them there: but if it be not a misbehaviour in office, it is plain from what has been said, it can neither be a forfeiture of the office, nor a cause of forfeiture. Their distinction, between misbehaviour in or out of office, was invented merely to get rid of an objection which cannot be answered, namely, that though it should be a misbehaviour, an amotion by the corporation was the first step necessary. Corporations, says Sir Richard, have not a power of amotion, but in cases where it is expressly given them; and his reason was, that were it otherwise, it would be in their power to deprive a man of his office, without giving him a proper opportunity of making the defence, or at least to determine the matter in a summary way; whereas the law, says he, requires that whatever is alledged against a man, to turn him from his office, must be tried by a jury, and have the sanction of a verdict: but in a case of this kind, I should be glad to know what would be tried? what are the jury to determine? That the parties were usurpers the moment they quitted the borough, or at what particular time did they become so? The concurrent jurisdiction, Sir Richard talked of, be tween the king and the borough, is very extraordinary, and altogether groundless: it is contradicted by the established practice of this court; for if the crown had such a jurisdiction, would it not be exerted by this court in refusing a peremptory mandamus, where there appeared sufficient grounds for an amotion, but the parties happen to have been irregular in their proceedings on it? That a peremptory mandamus, or writ of restitution, is awarded in those cases, is alone a sufficient proof that this court has no such jurisdiction. As to the two un-admitted burgesses, Sir Richard says rightly, that where it is shown that a person has taken the 1753. The King agt. PONSONBY K. B. 1753. The King agt. PONSONBY. K. B. oaths of office, it is as much proof as this court requires, of his holding and executing that office within the mean" ing of the statute; and this act of swearing, he represents as a very insignificant thing; but taking the oaths of office I have always understood to be as much a taking possession of that office, as stepping over my threshold is an entry into my house: as much a taking possession of this incorporeal freehold, (undoubtedly a much more solemn way of doing it) as receiving seisin is of a corporeal freehold and what can be a stronger proof of a man's taking upon himself an office, than his doing that which enables, and qualifies, him to undertake all the duties, and enjoy all the privileges of that office? This point indeed, with respect to the un-admitted burgesses, the gentlemen seemed inclined to give up; but then, say they, the judgment must be reversed as to those two only, and affirmed as to the rest. : Wherever a man is by information charged as an usurper upon the crown, jointly with others, against all of whom, supposing they were all found guilty, the same judgment cannot be given, I apprehend it is error to involve them all in the same action. Where persons are questioned on different rights, as is the case here, the court cannot give the same judgment. This distinguishes this case from that which has been cited from Moore, and is indeed quite another thing, for there was no objection to the kind of judgment the court had given, but the error insisted on was, that the court had no jurisdiction with respect to the informer, though the queen, by virtue of her prerogative, was not restrained to any particular court, but every court, whenever her title appeared, was ex officio obliged to give judgment for her: upon that point only it was, that that judgment was partly reversed, and partly affirmed; which can no way affect the present I don't see in fact how the court can give any case. judgment here; for the gentlemen themselves, I believe, will hardly seriously controvert, but that a judgment of ouster is improper with respect to two of the defendants; and yet the law allows of no other: for this information is, as I said, and it has not been denied, founded on a particular statute, (that one of the Irish statutes which corresponds with ours of 9 Queen Ann) which defines the persons against whom it is to be maintained, and allows of no judgment but a judgment of ouster. As no judgment therefore can be supported against two of the defendants, this information being joint, the judgment must be reversed as to all: but had the same judgment been pronounced against the defendants on separate informations, they could not have been supported, if what they say be true; for seven of the defendants, according to their argument, are already out of their offices by their non-residence, and the other two, it is agreed on all hands, were never in. For these reasons, I have no doubt but the judgment will be reversed in toto. 1755. The King agt. PONSONBY. K. B. Mich. Term, 29 Geo. II. 1755. THE KING agt. PONSONBY and others. RYDER, C. J. now delivered the judgment of the court. This case comes before the court on a writ of error brought on a judgment given in B. R. in Ireland, on an information brought there against the defendants, in the nature of a quo warranto, to shew by what right they claim, and exercise, the office of free burgesses of the borough of Newtown, in that kingdom. John Ponsonby, one of the defendants, pleads specially that Newtown was incorporated by the name of provost, twelve burgesses, and commonalty: that the free burgesses 1755. The King agt. PONSONBY. K. B. were to hold that office for life, but were removeable for misbehaviour, by the provost, and three burgesses; and in seven days after such removal of a burgess, the corporation were to proceed to elect a new one, who in seven days after such election should take the oaths before the provost, and free burgesses. That on the 1st of October, 1745, the provost, and three burgesses did elect him to be a free burgess, but gave him no notice of such election. That he had not taken the oaths, nor exercised the office, but claims a right to be sworn, and exercise the office, and traverses the usurpation. Benjamin Barton, another of the defendants, puts in the same plea, Replication to these pleas, that, on the 3d of October, 1745, defendant had notice of his being elected, yet in the space of two years, and seven months, had not applied to be sworn, nor resided within the borough, but 80 miles distant, ss. at the city of Dublin, without any reasonable cause, and therefore ceased to be a free burgess, yet he still claims that office: so prays judgment against him, and that he may be excluded, Rejoinder, that he had not due notice of his being elected, and issue thereupon. Demurrer, that the replication charges notice generally, which the defendant has not answered. The other defendants plead that on the 1st of January, 1744, they were elected by the provost and burgesses into the office of free burgesses, and, the same day, duly sworn, and exercised the office, as they lawfully might, and traverse the usurpation, and pray that the privilege may be confirmed to them. .. Replication, that they ought not to be allowed to exercise the said privilege, because from the 1st of January, 1744, to 1748, (the day of filing the information) they have not resided within the borough, but many miles distant, and so have forfeited their office, yet usurp, &c. so prays judgment against them, and that they may be excluded. Rejoinder, that they have exercised the office at the accustomed times, and assembled themselves upon summons, and behaved as became them to do in their said office, and that the business of the corporation has not suffered through their default. Demurrer, and joinder in demurrer, and judgment to be absolutely foreclosed from exercising that office, & quod capiantur pro fine. This case has been divided into these three questions: 1st. Whether the non-residence contained in the replication, when considered together with the several rejoinders, is that sort of non-residence which shall cause a forfeiture? 2d. If so, whether a quo warranto be the proper method of proceeding against them? 3d. If a quo warranto would lie, whether it could be brought against so many defendants together, by virtue of 9 G. II. on this particular case? 1. As to the first. In all public offices there is a tacit condition, implied by law, to perform the duty of such office, and in some cases it is expressed, and binds infants, and femes covert; and this is necessarily attendant on all franchises, and runs parallel therewith. 1755. The King agt. PONSONBY. K. B. |