case town of shrewsbury plaintiff Corbet Kynaston defendant in error saint  march on the trial of a issue join upon a mandamus the jury find a special  verdict as to the fact but omit to find damage or cost this verdict be  imperfect and therefore no judgement ought to be give upon it but a venire  facias de to make new shall be award judgement of the court of king b reverse  strange viner vol p can in Trinity term a writ of mandamus be grant by the  court of king bench direct to the mayor alderman and assistant of the town of  Shrewsbury recite that the say Corbet Kynaston be duly elect swear and admit  into the office of one of the alderman of the say town but that they the say  mayor alderman and assistant have without any reasonable cause remove he from  such his office the writ therefore command they to restore he or show good  cause to the contrary brown to this writ the corporation make a return that  the town of Shrewsbury be a ancient town which have be incorporate by diverse  name that king Charles I by his letter patent date the that of June after have  describe the boundary of the town make and constitute they into a body politic  by the name of the mayor alderman and burgess and thereby declare that there  shall be for ever nominate and elect out of the free burgess of the town one  who shall be the mayor twentyfour who shall be call alderman of which the  mayor shall be one land fortyeight other who shall be call assistant of the  say town and that the alderman and assistant shall be call the common council  of the say town and that the alderman and assistant shall be assist and advice  to the mayor and to the senior alderman supply the place of the mayor in  matter relate to the town Then the return set forth that the say king by his  charter appoint a mayor alderman and assistant name they particular that the  charter far grant to the mayor alderman and burgess of this town that on  Friday next after the feast of saint Bartholomew yearly it shall be lawful for  the mayor alderman and assistant of the say town for the time be or the major  part of they to elect the senior alderman of the say town who have not  exercise the mayoralty to be mayor and that he after such election shall  before he shall be admit to exercise that office videlicet on Friday before  Michaelmas take a oath before the late mayor for the due execution of his  office and then he may execute his office for a year that if it shall happen  that all the alderman shall have exercise this office then the senior alderman  shall be again elect and the rest of the alderman accord to their seniority  that the alderman shall also take a oath of office and that if any of the  alderman shall die or be remove from the office within a reasonable time after  such death or removal the mayor and the rest of the alderman or the major part  of they shall elect one of the assistant into the office to fill up the number  of alderman who shall take a oath and then shall exercise that office during  his life unless he shall be remove for the cause mention in the charter that  if any of the assistant shall die or be elect a alderman or be remove that  then they shall fill up such vacancy out of the burgess who be to take a oath  in the manner therein prescribe and that then he shall continue a assistant  for his life that by the same charter it be ordain that the mayor alderman and  assistant be to be inhabit abide and constant reside in their person or with  their family in the say town or suburb thereof unless in the time of plague or  other contagious distemper that it shall be lawful for the mayor alderman and  assistant or the major part of they as often as there shall be occasion to  remove from his office any mayor alderman or brown er p assistant for  nonresidence within the say town and suburb and other place particular mention  in the charter or for misbehaviour that brown these letter patent be accept  and agree to by the mayor bailiff and burgess and that king Charles two  afterward by other letter patent date the that day of July in the sixteenth  year of his reign confirm the former charter and that the town by these  charter have be govern ever since that the say Corbet Kynaston be on the that  of may by the mayor and alderman elect into the place and office of one of the  alderman of the say town then vacant that he be duly swear and admit into that  office accord to the charter that he upon the d of February and for three year  and more last pass be not reside inhabit or abide in his own person or with  his family in the town of Salop or within the suburb thereof although there be  then no plague or other contagious distemper there but that during all that  time he neglect omit and discontinue the duty and execution of his place and  office of one of the alderman of the say town contrary to the direction of the  say letter patent that he be upon the say d of February and for the time  aforesaid inhabit abide and reside out of and in place very remote and distant  from the say town of Shrewsbury and suburb of the same to the mayor alderman  and assistant unknown though there be no plague or other contagious distemper  there at that time for which cause he become removable from his say place or  office of a alderman and subject to be