plead non usurpavit (a), or that he did not usurp the office in question. This appears from the nature of the charge, which calls on the defendant to show by what authority he exercises the office in question, to which charge the pleas of not guilty and non usurpavit do not afford an answer. By stat. 32 Geo. III. c. 58, s. 1, the defendants to any information in the nature of a quo warranto, for the exercise of any office or franchise in any city, borough, or town corporate, whether exhibited with leave of the court or by his majesty's attorney-general, or other officer of the crown on behalf of his majesty, and each and every of them, severally and respectively, may plead, that he or they had first actually taken upon themselves, or held or executed, the office or franchise which is the subject of such information, six years (15) or more before the exhibiting of such information, such six years to be computed from the day on which such defendant was actually admitted and sworn into (b) such office or franchise; which plea may be pleaded either singly, or together with such plea as they might have lawfully pleaded before the passing of this act, or such several pleas as the court, on motion, shall allow; and if, upon the trial of such information, the issue joined upon the plea aforesaid shall be found for the defendants, or any of them, he or they shall be entitled to judgment, and to such costs as they would by law have been entitled to, if a verdict and judgment had been given for them upon the merits of their title. The second section provides, that the prosecutor may reply a forfeiture, surrender, or avoidance, by the defendant, of the office or franchise happening within six years before exhibiting of the information, whereon the defendant may take issue, and shall be entitled to costs in manner aforesaid. The preceding statute having been made in pari materiâ with stat. 9 Ann. c. 20, is confined to corporate officers (c). But the defendant is entitled, by this act, to plead several pleas, although the limitation of time does not form the subject of one of his pleas (d). Where the plea consists of several facts, from which the defendant infers that he is entitled to the office, the replication may contain a denial of any of the facts stated in the plea; but if it contain merely a denial of the inference drawn by the defendant from those facts, it will be bad; for that amounts merely to a denial of the law; for the judges are to determine whether the inference drawn by the defendant is fairly drawn. In an information against the defendant for usurping the office of portreve, defendant showed a title, and concluded his plea, "and so (a) Queen v. Blagden, 10 Mod. 296. cognized in R. v. M'Kay, 5 B. & C. 645, 6. (d) R. v. Autridge, 8 T. R. 467. See ante, (15) By 7 Will. IV. & 1 Vict. c. 78, s. 23, proceedings by quo warranto against mayor, &c. must be commenced within twelve months. s. III. p. 1167; and see stat. 6 & 7 Vict. c. 89, s. 5, ante, p. 1168. he says that he did not usurp in manner and form as in the said information is alleged;" the coroner replied, that he did usurp in manner and form, &c. The replication was adjudged to be bad (e). VIII. Evidence. CORPORATION books are generally allowed to be given in evidence, when they have been publicly kept as such, and the entries made by the proper officers (f); not but that entries made by other persons may be good, as if the town-clerk be sick, or refuse to attend; but then the circumstances under which the entries have been made must be proved. Corporation books being of a public nature, examined copies of the entries therein may also be given in evidence and consequently the court will not enforce the production of the original books (g), unless it appear to be necessary that they should be inspected on account of a rasure, new entry, or the like, which must be verified by affidavit. An entry in the public books of a corporation, is not evidence for them (h), unless it be an entry of a public nature. The deed of a corporation cannot be given in evidence, without some evidence that the seal affixed to it is the seal of the corporation. It is not necessary to prove the seal of a corporation in the same manner as the seal of an individual, by producing the witness who saw the seal affixed; but when an instrument having a seal affixed to it, purporting to be a corporate seal, is produced in evidence, it is necessary to prove that the seal is the seal of the corporation, if there be any doubt about it, otherwise any instrument with a seal to it might be produced in court as an instrument sealed by the corporation (i). In quo warranto for exercising the office of mayor, upon issue joined, that H., the presiding officer at defendant's election, was not then mayor; the title of H. to be mayor, and not merely whether he was