cil, without fhewing how they were authorized, it would be bad. 2. As to the cause of removal, any member of a corporation Rex. Mayor of Derby, 9 G. 2. 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, fuch as perjury, forgery, &c. Where the offence is criminal in both refpects, the difference feems to be, that if it confift of one fingle fact, as burning the charters of the corporation, bribery, &c. there must be a conviction, but not where it may be confidered as abftracted the one from the other; as riot and affault upon any other member, fo as to obftruct the bufinefs of the corporation. As to fuch crimes whereof a previous conviction is neceffary Ibid. Rex v. Ponfonby, Mich, 23 G. 2. Mod. 56. As to what fhall be faid to be fuch a breach of duty as will be a good cause of disfranchisement, it is certain that a total defertion 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-refidence will amount to fuch a desertion. Where offices are in perpetual execution, there must be a perpetual refidence, such as that of fheriff, mayor, coroner, . But in other cafes of local refidence it is not neceffary; as in the cafe of a recorder, freeman, &c. And it would be abfurd to say that non-refidence barely fhould be a cause of amoval, when notwithstanding fuch non-refidence, they may do all that their duty requires. But if fuch perfons totally defert their office, it will be a good caufe of amoval. recorder upon notice given to him fhould neglect to attend at 434• their feffions, where he ought to attend and affift the corpora tion in the proceedings of justice. 4 Serjeant Whitacre's As if a Cafe, Saiki But in fuch cafe the return ought to be, that receffit et officium 4 Mod. 33. fuum reliquit, i. e. it ought to fhew a non-refidence upon the office, and not barely a non-refidence within the precincts of the coporation. P 2 And Rex v. Miles. Salk. 433 And though refidence be made a neceffary qualification fot election, yet without an exprefs claufe in the charter non-refidence will not of itfelf be a caufe of amoval. In a mandamus to restore Sir J. Jennings to his office of alderman the return was, that he at an affembly of the corporation came, et perfonaliter, libere et debito modo refignavit the office, declaring he would continue to ferve no longer in that office, whereupon they chose another in his room : 'and this declaration in a corporate affembly was holden good, efpecially as the corporation accepted it, and chofe another in his room; but till fuch election he had power to waive his refignation. But a return that he confented to be turned out would not be good, but if in such case they were to return, that he refigned, and 2 Raym. 1304. they accepted and chose another in his room, fuch evidence would be fufficient to prove it. 1 Sil. 14. Rex. Mayor, c. of Newcattie, Mich. 21 G. 2. Salk. 435. 1.id.429. Lord Raym. 134. Ch. 173. If it appear upon the face of the return, that the party has no right to the office, though in other refpects the return be bad, yet the court will not grant a peremptory mandamus. As where the return ftated the office of town-clerk to be difpofed of ad libitum of the mayor, and that the mayor had appointed another; though the reafon given for his amoval was not good, yet the court refused to grant a peremptory mandamus. So where it appeared that the perfon had deferted 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 fo to do either by charter or prescription. But though it appear by the return, that he is an officer ad liitum, yet if they do not return a determination of their will but ftate particular reafons for the amoval which are not fufficient, the court will grant a peremptory mandamus. A return that he had obftinately and voluntarily refufed to obey orders and laws, c. contrary to the duty of his office and his oath, would be too general, the particular laws ought to be specified. So a return of a mifbehaviour in one office (ex. gr. chamberlain) would be no reafon for his being amoved out of an other, as that of a capital burgefs. There cannot be any caufe to disfranchife a member of a corporation, unless it be for a thing done, which works to the deftruction of the body corporate, or to the deftruction of the liberties liberties and privileges thereof; and not any perfonal offence from one member to another. So mifemploying the corporation money is no caufe of amo- 1 Raym. 226 val; because the corporation may have their action for it. So razing the book; unless the razure be to the detriment of the corporation. Note; after reftitution on a peremptory mandamus, the party 2 Raym, 1283. may be removed for the former caufe. 