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and place of one of the Aldermen of the city of Chester, in manner and form as the said Thomas hath by his said plea in that behalf alledged.—That the order in council in the first replication mentioned, was signified to the said Hugh Starkey, and the several other persons therein named, in manner and form as in the said replication mentioned.—That there was not any such record of such judgment as is by the said Thomas Amery in pleading alledged.

The prosecutor having, in Easter term 1787, given a rule for judgment, the defendant obtained a rule nisi, for the postea to be delivered to him. The arguments of counsel on these rules proceeded for several days, in the absence of Lord Mansfield, and the court took time to consider of their judgment. Afterwards, in Trinity term 1788, the court, in the absence of Lord Mansfield, gave judgment for the defendant, and directed the postea to be delivered to him.

Upon the judgment the relator brought his writ of error in parliament, and assigned errors as follows: That judgment of ouster ought to have been given against the defendant. That the Court of King's Bench have in effect adjudged, that the said Thomas Amery was well elected into the office of an Alderman of the city of Chester, under and by virtue of the letters patent of the said late King Charles the Second, in the said plea of the said Thomas Amery above mentioned and set forth; whereas it appears manifestly by the record, that the said late King Charles the Second, at the time of the supposed granting of his letters patent aforesaid, had no power or authority by law to make such grant of such tenor and effect, inasmuch as the letters patent of the late [361] King Henry the Seventh, and Queen Elizabeth, were at the time of the supposed granting of the said letters patent of the said late King Charles the Second, existing charters, not repealed or annulled in any wise; nor was the Corporation of Mayor and Citizens created and confirmed by those charters of King Henry the Seventh and Queen Elizabeth extinguished, annihilated, or dissolved. That the said letters patent of the said late King Charles the Second, under which the election of the said Thomas Amery is alledged to have been made, were void, ab initio, in themselves, as containing a proviso or condition contrary to the law of the land, the power of amotion contained therein to remove all the corporate officers, at the will of the crown, by the mere signification to them of an order, made in privy council, without further process, and thereby to dissolve and destroy, at the pleasure of the crown, the corporation itself thereby supposed to be made and created, being illegal and void, as contrary to the nature and effect of the grant itself. That it manifestly appears upon the record, that the said Thomas Amery could not be lawfully elected an Alderman of the city of Chester, by the Mayor, Aldermen, and Common Council of the said city, as in his said plea alledged, by virtue of the said letters patent of the late King Charles the Second, inasmuch as it appears by the record, that all the Aldermen and Common Council, created, elected, or acting under the said letters patent, were, by virtue of the power contained in such letters patent, amoved and displaced long before the time of the supposed election of the said Thomas Amery, from their respective offices of Aldermen and Common Council of the said city of Chester, whereby the power of electing Aldermen, under the said letters patent, determined. That by the judgment of the said court of the said Lord the King, before the King himself, the interlocutory or quosque judgment, against the Mayor and Citizens of the city of Chester, stated upon the record to have been given against the said Mayor and Citizens, for their default in not appearing to the information filed against them, also stated upon the record, is supposed to have had the effect of dissolving and destroying the corporation of Mayor and Citizens existing at the time of such judgment, so as to make it competent to the Crown to create a new corporation, by the said letters patent, stated in the plea of the said Thomas Amery, whereas, by the law of the land, the said interlocutory, or quosque judgment, had not any such effect in law. And that by the order of restoration, and by the charter of pardon and restoration, under the great seal of England, granted by King James the Second, and the acceptance thereof, stated upon the record, the judgment quosque, etc. and its effects, were wholly done away, the charter of Charles the Second determined and put an end to, and the ancient constitution of the city of Chester restored.

And in support of this writ of error it was argued (J. Adair, T. Erskine, G. Wood, J. Topping), that the letters patent of King Charles the Second, stated in the defendant's plea, and under which his election to the office of an Alderman of Chester is alledged