mayor de facto, is put in issue (k); and evidence was holden to be admissible, to show, that H. had not been lawfully elected; H. being then dead, but, before his death, an information having been filed against him for usurping the office. A regular usage for twenty years, unexplained and uncontradicted, is sufficient to warrant a jury in finding an immemorial custom (1). A custom for the steward of a court-leet to nominate certain persons to the bailiff, to be summoned on the jury, is a good custom (m). (e) R. v. Portreve of Honiton in Devonshire, E. 1 Geo. I., MS. (f) Per Cur., R. v. Mothersell, 1 Str. 93. (g) Brocas v. Mayor, &c. of London, 1 Str. 307. (h) Marriage v. Lawrence, 3 B. & A. (i) Per Lawrence, J., Moises v. Thornton, 8 T. R. 307. (k) R. v. W. Smith, 5 M. & S. 271. But see 7 Will. IV. & 1 Vict. c. 78, s. 1, ante, p. 1165. (1) R. v. Joliffe, 2 B. & C. 54. A judgment of ouster may be given in evidence to prove the ouster of a third person, by whom the defendant was admitted. In a quo warranto to try defendant's right to be a bailiff of Scarborough (n); in setting out his right, he showed his own election under Batty and Armstrong, two former bailiffs, alleging, that at the time of his election they were bailiffs. Among many other issues the coroner took this, that Batty and Armstrong were not bailiffs, as alleged in the plea. The proof of this issue lying upon the defendant, he gave general evidence of the election and right of Batty and Armstrong. And to encounter that, the prosecutor gave evidence of the custom of the borough of electing bailiffs, and produced a record whereby judgment of ouster was given against Batty and Armstrong, to remove them from the office, as not being duly elected to it. And it being objected on the trial, that this record ought not to be read against the defendant, and the judge having allowed it to be read, and left the whole evidence on both sides to the jury, to consider whether these persons were bailiffs or not, and the issue being found for the king, defendant moved for a new trial; 1st, because this record was res inter alios acta, to which the defendant was neither party nor privy, and so illi nocere non debuit: although the judgment should have been obtained by default, mispleading ignorance of their case, or even by collusion, as the defendant was a stranger to it, he by law could not be let in to prevent any of those inconveniences, and therefore it ought not to have been admitted as any evidence against him, but, in the trial of his right, should have been totally rejected. 2ndly, that the instances where records between other parties have been read, are, in cases of general customs, as in the City of London v. Clerke, Carth. 181, where, in a demand of toll, verdicts against other persons were read against the defendant, and were undoubtedly good evidence, amounting to no more than payment of the toll by strangers, which is always allowed as evidence to prove a custom. But, in this instance, the record was read to a single fact, viz. the election, which the law does not allow. Lock v. Norborne, 3 Mod. 141; where it is expressly laid down, that none can be bound by a verdict against another that is not party or privy to it; as the heir of the ancestor, or the like. 2ndly, That this record, as read, must necessarily be conclusive evidence, and could not by law be left to the jury, as a matter that they could find against. Records are of so high a nature, that there can be no averment, much less parol proof admitted against them: and, therefore, to say that the whole evidence was left to the jury, was impossible; and the rather, because the credit of a record ought not, in any case, to be submitted to them. On the other side were cited Trials per Pais, 206; Skin. 15, Brounker v. Sir Robert Atkins, where a nonsuit against a predecessor in the same office was read against a successor, because he came in privity, as an heir under an ancestor. So in Rumball v. (n) R. v. Hebden, E. 12 Geo. II., MSS. Norton, upon a traverse to the return of a mandamus, to swear plaintiff a burgess of Calne, on non fuit electus, a judgment of ouster against one of the plaintiff's electors was given in evidence against the plaintiff. So Mich. 13 Geo. I., the King v. Bulcock, on a trial of quo warranto to try defendant's right to be a mayor of Southampton, a judgment of ouster against his predecessor was read against him. Besides, it was objected, that several other material issues were found against the defendant; and, therefore, though this evidence ought not to have been given, yet the party ought not to have a new trial. Per Cur. This evidence seems to have been rightly admitted. The defendant has made the title of Batty and Armstrong part of his right; and if he gives evidence of the right of their election, can that be better disproved than by a