case owner queen versus BALLIVOS et citizen de Bewdley in county Wigorniae a  writ of to know facias issue out of the petty bag in chancery to repeal the  charter regranted to this borough seven Ann Regin whereupon issue be join and  the record transmit into the crown office of the queen bench in trinityterm  the eleventh Ann the cause be try at the bar of that court the point in issue  be saint whether one Thomas smith be duly elect bailiff on the that of  September dly whether there be a bailiff and burgess I e a corporation in be  at the time of grant this charter dly whether that corporation refuse this  charter peer William the case upon evidence be in substance the same with the  state of it in the print sheet the two former be the principal question and  the proof upon they be in short this as to the first point it appear that by  the charter of James all the burgess as well common as capital have a right of  vote in the election of a bailiff and that a bailiff may be choose out of the  burgess that smith be a common burgess under that charter and that he be elect  after the invalidity of king James ii charter be public know and acknowledge  and that the common burgess qualify under the old charter be than admit to  vote which have be do from the time of accept king James ii charter to that  day and that smith have the majority of those burgess but it appear that one  Coldwell the bailiff for the time be who preside at this election and take the  poll be in by virtue of the void charter and that be never so much as a common  burgess under the old charter that he act with fourteen capital burgess which  be the number appoint by the void charter and that the burgess qualify by that  charter be call and vote promiscuous with those qualify by the old peer  William er p dly as to the second point it appear that by the charter of king  James I the bailiff and capital burgess be to do all corporate act and be  original to choose in the common burgess peer William that upon the death or  vacancy of any of the capital burgess the charter appoint that residuum  capital burgeons well major pars eorund shall choose in other within fifteen  day after such vacancy that they have neglect to fill up vacancy for these  twentytwo year last pass and that at the time of grant the charter of her  present majesty there be only one capital burgess in be videlicet one Slade  qualify under the charter of king James the first upon this evidence several  question in law arise saint as to smith election whether that must not be take  to be one entire act do under the direction of the illegal bailiff by virtue  of the charter of king James the second and consequent void the old burgess  have submit to be call by that bailiff and vote promiscuous with the other  without distinction dly whether accord to the charter of king James the first  the capital burgess be not to be take to be extinct there be but one remain  dly the capital burgess be a integral part of the body by the old charter  whether the corporation can subsist without they or must in defeat of they be  dissolve see king v Pasmore t r king v Bellringer t r king v morris east east  after some debate at the bar the counsel for the defendant pray a special  verdict and the chief justice in sum up the evidence direct the fury to  reserve these point for that they be of too great moment to be determine  without peer William consideration but some dispute arise thereupon among the  judge Parker chief justice say that the election of smith to be bailiff seem  to he to be make under the void charter and that it can not be under any other  that Coldwell be bailiff under that charter and all the voter submit to his  authority which the old burgess ought not to have do but to have insist upon  their ancient right and oppose the other join with they that it be a  particular power give by the charter and in some degree like the case of wrath  v wing Rep b very different from the case of elect member of parliament which  have be mention at the bar for there they all come under pretence of the same  right and by a proper he authority to choose but suppose smith be daily elect  there be no proper officer to swear he in neither bailiff nor recorder by the  charter of king James the first for Coldwell be not so much as bailiff de  facto but a bailiff of a different corporation as effectual as if he have be  bailiff of another town to make he a bailiff de facto he must have be in under  a right constitution whereas he be in by a void one and have no pretence of  right by the old charter as to the second question his lordship say be can not  think it within the intention of the charter which appoint the vacancy of the  capital burgess to be fill up within fifteen day that twentytwo year shall be  permit to elapse till these be all extinct to one man and that one to have the  power of elect all the rest peer William as to the three he think it a  question of great moment whether this corporation can subsist without capital  burgess they be make necessary to all corporate act Powell I can not think the  corporation be dissolve for want of capital burgess but doubt whether they can  act that it be not material whether Coldwell be a lawful bailiff or not for  that the corporation may upon their charterday choose a bailiff though there  be none then in be nor have be for twenty year before nor like the case of  wrath and wing for that be of a judicial authority Eyre I think the three  question very considerable videlicet whether if a corporation lose one of its  integral part it be not dissolve vide roll Abr page title corporation the case  of a corporation consist of brother and