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the record. All the electors being amoved, and there being no averment of a subsequent election of others, it follows, that from the period of their amoval, the right of election must of necessity cease, and the defendant could not be elected in manner as he has alledged by his plea.

The King is not called upon to show a title to any franchises; because all franchises are derived from him, as their source and fountain but the defendant is bound to make out a title against the Crown to the office claimed by him, and that title must be disclosed at once by his plea; and he cannot resort to any other matter upon the record at large to sustain his title to the office, other than such as is stated by him in his plea; and if it appears, from the whole of the record, that the defendant has no title, the Crown must have judgment. The title of the defendant is stated to be under a power of election, contained in the charter of Charles the Second; but that power of election, for the reasons already offered, did not exist at the time of the supposed election of the defendant, on account of the previous amotion and annihilation, near a century before, of all those in whom the power of election resided. The charter of Charles the Second was founded upon the interlocutory or quosque judgment only; and by the orders of amoval and of restoration, by the charter of pardon and restitution, granted by King James the Second under the great seal of England, and by the acceptance thereof, which stand admitted facts upon the record, not only the judgment of seizure quosque was pardoned and released, and all the consequences and effects of that judgment, together with the charter of Charles the Second himself, done away and extinguished, but the ancient constitution of the city of Chester, under the charters [364] of Henry and Elizabeth, was restored, and the Mayor, and all other the ancient officers of the corporation, were reinstated in, and actually resumed their respective offices, which they held at the time of the interlocutory or quosque judgment signed. The politic and corporate capacity of the ancient corporation, under the charters of Henry and Elizabeth, was in being, capable of accepting this grant of pardon and restitution of King James the Second. The acceptance of that charter, in all the particulars of it, is admitted upon the record; and from that time to the present there being no contrary averment, the charters of Henry and Elizabeth must be considered as the subsisting charters of the city. That if any one material issue upon the record is found for the Crown, the Crown must have judgment against the defendant. Upon the present record two issues were found for the Crown, viz. the 5th and 6th. The one, that the order of amotion, stated upon the record, was duly signified to the several persons named in it; the other, that there was not any final judgment against the corporation. That both these issues are material, a reference to the facts stated upon the record will prove beyond all question. The power of amotion, contained in the charter of Charles the Second, is to be carried into effect by an order of such nature, signified in such manner as is stated upon the record. The Crown declares, by the terms of the reservation of the power of amotion, that upon the signification of such an order, the parties included in it shall be, ipso facto, removed from their respective offices, without further or other process: By the order of amotion, signified as above mentioned, all those in whom the power of electing Aldermen was vested were gone and extinguished. None are averred upon the record to have been elected into their places; and consequently the defendant could not be elected an Alderman by a body of electors, which body was annihilated and extinguished a century previous to the date of his supposed election. The materiality of this issue seemed therefore unquestionable; but that the remaining issue, found for the Crown, viz. that there never was a final judgment of ouster against the corporation, was a material issue, there could be no doubt. The defendant himself admitted its importance. He felt the establishment of that fact to be essentially necessary to give validity and effect to the charter of Charles the Second; and therefore he averred, that a final judgment, not of seizure merely, but of ouster, had been given against the old corporation under the charters of Henry and Elizabeth, by reason whereof that community and body corporate was totally dissolved and destroyed; but in the proof of this fact the defendant failed; and it now stands upon the record found by the jury, that there never was a final judgment; and consequently, that the old corporation under the charters of Henry and Elizabeth, was not dissolved or destroyed, even upon the ground on which the defendant himself has rested it. Lastly, No instance is to be found in the history of the law of England,