his office and oath is too general; the particular laws ought to be specified*.

A return of a misbehaviour in one office (e. g. chamberlain) will not afford a reason for his being amoved out of another, viz. that of a capital burgess".

Where it appeared by the return that the party had been chosen town-clerk, to hold at the will of the mayor and aldermen, yet as the defendants had not stated any determination of the will, but merely such reasons for his removal as were deemed insufficient, the court granted a peremptory mandamus". Although the return be insufficient, yet if it appears to the court, that the party has no ground for being restored, the court will not restore him.

Thirdly, the due execution of the power of amoval must be set forth in the return.

If the person be within summons, i. e. if he be resident, he must be summoned to attend and shew cause against his disfranchisement; and that he was so summoned, must appear upon the return, unless it appear he was heard; for as the end of summons is, that he may be heard for himself, if he have been heard, want of summons is no objection. But if it appear upon the return, that he lived out of the limits of the corporation for several years, it is not necessary to return that he was summoned.

In a return to a mandamus to a corporation to restore a member who has been removed, it should appear that the body removing, had proved the charge for which the member was removed. It is not sufficient to state, merely that he was present when the charge was made and did not deny it.

Where a burgess is constituted by patent under the common seal, he ought to be discharged in like manner. But if by election, there it is only entered in the book, and an order is sufficient to discharge himf.

If the members of a corporation are summoned to appear for one particular purpose, they cannot proceed to any other matter without the unanimous consent of the whole body.

x R. v. M. of Doncaster, Ld. Raym. c Per Curiam, R. v. Wilton, Salk. 428. 1566. d R. v. Truebody, Ld. Raym. 1275. y S. C. e R. v. Faversham, 8 T. R. 352.

z R. v. Mayor, &c. of Oxford, Salk. f Per Holt C. J. R. v. Chalke, Ld.

- Upon a return to a mandamus to restore a capital burgess, it appeared, that the power of amoving a member was in the mayor and aldermen; that the whole corporation having been summoned to elect a recorder, after that election was over, the mayor and aldermen separated from the rest and removed the plaintiff'; and the removal was holden void", because there was no summons to meet as mayor and aldermen, but only as part of the whole body..

Upon the issue of non fuit electus major, the constitution was admitted to be, that the mayor was chosen out of the aldermen', therefore the defendant insisted that the plaintiff should prove his being an alderman. The fact of his being chosen an alderman was this; all the common council (who were the electors) except one, met at a public house to drink, where they were acquainted that W. had resigned, whereupon it was proposed to choose the plaintiff, which was objected to by two or three; however, he was sworn in, and this was holden not to be a good election, because they were not corporately assembled for want of a previous summons; and therefore it was absolutely necessary that every one of the common council should be present and consent. So, where upon evidence it appeared that the corporation met upon a particular day (pursuant to a by-law) for the election of a mayor, it was holden they could not proceed to the election of an alderman for want of summons, there being no custom to warrant it.

It is not a good return to state, that the party was inca pable of being elected, for the proper way of trying whether he was capable of being elected, is by an information in nature of quo warranto'. So, where all the proceedings of the election were set forth in the writ, concluding "by reason whereof A. was elected," a return, stating that A. was elected, was holden to be bad".

4. The same certainty is required in the return, as before the stat. of Queen Anne".

5. The rule is, not to presume every thing against the return, but not to presume any thing either one way or the other°.

6. The return must not contain two inconsistent causes",

otherwise the court will quash the whole returns. But se veral consistent causes may be returned'; and where the causes are not inconsistent, although some are bad, yet the court may admit the good and reject the bad.

To a mandamus to restore J. S. to the office of sexton, the defendant returned, that J. S. was not duly elected according to the ancient custom of the parish, and, further, there was a custom for the inhabitants in vestry, to remove the sexton from his office, and that J. S. was removed pursuant to such custom: it was holden', that there was not any repugnancy in saying, that J. S. was not duly elected; but that being in fact elected, they had, according to an ancient custom, removed him. In either case, they were equally entitled to exercise that right. The return, therefore, was allowed.

The return need not be under the seal of the corporation, nor need it be signed by the mayor, for the return of a mandamus is matter of record, and acts done by a corporation upon record, are not required to be under hand or seal, for in such case an action lies against a body politic, or the persons who procure the false return'.

It remains only to observe, that clerical mistakes in the return may be amended, even after it is filed".

VI. Of the Remedy, where the Party, to whom the Writ of Mandamus is directed, does not make any Return, or where he makes an insufficient or false Return.

