case huge Powell plaintiff the king defendant in error d march Mews dig go way  the acceptance of a charter whereby the election of burgess be direct in a  manner different from what have obtain by ancient usage the usage be  inconsistent with the charter can no long subsist but be determine by the  acceptance of the charter which must afterward be the only measure by which  the election of burgess be to be govern in Hilary term a information in the  nature of a quo warranto be grant by the court of king bench against the  plaintiff for he to show by what authority he claim to be a capital burgess  and common councilman of the borough of Brecknock and why he claim all the  liberty privilege and franchise belong to the say office of a capital burgess  and common councilman of the say borough to this information the plaintiff  plead and in his plea set forth that the say borough of Brecon alias Brecknock  be a ancient borough know and call as well by the name of the borough of  Brecon as by the name of the borough of Brecknock and that the burgess of the  say borough from time immemorial unto the that day of march in the second and  three year of the reign of king Philip and queen mary be a corporate body and  in diverse time know and call by the several name of burgess of the town of  Brecon burgess of the borough of Brecon and bailiff and burgess of the borough  of Brecon and that all the time aforesaid and hitherto there be and as yet be  within the say borough burgess of the say borough who from time to time and at  all time during the time aforesaid and hitherto be eligible and be elect out  of the most substantial person inhabit as well with in as without the say  borough That king Philip and queen mary by their letter patent under the great  seal of England bear date the say that of march in the say second and three  year of their reign recite among other matter that their borough of Brecknock  in south Wales be a ancient incorporate borough and that the inhabitant  thereof and their predecessor inhabitant of the say borough have enjoy within  the say borough diver liberty privilege jurisdiction and custom which their  say subject then inhabitant of the say town and their predecessor hitherto  have and hold the say king and queen for themselves and the heir and successor  of the say queen do order constitute and grant that the say borough of Brecon  shall be and remain always for the future a borough of itself and that the  burgess of the say borough from thenceforth always for the future shall be and  remain one corporate and politic body by the name of bailiff alderman and  burgess brown of the borough of Brecon and that there shall be in the say  borough one bailiff and two alderman and fifteen man of the most substantial  and most discreet burgess of the say borough whereof the say bailiff and two  alderman to be three who shall be call and name capital burgess and councillor  of the say borough and who from thenceforth shall be a common Council of the  say borough and from time to time shall be aid and assist to the bailiff and  alderman of the say borough for the time be in all matter and cause touch or  concern the say borough and the say king and queen do further order that  whensoever it shall happen that any of the say fifteen capital burgess or  counsellor of the say borough for the time be shall die or be remove from  their say place that then and so often it shall be lawful for the other remain  and survive capital burgess and counsellor or the major brown er p part of  they to nominate and elect other or other out of the burgess of the say  borough into the place and office of those capital burgess or counsellor so  happen to die or be remove and that he or they be so elect and choose and have  take his or their corporal oath before the mayor and alderman of the say  borough well and faithful to execute the say office shall be of the number of  the say fifteen capital burgess or counsellor of the say borough and the say  king and queen do further grant unto the say bailiff alderman and burgess of  the say borough and their successor all other lawful liberty and franchise  which the burgess have before enjoy under any name of incorporation by virtue  of any letter patent of the say king and queen or any of their predecessor or  by any other lawful right custom prescription or title That on the that of  September the plaintiff be one of the burgess of the say borough duly elect  and choose be at the say borough on the say that day of September by the major  part of the capital burgess and counsellor of the say borough be duly assemble  duly elect and choose into the place and office of a capital burgess and  counsellor of the say borough be then vacant and be so elect and choose as  aforesaid he take his corporal oath before the bailiff and alderman of the say  borough well and faithful to execute the say office and be thereupon admit  therein and by reason thereof become one of the capital burgess and counsellor  of the say borough and that by that authority he have from the time mention in  the information claim use and exercise the say office tegether with all the  liberty and privilege thereunto belong to this plea the king coroner reply and  allege by protestand that the burgess be not to be choose out of person not  inhabit within the borough take a issue that the plaintiff be not swear a  capital burgess as he have allege in his plea the replication then admit the  several clause in the charter as state in the plea and state another clause  that no inhabitant shall claim any liberty or franchise within the borough  unless he be continual resident and conversant within brown the borough and  after aver that the office of a free citizen