not parties to the dispute which renders the inspection necessary; but the court will not grant the rule generally, but only to inspect the particular book in which the information sought for is to be found.

VII. Of the Pleadings.

A QUO WARRANTO being in the nature of a writ of right, the defendant cannot plead any plea, except to justify or disclaim. Hence he cannot plead, not guilty. In like manner, he cannot plead, non usurpavit, or that he did not usurp the office in question. This appears from the nature of the charge, which calls on the defendant to shew by what authority he exercises the office in question, to which charge the pleas of not guilty and non usurpavit do not afford an

answer.

By stat. 32 Geo. 3. c. 58. s. 1. the defendants to any information in the nature of a quo warranto, for the exercise of any office, or franchise, in any city, borough, or town corporate, whether exhibited with leave of the court, or by his majesty's attorney-general, or other officer of the crown on behalf of his majesty, and each and every of them, severally and respectively, may plead, that he or they had first actually taken upon themselves, or held or executed the office or franchise, which is the subject of such information, six years or more before the exhibiting of such information, such six years to be computed from the day on which such defendant was actually admitted and sworn into such office or franchise; which plea may be pleaded either singly, or together with such plea as they might have lawfully pleaded before the passing of this act, or such several pleas as the court, on motion, shall allow; and if, upon the trial of such information, the issue joined upon the plea aforesaid, shall be found for the defendants, or any of them, he or they shall be entitled to judgment, and to such costs as they would by law have been entitled to, if a verdict and judgment had been given for them upon the merits of their title.

The second section provides, that the prosecutor may reply a forfeiture, surrender, or avoidance, by the defendant,

g R. v. Hostmen, in N. upon T. Str. i Per Holt, C. J. 12 Mod. 225. k Queen v. Blagden, 10 Mod. 296.

1223.

Per Holt, C. J. 12 Mod. 225.

of the office, or franchise happening within six years before the exhibition of the information, whereon the defendant may take issue, and shall be entitled to costs in manner aforesaid.

The preceding statute having been made in pari materiâ with stat. 9 Ann. c. 20. is confined to corporate offices'. But the defendant is entitled, by this act, to plead several pleas, although the limitation of time does not form the subject of one of his pleas".

Where the plea consists of several facts, from which the defendant infers that he is entitled to the office, the replication may contain a denial of any of the facts stated in the plea; but if it contain merely a denial of the inference drawn by the defendant from those facts, it will be bad; for that amounts merely to a denial of the law; for the judges are to determine, whether the inference drawn by the defendant is fairly drawn.

In an information against the defendant for usurping the office of portreeve, defendant shewed a title, and concluded his plea, "and so he says that he did not usurp in man. ner and form as in the said information is alleged;"—the coroner replied, that he did usurp in manner and form, &c, The replication was adjudged to be bad".

VIII. Evidence.

CORPORATION books are generally allowed to be given in evidence, when they have been publicly kept as such, and the entries made by the proper officer; not but that entries made by other persons may be good, as, if the town-clerk be sick, or refuse to attend; but then the circumstances under which the entries have been made, must be proved. Corpo ration books being of a public nature, examined copies of the entries therein may also be given in evidence; and consequently the court will not enforce the production of the original books, unless it appear to be necessary that they should be inspected on account of a rasure, new entry, or the like, which must be verified by affidavit.

1

R. v. Richardson, 9 East, 469. m R. v. Autridge, 8 T. R. 467.

n R. v. Portreeve of Honiton, in Devonshire, E. 1 Gẹo, MS.

o Per Cur. R. v. Mothersell, 1 Str. 93. p Brocas v. Mayor, &c. of Londow, 1 Str. 307.

In a case, where it was insisted, that by the constitution of a corporation by prescription, no person was capable of being elected a common-councilman, who did not inhabit within the borough, and also hold a burgage tenure; to prove that such was the constitution, a witness was called, who was an inhabitant of the borough, but had no burgage tenure. The court were of opinion, that he was a good witness, observing that there was a necessity of allowing such people in a question of this nature, since they must best know the right; besides, he was in effect a witness against himself, by saying, "though I am an inhabitant, yet I have no right to be chosen, because I have not a burgage tenure." A person having a bare authority, and not being a party to the record, is not prevented from being a witness.

