case the king against the mayor OF London judgement in quo warranto to seize  the liberty of a corporation do not dissolve the corporation itself SC ante SC  Mod SC Carth SC skin SC holt SC Mod mandamus prosecute against the mayor and  alderman of London by sir James smith surmise that c a Treby attorney general  this Act for abrogate the old and require new oath be a Act of the thirteenth  of February for it be declare that the session begin then sir James smith be a  alderman at that time and so ought to have take the oath in easter term James  in the common plea on the Henry c the statute of plurality which enact that if  any person or person have one benefice with cure of soul be of the yearly  value of eight pound or above accept and take any other such cure of soul and  be institute and induct in possession of the same that then and immediate  after such possession have thereof the first benefice shall be adjudge in the  law to be void the incumbent be deprive then appeal then take another benefice  then the deprivation be reverse the first be void because say holt the  sentence be suspend by appeal and consequent he be in still in Lord Cobham  case there be a attainder and the Act be that the land shall notwithstanding  descend to his heir and though it be object that there can be no heir because  of the attainder yet it be hold that a Act of parliament do make a heir and a  Act of parliament break through all nicety sir James smith may be choose  alderman after the judgement accord to the custom and a see the statement of  the case ante page shower KB er p usage of the city for the Act take notice of  such a corporation then in exercise it take notice of officer choose and that  choice must have be accord to the custom the corporation be not alter by the  judgement on the quo warranto the prayer of the replication and surrejoinder  be quod excluda and the judgement be not accord to the prayer but only that  they shall be seize in to the king hand there never be such a judgement before  in the world and the Act of parliament call it illegal and arbitrary shower KB  it be contradictory in itself because it be say to be usurp and yet say it  shall be seize that that which be not and that which be illegal shall be seize  into the king hand the old corporation can never subsist in the king hand upon  a seizure I agree that the liberty of the city may be seize into the king hand  and many ancient judgement there be of that hind but the sense of these  judgement be only a seize of the govern part and the put in of a mayor or  custos not thereby destroy but preserve the corporation and they still have  the same prescription as before we find plead in the husting in person custode  et aldermannis the writ of restitution be observable sometime it be freedom  sum and sometime majority which signify the same thing beside there never be  any execution of this judgement the judgement be that it shall be seize and it  never be there always be a writ to execute it b there be writ and return of  execution and nothing be understand to be do or alter till the writ of  execution and that be one reason why it be say in the Act that the proceed be  illegal because that there be actual execution without writ the design of the  whole Act throughout be to ratify all in peace and to confirm all that have  come in or be place there upon surrender or removal and sir James smith can be  mean ever to take the oath at all but as we say for to say that he be to take  the oath the next term after his restitution be very odd for the clause that  appoint all person to be restore so to take the oath do not include those that  be confirm Pemberton sergeant I do not expect to bear any argument but sure  the Act of parliament recite a judgement of seizure of a corporation into the  king hand a forfeit holt chief justice there needs no writ of execution for in  a quare hinder if judgement be against the incumbent the patron present  without any more ado and then if the judgement do not seize the corporation  into the king hand then what need of the Act of parliament and therefore I  will hear my brother to that quere if the corporation be go by this judgement  afterward Pemberton sergeant again the question be whether by the judgement in  the quo warranto the corporation be dissolve a corporation be a artificial  body consist of particular person as member constituent thereof and like unto  a natural body to many purpose that which do unite they be the liberty and  privilege grant for that purpose shower KB it be but a franchise grant  original to they by king or parliament in all concession of liberty and  franchise there be a tacit condition annex to they that they use they well  which upon do otherwise determine they a abuser forfeit they all c the way for  the king to take a advantage of such a abuser be a quo warranto or information  in nature of it that be the king writ of right here these abuser be examine  and then judgement be either give for acquittal or for the king there be  