. Clark, (Id. 248). This by-law is also bad, because it violates the constitution of the society. Rex v. Spencer, (3 Burr. 1827); Rex v. Cutbush, (4 Burr. 2204); The King v. Ginever, (6 Term Rep. 733); Angell on Corporations, 177, 199.
    Mr. Chew and Mr. I. R. Ingersoll for the defendants.
    There can be no judgment against one who disclaims. Rex v. Williams, (1 Strange, 677); Commonwealth v. Murray, (11 Serg. & Rawle, 74); The King v. Trevenen, (2 Barnw. & Ald. 339); Buller’s N. P. 210.
    1. The general rule as to duplicity in pleading is, that the plea is bad where two distinct inconsistent defences are set up. Many circumstances, however, may be alleged, which together form but one plea. (Popham, 186.) Mere surplusage in a plea, will not vitiate. (1 Sid. 135.) Here if one election be established the averment of the other is surplusage. Lawyne v. Vaughan, (Moore, 297). The respondents do not say that they hold under the elections of January and May. The resolution of the directors is in the alternative. The averment is a mere relation of necessary incidents.
    2. It is alleged that the manner of the election is not sufficiently set forth. This is purely a technical objection. It is not necessary to aver more than the nature of the right by which the election'was held; as by charter or prescription. The record would be grievously burdened if the particulars of every election eiiklo be detailed. The cases cited on the other side do not
    
      4. Tbe question whether these stockholders have a right to membership, seems to be settled by the opinion of the Court in 1 Wharton’s Rep. 467, 468, where Judge Rogers, says, that the legislature has granted to the directors power to elect such persons as members as they may deem best fitted to carry into effect the objects of the charter. By the 5th section of the charter, the directors acquired this power, which was necessary to the existence of the corporation. *The act of 1836, in effect, made all the stockholders members, and such was plainly the intention. The rights acquired under that act were'not invalidated by the resolution of the legislature of April, 1837. It required an election to be held in May, but could not retrospectively affect the election of January, 1837. The by-law No. 4, disfranchised no one; it merely created new members, and specified the terms on which they should continue such. There is nothing in the charter or in the general law of corporations, to prevent the election of fifty or one hundred members at once.
    Mr. Meredith in reply.
    It is laid down in the books, that upon a disclaimer judgment is to be entered for the king. (Angell, 499.) It has been argued that the relators must recover on the strength of their own title. The proceeding, however, is on the part of the commonwealth; and therefore the reverse is the rule. Hagner’s answer is in effect a disclaimer. If it is not, it is bad, as it amounts merely to the plea of non umrpqmt.
    
    The plea of the defendants relies on both the elections. The ' respondents were only called to answer why they held the offices, &c. since the 1st of May, 1837. The objection therefore is substantial. The manner of the election also is material. The object of the writ is, by its terms, to ascertain by what right they hold; and it requires some explanation of the method by which they were “duly elected.” The charter requires thirteen directors, whereas eleven only are shown to be elected.
    The act of 1836, merely gave a right of voting to the stockholders. If it made them members, so much the worse for them, since it is repealed, and it is admitted that all powers created by it cease to exist. The by-laws made in pursuance of it, of course fall with it. The by-law is repugnant to tt ¿barter, since it ma tea* It clearly is not, since the act of admission must be deliberate, and implies choice and discrimination.
    
      
       See 1 Wharton’s Kep. 461.
    
   The opinion of the Court was delivered by

Rogers, J.

This is a writ of quo warranto, issued by leave of Court, at the suggestion of Peter Eritz et al. commanding William Gill and others, to show by what authority they exercise the offices, and liberties, of directors of the Philadelphia *Savings Institution; and in the latter case, by what authority they claim to be members of the institution. The respondents have filed a plea in bar, to which the relators have demurred specially.