remove by the mayor and the rest of the  alderman and assistant or the major part of they that he be so removable  before the issue of the say writ of mandamus videlicet on the say d of  February the then mayor of the say town videlicet Richard Lloyd esquire and  the major part of the then alderman and assistant of the say town be duly  assemble at the guildhall of the same town to consult and treat of and concern  the affair and business of the say town and be so assemble then and there do  consider what be proper for they to do in respect of the nonresidence and  absence of the say Corbet Kynaston and it manifest appear to they that the say  Corbet Kynaston at that time and a long time before videlicet for the space of  three year and more than last pass be not inhabit abide or reside in his own  person or with his family within the town of Shrewsbury or suburb of the same  and for that he be inhabit abide and reside out of and in place very remote  and distant from the say town of Shrewsbury and the suburb thereof to the  mayor alderman and assistant unknown although within that time there be not  the plague or other contagious distemper there and that he the say Corbet  Kynaston for that cause ought to be remove from his place or office of one of  the alderman of the say town the say mayor and the major part of the alderman  and assistant so as aforesaid assemble then and there adjudge and order that  the say Corbet Kynaston for that cause shall be remove from his say place or  office accord to the form and effect of the say letter patent and that he have  not since be choose into the brown place or office of a alderman of the say  town and this they assign as the cause why they shall not restore he to his  office of alderman of the say town of Shrewsbury to this return the say Corbet  Kynaston plead and traverse several fact set forth therein and first he say  that he be not at the time mention in the return by himself or family inhabit  abide or reside in place to the mayor alderman and assistant unknown as they  have allege and upon this the first issue be join he then traverse that there  be not at the time before mention any plague or other contagious distemper  within the say town or suburb thereof but that there be several contagious  distemper there during that time and upon this a second issue be join by his  plea he far traverse that the say Richard Lloyd be mayor of the say town at  the time in the return mention as by the say return be allege and a three  issue be join thereon he also traverse that on the d of February the then  mayor of the say town and the major part of the then alderman and assistant be  duly assemble to consult and treat of and concern the affair and business of  the say town as they have by their return allege and upon this a four issue be  join he say far that he be not remove from the place or office of alderman of  brown er p the say town as by the say return be allege and upon this a five  issue be join these issue come down to be try at the assize hold the that of  march at Shrewsbury before the Lord chief justice reeve when the jury find a  verdict on the first and second issue for the corporation and as to the three  four and five issue they find a special verdict to the follow effect as to the  three issue they find the charter of king Charles I and some far clause  therein than be set forth in the return videlicet one clause whereby it be  ordain that as soon as any one shall be elect to be mayor of the say town and  shall die or refuse the office of mayor before he shall take the oath direct  by the say letter patent that then the like election shall be immediate make  and another clause whereby it be direct that in case any mayor shall die or be  remove from his office within one year after he shall be so elect as aforesaid  it shall be lawful for the alderman and assistant of the say town or the major  part of they to elect and constitute the senior alderman of the say town who  have not exercise the office of mayor in the place and office of such mayor  that by another clause in the say letter patent it be ordain that as often as  it shall happen that the say office of mayor of the say town shall be vacant  or that the mayor of the town for the time be shall be hinder by sickness or  be otherwise employ so that he can not attend the business of the town as  mayor then and brown so often the senior alderman of the say town for the time  be have take a oath of office shall execute the office of mayor during such  vacancy sickness or absence and that a due and impartial election may for the  future be have and for ever inviolable observe it be by the say letter patent  ordain that the senior of the alderman who have not exercise the office of  mayor shall be choose mayor and if such senior alderman so elect shall refuse  to execute the office of mayor that then the senior alderman next in order  after such alderman so refuse shall be elect mayor and so every other alderman  successive accord to seniority from time to time for ever that this charter be  accept then they find the charter of king Charles two in such manner as  mention in the return they also find that Corbet Kynaston be upon the that of  August the senior alderman of the say town who have not exercise the