The custom of a corporation, in the election of a mayor, was', that at a court leet, held within the town, the old mayor nominated one elisor, and the town-clerk another; and in case the town-clerk refused to do it, or was absent, then the mayor chose both the elisors, which elisors, so chosen, nominated the jurors, who were to elect the mayor for the subsequent year. An information in the nature of a quo warranto was brought against the defendant, to shew by what authority he claimed to be mayor of Tintagel. And there was likewise an information granted against one James Hoskins, for exercising the office of an elisor; and a third information against one Pascho Hoskins, for executing the powers of juror in that corporation. These informations were carried down to Cornwall to be tried there before Baron Thompson. And when the information against the mayor came to be tried, his right depending upon the validity of this custom, upon which one of the issues was joined, he called James and Pascho Hoskins, to prove the custom of this borough to be as set forth above. But the counsel for the king objected to the competency of their testimonies; because they were called to support a custom, which they were concerned in interest to maintain; for if there was no such custom, then James Hoskins, who was chosen an elisor by the late mayor, in the absence of the town-clerk, was wrongfully chosen; and so likewise must Pascho Hoskins be, being nominated a juror by James Hoskins. And Thompson B. thinking this was a sufficient objection to their competency, refused to admit their testimony, whereupon a

q Stevenson v. Nevinson, Str. 583. Ld. Raym. 1353.

r R. v. Gray, Mayor of Tintagel, B. R. Hil 10 Geo. 2. MS. S.C. by the name of R. v. Bray, C. T. H. 358.

verdict was found for the king. A new trial was afterwards moved for, on the ground that the witnesses were competent and ought to have been received. The case having been very fully argued, Lord Hardwicke, C. J. observed, that it would be proper to consider the objections against James and Pascho Hoskins separately, the strongest of which lay against James, the elisor." The objections against James are principally two: 1st, that he is interested in the proof of this custom, because he has derived his right, and executed his authority, under that custom which he was called to prove. 2dly, that he is interested if there is no such custom; for then the former mayor had not any authority to choose him as an elisor, and consequently he will be liable to be punished in an information in quo warranto, for exercising such a power. As to the 1st objection, that James derives his own authority from this custom, I think the proper answer to it is, that his authority is ended, and his claim is not that of an office or franchise, but only a naked authority. For he is only an elisor chosen by the corporation, for the purpose of returning a jury to choose a mayor; and that is not an office, but an authority constituted for that particular purpose. And I am not aware of any case, where a person having a bare authority only, and not being a party to the record, as James was not, was ever hindered from being a witness: as in the case of sheriffs and their officers, who are always allowed to be witnesses to prove the execution of the process, and what was done under it, if they are not parties to the record. And therefore I think James had no interest in this office. As to the 2d objection, of his being liable to be punished by an information, for a wrong exercise of his power, I think it is by much the most material one. But it goes to his credit, and not to his competency, as I think; for I don't know of any case where ever it has been held, that a man was an incompetent witness, because he was possibly liable to be punished in an information in nature of quo warranto, for a past act, the lawfulness of which he may probably support by the testimony he is about to give in another action, to which he is not a party. And it is every day's experience, that persons who have formerly executed offices in a corporation, are produced to prove what they did when they were in the office, and what has been usually done in their time; though, in all such cases these officers have been liable to be punished by informations for their unlawful acts, the statute of limitations not extending to informations in quo warranto. And yet such witnesses have been always allowed as the best evidence. And should we determine that no person is a competent witness in matters

belonging to corporations, who is by possibility liable to be punished by information, we should shut out a great deal of good evidence. Wherever any unlawful act is done in a corporate assembly, the whole assembly is liable to be punished by informations; and yet the persons who were present at such assemblies are always allowed to be good witnesses; and if they were not allowed, there would be no evidence as to such acts at all. The case in 2 Ro. Ab. fo. 685. pl. 3. which says, if three several men, upon a suit in chancery, depose that J. S. made such an arbitration, &c. and upon that the party grieved brings three several actions against them for perjury, each of them shall be a competent witness for the other in the several actions, is full as strong as this, which case is mentioned in 2 Hale's History of the Pleas of the Crown, 280. And in 3 Keb. 90. a person interested was allowed to be a witness. Therefore, upon these reasons, without looking into, and comparing all the cases which have been cited at the bar, so as to distinguish one from another, (which, if I had done, it would have been difficult to have reconciled them together,) I think the objection to James Hoskins goes only to his credit, and not to his competency. And the objection to Pascho Hoskins is weaker than that to James. Whenever a question arises about the competency or credit of a witness, I am always inclinable, unless the objection is very strong, to allow it only to his credit; because, if the objection is allowed to his competency, it tends to shut out that light which an allowance only to his credit admits; and after the examination of the witness, the judge who tries the cause may make such observations to the jury upon the evidence of the witness as he shall think proper to take off the weight of the evidence." The other judges concurred, and a new trial was granted.

A judgment of ouster may be given in evidence to prove the ouster of a third person, by whom the defendant was admitted. In a quo warranto to try defendant's right to be a bailiff of Scarborough'; in setting out his right, he shewed his own election under Batty and Armstrong, two former bailiffs, alleging, that at the time of his election they were bailiffs. Among many other issues the coroner took this, that Batty and Armstrong were not bailiffs, as alleged in the plea. The proof of this issue lying upon the defendant, he gave general evidence of the election and right of Batty and Armstrong. And to encounter that, the prosecutor gave evidence of the custom of the borough of electing bailiffs, and s R. v. Hebden, E. 12 Geo. 2. MSS. FF

VOL. II.