The case, as it appears from the pleadings, is this. On the 5th of April, 1834, the legislature incorporated the Philadelphia Savings Institution. In the first section, the persons therein named, viz. Peter Eritz and others, and all and every person or persons thereafter becoming members of the institution, are created a corporation by the name and style of the Philadelphia Savings Institution. By the fifth seetipn, the directors have power to provide for the admission of members, and furnishing proofs of such admission. The act also provides for a meeting of the members and choosing thirteen directors from among them, to manage the affairs of the institution. This act received a judicial construction at the March term 1836, when, among other things it was resolved, 1st. That stockholders were' not, as such, members of the corporation; and 2d. That persons originally members, continued to be such, although they never possessed stock, or had parted with it. After this decision, viz. on the 16th of June 1836, the legislature enacted, that the third section of the 4th article of an act, entitled, an act to recharter certain banks, which directs the mode of voting for directors be extended to this institution; and that, therefore, stockholders shall bo eligible.for directors, and that every depositor of six months standing shall be entitled to one vote for every one hundred dollars he or she shall have in the institution. And it also provides, that the election for directors shall be held on the second Monday in January next, and annually thereafter. This act gave — and denositors the right of voting, and the for- " .Airactors, a right which they institution. With the exceptions of those specific changes, the charter remains as before. By the authority of this act, on the 9th of January, 1837, the respondents in the first quo warranto were elected directors; and on the 6th of February, of the same year, they passed the by-laws Nos. 4 and 32, that every person holding one share of stock, shall be a member of the institution, and upon a transfer of such stock, such person shall cease to be a member; and that the proof of the admission of members shall be furnished by their appearing on the books to be stockholders. Various other by-laws were passed, viz. by-laws, Nos. 33, 34, and the by-laws adopted the 28th April 1837, referred to in the pleas in bar, but which it is immaterial to notice. On the 3d of April, 1837, the legislature repealed *the 10th section of the act before referred to, and further enacted, that the company shall elect the directors on the first Monday in May, and the first Monday in every May thereafter, annually. The respondents aver, that on the 9th day of January, 1837, they were duly elected, and chosen directors, agreeably to the original charter, and to the provisions of the 10th section of the act of the 16th June, 1836; and that the respondents thereby became, and were entitled to all the rights, &c.- of directors. They also aver, that on the first day of May 1837, (the time fixed for the election of directors by the repealing act of the 3d April, 1837,) they were again duly elected and chosen directors by the members of the institution, agreeably to the resolution of the 3d April, 1837, &c. and to resolutions of the corporation, passed at meetings of the directors duly convened, and held on the 20th, 24th, and 28th April, &c. And they further aver, that on the 2d day of May, 1837, at a meeting of the directors, it was resolved, that in case the said last mentioned election should prove to have been irregular and illegal, then, in obedience to the 4th section of the charter, the person so elected continue to hold and exercise their offices by virtue of the- election in the January preceding. They also aver, that they were, on or before the 1st day of January, 1837, and have so continued to be, members of the institution, agreeably to the acts of assembly, and bylaws aforesaid; and since the said elections, respectively, they have used during the said time, and still use, the liberties, franchises, &c. two alleged elections, of the 9th of January and 1st of May, 1837.

And 3dly. The relators contend that the directors had no power under the charter to admit members, but that their authority extended merely to provide for their admission. If they had the power, the by-laws Nos. 4 and 32, were an improper and unreasonable exercise of that power, contrary to the fundamental principles of the charter, and therefore void.

As to the first objection.

The respondents cannot, in general, aver, that they were duly elected director’s; and if the plea contained nothing more than this general averment, it would be bad. The case of Rex v. Leigh, (1 Burr. 2144,) is full to this point. But the respondents, in addition, set out the times and places of the election, and aver that the first election was held in pursuance of the authority granted by the original charter, and to the provisions of the 10th section of the act before referred to, copies whereof they annexed, and made parts of their plea. It was open to the relators to demur or take issue on the fact, whether the election had been in conformity to the charter, *without being exposed to the difficulty suggested in The King v. Birch, (4 T. R. 619,) of not knowing on what fact to go down to trial. The respondents allege, that the election was held at a particular time, and aver the authority under which it was held; and this, we think makes the plea certain to a common intent, which is all the law requires in a plea in bar. Com. Dig. title Pleading, E. 7, c. 17; 1 Saund. 49, n.; 1 Chitty, 513.

Then as to the second objection, viz. duplicity and uncertainty in pleading, in relying upon the alleged elections of the 9th January and 1st May, 1837.