judgment of ouster, wherein such election is declared to be void? Indeed, this evidence was not of itself conclusive, but might have been repelled by proving fraud, neglect, or any other circumstance which would have abated the weight of the judgment. And if anything of that kind had appeared, the force of it, as to the defendant, would have been greatly lessened. But what makes this case still plainer is, that defendant, by his plea, makes title under, and takes upon himself to justify, their election; and therefore ought to be bound by what has been transacted by them. And if this evidence had been erroneously admitted, yet here are many more issues found against him, to which no objection is made; and being any of them sufficient to entitle the crown to a judgment of ouster against defendant, there is no colour to grant a new trial on this point. And for these reasons it was denied. But although a judgment of ouster against one corporator is admissible against another, deriving title through him, it is not conclusive (o). The insertion of the name of a town in schedule (A.) of the Municipal Corporation Act, is primâ facie evidence of the existence of a municipal corporation there, but may be rebutted by evidence, that the name had been inserted in the act by mistake; as in the case of Gateshead (p). IX. Judgment. By stat. 9 Ann. c. 20, s. 5, it is enacted and declared, That in case any person, against whom any information, in the nature of a quo warranto, shall be exhibited in any of the said courts (16), shall be found or adjudged guilty of an usurpation, or intrusion into, or unlawfully holding and executing any of the said offices or fran (0) R. v. Grimes, 5 Burr. 2598. (p) R. v. Greene, 1 Nev. & P. 631. (16) Court of King's Bench, courts of sessions of counties palatine, or courts of grand sessions in Wales. chises, it shall be lawful for the said courts respectively, as well to give judgment of ouster against such person from any of the said offices or franchises, as to fine such person for his usurping, &c. any of the said offices or franchises; and the said courts, respectively, may give judgment, that the relator shall recover his costs of such prosecution and if judgment shall be given for the defendant, in such information, he shall recover his costs against such relator; such costs to be levied in manner aforesaid. In an information against defendant for exercising the office of mayor of Penryn, it appeared, that by the letters patent of incorporation it was directed, that the mayor elect, before he should be admitted to execute his office, should take a corporal oath, before the last mayor, for the faithful execution of his office. The defendant pleaded, that he was elected and duly sworn mayor; and issue being taken in the replication, both as to his being elected and sworn, upon the trial, the jury found that he was elected, but that he was not sworn; and thereupon judgment of ouster was given (q) in B. R. Upon writ of error (r) brought in D. P., it was insisted, that the judgment was erroneous; for it appeared upon the record, that his right to the office was established by the verdict, which found that he was elected; and yet, whilst this judgment of ouster stood, the plaintiff could not have the effect of a mandamus to be sworn in, though the legality of his election was not disputed, and though no time was limited by the charter for his being sworn in, nor was he by law debarred from having such mandamus, although he acted before he was sworn in. For the defendant, in error; it was contended, that it being expressly required by the charter of incorporation, that the mayor elect should take the oath of office, before he should be admitted to execute such office, it became necessary for the plaintiff, in order to make his justification complete, to allege, that he did accordingly take such oath; and this allegation having been falsified by the verdict, the justification, being entire, was destroyed, and he was found to be an usurper, and consequently subject to the judg ment of ouster, as being the only legal judgment in this case. judgment of the Court of King's Bench was affirmed (17). In a subsequent term, viz. E. 11 Geo. I., Str. 625, Pindar having applied for a mandamus to swear him into the office to which he had been elected, the court refused to grant it, in consequence of the judg ment of ouster, which, according to the opinion of Raymond, C. J., did away the election; and he thought, that without a new election, since the judgment, the party was not entitled to a mandamus. In (q) R. v. Pindar, Lord Raym. 1447, cited per Cur., Str. 582, S. C., case of the Mayor of Penryn. (r) 2 Bro. P. C. 294, Tomlins' ed. The (17) The judgment was affirmed without costs; the judges having delivered it as their opinion, that costs were not recoverable in this case. |