and burgess be the same say that  the plaintiff never be a inhabitant of the say borough and traverse that he be  a burgess of the say borough at the time of his be elect a capital burgess to  this the plaintiff rejoin and take a issue that he be a burgess of the say  borough at the time of his election into the office of a capital burgess these  issue be try before Mr justice price at Hereford assize in march and the jury  upon the trial find a special verdict state that the borough of Brecknock be a  ancient borough and ancient know as well by the name of the borough of Brecon  as by the name of the borough of Brecknock and that the borough of Brecon and  the borough of Brecknock be one and the same borough and then find the several  clause in the charter state in the plea and replication and the follow other  clause videlicet that the common Council shall have power to make bylaw for  govern the bailiff alderman and capital burgess and the burgess artificer and  inhabitant of the say borough that the burgess their heir and successor shall  be free from toll that the burgess of the borough inhabit within the borough  and town or suburb shall not be put in any assize or jury with foreigner nor  foreigner with they that the burgess of the borough or town shall not be  compel to go out of the town before any justice of assize oyer and terminer or  other justice except the chief justice of Brecknock the jury then find that  the place and office of a freeman of the say borough and the place and office  of a burgess of the say borough be one and the same office and not different  and that from the make and grant of the say letter patent the oath hereafter  mention entitle the oath of a burgess or freeman within the town of Brecknock  first you shall swear that from henceforth you shall bear faith and true  allegiance to the king majesty that now be his heir and lawful successor you  shall be obedient to the bailiff recorder and alderman of this town in all  their lawful commandment this town and the franchise and lawful custom you  shall maintain save and keep harmless to your power and industry you shall be  contribute to all manner of charge within this town as summons watch  contribution tax tallage lot and scot and all other charge bear your part as a  burgess and freeman ought to do you shall know no foreigner brown er p to buy  or sell any kind of merchandise with any other foreigner within this town or  the franchise thereof contrary to the statute against forestal regrate and  engross but you shall warn the bailiff alderman and chamberlain of the say  town thereof without delay you shall take no apprentice but such as you may  justify by the law of this realm of England and for no less term than for  seven year you shall keep the king majesty peace within the say town to the  best of your power you shall present repair with your staff salad or other  brown weapon to the officer of this town upon the ring of a bell or other  notice give unto you for that purpose when any fray or other outrage be make  commit or offer or like to be make commit or offer against the peace and do  your endeavour with the say officer to appease the same and to apprehend all  felon murderer and traitor and in all other thing behave yourself as a true  and lawful burgess ought to do so help you God be take by every common person  admit into the place or office of a burgess or freeman of the say town and  that the follow clause or paragraph only videlicet first you shall swear that  from henceforth you shall bear faith and true allegiance to the king majesty  that now be his heir and lawful successor you shall be obedient to the bailiff  recorder and alderman of this town in all their lawful commandment this town  and the franchise and lawful custom you shall maintain save and keep harmless  to your power and industry and in all other thing behave yourself as a true  and lawful burgess ought to do so help you God and no other part of the say  oath be throughout the time aforesaid take by every gentleman admit into the  place or office of a burgess or freeman of the say borough and the jury  further find that the say Hugh Powell be a gentleman on the that day of  September in the that year of the reign of queen Ann and long before and  continual afterward live at Castlemadock in the hundred of Mirthir four mile  from the say borough and out of the say borough and that the say Hugh live in  Castlemadock aforesaid on the say that day of September in the say that year  of the reign of queen Ann be choose by the then bailiff alderman and common  Council of the say borough duly assemble into the place and office of a  freeman or burgess of the say borough of Brecon that on the saint day of may  at the borough aforesaid before the then bailiff alderman and common Council  of the say borough be duly assemble he take the clause or paragraph of the say  oath entitle the oath of a burgess or freeman before mention which be usual  administer to gentleman in manner and form aforesaid and that he be thereupon  admit to be a burgess of the say borough that the say Hugh Powell on the that  day of September aforesaid at a chamber hold at the say borough in and for the  say borough by the bailiff alderman and major part of the capital burgess and  counsellor of the say borough then and there be duly assemble be name and  elect into the place of a capital burgess or counsellor of the say borough and  that he take his oath before the bailiff and alderman of the say borough for  the due execution of the office of a capital burgess of the say borough and  thereupon be admit into the say office that the say Hugh Powell after that  time in two several year be twice elect choose and swear into the office