At the common law, it was a general rule, equally affecting declarations, pleas, replications, &c., that the pleading must not be double ; that is, that no single count or plea should state two or more facts, either of which would of itself, independently of the other, constitute a sufficient ground of action, or defence; a rule founded on the principle, that it would be unnecessary and vexatious, to put the opposite party to litigate and prove two points, when one would he sufficient to establish the matter in isjgeneral, be single; and if Rjsonlains.. and remn're _

Whether the respondents would have the right to rely on two titles or distinct pleas, under the statutes 4 & 5 Anne, ch. 16, and 9 Anne, ch. 20, sect. 7, which extends the former to all writs of mandamus, and informations in the nature of a writ of quo warranto, it is unnecessary to determine. It would seem, however, that those acts, in Rex v. Newland and Rex v. Briscoe, (2 Burr. 2147,) have been so construed, as not to give liberty to plead more pleas than one, even with leave of the Court. The statute of Anne, allowing double pleas, does not appear to aid a duplicity in one and the same plea, though it allows of different grounds of defence being stated in different pleas, with the exception that the pleas must not be entirely inconsistent, an exception which has been somewhat relaxed. These principles are in effect conceded, but the respondents seek to avoid their application, by the allegation, that all the facts in the plea constitute but one title; that they rely upon the election of the 1st of May, 1837 ; and that the other averments are but inducement, or surplusage, which the Court will disregard. It is undoubtedly .true, that the defendants are not precluded from introducing several matters into their plea, if they be constituent parts of the same entire defence, and form one connected proposition, or be alleged as inducement to, or as a consequence of another fact. But the facts stated in the plea are ^neither constituent parts of the same entire nor do form one connected proposition; nor can they properly be said'to be inducements to, or the consequence of another fact. The plea takes two grounds, either of which, independent of the other, would constitute a valid defence. If the election of the 1st of May, 1837, was an election in conformity to the charter, it would be a bar to the writ, or if that election was illegal, and the election of the January preceding, good, that would be a defence; for the charter expressly provides, that the directors chosen to manage the affairs of the institution, shall continue in office for twelve months, and until a new election takes place. The respondents rely upon two titles, 1st, Upon the election held on the 1st of May, 1837, when, as they allege, they were duly elected and chosen directors of the corporation, agreeably to the provisions of a resolution passed the 3d of April, 1837, entitled^&m any passadj ceding. It is impossible to understand this part of the plea, otherwise than an assertion of title, by virtue of the election of the 9th of January, in the event of the last election being declared void. And this, we believe, was so understood and intended by the pleadings.

The third, last, and most important objection, remains to be disposed of. It relates to the claim of the authority, by the directors to admit members, and the validity of certain by-laws, particularly Nos. 4 and 32, passed by the directors. The relators deny that the directors have the right to admit members, but they insist, that the authority is confined to providing for their admission. They also contend, that the by-laws Nos. 4 and 32, by whomsoever passed, were an unreasonable exercise of power, contrary to the fundamental principles of the charter, and therefore void.

The by-laws are in the following words. By-law No. 4. “ The directors, in accordance with the powers to them given by the charter, to provide for the admission of members, and furnishing proofs of such admission, do declare, that every person holding one share of stock, shall be a member of the said institution; and that upon a transfer of such stock, such person shall cease to be a member.”

By-law No. 33. — “The proof of the admission of members shall be furnished by their appealing to be stockholders, on the ■ books of the institution.”

It cannot be reasonably doubted, that it was the intention of the legislature, so far as it could be legally done, to re-the the in the same situation it was in under the original charter. In 1 Wharton, 461, it was held that this corporation was not a monied institution, but that it partook of the nature of a charity: that it was principally intended for the benefit of the depositors. As a means to effect this principal object and design of the charter, a capital was raised, as a pledge for the security of the money deposited. That there were three classes of persons referred to in the charter; members, who may or may not have a pecuniary interest in the institution; stockholders, Kitovs. ... Tbn.t the members alone had the direction bat the ley may, if they are so disposed, convert into Promote their own pecuniary interests, at the expenwrir^iBB^positors, for whose benefit alone the institution was created.

The respondents base their right on that part of the charter which authorises the directors to provide for the admission of members. They must rest on the power given by the charter, before the passage of the act of the 3rd of April. The tenth section of that act confers no new power which bears on this point. It provides merely, under certain regulations, that, stockholders and depositors may vote, and that the former, as such, may be elected directors.

