the prerogative, but it was conceived, by the king's advisers, that the example of this proceeding against the metropolis might have an effect (as in fact it had) upon other corporations; and that the crown would be enabled, upon granting new charters, to name the magistrates. This violent exercise of the prerogative, as far as it respected the city of London, was strongly marked by stat. 2 W. & M. sess. 1. c. 8. which reversed the judgment, and declared that the mayor, commonalty, and citizens of the city of London, should for ever continue a body corporate and politic in re, facto, et nomine, without any seizure or forejudger of the said franchise, liberty, and privilege, or being thereof excluded or ousted, upon any pretence of any forfeiture or misdemeanor any time theretofore, or thereafter to be done, committed, or suffered.

II. In what Cases the Court will grant an Information in nature of Quo Warranto.-Of the Corporation Act, Stat. 13 Car. 2. Stat. 2. c. 1.—5 Geo. 1. c. 6.—Test Act, 25 Car. 2. c. 2.

HAVING thus endeavoured to explain the general nature of the quo warranto information, and having set forth the alterations made by the statute of Queen Ann, in cases relating to corporate offices and franchises in corporate places, I shall proceed to inquire, what the nature of the office must be for the usurpation of which the court will grant this information.

In the case of the R. v. Boyles, Str. 836. 2 Lord Raymond, 1559, it was holden, that it is not necessary to set forth in the information the whole constitution of the place; or to shew, whether the office is by charter or prescription. If it be alleged to be an office, which appears upon the face of the information to concern the public, this is sufficient against the person who usurps it. Hence, the court permitted an information to be exhibited against the defendant, who exercised the office of bailiff of a ville; because it appeared, that it was a public office, and concerned the government of the ville, and the administration of public justice. So, the court will grant an information in the nature of quo warranto against the portreeve of a borough and manor; who, as port

reeve, is returning officer of the borough'. So, against a person claiming to have a right of voting by virtue of a burgage tenement'. So, against the bailiff of a borough and manor, who, being a prescriptive officer and member of the court leet, had power to summon and select the jury; for such discretionary power is a material and important function in the administration of justice (7). So, against the steward of a court leet". So, against the constable of a parish*. There must be an user as well as a claim of a franchise, before the court can entertain an application for an information'. As to what shall amount to an user, see R. v. Tate."

Where, in an application for a quo warranto against a constable, the affidavits in support of the rule stated that, for 50 years back and as long as deponents could recollect, there had been a custom to elect a constable in a particular mode, but did not state that they believed such custom to be immemorial, it was holden that it was not sufficient.

The court have established a general rule to guide them in exercising their discretionary power of permitting informations in nature of quo warranto to be filed, that they will not permit one corporator to object to the title of another, if he has concurred in the election of that other, or acknowledged his title by acting with him; or if the objection that he makes to the title of that other be equally applicable to his own, or to the title of those under whom he claims". Neither is it competent to a stranger to the corporation, although an inhabitant of the town, to impeach the title of a corporators, unless he can shew that, as an inhabitant, he is subject to the local jurisdiction of the body corporate. And it is a valid objection to a relator, that he was present and concurred at the time of the objectionable election, even although he was then ignorant of the objection: for a corporator must be taken to be cognizant of the contents of his own charter, and of the

r R. v. Mein, 3T. R. 596. Borough of y R. v. Whitwell, 5 T. R. 85.
Fowey.
z 4 East, 337.

s Horsham case, H. 30 G. 3. 3 T. R. a R. v. Lane, 5 B. & A. 488.

599. n.

t R. v. Bingham, 2 East, 308. Borough of Gosport.

u R. v. Hulston, Str. 621.

x R. v. Goudge, Str. 1213.

b R. v. Cudlipp, 6 T. R. 503. Borough of Launceston.

c R. v. St. John, E. T. 52 G. 3. MS. Borough of Wootton Basset. R. v. Hodge, 2 B. & A. 344. n.

(7) It appeared in this case, that the bailiff was not entitled to any fees, so that an action for money had and received could not have been brought to try the defendant's title; a circumstance which seems to have influenced the decision of the court.

law arising therefrom. The court will not make such a rule absolute, where a relator appeared to be a man in low and indigent circumstances, and there were strong grounds of suspicion that he was applying, not on his own account, or at his own expense, but in collusion with a strangerd. It is in the discretion of the court to grant the information or not; and under circumstances tending to throw suspicions on the motives of the relator, they will not grant it, where the consequence will be to dissolve a corporation.

