Page:The English Reports v1 1900.pdf/986

But supposing that non-residence might be evidence prima facie of neglect or desertion of an office in a corporation, yet it was well excused by the matter pleaded in the rejoinder, viz. that the defendants had attended the duties of their offices generally, and at all times when they had not a lawful excuse, and were duly required and summoned for that purpose. And this excuse was well pleaded, without a traverse of the non-residence averred in the replication, or confession and avoidance of it, which was the cause of demurrer assigned by the Coroner. It was good without a traverse, because it was consistent with the truth of the replication, and an excuse of the facts, not a denial of them. It was also good without an express formal confession or avoidance, because it introduced new matter in aid of the plea, which, if true, tacitly confessed the fact of non-residence alledged in the replication, at the same time that it avoided the force of it. That if non-residence was a legal and conclusive ground of forfeiture in this case, it could only be objected to the defendants in the first instance by the corporation. It was admitted, that they were duly elected; and as free Burgesses they came in by the grant of the body, and held by that grant. The power of amotion is incident by law to such a corporation, and directly given to them by their charter. If they mistake the law, and disfranchise for an offence which does not amount to a forfeiture, the party shall be restored by mandamus; and if they neglect to disfranchise where they ought, they may be compelled to exercise their authority. But till an amotion by a corporate act, there is no vacancy; by consequence, the defendants remained Burgesses de jure, and judgment could not be given against them in a quo warranto, for an usurpation. No instance of this nature has been produced. It would be attended with the most dangerous consequences to the existence of corporations, if the officers of the King, or a common informer, might proceed per saltum to take the disfranchisement of their own members out of their own hands, with which both the policy of the common law, unaltered by any statute, and the charter of the crown, has intrusted them. And the Court of King's Bench in England, thought this ground alone sufficient to reverse the judgment in Ireland. As to the two non-acting Burgesses, it was submitted, that the information could not be maintained, because such an information will not lie for a mere claim to be admitted to a franchise, but only for an actual usurpation. The ancient writ of quo warranto, was the King's writ of right for franchises and liberties, wherein judgment was given either for the ouster, or allowance of them, and in some instances for the seizure. The information in nature of quo warranto was, strictly speaking, a sort of criminal proceeding, to punish the usurper by fine for his misdemeanour. The statute 9 Ann considers it likewise as a civil suit, [320] and makes provision that judgment of ouster may be given upon it, for the sake of determining the right, which before that time had been doubted, though practised in many instances. The nature of the proceeding and judgment proves, that the case to which they are applied, must be that of an unlawful holding and usurpation; but a mere claim injures neither the crown or the subject, and can be no offence punishable as a misdemeanour by fine. Besides, it is absurd to oust or forejudge any man of an office or franchise, which he never exercised, nor is even admitted to. But if this information would lie against the Burgesses not admitted, upon the ground that the franchise vests in them before admittance, still it would be impossible to say, that they had forfeited it. They pleaded, that the corporation gave them no notice of their election, nor required them to be admitted and take the oath, with an averment, that they had always been ready to accept the office, when called upon. The replication stated, that they had notice generally, but did not within the proper time apply to be admitted; for which neglect, they had forfeited their offices. To this the defendants rejoined, that they had no notice from the corporation, and took issue upon it. The law warrants the manner of their pleading, because they can be guilty of no default in not requiring to be admitted, if the corporation, their electors, gave them no special notice or summons; and because the not applying to be admitted is not a forfeiture, but at most only an implied waiver of their offices, with which the corporation may dispense at their pleasure, and receive the defendants upon the election acknowledged in these pleadings, whenever they think fit.

II. The form of the suit was manifestly improper, and against the settled course of proceeding in all cases of this kind. So many defendants charged with usurpations of distinct offices, and with offences which cannot be committed jointly, ought not