particular mode, but did not state that they believed such custom to be immemorial; it was holden (1), that it was not sufficient. If a party (m) has been ousted of an office by the election of another party to that office, (the election not being merely colourable,) his remedy is not by mandamus, but by an information in the nature of a quo warranto. By rule of court, (H. T. 7 & 8 Geo. IV., 1827,) reciting that vexation and expense had been occasioned to defendants, by the practice of raising issues upon various matters distinct from the ground on which the information was granted by the court; it was ordered, that henceforth the objections intended to be made to the title of the defendant shall be specified in the rule to show cause; and no objection, not so specified, shall be raised by the prosecutor on the pleadings without the special leave of the court or some judge thereof (n). And by another rule of court, M. 3 Vict. (o), it is ordered, that no rule be granted for filing an information in nature of a quo warranto, unless at the time of moving, an affidavit shall be produced, by which some person shall depose, upon oath, that such motion is made at his instance as relator, and that such person shall be deemed to be the relator in case such rule shall be made absolute, and shall be named as such relator in such information in case the same shall be filed, unless the court shall otherwise order. Under the foregoing rule the affidavit must state at whose instance the application is made; it is not sufficient for a party to depose, that if the court grant the information, it is his intention to become really and bonâ fide the relator (p). If the motion for a quo warranto be made on the affidavits of three persons, two of whom are not qualified to be relators, the information may nevertheless be granted, if the third party be unobjectionable as a relator, though his affidavit does not show sufficient ground for the information (q). Any inhabitant of a borough may be a relator, although he is not a burgess (r). 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 (s). It is a valid objection (t) to a relator applying for a quo (1) R. v. Lane, 5 B. & A. 488. (m) R. v. Mayor, &c. of Oxford, 1 Nev. & P. 474. (n) See 6 B. & C. 267. (0) 11 A. & E. 2; 3 P. & D. 1. (p) R. v. Hedges, 11 A. & E. 163; 4 P. & D. 61. See R. v. Anderson, 2 Q. B. 740; and 2 G. & D. 113. (q) R. v. Parry, 6 A. & E. 810. (r) Reg. v. Quayle, 11 A. & E. 508 4 P. & D. 442. (8) R. v. Cudlipp, 6 T. R. 503, Borough of Launceston. (1) R. v. Parkyn, 1 B. & Ad. 690, recognizing R. v. Symmons, 4 T. R. 223. warranto information for usurping the office of burgess that he was formerly present at, and concurred in, the election of another burgess, when the objection he sought by the application to avail himself of was taken and overruled, and he voted for the party then elected. But, on motion for a quo warranto against a capital burgess, on the ground of irregularity in his election, it is no answer (u) that the relator frequently acted with the party against whom he applies, in corporation business, during the two years following such party's election, the relator not being shown to have concurred in that election; nor is the relator disqualified by the mere circumstance of having formerly taken part in other elections, where the same irregularity as now complained of existed, but was not noticed. It is not competent to a stranger to the corporation, although an inhabitant of the town, to impeach the title of a corporator (x), unless he can show 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 law arising therefrom. The principle is, that he who has concurred in inducing a party to exercise an office cannot be heard on an application to turn him out of the office (y). Hence, an officer who, knowing the supposed disqualification, administered the declaration prescribed by sec. 50 of stat. 5 & 6 Will. IV. c. 76, to the defendant, cannot be heard as relator (z). But a person who is estopped from being a relator, is allowed to make an affidavit in the rule for the quo warranto (a). The court will not make the rule absolute, where the relator appears to be a man in low and indigent circumstances, and there are strong grounds of suspicion that he is applying, not on his own account, or at his own expense, but in collusion with a stranger (b). 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 (c). It has been generally considered as a rule of corporation law, that a person is not to be permitted to impeach a title conferred by an election in which he has concurred, or the titles of those mediately or immediately derived from that election (d). Formerly, elections under the presidency of a bad mayor or other person were void. Hence where the mayor, who presided at the election of a new mayor, was only mayor de facto, (u) R. v. Benney, 1 B. & Ad. 684. (x) R. v. St. John, E. T. 52 Geo. III., MS., Borough of Wotton Bassett; R. v. Hodge, 2 B. & A. 344, n. (y) Per Lord Denman, C. J., in R. v. Greene, 2 Q. B. 460; 2 G. & D. 24. (z) R. v. Greene, ub. sup. (a) R. v. Brame, 4 A. & E. 664. (b) R. v. Trevenen, 2 B. & A. 339, Borough of Helleston, cited and distinguished in R. v. Wakelin, 1 B. & Ad. 50. (c) S. C.; and R. v. Taylor, 11 A. & E. 949. (d) Per Abbott, C. J., in R. v. Slythe, 6 B. & C. 242. and not de jure, and was subsequently removed by judgment of ouster; it was holden (e), that the election of the new mayor was void. But now, by stat. 7 Will. IV. & 1 Vict. c. 78, s. 1, no election of any person into any corporate office, which shall take place after the passing of this act, [17th July, 1837,] shall be liable to be questioned by reason of any defect in the title or want of title of the person before whom such election may have been had, provided that the person before whom such election shall be had, shall be then in the actual possession of or acting in the office giving the right to preside at such election. Every corporator must be presumed to be conusant of that which has recently taken place in the corporation of which he is a member, unless he shows the contrary (f). But if a person should concur in an election in ignorance of some fact making it invalid, and should afterwards come before the court, and show the objection, and that it has come to his knowledge since the election, and that it is a matter which ought to be inquired into, the application might be heard (g). Where a rule is obtained upon the ground (h), that a party has vacated a corporate office by having accepted a second incompatible office, the affidavits must show