THE first writ of mandamus always concludes with conmanding obedience, or cause to be shewn to the contrary; but if a return be made to it, which upon the face of it is insufficient, the court will grant a peremptory mandamus, and if that be not obeyed, an attachment will issue against the persons disobeying it.

q Adm. R. v. M. of Cambridge, 2 T.R.
456. See also R. v. M. of York, 5
T.R. 66.

r Wright v. Fawcett, 4 Burr. 2041.
s R. v. Taunton St. James, Cowp. 413.
t R. v. Mayor of Exeter, Ld. Raym.

223.

See also R. v. Chalice, La. Raym. 848. S. P.

u R. v. Lyme Regis, E. 19 G. 3. Doug. 157.

x Bull. N. P. 201.

If no return be made, the court will grant an attachment against the persons to whom the mandamus was directed; with this difference, however, that where a mandamus is directed to a corporation to do a corporate act, and no return is made, the attachment is granted only against those particular persons who refuse to pay obedience to the mandamus: but where it is directed to several persons in their natural capacity, the attachment for disobedience must issue against all, though when they are before the court the punishment will be proportioned to their offence.

If the return upon the face of it be good, but the matter of it false, an action upon the case lies for the party injured, against the persons making such false return. And where the return is made by several, the action may be either joint or several, it being founded upon a tort; but if it appear upon evidence that the defendant voted against the return, but was over-ruled by a majority, the plaintiff will be nonsuited2; and though the return be made in the name of the corporation, yet an action will lie against the particular persons who caused the return to be made, or if the matter concern the public government, and no particular person be so interested as to maintain an action, the court will grant an information against the persons making the return. The return must be filed and allowed before the information can be moved for.

A mandamus was directed to the mayor, bailiff, and burgesses of A. The mayor made a return; a motion was made to stay the filing of it, upon a suggestion, that the return was made against the votes of the majority, who would have obeyed the writ. But the court resolved, that they could not refuse the mayor's return, because he was the principal officer to whom the writ was directed, and actually delivered; and, as he had returned and brought in the writ, it was not fit that the court should examine upon affidavits, whether the majority consented. But if the mayor had made any return, contrary to the votes of the majority, it was at his peril, and the way to punish him was by information.

Note. Where several join in an application for a mandamus, they may all join in the action for a false return".

And if in such action or information the return be falsified, the court will grant a peremptory mandamus; however, it cannot be moved for until four days after the return of the postea, because the defendants have that time to move in arrest of judgment.

In an action for a false return the plaintiff set out, that he was chosen upon the first of October, according to the custom. Upon evidence it appeared, that the custom was to choose on the 29th of September, and that the plaintiff was then chosen; and this was holden sufficient to support the declaration, for the day in the declaration is but form.

If the mayor of a corporation procure a false return to be made, it will be sufficient evidence against him, that the mandamus was delivered to him, and that the mandamus has such a return made; and that will be presumptive against him, that he made that return, unless he shews the contrary. For the mayor or any other member of the corporation, or other, who shall procure a false return to be made, are liable in their private capacity.

In an action brought in C. B. for a false return the plaintiff obtained judgment, the court of B. R. refused to grant a peremptory mandamus; Holt C. J. observing, that every mandamus recites the fact prout patet nobis per recordum, and that they could not take notice of the records of the Common Pleash (13).

Before the stat. 9 Ann. c. 20. except in extraordinary cases1, an attachment did not issue for want of a return, until after the return of an alias et pluries writ of mandamus and disobedience of a peremptory rule to return. But by that statute, reciting that persons who had a right to the office of mayors, or other offices within cities, towns corporate, boroughs, and places, or to be burgesses or freemen

e Per Holt, C. J. Buckly v. Palmer,
Salk. 430, 1.

f Vaughan v. Lewis, Carth. 228.
g Per Cur. R. v. Chalice, Ld. Raym.

848.

h Anon. Salk. 428. probably the S. C.

as is reported by the name of Green v. Pope, 1 Ld. Raym. 128. where S. P. is said to have been ruled. i See Skinn. 669.

k Bull. N. P. 203.

(13) Yet where in an action for a false return, judgment was given for the defendant, and upon a writ of error judgment was reversed in the Exchequer Chamber, the Court of K. B. granted a peremptory mandamus before judgment entered, saying, it was a mandatory writ, and not a judicial writ founded upon the record. Buil. N. P. 202.