“not inhabiting infra the borough, was a good cause to remove a member; but that it did not ipso facto de"termine the office without an actual amoval:" though there the residence of a common council-man is undoubtedly necessary; much less then in the case of a burgess, whose presence is of little, or no use. And I beg leave to observe that Holt was of this opinion, though it does not appear that in that case, from the report of it, any express power of amoving was given to the corporation by their charter: but that power the corporation always have of course; the law gives it them. I hope by this time I have made it appear to the satisfaction of the court, that an amotion is necessary to oust those of my clients who were once admitted into their offices: if so, as the court has no authority to grant informations of this nature, but against persons who usurp, intrude, or wrongfully hold; these seven can never be said to usurp, intrude, or hold wrongfully, by continuing in those offices to which they were formerly duly admitted, and from which they have never since been amoved. As to the other two, who, though duly elected, were never admitted burgesses of this borough, with still less propriety can they be charged as intruding into, usurping, or wrongfully holding, offices which it does not appear they ever exercised in any single instance. This court never grants leave to file informations of this sort, but upon affidavit that the person against whom the information is prayed has actually exercised the office; and the statute requires it. To claim an office is not sufficient to warrant a quo warranto information. I moved in this court myself for an information in the nature of a quo warranto, against a gentleman who claimed the office of, and called himself, town clerk of a borough in Cornwall; but the court refused it, because our affidavits did not 1753. The King agt. PONSONBY. K. B. 1753. The King agt. PONSONBY. K. B. make it appear that he ever exercised the office. Informations against persons qui clamant habere were never granted, though writs of quo warranto indeed have been ; and this is the distinction; writs of quo warranto were seldom brought for an office, but against persons who claimed privileges consisting in casual enjoyment, and which, if they did not exist in the claimant, existed in the crown, which was deprived of its rights by a claim of that sort, and a claim generally was the only thing capable of being proved. But by a claim of an office, nobody is injured; by an exercise of it they may: that, and that only, is an usurpation. I dare say there never was an information in the name of the Attorney General for an office on a mere claim, for if there had, the gentlemen, I doubt not, would have found it. Besides, as this information was founded on a particular act of parliament, (the Irish act, corresponding with ours of 9th Ann, c. 20) the directions of that act must be pursued; and on that act the court cannot forejudge the defendants' claim, or any thing of that sort, but a judgment of ouster only can be given: and accordingly judgment of ouster has been given: but surely in England, however it might be in Ireland, it will be thought absurd to give a judgment of ouster to dispossess a man of an office which he never possessed. There was a very extraordinary objection on the other side; If we can't turn them out this way, said they, pray tell us how we can. If the Irishmen want that information, I suppose their counsel can give it them; for my part I beg to be excused. Upon these considerations, we doubt not but that the seven admitted burgesses will be thought either to have done nothing by which their offices are forfeitable, or at worst that no advantage can be taken of it this way: and against the other two, the judgment can't possibly be supported. We hope therefore the court will be of opinion that this judgment ought to be reversed. Sir Richard Lloyd for the defendants in error. Notwithstanding the very ingenious arguments pro duced by the gentlemen on the other side, I hope yet to advance sufficient reasons to induce the court to affirm this judgment against seven of the now plaintiffs at least, if not against the other two; and I think it is not unprecedented to affirm a judgment as to some of the parties, and reverse it as to others: however, I am very far from giving up the point as to those two. On our last argument the court doubted as to some points, to which I shall now endeavour to confine myself. The search for ancient precedents on both sides has proved fruitless: consequently cases not settled must be determined on the principles on which other determinations are founded. It has never yet been determined whether a claim on record be not of such a nature as to warrant a judgment of ouster. Whether this court on a misbehaviour can primarily interpose by way of information, or whether the party is removable by the body corporate only, is likewise yet undetermined. I shall first consider the case of the seven acting burgesses, who were elected, and admitted, and have never since been in the borough. That absence, or departure from a borough, is a good cause of forfeiture, or of removal from some kind of offices in a borough, I always thought a point settled; but the learned serjeant, who spoke at the last argument, says it is not law that residence in the borough is not requisite, but only a residence on their offices; so that if an alderman lives an hundred miles off, yet if he comes over, I 1753. The King agt. PONSONBY. K. B. 1753. PONSONBY. K. B. suppose, at elections, that is sufficient. However, I must beg leave to insist that the departing from the borough is The King departing from the office, and one and the same thing. agt. I will venture to lay down this proposition, that wherever residence in a borough is expressly, or impliedly, annexed to an office, non-residence is a forfeiture of that office; which is indeed almost an axiom. I give you &c. provided you reside, or as long as you reside, or the like, must necessarily require residence to a continuance of the grant: but, say they, offices of trust, and government, can alone be forfeited by non-residence; a freeman's absence from the borough was never thought a forfeiture of his franchise. Very true; and the reason why it is not a forfeiture is, that residence is neither expressly, nor impliedly, annexed to his freedom. But suppose, in the case of a dean and chapter, it was required that the dean should go every day at four o'clock to the choir, to read prayers, or for any other proper purpose, would any body say that non-residence, or a residence 100 miles off, would not be a forfeiture? and yet this is not an office of trust, or government. Wherever the end for which a corporation, or any other particular office, was instituted, is not complied with, the office ceases. This is agreeable to the doctrine laid down in Baggs's case; wherever a trust reposed in a man is broken, that is sufficient to disfranchise him, or destroy the office which he holds on that trust. I care not whether the office in the present case be for government, trust, or trade; in either case non-residence is a sufficient cause of avoidance; how is another case to be met? Let us see the terms of the charter, for if the terms have not been complied with, Mr. Henley admits, they are punishable some way. Can it be seriously said that it is consistent with the design of the charter that the office of a free burgess should be enjoyed by any but those who inhabit, and reside in the town? It cannot. But then, supposing this a good cause of avoidance, say the gentlemen, advantage cannot be taken of it by information in the crown office; the crown cannot immediately interpose, but the party must be first amoved by the body, and therefore we are mistaken in our proceedings. In all royal foundations the king is the visitor, unless he delegates that authority to somebody else; and this principle will not be denied me, that the king has some way or other a right to see that his officers do their duty he may delegate part of that power, and. preserve the rest: whatever is not given away, remains in him. Supposing then he had not given this corporation the power of amoving, it would have remained in himself; for no man can be removed from his office by summons, in a summary way, (unless where such a method is particularly prescribed) but only by a verdict of his country, on a legal trial, where he has a proper opportunity of making his defence. Amotion for misbehaviour, says Mr. Henley, is given the body in this case: amotion for misbehaviour in office, it is true, is given them, but nonresidence falls not within that power; for though a misbehaviour, it is not a misbehaviour in officio; 'tis a total desertion of the borough: and though the body may turn him out for doing any thing amiss in his office, yet it by no means follows that they have a power of amoving him in this case. That power then, not being delegated, remains in the king. Therefore as the corporation can't take cognizance of this offence by summons, nor can it be done by conviction, for it is no offence at common law, either the party is wholly unpunishable, or the method we have taken is the right one. This argument I found. on a supposition that residence is the condition of the continuance of this office; and most certainly it is so, Had 1753. The King agt. PONSONBY. K. B. |