a valid appointment to the second office, and that the offices are incompatible. Where different persons filling two offices would be in the relation of master and servant to each other, those offices cannot be held by the same person. But there is nothing inconsistent in one member of a body noting down the acts of the body. Thus, in the borough of Carmarthen (i), the offices of common councilman and town-clerk are not incompatible. By the Corporation Act, 13 Car. II. stat. 2, c. 1, the election of corporate officers who had not taken the sacrament within one year next before their election, was declared to be void. By the Test Act (k), every person admitted, &c., into an office, civil or military, or receiving any pay, &c., by reason of any patent or grant of his majesty, or admitted into the family of his majesty, was required to take the oaths of supremacy and allegiance the next term, and subscribe the declaration against transubstantiation; and also receive the sacrament of the Lord's Supper, according to the usage of the Church of England, within three months (7) after his admittance into office, in some public church, upon Sunday, immediately after Divine service and sermon. Persons neglecting or refusing to take the oaths and sacrament, and being convicted of executing their offices after such neglect or refusal, were disabled (1) (e) R. v. Corporation of Bridgwater, 3 Doug. 379. (f) R. v. Slythe, 6 B. & C. 243. (g) Per Abbott, C. J., in R. v. Slythe, 6 B. & C. 243. (h) R. v. Day, 9 B. & C. 702. (7) Enlarged to six months by stat. 16 Geo. II. c. 30, s. 3. from suing either at law or in equity; from being a guardian, executor, or administrator; from being capable of any legacy, or deed of gift, or to bear any office; and forfeited 5001. Several attempts were made to obtain a repeal of the Corporation and Test Acts, but they were ineffectual until the year 1828, when, by stat. 9 Geo. IV. c. 17, such parts of the stats. 13 and 25 Car. II. and 16 Geo. II. as required the taking the sacrament, were repealed, and a declaration was substituted by the second section of that statute (9 Geo. IV. c. 17), in lieu of the sacramental test, which must, within one calendar month (8) next before or upon admission, be made and subscribed in the presence of the proper officer (sect. 3), otherwise the election is void (sect. 4). And by stat. 10 Geo. IV. c. 7, s. 14, any subject professing the Roman Catholic religion may be a member of any lay corporation, and hold any civil office or place of trust or profit therein, and do any corporate act, or vote in any corporate election, upon taking and subscribing the oath appointed by that act, instead of the oaths of allegiance, supremacy, and abjuration. The inconveniences arising from the Corporation and Test Acts have been greatly mitigated by annual acts of parliament, which since the year 1743 (m) 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 (n). 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 (o). In such case, if there are other (m) See 16 Geo. II. c. 30. (n) In re Steavenson, 2 B. & C. 34. (0) R. v. Hawkins, 10 East, 211; R. v. Parry, 14 East, 549. (8) The statute does not give the party elected a month, at all events, for deciding whether he will make the declaration or not, but only excuses him from making it at the time of his admission, if he has made it within a month before. The words, "upon admission" mean at the time, and not within a reasonable time after; and the authorities who admit, may prescribe the order in which the ceremonies forming parts of the admission shall take place. Hence, if a party offers himself to the proper court to be admitted, not having made the declaration within a month before, and being asked whether he will make it or not, declines to say, but requires the court to admit him, which they refuse, the election is thereupon void, and a precept may issue for a new election. The Queen v. Humphery, 10 A. & E. 335. But where a town-clerk had been elected to hold his office during good behaviour, and had not made the declaration prescribed by 9 Geo. IV. c. 17, s. 2; it was held, that as having been an officer de facto, he was entitled to compensation under the 5 & 6 Will. IV. c. 76, s. 66. R. v. Mayor of Cambridge, 12 A. & E. 702; 1 G. & D. 294. 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 making the declaration, &c. within the time allowed by the Indemnity Act, he is thereby 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 (p). Votes given before notice of the ineligibility are not to be considered as thrown away (9). III. Of the Limitation of Time for granting an Information, p. 1167; Stat. 6 & 7 Vict. c. 89, s. 5, for expediting certain Proceedings by way of Mandamus and Quo Warranto, p. 1168. In the year 1767, in the Winchelsea cases, the Court of King's Bench determined that the period of possession after which a corporator ought not to be disturbed, by any information in the nature of a quo warranto granted under the discretion of the court, should be twenty years: this limitation was, in the year 1791, by rule of court, narrowed to six years, and that rule was afterwards confirmed by stat. 32 Geo. III. c. 58. Where a rule nisi for a quo warranto information for exercise of a franchise was obtained within six years after the earliest time at which the defendant appeared to have exercised it, but the motion for a rule absolute was not made till the six years had expired, the court discharged the rule; holding, that it was too late, by stat. 32 Geo. III. c. 58, s. 1, to file the information (r). By stat. 7 Will. IV. & 1 Vict. c. 78, s. 23, [17th July, 1837,] every application to the Court of King's Bench, for the purpose of calling upon any person to show by what warrant he claims to exercise the office of mayor, alderman, councillor, or burgess, in any borough, shall be made before the end of twelve calendar months after the election, or the time when the person against whom such application shall be directed shall have been disqualified, and not at any subsequent time. The stat. 6 & 7 Vict. c. 89, recites, that doubts had arisen whether, notwithstanding this enactment, applications in the nature of quo warranto might not still be successfully made against any person holding the office of mayor, on the ground that such mayor was not duly qualified to be so elected mayor, by reason of some defect or informality in his previous election to the office of alderman or councillor; although (p) R. v. Parry, 14 East, 549. (1) R. v. Bridge, 1 M. & S. 76. (r) Reg. v. Harris, 11 A. & E. 518; 3 P. & D. 266. |