1 P. W. 351.); yet quære as to this, for where, after a writ of error brought upon a judgment in an action upon the case for a false return, a motion was made for a peremptory mandamus, it was refused, and there seems to be no essential difference between the two cases.-Reading v. Newel, T. 7 Geo. II. Stra. 983. Having now taken a general view of this writ and the proceedings thereupon, I shall proceed to consider what will be deemed a good writ, and what a good return to it. As to the first, what will be deemed a good writ. 1. Where the fact is to be done by part of the corporation only, (ex. gr. mayor and aldermen) the writ may be either directed to the whole corporation, or to the mayor and aldermen singly. (R. v. Mayor of Abingdon, E. 12 W. III. 1 Raym. 559.) But if it be to be done only by the mayor, and the mandamus be directed to the mayor and aldermen, it will be bad.-Reg. v. Mayor of Hereford, T. 4 Ann. 2 Salk. 701. 2. The writ must contain convenient certainty, in setting forth the duty to be performed; but it need not particularly set forth by what authority the duty exists. (a) Therefore where a mandamus to the commissary of the archbishop of York, to admit a deputy register, stated quod minus rite recusavit to admit, it was holden sufficient, though it was objected it did not state the defendant's right to admit.-Rex v. Ward, H. 4 Geo. II. Stra. 896. So a mandamus to the dean of the arches to grant probate to Lord Londonderry's executors, setting out that the dean juxta juris exigentiam recusavit, was holden sufficient, though it was objected that it did not shew the dean's title to grant probate; not having set out that there were bona notabilia.-Rex v. Bettesworth, H. 3 Geo. II. Stra. 857. So a mandamus, reciting, "whereas there is or ought to be one bailiff and twelve capital burgesses."-Rex v. Devizes Corporation, M. 7 Ann. (a) Therefore where the writ com. manded defendant, on his removal, to deliver all books, &c. to the Company of Blacksmiths, and the officer took the rule to deliver them to the new clerk, the writ, for this variance, was superseded. Rex v. Wildman, 2 Stra. 879. But the writ need not set forth by what authority the duty exists. Moor v. Hastings Mayor, Ca. temp. Hardw. 362. It seems, however, that this writ can only [ 205 ] So a mandamus, reciting, that whereas there ought to be a common council consisting of the mayor and 24 persons chosen by the mayor and burgesses, without stating whether by charter or prescription.-Rex v. Mayor and Burgesses of Nottingham, H. 25 Geo. II. Say. 36. Note; the time for taking exception to the writ, is after the return made, and before it is moved to be filed.-Rex v. Owen, M. 8 W. III. 5 Mod. 314. 2. What will be deemed a good return. 1. The return must be certain to every intent, (Rex v. Abingdon Mayor, E. 12 W. III. Salk. 432.) but it may contain several matters, provided they be consistent.-Rex v. Mayor of Norwich, E. 5 Ann. Ibid. 436. (a) If a writ be directed to a corporation by a wrong name, they may return this special matter, and rely upon it, but if they answer the exigency of the writ, they cannot take advantage of the misnomer.-Rex v. Ipswich Corporation, H. 4 Ann. 2 Salk. 434. Et vide Rer v. Rippon Mayor, Ibid. 433. If the supposal of the writ be false in not truly stating the constitution of the corporation, it will not be sufficient for the return to state it truly, but they must deny the supposal of the writ.-Rex v. Corporation of Malden, T. 11 W. III. 2 Salk. 431. Mandamus to swear A. and B. churchwardens, suggesting they were debito modo electi, the return was quod non fuerunt debito modo electi, without saying nec eorum alter, and holden good, for one could not be sworn upon that writ; if both were not chosen, the writ was miscon (a) The return to a mandamus should so precisely set out the facts, as that the court may see the removal was in a proper manner, and for a lawful purpose; for it is not enough to set out conclusions only. Per Mansfield, C. J. in Rex v. Doncaster Mayor, 2 Burr. 731. Vide etiam S. C. in Say. 37, and Rex v. Lyme Regis, 1 Dougl. 