CHAP. II.] QUO WARRANTO INFORMATIONS. If it be an information at common law there is no relator, nor ought there to be judgment for costs, but only a capiatur pro fine.-Rex v. Williams, M. 31 Geo. II. 1 Burr. 403. There must be an user as well as a claim, in order to subject the party to an information, for the judgment is, that he shall be fined pro usu & usurpatione. But though an information will not lie for a nonuser, yet it will be a good cause of amotion.-Rex v. Ponsonby, 25 Geo. II. Say. 245. Not guilty and non usurpavit are not good pleas, as appears evidently from the nature of the charge, which is to shew by what warrant or authority; to which those pleas are no answer. (Queen v. Blagden, H. 12 Aun.) The defendant must either justify or disclaim.-Anon. M. 10 W. III. 12 Mod. 225. Where the election of mayor, aldermen, &c. is by charter given to the commonalty or burgesses at large, the corporation may, to avoid popular confusion, make a bye-law to restrain the power of election to a select number (ex gr. to the mayor and aldermen, mayor and common council, and the like) and though there be no such bye-law to be found, yet constant usage will be a proof that there was such a one, and the court will intend it; therefore it is in daily practice to plead such a supposed byelaw to an information as made at a particular time, and then upon issue joined thereupon, support it by proving that the elections have been from about that time agreeable to such supposed bye-law.-Case of Corporations, M. 40 & 41 Eliz. 4 Co. 78. (a) those who voted for him, and which are not determined; that the franchise is of a private nature, or he may disclaim that he acted under his election. 2 Hawk. P. C. 162; for there must be a user as well as a claim. Rex v. Ponsonby, Say. 245. In quo warranto informations defendant is bound to shew a good title in himself against the crown. Rex v. Leigh, 4 Burr. 2143, for the crown may take issue on any matter that may shew defendant's usurpation; and if but one material issue be found for the crown, judgment shall go against defendant. Rex v. Latham, 3 Burr. 1485. So where defendant relies on a title in any particular form, he must prove it as laid. Rex v. Mein, 4 T. Rep. 481. And in all cases defendant's plea should set out his title at length, and But conclude with a traverse of absque hoc quod prædict. &c. usurpavit, &c. for the crown should not take issue on the general traverse, but reply to the special matter, that the defendant may know how to apply his defence. R. v. Blagden, Gilb. Rep. 145. (a) With respect to elections, there are many cases in which the court will consider them as void, and consequently the parties elected will be deprived on informations of this nature. 1st. As where the party elected is ineligible, as an infant of five years to be a burgess of Portsmouth, though not intended to be sworn till twentyone. Rex v. Carter, Cowp. 220. 2d. So where the mode of election varies from that directed by the charter. Rex v. Grimes, 5 Burr. 2598. Rex v. Rees, and Rex v. Newsham, cited per Aston, J. in Rex v. Monday, Cowp. But if the charter direct the mayor, aldermen, &c. to be chosen out of the burgesses at large, a bye-law cannot restrain the election, and order [*212] that the mayor, aldermen, &c. * shall be chosen out of the common council or other select number, for such bye-law would not be ad Cowp. 537. Rex v. Smart, 4 Burr. 2241. Cotton v. Davies, 1 Stra. 53. Foot v. Prowse, 1 Stra. 625. 3d. So where the bye-laws are contrary to law, an election under them is void, as where the number of electors is directed by the charter, the corporation cannot restrain that number by a bye law. Rex v. Cutbush, 4 Burr. 2204. R. v. Helston Freeman, 4 Burr. 2515, or require a qualification not required by the charter. R. Spencer, 3 Burr. 1827. But where the power to make Jaws is in the whole body, they may delegate a select number to make them. Per Mansfield, C. J. in S. C. And where the mode of electing officers is not regulated by the charter, bye-laws may be made to regulate it. Newling v. Francis, 3 T. Rep. 187. As to what bye-laws are lawful, and what not, see Barber v. Boulton, 1 Stra. 314 Green v. Durham Mayor, 1 Eurr. 128. Rx v. Barber-Surgeons, 2 Burr. 892. 4.h. Flections made before improper officers, are all void, as against those against whom judgment of ouster had passed. Rex v. Smart, 4 Burr. 2241. Rex v. Grimes, 5 Burr. 2598. Rex v. Dawes, 4 Burr. 2277. 5th. So by matters subsequent, an election may be rendered void. R. v. Godwin, 1 Dougl 382. (397.) n. 22. Rex v. Pateman, 3 T. Rep. 777, Milwood v. Thatcher, 2 T. Rep. 80. Rex v. Trelawney, 3 Burr. 5615. 6th. So where the entries of admissions are not duly stampt, they are void. Rex v. Reeks, 2 tra. 716. 7th. And there are other informalities by which an election may be rendered void, as where the whole of a cor, oration in whom the elcction lies, are not previously summoned to attend. Musgrave v. Nevinson, vantageous 2 Ld. Raym. 1358. 