office of  mayor and that he by himself or family be not on the say that day of August or  for three year then last pass have be inhabit or resident in the say town of  Shrewsbury or the suburb thereof that the say Richard Lloyd be on the say that  day of August a alderman of the say town and the next alderman to the say  Corbet Kynaston in seniority who have not exercise the office of mayor that  the say Richard Lloyd be a alderman of the say town be on the say that day of  August be the Friday next after the feast of saint Bartholomew in that year by  the mayor alderman and assistant or the major part of they in fact elect into  the office of mayor of the say town the say Corbet Kynaston at the time of  such election be the senior alderman of the say town who have not exercise the  office of mayor that before he enter upon the say office videlicet on the that  of October in the same year he take a oath before Abraham Davies the late  mayor and the rest of the alderman and assistant who will be present faithful  to execute the office of mayor that he be afterward in fact admit into the  exercise of the say office and do in fact exercise the same for one whole year  from thence next ensue without interruption but whether upon the whole matter  he be mayor of the say town at the time of the amotion of the say Corbet  Kynaston from the say office of alderman within the intent of the say three  issue they know not but pray the advice of the court as to the four issue they  find that the say Richard Lloyd be in fact mayor of the say town the major  part of the then alderman and assistant of the say town do upon the say d of  February assemble themselves together in the guildhall of the say town to  consult and treat of the business of the town but that Andrew Corbet of the  park esquire be then one of the alderman of the say town and have then a house  and family in the say town be not present at the say assembly neither be he  the say Andrew Corbet summon to attend at the brown say assembly though the  then mayor give the usual and general order for summon the then alderman and  assistant of the say town nor do Henry Morgan one of the sergeant at mace of  brown er p the say town be the proper officer to have summon the say Andrew  Corbet to attend at the say assembly endeavour to summon the say Andrew Corbet  be inform and believe that he be out of summons and so return he at the say  assembly to be out of summons accord to the method use of return person that  be absent and out of summons but whether etcetera and as to the five issue the  juror find that on the say d of February the say Richard Lloyd the then mayor  of the say town as aforesaid and the major part of the alderman and assistant  be so assemble as aforesaid in the guildhall of the say town do then and there  in fact adjudge and order the say Corbet Kynaston to be remove from the say  office or place of alderman of the say town but whether etcetera this special  verdict be twice argue before the court of king bench they be unanimous of  opinion that the return be not sufficient to preclude the say Corbet Kynaston  from be restore to his office of alderman and therefore adjudge that it shall  be disallow and quash to reverse this judgement the corporation bring a writ  of error in parliament and on their behalf it be say r hollings r Lloyd that  upon argue the special verdict there be three objection make I that Mr Lloyd  be not a lawful mayor Mr Kynaston be the senior alderman when Lloyd be elect  and swear mayor two that if Mr Lloyd be not mayor de jure but only de facto he  have no power to summon or preside at the assembly which remove Kynaston and  consequent his removal be illegal III suppose Mr Lloyd to be mayor and capable  of summon and preside at this assembly yet that the mayor alderman and  assistant be not duly assemble for want of summon Mr Andrew Corbet one of the  alderman of the town to the first of these objection it be answer that Lloyd  be apprehend to be a legal mayor the corporation not be oblige by their  charter to choose the senior alderman mayor at all event but if they be yet as  the senior alderman have a power of refuse the office his wilful absence in  unknown part must be look upon as a renunciation of his right to that office  to the second objection it be say that the act of officer in repute authority  be to be favour in court of justice and that there be many case where both the  judicial and ministerial act of officer de facto have be hold valid the  removal of Mr Kynaston be in pursuance and execution of the authority of the  charter and therefore a valid act within the reason of the case which have be  establish respect the act of officer de facto and in the three objection it be  answer that where by accident only and not through practice or design a member  of a select body be not summon the act of the assembly will be good that in  the present case the usual and general order brown be give by the mayor for  summon the whole body and the officer return Mr Corbet out of summons accord  to the method of return person who be absent and out of summons and that more  caution to have a regular assembly can not possible have be use by the mayor  than what in this instance have be use it be further contend to be a  undeniable