144 (148.) A return is bad if it be in terms too general; as to say that the party had refused to obey all the rules and orders of the corporation, contrary to his duty, without saying what those rules and orders were, Rex v. Doncaster Mayor, 2 Raym. 1564; or in what respect the party's duty had been neglected. Ibid -Vide etiam Rex v. Morpeth Balliv. 1 Stra. 58. Rex v. City of Exeter, Cam ceived. ceived. It was likewise holden that where the writ is to swear one deb. modo electus, quod non fuit deb. modo electus is a good return; but where the writ is electus only, such a return would be nought, because out of the writ and evasive.-Rer v. Twitty et al, M. 1 Ann. 2 Salk. 433. (a) If a person chosen alderman, burgess, &c. after notice given him of his election, sit by and see the corporation fill up his vacancy, without making any claim to be admitted, this will amount to a refusal; and the mayor may, to a mandamus to admit him, return that he had refused; and if issue were joined upon that return, evidence of the fact would support the return.-Rex v. Jorden, 9 Geo. II. 2. Where the mandamus is to restore a person who has been removed from an office, the return must be very accurate in stating the corporation's power to remove, the cause of removal, and the due execution of the power.- Bagg's Ca. T. 13 Jac. I. 11 Co. 99. 1. As to the power of removal, it is laid down in Bagg's Case, that no corporation can disfranchise a member of it before a conviction at law, unless they have authority so to do either by charter or prescription, though the modern opinion has been that the power of amotion is incident to the corporation. (Lord Bruce's Case, M. 2 Geo. II. Str. 819.) However, what power soever there may be in the corporation at large, there cannot be such power in any part of the corporation without charter or prescription; therefore if a return were to set out a removal by the common council, without shewing how they were authorized, it [206] would be bad.-Rex v. Corporation of Doncaster, H. 1759. 2 Burr. 738. (b) 2. As to the cause of removal, any member of a corporation for any offence committed against his oath of office, and breach of his duty as a member, is removeable without any previous conviction. But there must be a previous conviction to warrant an amoval for an offence which has no immediate relation to his office, such as perjury, forgery, &c. Where the offence is criminal in both respects, the difference seems to be, that if it consist of one single fact, as burning the charters of the (a) So where the churchwardens of a parish returned to a mandamus to restore a sexton, that he was not duly elected according to the custom, and that there was a custom for the inhabitants to remove at pleasure, pursuant to which custom he had been removed, the return was held consistent and good. Rex v. St. James's Churchwardens, Taunton, Cowp. 413. (b) And the law now is, that corporations may claim a power of amotion either by charter or prescription. A charter may give it to the whole or to a select body, but if it gives it to neither the law gives it to the body at large. Rex v. Lyme Regis Mayor, 1 Dougl. 144 (148.) corporation, corporation, bribery, &c. there must be a conviction, but not where it may be considered as abstracted the one from the other; as riot and assault upon any other member, so as to obstruct the business of the corporation.-R. v. Mayor of Derby, 9 Geo. II. (a) As to such crimes whereof a previous conviction is necessary to found the disfranchisement upon, it is the infamy of them that renders him an improper person to be continued in an office of trust; therefore if the crime for which he is convicted be such as does not carry such infamy with it, it will be no cause of disfranchisement; as if he were convicted of a single assault. (b) As to what shall be said to be such a breach of duty as will be a good cause of disfranchisement, it is certain that a total desertion of the duty of his office is a good cause of amoval; but it may be difficult to determine in what particular offices a bare non-residence will amount to such a desertion. S. C. (c) Where offices are in perpetual execution, there must be a perpetual residence, such as that of sheriff, mayor, coroner, &c. But in other cases of local residence it is not necessary; as in the case of a recorder, freeman, &c. (Rex v, Ponsonby, M. 25 Geo. II. 1 Wils. 303.).And it would be absurd to say that non-residence barely should be a cause of amoval, when, notwithstanding such non-residence, they may do all that their duty requires. (d) But if such persons totally desert their office, it will be a good cause of amoval. (Smith's Ca. 3 W. & M. 4 Mod. 56.) As if a recorder upon uotice given to him should neglect to attend at their sessions, where he ought to attend and assist the corporation in the proceedings of justice.