The question divides itself into two parts. Have the directors a right to admit members ; and if they have, are the by-laws, Nos. 4 and 32 a proper and legitimate exercise of the right ? We are of the opinion, that the respondents have failed in both particulars.

In the first section of the charter, Peter Fritz, and others, naming them, and all and every other person or persons, after-wards becoming members, in the manner mentioned, are created a corporation and body politic, by the name and style of the Philadelphia Savings Institution, and by that name have succession ; and they have generally the power to do every other act or thing necessary to carry into effect the provisions of the act, and to promote the object and design of the corporation. Under that section, without more, the members would have power to admit other members; for the power of electing both officers and members, is an incident to every corporation. It is not necessary that such a power should be expressly conferred by the charter. If the power is not expressly lodged in other hands, it must be exercised by the company at large. But this power of election may, by the charter, he taken from the body at large, and reposed in a body of directors, or any other select *body. Whether this has been done, either 'expressly, or by necessary implication, is the question; and to determine this point, reference must be had to the provisions and spirit of the charter. It is contended, that the legislature have manifested the intention of, talrir™ — or by necessary implication, taken away in rectors have authority to provide for the adml___ that is, to .prescribe the time, place, and maiJBBWMfffcfmg^the election, (on all of which the charter is silent); an exemplification of which is given in several by-laws, made by the respondents, and incorporated into their special plea. In the preceding part of the section, the legislature have expressly conferred the power on the directors, to elect a president from their own body, to appoint such officers and agents as they shall deem necessary to conduct the business of the institution, and to pay them compensation. This is the only express power given; for in the remaining part of the section, the phraseology is certainly different. They have the power only to provide for the manner in which certain specific duties, enumerated, shall be performed. Rut besides, in the absence of an express injunction, we cannot give it the construction for which the respondents contend, as it would tend to disappoint the general intention and design of the charter, which was evidently framed with a view to an efficient control over the directors, vested in the body at large, which would be effectually prevented, if the directors could admit whom they pleased, as members.

Rut granting the power, was this a proper exercise of it? The by-laws of a corporation must not be inconsistent with its charter. The charter is the fundamental law of the corporation ; and as is said in Angell and Ames on Corporations, 188, is in its terms and spirit as a constitution to the petty legislation of the body acting by and under it; and hence all by-laws in contradiction of it are void. In Rex v. Spencer, (3 Burr. 1838,) it is said, that the true test of all by-laws, is the intention of the Crown in granting the charter, and the apparent good of the corporation. In the same case it is said, by Mr. Justice Wilmot, that corporations cannot make by-laws, contrary to their constitution. If they do, they act without authority. The power of making by-laws, in whomsoever it may reside, is in trust for the benefit of the whole, and must be exercised with discretion. Hence, by-laws must be reasonable, and *II_±hnsA which are nugatory, vexatious, and oppressive, or mani-

-- — -1 .in.' Mf IP ■ ' “ void. As has been before observed, this is tion, but in the nature of a charity, intendea^^^^^H^^^^I depositors. The legislature have said, in languag^^^^^^^^H be mistaken, that stockholders, as such, are not cipate in its management. They have confided that original members, and such as might be afterwards chose!^^^^# have also thought proper (the wisdom of which cannot be to impose an important check on the directors, resting ir^^H body at large. "With a full knowledge of all this, the respondent# who were elected by the stockholders under a law (which was' soon afterwards repealed,) and who themselves are stockholders, and not members, have by one sweeping resolution, obtained, and seek to retain, the entire control of the institution. The by-laws admit at once all the stockholders (of course including themselves) to all the rights, benefits and privileges of memN"'*, in subversion of the fundamental principles, and contrary to spirit and provisions of the charter. The election is made • i-out regard to the qualification of the individual to perfori¡ .-the trust, and to carry into effect the object of the charter, but for the single purpose, so far as appears, of having the government of the company, by means of others who are identified-in interest and feeling with themselves. The case itself is an illustration of the wisdom of the rules before stated. As well might they have admitted any other class of persons, the butchers, tailors, or shoemakers, as a body, or indeed any free white male inhabitant, of the city and county of Philadelphia; and in some respects such a by-law would be more reasonable. They would at least have no particular pecuniary interest to subserve, as they would stand strictly impartial, between the conflicting interests of the stockholders and depositorswhereas stockholders may have an interest in opposition to the depositors, of which the legislature  