By stat. 13 Car. 2. stat. 2. c. 1. the election of corporate officers, who have not taken the sacrament within one year next before their election, is declared to be void. Hence an information in nature of quo warranto may be applied for on this ground; and the circumstance of the relators having concurred in the election which they thus seek to set aside, will not afford any objection to this application; because the defect is a latent one, arising from the omission of an act which the legislature has positively required to be done, before any person is elected into a corporate office. And a stranger to the corporation may apply for an information in this case; because the ground of the application is to enforce a general act of parliament, which interests all the corporations of the kingdoms. But by statute 5 Geo 1. c. 6. s. 3.h the object of which was to lessen the rigour of the stat. of Charles, prosecutions in order to oust the party elected into a corporate office, on the ground of having omitted to take the sacrament, as required by the stat. of Charles II., must be commenced within six months after the election. It seems, that the prosecution is commenced by applying for the rule!. Since this statute, the election of a person who has not taken the sacrament within a year next preceding his election, is not void, but only voidable, in case of a removal or prosecution within the limited time*. Hence, where the plaintiff having been elected and sworn into the office of town-clerk, brought a mandamus for the insignia and other things belonging to the office; to which the defendant returned, that the plaintiff was not duly elected. In an action for a false return, it was objected that the plaintiff ought to prove, that he had taken the sacrament within the time prescribed by the statute of Charles; but it was holden, that he was not obliged to prove this fact, inasmuch as there not having been any prosecution

d R. v. Trevenen, 2 B & A. 339. Bo- h See the remarks of Ld. Mansfield, C. J. rough of Helleston.

e S. C.

f R. v. Smith, 3 T. R. 573.

g R. v. Brown, 3 T. R. 574. n.

on this stat. in R. v. Monday, Cowp. 539.

i S. C.

k Per Lord Mansfield, C.J. in Crawford v. Powell, 2 Burr, 1016.

or removal within the time limited by the statute of King George, the plaintiff's election stood confirmed, and became absolute'. In this case the plaintiff was in possession of the office; but where it appeared", that the plaintiff being out of possession, brought a mandamus to swear him into his office, it was holden, 1st, that the case was not within the statute of George, because never having been admitted into the office, he could not be removed out of it, nor incur a forfeiture; and 2ndly, that it was incumbent on the plaintiff to prove, that he had received the sacrament within a year next before his election.

The corporation of Winchelsea consists of a mayor and jurats". Before a person can be elected mayor, he must be a jurat. Plaintiff was chosen a jurat, and continued so a year, not having taken the sacrament within a year previous to his election. He was then chosen mayor, having taken the sacrament within a year before this last election. The question was, whether the statute of George had so removed all incapacities in the plaintiff, as to qualify him to be mayor, he not appearing to have been questioned for not taking the sacrament before he became a jurat. It was holden, that the statute of George was a remedial law, and ought to be construed liberally; and consequently, that it removed the incapacity of the party, and that it would be a forced construction to confine the generality of the words to a discharge. of prosecutions.

By the test act every person who shall be admitted, &c. into an office, civil or military, or shall receive any pay, &c. by reason of any patent or grant of his majesty, or shall be admitted into the family of his majesty, shall take the oaths of supremacy and allegiance the next term, and subscribe the declaration against transubstantiation; and shall also receive the sacrament of the Lord's Supper, after the manner of the Church of England, within three months (8) after their admittance into the said office. Persons neglecting or refusing to take the oaths and sacrament, and being convicted of executing their offices after such neglect or refusal, are disabled from suing either at law or in equity; from being a

1 S. C.

m Tufton v. Nevinson, Ld. Raymond, 1354. See also Cowp. 539.

n Martin v. Jenkins, M. 14 G. 2. MS.
Str. 1145. S. C.

o 25 Car. 2 c. 2. s. 2. A. D. 1672.
p 25 Car. 2. c. 2. s. 5.

(8) Enlarged to six months, by stat. 16 Geo. 2. c. 30. S. 3.

guardian, executor, or administrator; from being capable of any legacy, or deed of gift, or to bear any office; and shall forfeit 500l. Several attempts have been made to obtain a repeal of the corporation and test acts, but hitherto they have been ineffectual. The inconveniencies, however, arising from these statutes, have been greatly mitigated by the annual acts of parliament, which, since the year 17439, have been constantly passed, for the indemnity of persons who have omitted to qualify themselves within the time limited, and for allowing further time for that purpose.

The annual indemnity act is prospective as well as retrospective, and extends to those who may be in default during the time for which it is made, and is not limited to those who had incurred penalties or disabilities before it passed'.

Votes given for a candidate, after notice of his being ineligible, are to be considered as thrown away, that is, as if the persons so voting had not voted at all. In such case, if there are other candidates, who are duly qualified, he who has the greatest number of legal votes will be duly elected : but until he be sworn in, the office is not legally filled up and enjoyed by him, within the exception in the annual indemnity act. And, therefore, if the disqualified person who had the greatest number of votes be sworn into office, and afterwards qualify himself by taking the sacrament, &c. within the time allowed by the indemnity act, he is hereby recapacitated, and his title to the office protected, such office not having been then vacated by judgment, or legally filled up and enjoyed by another person'. Votes given before notice of the ineligibility are not to be considered as thrown away".

III. Of the Limitation of Time for granting an Infor

mation.

In the year 1767, different motions having been made with a view to impeach the titles of corporators in the borough of Winchelsea, after a long quiet enjoyment, it was suggested from the bar, that it would be absolutely necessary to draw

q See 16 Geo. 2. c. 30.

r In re Steavenson, 2 B. & C. 34.

s R. v. Hawkins, 10 East, 211. R. v. Parry, 14 East, 549.

t R. v. Parry, 14 East, 549.

u R. v. Bridge, 1 Maule & Selwyn, 76.