case the queen against the corporation OF Buckingham queen if to a mandamus to  restore a corporator to the office of burgess it be a good return that he be  de facto elect but that not have receive the sacrament accord to car c his  election be void S c post this be a mandamus to the corporation of Buckingham  to restore one Muscot to the office of a common burgess of that corporation  the return in substance be that Muscot de facto to be dainties but that be not  have receive the sacrament within a year before his election accord to the  statute car c his election be void a see the case of the queen v the mayor and  burgess of pomfret ante and the queen v the borough of Aldborough ante a Mr  Lechmere against the return argue that the very foundation of a mandamus to  restore be the wrongful turn a man out of at least a possessory right to a  franchise and therefore proper and in its own nature it be a writ of  restitution and accord in the analysis of the law now publish from a  manuscript of Lord hale it be express call a writ of restitution which ex way  termini import possession it be not necessary for one who have a possessory  right to a franchise to have a legal title to it this be in its modern report  own nature a freehold and because it be modern report er p law public officer  the law have a great regard to the possession of such a freehold than to any  of a private nature if upon a presentment without title institution and  induction follow the party have such a possessory right as be shall not lose  without a quare hinder the debit admission accord to the constitution of the  borough be not at all answer by the return must now be look upon as true and  for the same reason it must now be take for grant that he have be guilty of no  misbehaviour since his election the admission not the election make the  officer and though the statute say the election shall be void it say nothing  of the admission there be various return make to mandamuss to restore non to  be amotus be the most common return and this return go to the very foundation  of the writ non to be admission be a good return amotion depend upon the  admission and therefore non to be admission be but a special non to be amotus  in the case of the king v town of Cambridge b Mod b a mandamus issue to admit  love and other and a return of any subsequent incapacity be resolve to be a  good return confess the amotion and justify be a very common sort of return he  observe that in all these return the election be not answer from whence it  follow that it be not a necessary and essential part of the writ in James  smith case c Mod c just after the revolution the election be answer but then  it be answer in such a manner as plain show it not necessary to be answer  beside the argument do by no mean hold that because it be to be find in some  return that they have answer the election therefore it be a necessary part of  the writ but the argument hold strong the other way that because it be often  not answer therefore it be no necessary part of the writ he observe that  unless the reason return for not restore he be a good reason for their turn he  out it be not a good reason modern report he affirm that a corporation after  their admission of he as duly elect have no power or authority to call in  question the title of he or the rest of their member and that it must by no  mean pass for grant that they may disfranchise a man for every cause for which  he may be proceed against upon a quo warranto because there be this great  difference between proceed by quo warranto and the turn a man out that in the  former case the man remain in possession of his franchise during the time the  right be in dispute whereas in the other the man be all the while out of  possession which be a wrong that restore he afterward do not make he  sufficient amends for James bag case a   a be a lead case as to mandamuss and  this be a mandamus to restore and there it be lie down that a disfranchisement  ought to be find upon some act do against the duty of a burgess a power of  disfranchisement be not a power incident to a corporation and what the court  can ex duty take notice of but it must be give by express word in the charter  and plead which here it be not if corporation have a power to judge of  election they must necessary judge of act of parliament concern they they must  judge the right of elector c a jurisdiction too great to be suppose vest in a  corporation it seem absurd for a corporation to turn a man out for a act of  their own and not any fault commit by he for the election be a corporate act  and shall they after they have allow and admit it good by own and receive he  as a member be allow to come and call this a void election then it be urge  that this be a very dangerous as well as needless power because it will give a  corporation a power to rid themselves of what member they please for let a man  have ever so much right on his side yet be must lose his franchise during the  whole time modern report of dispute and it be likewise a very needless power  because the law have sufficient provide for it by quo warranto another  exception be that it be not aver in the return that the reason they give for  not restore he be the reason for which they turn he out and that this be  necessary appear from bag case b   b where it be express say in the return ex  cause predictis amotus to be and if this be not so a wrongful expulsion may  come to be a rightful one for if it need not appear in the return for what  cause he be expel any accident happen between the removal and the return will  in fact justify the removal then it be observe that the return be  contradictory to itself for it be say modern report er p in the first place  that de facto to be dainties and afterward that his election be void he not  have receive the sacrament now dainties in one part of the return must bear  the same sense as in the other unless the addition of the word de facto make  any alteration which he suppose they do not Mr Lutwyche for the return a in  favour of the return the follow case be cite king v Thacker Jones king v  Slalford Mod king v mayor of Abingdon salk lev a the Act of parliament of car  c say that the place election or choice of a person not have c shall be void  and where a Act of parliament make a thing absolute void every person may and  ought to take notice of it No precedent be to be find of any mandamus without  the suggestion of debit dainties et prfectus which suppose it a necessary part  of the writ and then necessary for it to be answer there be a difference  between a election void and voidable that in the present case be not voidable  but void and the Act of parliament in