of  bailiff of the say borough of Brecon and throughout the say year respective  exercise the say office of bailiff of the say borough that from the that year  of brown the reign of queen Elizabeth and continual hitherto without  interruption it be usual within the say borough to elect nominate and choose  freeman or burgess of the say borough out of man inhabit as well without as  within the say borough and that such person inhabit without the say borough  and be elect and choose into the say place or office of a burgess of the say  borough throughout the whole time aforesaid do exercise the aforesaid place  and office of a burgess of the say borough but upon the whole the jury submit  it to the judgement of the court whether the say Hugh Powell at the time of  his be elect into the office of a capital burgess be a burgess or not this  special verdict be argue before the court of king bench in Michaelmas term the  court be please to give judgement of ouster against the plaintiff in error and  that the relator shall recover cost against he accord to the statute of the  that of queen Ann to reverse this judgement the plaintiff bring a writ of  error in parliament brown er p and on his behalf it be insist p York I will to  be erroneous because the first issue be plain find for he namely that he be  duly swear a capital burgess and as to the second issue whether he be a  burgess at the time of his be elect a capital burgess or not it appear that he  be choose a burgess on the that of September that he be afterward swear a  burgess on the saint of may that on the that of September follow he be choose  swear and admit a capital burgess and that since that time he have be twice  choose and swear bailiff of the say borough and execute that office two  several year it likewise appear that this be a corporation by prescription as  well as by charter that the charter confirm all their ancient custom etcetera  and that from the that of Elizabeth down to the present time without  interruption it have be usual to elect freeman or burgess out of person  inhabit as well without as within the borough who have accord enjoy that  office it be therefore conceive to be of dangerous consequence to set aside  such a usage after so great a length of time and more especial as it may be  the cause of disfranchising many other member of the corporation who have be  choose in the same manner or who election depend on the same usage and it may  also tend to destroy the whole body if after the plaintiff have be twenty year  in possession of the superior office of a capital burgess and have twice serve  the office of bailiff it shall be draw into question whether he or any other  person under the like circumstance be a legal burgess at the time of such  election into the office of capital burgess on the other side it be say t  reeve n fazakerley that the only question in this case be whether the  plaintiff in error be a burgess at the time of his pretend election to be a  capital burgess or not if he be not he be incapable of be elect a capital  burgess the charter have direct the choice of such officer to be brown out of  the burgess since the acceptance of this charter no one can be a burgess  unless his election into that office be warrant by the charter now it plain  appear that the plaintiff be not capable of be a burgess not be a inhabitant  of the borough which be a necessary qualification for it be express require by  the charter that the burgess shall be choose out of the inhabitant of the  borough but it be object that notwithstanding the word of the charter be so  yet that the usage have be to elect burgess who live out of the borough No  usage can be sufficient to establish a right but a immemorial usage which do  not appear in the present case this usage be only from the that of Elizabeth  and therefore not sufficient to establish a right suppose however that this  can be take to be such a usage as will amount to a prescription yet when a  charter have be accept direct a election inconsistent with such a usage as in  the present case where the election of burgess be confine to be out of the  inhabitant the prescription inconsistent with the charter can no long subsist  but be determine by the acceptance of the charter which must afterward be the  only measure by which the election of burgess be to be govern corporation be  mere creature of the crown and where they subsist under charter they must be  guide and govern b such rule and direction as be thereby prescribe and  therefore where any charter have direct as in the present case that certain  member be to be elect out of person under any particular description such  person and no other be capable of be elect though in some corporation practice  inconsistent with the rule prescribe by the charter may have long prevail yet  they be no better than so many instance of usurpation upon the crown and such  a wrongful practice can no more create a right contrary to the word or  direction of a charter than the first instance of that kind after the  acceptance of the charter can be legal since it will be difficult to maintain  that the first election after the acceptance of a charter of a person not  within the description of it be legal and if not it will be equal difficult to  fix upon any period of time when such a practice will first begin to be legal  it be therefore pray that the judgement of the court of king bench may be  affirm accord after hear counsel on this writ of error it be order and adjudge  that the judgement give in the court of king bench shall be affirm and that  the record shall be remit to the end execution may he have thereupon as if no  such writ of error have be bring into the house jour vol p brown er p