3. As to the execution of the power of achoval. If the perfon be within fummons, i. e. if he be refident, he must be fummoned to attend and fhew caufe against his diffranchifement, and that he was fo fummoned inuft appear upon 2 Raym. 1275. the return, unless it appear he was heard, for as the end of fum- Salk. 428. mons is, that he may be heard for himfelf, if he had been heard, want of fummons is no objection. But if it appear upon the Rex.. Mayor, return, that he lived out of the limits of the corporation, it is not neceflary to return that he was fummoned. Where a burgefs is conftituted by a patent under the common feal, he ought to be discharged in like manner. But if by election, an entry in the book is fufficient to difcharge him. Upon a return to a mandamus to restore a capital burgefs, it appeared, that the power of amoving a member was in the mayor and aldermen; that the whole corporation having been fummoned to elect a recorder, after that election was over, the mayor and aldermen feparated from the relt, and removed the plaintiff, and the removal was holden void, because there was no fummons to meet as mayor and aldermen. Upon the iffue of non fuit clectus major, the conftitution was admitted to be, that the mayor was chofen out of the aldermen, therefore the defendant infifted that the plaintiff fhould approve his being an alderman. The fact of his being chofen an alderman was this: all the common council (who were the electors) except one, met at a publick-houfe to drink, where they were. acquainted that IV. had refigned, whereupon it was propofed to choose the plaintiff, which was objected to by two or three; however, he was fworn in, and this was holden not to be a good election, because they were not corporately affembled for want of a previous fummons, and therefore it was abfolutely neceffary &c. of New cattle, 2 G. 2. 3. P. 1 Rayın. 226. 2 Raym. 1355. 2 Raym. 848. 1 Raym. 223. S. P. Salk. 431. Carth. 228. Raym. 1354. Str. 1145. that every one of the common council fhould be prefent, and confent. So where upon evidence it appeared that the corporation met upon a particular day (pursuant to a bye law) for the election of a mayor, it was holden they could not proceed to the election of an alderman for want of fummons, there being no cuftom to warrant it. N. B. The return need not be under the feal of the corporation, nor need it be figned by the mayor; and if an action were brought against the mayor for a false return, it would be fufficient evidence against him that the mandamus was delivered to him, and has fuch a return, unless he can fhew the contrary. A mandamus was directed to the mayor, bailiff and burgeffes of A. The mayor made a return, and brought it into the crown office; upon which a motion was made to ftay the filing of it, upon a suggestion that this return was made against the confent of the majority, who would have obeyed the writ. But the court refused to enter into an examination whether the return were against the confent of the majority, and ordered it to be filed, as it was made by the mayor, who was the most principal and proper perfon; but faid it might be another cafe if they were all equal parties; however, they granted an information against the mayer for this proceeding. In an action for a falfe return the plaintiff set out, that he was chofen upon the first of October, according to the cuftor. Upon evidence it appeared, that the custom was to choose on the 29th of September, and that the plaintiff was then chofen; and this was holden fufficient to fupport the declaration, for the day in the declaration is but form. Upon the iflue of non fuit electus, the plaintiff muft prove that he received the facrament within a year before his election, for elle by 13 Car. 2. his election is void, and he is not aided by 5 G. 1. c. 6. (which enacts that no incapacity fhall be incurred by reafon of fuch omiffion, unless he be removed, or a profecution commenced within fix months after the election) though the trial be above fix months after the election, and though the objection were never made before the trial. The mayor of Winchelsea must be chofen out of the jurats, the plaintiff in 1739 was chofen a jurat, and in 1740 he was chofen mayor: he received the facrament within a year before his 2 election election to be mayor, but not within a year before he was cho- CHAPTER II. Of Informations in Nature of Quo Warranto. HE crown is the fountain of all power and jurifdiction, THE therefore if any perfon or corporation take upon them to exercise any office or jurifdiction without being legally authorized fo to do by the king's charter or act of parliament, the court of K. B. will punish them for fuch ufurpations upon the crown; in order for which the court will call upon them to fhew by what authority they claim to excrcife any particular office or jurifdiction, The old method of doing this was by the writ of quo warranto, but of latter times the method has been by information in nature of que warranto. By 4 & 5 W. & M. c. 18. No information can be filed without leave of the court. The method of obtaining leave is by laying a proper cafe before the court, verified by affidavit, upon which the court will grant a rule upon the party to fhew caufe why an information fhould not be filed against him, and unless the caufe fhewed by him be fuch as puts the matter beyond difpute, the court will make the rule abfolute for the information, in order that the queftion concerning the right may be properly determined. Note; upon a rule to fhew caufe, the court will grant a rule Pe Cur' Tr. 23 G. 2. for the infpection of books belonging to the corporation. By 9 An. c. 20. in cafe any perfon fhall ufurp, intrude into, or unlawfully hold any of the offices or franchises mentioned in the act, the proper officer of the court may with leave of the |