1 Stra. 584. Unless they be not resident, and not within summons. Rex v. Grimes, sup. So where an usual mode of giving notice is not complied with. R. v. May, and R. v. Little, 5 Burr. 5681. And where several are to be elected, they should be put up singly. R. v. Monday, Cowp. 530. in which case it is said, that when a corporate assembly is once convened, no partial number of the members can stop the election, but in Oldknow v. Wainwright, and R. v. Forcroft, 2 Burr. 1017, a question arose whether defendant, or one S was duly elect cd town clerk of Nottingham. In that case all the electors, in number twenty-five, were summoned, and twenty-one met, the mayor put up one S. and none other was nominated; nine voted for S. and the other twelve did not vote, but eleven of them protested against any election being then held, for they alledged that the office was already filled by F. though his right was then in contest, and ten of them signed a written protest to that effect, the eleventh declaring he would not interfere, whereupon the mayor declared S. duly elected, and his election was confirmed by the court, saying, that the dissentients ought to have voted for some one, and that their protest was of no avail. Where an election has been in pursuance of the statute 11 Geo. II. the directions of the statute must be pursued, or the person is renovable by quo warranto. Rex v. Malden, 4 Butr. 2130. Where a particular officer is appointed before whom a person elected is to be sworn, such officer must assent to his taking the oath, for the clected cannot take up the book, and swear vantageous but prejudicial to the corporation, as it would confine them in their choice.-Rex v. Phillips, M. 6 Geo. I. 1 Stra. 394. (a) Hitherto I have taken notice only of such informations as are brought against particular persons for usurping offices, but this sort of information will lie likewise against persons or corporations for usurping franchises. Therefore where the mayor and common council of Hartford took upon them to make strangers free of the corporation without being qualified according to the charter, the court granted an information in nature of a quo warranto against them, because the injured freemen of the town had no other way of remedying themselves or of trying the right.-Anon. M. 10 W. III. 12 Mod. 295. So it will lie against a private person, or against a corporation, for holding a market, or holding a court leet or other court, or for exercising any other franchise. And as the defendant must in his plea set out a title, it is necessary to observe in this place what franchises may be claimed by prescription, and in what cases it is necessary to shew a grant, or an allowance in eyre, which is tantamount to a grant. It is laid down in Foxley's Case, (E. 43 Eliz. 5 Co. 109.) that whatever may be gained by usage without matter of record, may be claimed by prescription, such as waifs, estrays, treasure trove, &c. But such things as are not forfeited but by matter of record, as felons' goods, cannot be prescribed for.-Case of the Abbot of Strata Marcella, M. 33 & 34 Eliz. 9 Co. 24. So a man may prescribe tenere placita, but not to have conuzance of pleas; therefore if the charter granting it be before time of memory, viz. before the 1 Rich. I. it cannot be pleaded; but by the statute de quo warranto you may lay an usage time out of mind, which is an argument of an ancient grant, and shew the allowance in eyre.-Foster v. Milton, H. 10 W. III. 1 Salk. 183. (b) swear before him against his consent. Rex v. Ellis, 2 Stra. 994, for it is essential to a man's investment in office, that he be duly and formally sworn. Penryn Mayor's Case, 1 Stra. 582. (a) The defendant in this case claimed as mayor of Bodmin, under a charter of 5 Eliz. whereby he had a power to hold over till a new mayor was chosen, but it appearing that the mode of election was altered by a charter of thirty-six, which abo There is a point of law which sometimes comes in question in trials of this sort of informations, which therefore ought to be taken tom to admit in right of servitude only. This part of the replication was held bad, as being contradictory and irrelevant to the plea. Rex v. Knight, 4 T. Rep. 419. Furthermore, as to the rules laid down by the court in granting quo warranto informations, it was held, in Rex v. Heaven, 2 T. Rep. 777, that no information will be granted against a person exercising a corporate franchise, to which he was duly elected, though his offence may amount to a forfeiture, unless he has been removed by the corporation. It was questioned in that case, however, whether if a derivative title can be impeached, where the person from whom it was derived had died in possession undisturbed, but it is decided that such title cannot be impeached by those who have acqueisced, and acted under it; and Blackstone, J. was of opinion, that a derivative title could not be so impeached in any case where the party under whom the defendant claimed, was