-Whitacre's Ca. H. 4 Ann. 2 Salk. 484. (a) Vide etiam Bagg's Ca. 11 Co. 99. and R. v. Richardson, 1 Burr. 539. S. P. (6) Bankruptcy of a corporator therefore is no cause of removal. R. v. Liverpool Mayor, 2 Burr. 723. (c) To make nonfeasance a good cause of amotion, it must amount to an absolute desertion and neglect of all the duties of a corporation, and not a mere occasional or unintentional absence. R. v. Wells Corporation, 4 Burr. 1999. Reg. v. Ipswich Bailiffs, Salk. 434. R. v. Richardson, 1 Burr. 517. R. v. Carlisle Corporation, 1 Stra. 385. (d) Non-residence also (as a species of nonfeasance) may be decmed a cause of removal, but that is only where constant duties require perpetual residence, and a residence at a short distance is no ground of removal. Smith's Case, supra. Vaughan v. Lewis, Carth. 227. R v. Doncaster Mayor, Say. 37; but where a corporator lived two hundred miles from the borough, and had not attended for twenty-two years, that was held to be a total desertion. R. v. Newcastle Mayor, cited Say. 39; and where non-residence is the cause of removal, it is not necessary to give the party previous notice to reside. R. v. Lyme Regis Mayor, 1 Dougl. 144 (148.) But But in such case the return ought to be, that recessit et officium suum reliquit, i. e. it ought to shew a non-residence upon the office, and not barely a non-residence within the precincts of the corporation.-Exeter City v. Glide, T. 3 W. & M. 4 Mod. 33. And though residence be made a necessary qualification for election, [207] yet, without an express clause in the charter, non-residence will not of itself be a cause of amoval.-R. v. Miles, E. 6 Geo. I. In a mandamus to restore Sir J. Jennings to his office of alderman, the return was, that he at an assembly of the corporation came, et personaliter, libere, et debito modo resignavit the office, declaring he would continue to serve no longer in that office, whereupon they chose another in his room and this declaration in a corporate assembly was holden good, especially as the corporation accepted it, and chose another in his room; but till such election he had power to waive his resignation. (R. v. Mayor of Rippon, E. 12 W. III. 2 Salk. 433.) But a return that he consented to be turned out would not be good, but if in such case they were to return, that he resigned, and they accepted and chose another in his room, such evidence would be sufficient to prove it.-R. v. Lane, M. 8 Ann. 2 Rayı. 1304. If it appear upon the face of the return, that the party has no right to the office, though in other respects the return be bad, yet the court will not grant a peremptory mandamus. As where the return stated the office of town clerk to be disposed of ad libitum of the mayor, and that the mayor had appointed another; though the reason given for his amoval was not good, yet the court refused to grant a peremptory mandamus.-R. v. Campion, M. 12 Car. II. 1 Sid. 14. (a) So where it appeared that the person had deserted his office, and that it was filled up, though it was returned that he was for that cause amoved by the common council, without stating that they had a power so to do either by charter or prescription.-R. v. Mayor, &c. of Newcastle, M. 21 Geo. II. cited in Say. 39. But though it appear by the return, that he is an officer ad libitum, yet if they do not return a determination of their will, but state particular reasons for the amoval which are not sufficient, the court will grant a (a) Vide etiam R. v. Thame Churchwardens, Stra. 115, where a sexton held his office during pleasure, and being removed, the pleasure of the electors alone was held a sufficient cause to be assigned in the return. Et vide R. v. Canterbury Mayor, 1 Stra. 674; but that must be re A A turned positively, and not by way peremptory |