several sort of judgement d as seizure in nomin severity and there they remain  for ever unless they come and repleuie they the same term or eire e if there  be a disclaimer then there be a judgement of ouster for ever if he make a  title and judgement be for the king then it be good quod seiziantur f in all  these case the party be immediate oust of the liberty here it be quod to take  in hand in manus domini king and quod to take in hand in b Edward Claus member  Inst riley plead in parliament c Edward pl pl Inst d riley placita  parliamentaria skin sand Lutw burr term Rep term Rep e Edward pl Yelv shower  KB er p these judgement be the same with or tantamount to take hold as in a  judgement quod recupere versus we mention it we say recuperavi so manus to  move away it be amove in Rastalls entry g it appear by the award that the leet  be present in the king hand for he pray rehabere et to go away h these other  word quod cessant c be but expulsion out a thing c and for all the rest they  be all include in the word quod to take in hand the yearbook Edward pl show  that by the judgement quod take hold the franchise be extinct in sir George  reynold case hold by the very award of the king he be out of possession  immediate and the party in without any writ the difference be where a final  judgement upon a forfeiture and where a distress only bro quo warranto Edward  stake nothing against we and the case in riley Plac parliament be nomin  severity and not a final judgement it be a seizure only to give the bishop  notice to come in and repleuie it and there ought to have be a proclamation in  every county and therefore that be reverse I will agree that sometime there be  writ of seize where the thing take into the king hand be of profit to he king  and the writ be ita quod de adj respondent which show the reason of it l but  here it be otherwise and therefore I conclude that the franchise which they  claim to be a corporation be out of there and in the king as extinct for it be  such a franchise as the king can have by way of user and therefore it must be  go and determine and if so shower KB the corporation be dissolve that which  tie they together be their franchise take away that and they be so many single  person for the franchise not only unite they but distinguish they one as a  mayor and another as a alderman and the like then that be go none of they be  such you have the judgement in the court here at Westminster that the  corporation be dissolve for there be several trial at bar in each court by  jury of London which can not otherwise be you have the judgement of the  parliament in this very Act and will and mary sess c for restitution for in  the first paragraph they say that they be deprive of their liberty and what be  these liberty but what be mention in the first sentence to be a body politic  then it say they ought to be restore then it say that for ever hereafter they  shall be a corporation all which prove the corporation go by the judgement  then it make a provision for the party that be to be restore that they be to  take their oath within convenient time which show that they be not to take  they by the other law will and mary c for abrogate the oath of supremacy and  allegiance and appoint other oath Mr solicitor general summer that a  corporation may not be dissolve or forfeit be never think of at the time of  the dissolution of the abbey the majority of the judge in the lord house be of  this opinion that it can not be and in truth it be a question too big to be  determine or debate in any court but that one sir Robert sawyer never intend  it so and so declare himself the rest of the judgement quod major c to take in  hand pro fine show it for they can not be take for a fine when they be actual  disfranchise by operation of law upon the first word in all those ancient  seizure the custos and other governor be put in to act in the corporation for  the preservation of the corporation in Riley it be return community breed  fellow citizen breed not one town corporate in England have ever lose their  prescription by any such seizure during all the seizure of the city the course  of the city custom go on as before m the trial at bar mention be not upon that  debate as suppose holt chief justice the court may award a trial at the bar  and a venire but then the party ought to claim their privilege and if they do  not a trial at bar may now be therefore that be not much the Act have declare  the judgement and proceed illegal and arbitrary such a thing as have not a  legal form and therefore void and order the record to be vacate they shower KB  may be deprive of their liberty by g ras Ent   h     Ent king   Ent l   m see  maynard Edward the second pl inter memorandum Saccarii shower KB er p force  the statute declare all charter of incorporation since the judgement to be  void now that can not be but because the old corporation be in force those who  have place at the time of the judgement be confirm and nothing can be confirm  that have not