dead. Rex v. Stacey, 1 T. Rep. 1. Vide etiam Rer v. Spearing, there cited. Vide etiam Symmers v. Regem, Cowp. 489, where it was held, that evidence of an order of admission of a burgess, together with a proof of his having acted as such, is sufficient to shew that he was a burgess de facto, without proof that he was actually admitted. And in S. C. it was also held, that an order of restoration of a voter illegally disfranchised, relates to the original right, and may be given in evidence to rebut the order of disfranchisement, and to shew that his vote ought to have been received at an election made between the two orders. And on the issue of non fuit electus, in quo warrunto, against a corporator, where the right of election is in the freemen in their corporate capacity, it was held that evidence cannot be given to shew that the electors who were freemen de facto, Where the relator and the defendant stand in the same circumstances, or where the granting an information against many, may endanger the dissolution of a corporation, the court will refuse it. Rex v. Bond, 2 T. Rep. 767. In a rule for an information against defendant, the objection to his election was, that it was made on the same day he was proposed, whereas it ought, under a bye-law, to have been on the day following, replied, that the relator was a party to an agreement not to enforce this bye-law, and that if any one's title was impeached who had been elected under it, he should be defended at the public expence, and on this ground the court rejected the application. The court will not grant quo warranto information on the application of one who was present, and concurred in defendant's election. Rex v. Stacey, 1 T. Rep. 1. Scd secus where many join, and one that has not concurred will avow himself relator. Rex v. Symmons, 4 T. Rep. 223. Yet it is not so where the disability, avoiding the election is a latent one, as where the ground of application was, that defendant had not taken the sacrament within a year, and it was opposed because the applicants had concurred in the defendant's election; the court held, however, that such objection was good only where the relator had concurred, knowing of the defect. Rex v. Smith, 3 T. R. 573. On a quo warranto information against defendants, to shew wherefore they acted as burgesses, not having been admitted, the only act alledged was, their having voted for members of parliament. Per curiam, as they notice of in this place, and that is the operation and effect of a new charter. (a) If a corporation refuse a new charter, it is void; but if they accept and put it in execution, it is good. Whether a corporation have accepted a new charter or not, is commonly matter of evidence, not of law; and proof of acting under it is proof of an acceptance.-Rex v. Larwood, 6 W. III. Comb. 316. A new charter was granted in consideration of the surrender of the [213] old one; the old one was in fact surrendered, but the surrender was not inrolled, wherefore the new one was void; but the members under both charters being the same, what they did being warranted by the old charter was holden good.-Bully v. Palmer, M. 10 W. III. 12 Mod. 247. Piper v. Dennis, ibid. 253. (b). By accepting a new charter, granting new rights, or giving a new name of incorporation, without a surrender of their old charter, the corporaTM tion will not lose any of their former franchises.-Case of Corporations, 4 Co. 78. Haddock's Ca. T. 33 Car. II. 1 Vent. 355. By charter of Hen. IV. Norwich was made a county, and to have two sheriffs to be chosen by the commonalty. Car. II. by charter confirmed they claimed a right to vote, that right was properly triable by the house only. Rule refused. Rex v. Harvey, 1 Stra. 547. But in the case of Horsham Borough, H. 30 Geo. III. cited in Rex v. Mein, 3 T. Rep. 599, it was said to have been often ruled, that such an information would lie against a person claiming a right to vote by virtue of a burgage tenure. On an information against defendant for not having taken the oaths of allegiance and supremacy, the town clerk swore, that though he had made an entry of such oaths having been taken, yet he never administered them, the court refused the rule on account of the danger of allow ing a town clerk to falsify the record by his own oath. Rex v. Williams, 1 Stra. 677. Neither will the court grant the rule where the applicant's affidavit goes on to his belief. Rex v. Newling, 3 T. Rep. 310. Formerly the rule was never to allow an information against any person who had been twenty years in possession of his corporate fran. chise. Winchelsea Cases, 4 Burr. 1962. (a) As to how far the granting of (b) And in Newling v. Francis, 3 T. Rep. 189, it was held, that the proclamation made by king Jac. II. (anno regni 4) for restoring such corporations as had surrendered their charters to king Charles II. (but which surrenders were not inrolled), shall operate as a grant of revival of such charters (if accepted) and restore them. |