ARGUED, AND ADJUDGED,

IN

THE COURT OF KING'S BENCH, &c. &c. &c.

Easter Term, 26 Geo. II. 1753.

An information in the nature of a

quo warran

THE KING agt. PONSONBY, and others. THIS was a third argument, on a writ of error of a judgment in B. R. in Ireland, on an information in the nature of a quo warranto, at the relation of the coroner, against the defendant, Ponsonby, and eight others, for usurping the franchise of free burgesses of the borough and seven of Newtown.

to, brought against two

non-acting,

non-resident burgesses of

a corpora

The defendants, in their plea, set forth the letters tion, to whom, by patent of king James I., incorporating them by the charter, an name of the provost, and free burgesses, of the borough estate for of Newtown, and which give the provost, and burgesses, ed in their life is grantpower to elect, and fill up vacancies; and then seven offices, reof the defendants plead, that they were, accordingly, duly moveable elected, admitted, and sworn-in, free burgesses of this only for misborough; and the other two plead, that, in October, 1745, by the prothe provost, and burgesses, met, and chose them likewise, vost, &c.; against the yet they have not been admitted, but have been, and still first, on the ground of

behaviour

being claimants, though not sworn; the second, as having forfeited their privileges by non-user: and after judgment of ouster in K. B. in Ireland, in error thereupon, it is decided, that an information on the 9th of Geo. 2, cannot be maintained for a claim, but actual intrusion only; and that non-residence, where a power of amotion is vested in a person designated by charter, is not an avoidance of office before that is exercised, when immediately an unlawful holding may commence, which may justify any proceedings in quo warranto on the part of the crown. Sayer, 245. S. C. 1 Ves. Jun. 1. S. C.

B

1753.

The King agt. PONSONBY.

K. B.

are, ready to be so, and that they have not exercised the office but by virtue of this election; and then traverse.

The coroner (after craving oyer of the letters patent, which is given him, and which conclude with a clause importing, that the same should be construed most beneficially for the corporation, and most unfavourably for the crown) replies, that, with respect to the seven, they did not reside within the borough, and, by that means, had forfeited their election; and, with respect to the other two, that they had not taken the oaths of office, nor ever applied for that purpose, by which &c. To this reply there was a rejoinder, to that a demurrer, and a joinder in demurrer, upon which judgment was given against all the defendants, who all joined in this writ of error.

Mr. Henley, for the plaintiffs in error.

The question with respect to the seven admitted burgesses is, briefly, this, whether they have forfeited their franchises merely by non-residence? A question so much a novelty in law, that, in the course of two arguments by gentlemen of the most undoubted abilities, not a single case, nor even a single dictum sapientis, has been urged in support of the information. If mere non-residence occasions a forfeiture of offices of this kind, every corporation in the kingdom is at the mercy of the crown, and liable to dissolution whenever the crown pleases; for if this be the case, the moment a burgess leaves his borough, his office is absolutely gone; let him return whenever he pleases, it signifies nothing; for an absence of an hour, for aught appears to the contrary in their argument, is as fatal as an absence of a year. However, if the law be so, the judgment must stand; but then the law must be very plain, and evident, before it will induce your lordship to enforce a doctrine attended with such pernicious consequences.

In order to a thorough discussion of this question, it is proper to inquire upon what conditions this charter was given them; whether those conditions have, or have not been complied with; and who it is the charter has appointed judges of a breach of them.

1st, I shall state the terms, which are a grant for life, determinable on misbehaviour accompanied with an amotion; and as a species of misbehaviour, non-residence, if it be a fault at all, must be considered. And as to the last point, who are to have the power of judging of this misbehaviour, and making the amotion; it is negatively clear that the crown did not intend it to be determined by a judgment in quo warranto, because the crown has af firmatively determined who is to make the amotion, expressly directing it to be ad beneplacitum prepositi, &c. These being the terms on which the charter was granted, and this the method of determining, and punishing a breach of them, the remaining part of the case, as to these seven admitted burgesses, may be divided into three questions, all of great importance, and highly necessary to be settled; and to which I shall confine myself, because all the other questions which arose from the inaccuracy of the pleadings, have been already learnedly, judiciously, and fully discussed by Mr. Serjeant Poole, when this matter was last argued.

The first question is, whether the franchise of a bur gess be forfeited by mere non-residence by the common law, independent of any clause in this charter?

2ndly, If not, whether by any express, or implied proviso, or condition, in this charter, non-residence is a forfeiture, or determination of this franchise?

1753.

The King

agt. PONSONBY.

K. B.