a be this seem contrary to the writ because that say be  continual behave himself well in the office till remove you can take notice of  the judgement any otherwise than as it be recite in the Act for restitution  and then it be against they or in that part of the return and then it be void  and the rest well enough here it sufficient appear that he occupy the office  from the thirteenth of February to the first of August and that oblige he to  take the oath which he have not afterward the judge deliver their opinion  several eyres justice the return be sufficient and no peremptory mandamus  ought to go to restore sir James smith the difficulty lie upon the Act will  and mary sess c for restore the city privilege if this Act have not be make we  can not have take notice of any judgement against the city or any new  incorporation for then it will have be only a neglect of take the oath there  be nothing in the Act that make the return frivolous or inconsistent the  preamble recite the franchise seize into the king hand as forfeit the  judgement against the city be not to be take notice of by we any far than this  Act recite it by the judgement the corporation be not dissolve and it still  subsist and sir James smith still continue a alderman and we must take it as  one entire proposition that he be a alderman before that time choose now the  Act call the judgement illegal and arbitrary and it be but a judgement of  seize into the king hand which be impossible a corporation be only a capacity  and rest only in intendment of law and can be seize so as to bring it out of  the member into the crown for what the king can have for that a judgement of  seizure can be have cro James Edward not a judgement of seizure for a court  baron but only of ouster I do agree there be several precedent of judgement  where quo warrantos be bring against particular person for claim to be  corporation but then the judgement be for ouster quod nullo modus to send in  there be judgement of forfeiture of franchise for they be distinct and the  corporation itself can be forfeit palmer Rep in the case of the corporation of  Dublin all the liberty be seize but as to the corporation itself there be only  a cur advisare vult there shower KB have be several seizure of franchise which  have be replevied now that can not be unless there be a corporation to  repleuie they I do agree if the corporation can be seize it will be dissolve  because it can subsist in the crown for then he can not restore it though he  may create a new one there be in construction a priority of the be of the  corporation to that of have franchise office and the power of choose other may  be seize into the king hand though he can exercise they and he may regrant  they for they subsist to be grant out again otherwise of a corporation n now  there may be a corporation in sharply mark though not in sharply army because  the power of act as a corporation be stop a corporation may subsist though it  have not the power of choose officer and the king may have that as   sutton  case the enact clause here say the say judgement and that refer to the  preamble which be only for seizure of the liberty and not say of what and we  can take notice what the liberty be that be so seize and then it follow that  sir James smith continue a alderman nor can we take notice that there be a new  charter of corporation for that only make all such charter void for the other  clause they confirm none but such as come in upon the surrender now here the  other clause only enlarge the time of take the oath to they who be confirm or  restore no peremptory mandamus Gregory justice of the same opinion we must  take the judgement to be such as it be mention in the Act and the judgement  there be not such a one as dissolve the corporation it be not the liberty of  be a body politic that be say to be seize but the liberty of they be a body  politic be seize the corporation can not be seize but whether it can or not I  think no peremptory mandamus ought to go dolbin justice dubita I be very  doubtful whether the court can grant a n see Nevil case Plowden shower KB er p  peremptory mandamus or no we must take this as a true return if this Act have  be pen plain that by the judgement the liberty of the corporation be seize  into the king hand then it will be a ill return I think a corporation may be  seize into the king hand though it can subsist there it be not plain express  that the liberty of be a body politic shall be seize into the king hand then  the franchise of have alderman have be seize the Act of parliament be the only  ground we have to take notice of such a judgement and it be doubtful express  whether the body politic be seize into the king hand and therefore I be not  Willing that a peremptory mandamus shall go shower KB holt chief justice the  return agree he duly elect accord to the ancient custom of the city and that  be continue so and that he do not take the oath if this Act of parliament be  not in the case it will be a good return