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ing such free Burgesses as were guilty of offences, and of choosing others in case of death or vacancies; as also with the annual election of the Provost; and as often as that office should be vacant by death, or otherwise, to assist in choosing another free Burgess to be Provost for the remainder of the year; and it was only by them and the Provost that Members were elected to serve in parliament. Therefore, residing out of the borough, in places where they could not be summoned, nor attend the office, was an abdication or forfeiture of their right to continue in such office. That it was admitted by the pleadings, that seven of the defendants had exercised and held the office of free Burgesses, notwithstanding their non-residence; which holding and exercising, being contrary as well to their duty as free Burgesses, as to the intent and meaning of the charter, was an unlawful holding and exercising, constituting the forfeiture within the operation of the statute of the 19th Geo. II. and therefore they were liable to the judgment of ouster, by virtue of that statute. That the two other defendants by their pleadings admitted, that they had been elected in a manner apparently unlawful, because they were not resident at the time of their election, nor had they taken the oaths required by the charter, or been admitted since; but had unlawfully intruded into or usurped the franchises, by averring on record, when legally questioned, that they had a [318] title to the office by due election; and in so doing, had acted in order to maintain their claim of right to admission in consequence thereof. But that they were unlawfully elected was plain, because they were not eligible at the time of their election, as not being resident; and this defect was not cured by the Irish act of the 21st of Geo. II. for that relates only to such as have been elected, and are admitted, which made it an offence plainly within the mischiefs intended to be remedied by the act of the 19th Geo. II. for restraining acts so injurious to the rights of corporations. That though the Provost and free Burgesses had a power of amoving such of their Members as were guilty of offences, yet the Court of King's Bench had also a power of amoving them by judgment of ouster; and that court was most properly applied to in this case, where nine out of twelve free Burgesses appeared to be non-resident, since it was impossible to suppose, that they could have been amoved by a majority of free Burgesses, if an application had been made to them for that purpose; and supposing the Court of King's Bench to have power given them by the statute of the 19th Geo. II. to pronounce the judgment of ouster in cases of this nature, a previous application to the free Burgesses for an amotion, would have been nugatory. That the defendants Richard Ponsonby, Turner, Ward, Caldwell, Colvil, Saunders, and Darley, had not by their several rejoinders, traversed or confessed and avoided the replication of the King's Coroner and Attorney; and that the rejoinder of the defendants John Ponsonby and Burton, were not answers to the replications of the said Coroner and Attorney, whereby they were respectively charged in general with notice of their election, and to which charge they had not answered directly, because the issue tendered by them, that they had not due notice, was a negative pregnant; and also because the question, whether the notice which they respectively had was notice or not, was a question of law, and not a matter of fact to be tried by a jury; nor was the matter expressed with sufficient preciseness and certainty.

On the other side it was said (C. Yorke, D. Poole), that several questions arose on this record, which concerned, I. The merits of the suit. II. The form of it.

I. As to the merits, the defences of the parties were of different natures, and might be divided into those which related either to the seven Burgesses who had been admitted, and had acted; or to the two Burgesses who had neither acted, or been admitted. As to the seven acting Burgesses, it was submitted, that the judgment given by the Court of King's Bench in Ireland had been rightly reversed, because the non-residence averred in the replication, was not in law a sufficient cause of forfeiture. Absence from the place where an office is to be exercised, does not of itself imply non-attendance on the duty of it. The nature of the office of a Burgess cannot require constant actual residence, as in the case of a Mayor, a Recorder, or other head officer of a borough. In the corporation of Newtown, a free Burgess was distinguished from the commonalty, only by his right to vote in [319] three or four different sorts of election. The powers of government were given to the Provost; and the power of making bye-laws was vested not in the select body of free Burgesses, but in the commonalty at large, where the rule of law would place it, without any express grant.