say the election shall be void have in  effect say there shall be no proceed by quo warranto as to the case of the  advowson it be nothing ad remember because there be no Act of parliament in  the case but in the case of a simoniacal presentation notwithstanding  institution or modern report even induction the presentation be absolute void  and the church may be present unto as void without bring any quare hinder in  case of a ejectment unless the person turn out though by one that have no  right can prove his right he shall not recover and this be a possessory action  as to the objection that this way a corporation may have it in their power to  rid themselves of what member they please the answer be that this objection  imply malice and if a corporation be malicious they may turn a man out for  nothing and then may return for cause any false crime they think fit and in  the mean time the man be out of his franchise Lechmere in reply a great part  of Mr Lutwyches argument turn upon this that the statute make the admission as  well as election void whereas the statute say not a word of admission unless  the word place be interpret to mean that now from the word place be put before  election it be high probable that it have no relation in the intention of the  legislator to admission a act subsequent and consequential of election and ex  way termini place no more import ad mission than it do election possible the  term place may in the Act signify some other way of come in than by election  videlicet by patent a frequent practice in those day when the Act be make as  for the advowson that be mention only to show that the law allow of a  possessory right even in matter of a incorporeal nature as well as in land as  to simony the Act of parliament relate to that matter be very different from  this for it make all void as if the incumbent be natural dead Adjournatur  modern report sir Peter king make another argument in the case of another  person but where the return be the very same as before first he object that in  the return they have not set forth that the Act of parliament make the  election void it be only say that in default thereof such place c be void but  not state by what authority it be void second he object that the return have  not bring the office within the Act of parliament for the office of capital  burgess be not name in the Act of parliament it be indeed attempt to be bring  within it two way first by set forth that it be a office relate to the  government of the town but this be not enough unless they have go one step  further and show how the office concern the government of the town that so the  court may judge whether it do or not the second way be that as the Act mention  commoncouncilman they say quod who common citizen be and have be since a  member of the commoncouncil but this be not enough for they ought to have say  that who common citizen army duty predicti be a member of the commoncouncil  three he object further that the return have not sufficient answer the writ  the writ aver he to be debit dainties et prfectus which be no answer they  shall have do as in plead to bind usurious or simoniacal admit the fact  videlicet quod debit to be dainties and that choice come to vacuan modern  report er p fourthly as the election be not proper answer so neither be the  prfectus a man may come in either by election or by prfection that be place in  of the crown they say that modern report he be never at any other time  dainties but it be not say that he never be at any other time prfectus powys  justice upon a former argument in this case have desire the counsel to  consider whether the Act do not make the take the sacrament a precedent  condition to the office sir Peter king in answer to this put the follow case  suppose a man have receive the sacrament within the year apply to be swear in  be refuse then get a peremptory mandamus afterward be refuse to subscribe can  any man say that contrary to the express judgement of this court he be never  elect and yet the Act of parliament be as strong pen to make the election void  for not subscribe as for not take the sacrament therefore it be plain that  neither the omission of the one or the other make the election void but only  capable of be avoid this further appear from the case of king v Larwood a Mod  a for if the take c have be in nature of a precedent condition Larwood can  never have be punish because he will not have be legal choose into the office  a see clerk case vent where the election be hold void for want of take the  sacrament see also the queen v the borough of Aldborough ante a the statute de  gift say a fine shall be Self jure nullus and yet the meaning be not that it  shall be absolute void but only that it shall not be a fine to bar the issue  for it be a fine to make a discontinuance c the statute relate to sheriff bind  and usurious bind be pen in very strong term and yet the bind be void only as  to their efficacy for in those case one can plead non be factum b cro  Elizabeth dyer hob b the statute about strike in churchyard say that the party  Self facto shall be excommunicate and yet a proper process be necessary c vol  hawk p c ch S title affray c if by the statute of simony the simoniacal  presentation be entire and to all intent and purpose void the modern report  queen will have no title at all to present for it be the manner of the  presentation that give the queen the title a thing may be void and yet not to  be avoid in every manner d hob d he argue from the reason of the case the king  v turner e t Jones e that it do not lie in the breast of the corporation  contrary to their own admission to call in question the validity of the  original election and though this will be no good answer to the crown yet to  the corporation it be you have admit he in the last place he hold it necessary  for it to appear in the return that they have summon he f see Reg v Aldborough  ante f Eyre justice declare his present opinion to be that the act of  parliament instance to prove the election not void but only voidable do not  reach the present case because all of they relate either to matter of record  or specialty enter into with some ceremony and therefore although the statute  make they void yet it must be understand in a proper manner and act of  parliament do always suppose necessary incident but now this case be the case  of a election a matter in pais and so very different modern report michaelmas  term the twelve of queen whether in the queen bench sir Thomas Parker Knt  chief justice sir Littleton powys Knt sir Robert Eyre Knt sir Thomas powys Knt  justice sir Edward Northey Knt attorneygeneral sir Robert Raymond Knt  solicitor general