without all question the question be  whether the return be not contrary to what be particular recite in the Act of  parliament which be now a public Act there be no office as alderman now but a  adviser in a corporation and the be of a alderman depend altogether upon the  be of the corporation whether by this judgement as it be recite we can  construe this corporation to be dissolve I will not give my opinion concern  the effect of the true judgement I be of opinion that a corporation may be  forfeit if the trust be break and the end of the institution be pervert then  whether a judgement to seize a corporation do dissolve it I agree it not so  proper a judgement for the king can have it there be three sort of liberty a  liberty grant from the crown which do subsist in the crown a liberty create de  to make new and do exist notwithstanding it be forfeit and another that can  exist but in the person to who it be grant in the first judgement to seize or  oust be proper for then it belong to the crown if the other be forfeit  judgement be for a seizure and no more for notwithstanding the forfeiture it  exist in the throw for the latter judgement be proper to be give only for  ouster and that be the proper judgement I do not think a judgement for seizure  where it be a final judgement be ineffectual and the judgement for seizure  until what time c in case of nonappearance prove it Edward Inst it be no  argument to say that because the king can be the corporation be can seize for  the meaning of seizure be to take it from he that have it the reason I go upon  be this that there do not appear any judgement actual give that the franchise  of be a corporation shall be seize the liberty of the mayor commonalty and  citizen of London be not the liberty of be mayor commonalty and citizen for in  the dean and chapter of norwich case   Jones Fitzherbert title corporation  adjudge that the surrender of the liberty of the corporation be no surrender  of the corporation no more shall a judgement of seize the liberty of the  corporation seize the corporation itself I must agree that if a corporation to  a particular purpose be divest of all its power and liberty it be go oh as in  the case of a charity but now for another corporation they have power to make  buy law and govern the place and though they shower KB have their liberty  seize yet they still remain a corporation and may act as such and that be the  reason of the dean and chapter of norwich case that they be useful still as  assistant to the bishop it be not the privilege of the corporation to govern  and make buy law but it be essential to its be it be part of the constitution  the alderman be part of the corporation the word of the Act be the liberty of  the mayor commonalty and citizen be a corporation that be improper but we must  construe it to be the liberty of the mayor commonalty and citizen who be a  corporation the quo warranto shall have be bring against the burgess and  inhabitant of the place it be strange that it shall be bring against the  corporation we can consider this judgement otherwise than as the Act do recite  it No peremptory mandamus there be another clause upon which another writ do  lie but we be not to advice oh when a integral part of a corporation be go and  the corporation have no power of restore it or of do any corporate act the  corporation be so far dissolve that the crown may grant a new charter easter  term Geo king v Pasmore term Rep see also Peer wms shower KB er p Gumley v  Falkingham shower KB er er report date case Gumley against FALKINGHAM if a  modus be pay for a corn mill and the miller add two new mill stone he shall  pay extra for the additional profit but queen if the tithe shall be personal  or praedial SC Mod SC Carth prohibition there be one mill for corn for which a  modus be pay and the party add two new millstone the parson sue for tithe sir  Thomas powis argue that tithe be Payable for corn mill contra Inst and he cite  roll Abr roll Rep Bulst nat short catalog Inst Litt Rep the tithe of the toll  be another profit arise out of the thing not to the owner but to the miller it  be a new increase in the hand of another person be it praedial personal or mix  the court Christian have jurisdiction Inst now here the profit be increase the  modus shall not extend to the new profit cro James right of estovers shall not  go to new room or chamber new erect I roll Abr Brownl Mr wright e contra it be  but personal the full mill be yield only of a personal tithe and the reason be  the same for this that there ought not to be a double tithe Inst before the  statute of articuli allotment of land Edward c no tithe be Payable for ancient  mill   holt chief justice the ten tolldish be the tithe a it be not the owner  of the mill nor the owner of the grain that have the profit but the miller  this be a praedial tithe because Payable guide shower KB loci I e where the  mill be not mere where the party life it seem reasonable the parson shall have  the ten tolldish adjornatur b