maxim in law that in special verdict nothing can be intend but what  be express find and it not be express find that Mr Andrew Corbet be within  summons and it be return that he be out of summons it can not be intend that  he be within summons but suppose it doubtful there ought to be a new trial to  ascertain so material a fact for have Mr Corbet be find to have be out of  summons as be real be there can not remain the least doubt of its be a legal  assembly but beside these reason it be apprehend that this be a imperfect  verdict the jury not have find damage and cost in pursuance of the statute  that Ann c and therefore no judgement ought to have be give thereon but a  venire facias de to make new shall have be award on the part of the defendant  in error it be say I strange n fazakerly that the principal question in this  case be whether he be legal remove from his office of alderman or not and it  be apprehend that he be not well remove because Mr Lloyd who preside as mayor  at this assembly be not a lawful mayor the defendant be when Lloyd be choose  mayor the senior alderman who have not exercise that office that the charter  by which the corporation be govern prescribe a regular rotation of the  alderman in the enjoyment of this office and intro brown er p duced the  direction with the reason upon which such order and method be find videlicet  that a due and impartial election may be for the future have and for ever  inviolable observe it be ordain that the senior alderman who have not exercise  the office of mayor shall be choose mayor and so every other alderman  successive accord to their seniority from time to time for ever and nothing be  find or appear by the verdict sufficient to dispense with or deprive Mr  Kynaston of his right of succession to the mayoralty of this borough for the  year the choice of Mr Lloyd be a proceed direct contrary to the express word  and direction of their charter and consequent void if this conclusion be just  that Mr Lloyd be no legal mayor it follow that the assembly at which Mr  Kynaston be remove from his office of alderman be not a regular assembly for  to constitute a regular assembly there shall be a legal mayor to summon the  member and to preside therein as to the objection that Mr Lloyd be mayor de  facto and that such a officer may act or join in the do of corporate act it  may be answer and admit to be true as to some particular act of necessity for  the preservation of the corporate body but that act of violence and such as be  brown injurious to the right or property of another be never allow to be do by  a mere officer de facto that the amotion of Mr Kynaston be not any act of  necessity be plain because the preservation of the corporate body do not  depend upon it and that it be injurious to Mr Kynaston be as plain because he  have be thereby deprive of a office which be his freehold but in case the  mayor de facto have authority to preside at a assembly for the amotion of  officer yet that this assembly be not regular convene for it be not hold on  any day appoint by the charter or by usage and therefore in such case all the  member who constitute the assembly ought to have have due notice of it accord  to reason and the usage of the place for otherwise corporate act may be do by  the majority of such member as be assemble not only against the interest but  even against the sentiment of the corporate body and if one member can be omit  or leave unsummoned so may other and this will leave it in the power of a  mayor to have a meeting of his own friend only and to do therein whatever he  think proper in the present case one of the alderman be not summon nor  endeavour to be summon and for any thing which appear to the contrary his  single negative or the exercise of his right to advice and debate may have  turn the majority in favour of Mr Kynaston and it will be of the most  dangerous consequence to permit the inferior officer to summon or omit to  summon as they shall think fit the mayor shall not only give order but shall  see that those order be obey otherwise the neglect of the inferior officer be  the neglect of the mayor but it be object that because some small damage be  neglect to be find by the verdict no judgement can be enter for the cost and  if no judgement for cost can be give there can be no judgement at all if  however the defendant in error can by reason of this omission have any  judgement for his cost he must submit to the loss of they but it be hope that  he shall not be preclude from have his judgement because that be whole find  upon the insufficiency of the fact return in excuse by the corporation for  their not restore he and upon which insufficiency the court of king bench have  always award a peremptory mandamus after hear counsel on this writ of error  and the judge who attend accord to order have deliver their unanimous opinion  touch certain point of law to they proposedThese point do not appear upon the  journal but be state in sir John strange report of this case it be order and  adjudge that the judgement give in the court of king bench shall be reverse  and it be further order that the say court shall award a venire facias de to  make new and proceed accord to law and that the record shall be remit jour vol  p brown er p