sister as to the second question he  say that when a corporation lapse the day of choose its head the royal  authority must interpose and in the interim the operation of it cease that in  this case there have not be a regular election of a bailiff for several year  that if smith be choose in execution of the charter of James though at a  assembly not under that charter he be in by virtue thereof that it be hold in  the case of peer William er p the Devizes that a good mayor for the time be be  necessary to the election of another notwithstanding the court be so doubtful  in these point peer William the jury be however very clear in they and about  three of the clock next morning give a privy verdict by which they find all  the issue general for the queen and affirm it at the bar about ten and though  they be send out again by the court persist with great obstinacy hereupon the  defendant come and move that the verdict may be set aside upon these two point  saint for that the jury have find matter of law and contrary to direction dly  for that the venire be wrong award be de vicineto de Bewdley whereas by the  that and that of queen whether cap for the amendment of the law it ought to  have be de corpore comitatus the court after advice with the justice of c b  and baron of the exchequer give their opinion upon the first point the same  term and Lord chief justice deliver it as the opinion of all the judge England  except Powell that when the defendant counsel pray a special verdict and the  court direct the jury to find one if the jury will take upon they to go  contrary to that direction and find matter of law it be a sufficient ground  for a new trial even after a trial at bar for that it will be very  unreasonable that in case where the court and the jury be both of opinion  against the part there he shall have a remedy by a bill of exception but that  in case where the jury only be of opinion against he and the court doubtful he  shall be absolute conclude and without remedy as he must be in this case peer  William Powell I contra I do not very well know upon what foundation of law  new trial have be grant but I find the court in possession of such a practice  as to trial by nisi prius but I do not know that this practice have be  establish as to trial at bar indeed I do remember two in the exchequer in my  time but I be always of opinion against they and that for these reason because  one be a trial at commonlaw and the other by special commission only and  because trial at bar be much more solemn and attend with much great charge to  the party than the other I do not think any thing ought to be a ground for a  new trial after a trial at bar but what will make the jury liable to a attain  t chief justice the first case of a new trial which we find in the book be  that of wood and Gunstan in style and that be after a trial at bar the  practice of the court be the law in these case and so of ejectment and rule  for pay money into court which have no other foundation in the case of Bristol  v Cooper a special verdict be pray and direct and the jury find general  thereupon a new trial be grant for that reason dolman case in the Rep be very  observable about the several duty of judge and juror in this particular in  most case even where now trial after trial at peer William bar have be deny  the judge have assert the general right and one reason why we do not find this  practice more ancient may be that there be no old report of motion Eyre I I do  not find the reason for new trial confine to misdemeanour for which the jury  may be fine the case of wood and Gunstan be not so but if a new trial shall be  grant in a case where the jury have do wrong in a matter which be proper under  their cognizance I can see any reason why it may not be do in case where they  take upon they to determine matter not within their cognizance vide side the  counsel for the queen insist that this verdict be set aside for a misbehaviour  of the jury and not any fault in the prosecutor cost ought to be allow but the  court say there be no need of enter into that question till the matter of the  venire be determine and adjourn the consideration of that till the Michaelmas  term follow for the advice of the other judge accord in Michaelmas term Nov  this point be argue before all the judge of England at sergeantsinn in fleet  street sergeant Pratt pro def by the statute of the that and that of her  present majesty for the amendment of the law this venire ought to have be  award de corpore comitatus see attorney general v Allgood Parker peer William  er p this be a case within the express word and intention of the peer William  act the word be that from and after the first day of Trinity term every venire  facias in a action or suit in any of the court at Westminster shall be award  of the body of the proper county and this be a suit in the court of chancery  in order to repeal the letter patent of the that of the present queen neither  be it less within the intention and mischief design to be prevent as appear  most plain from the preamble which recite that whereas great delay do frequent  happen V reason of challenge to the array of panel of juror and to the poll  for default of hundredors for prevention thereof c now this be a proceed to  which that mischief extend for at the trial there may have be a challenge to  the array for want of hundredors that there maybe such a challenge in the case  of the crown be what can I think be deny for if the sheriff be command to  return a jury de vicineto and there be not any hundredor upon the panel he  have not obey the command of the writ and the challenge be for his default keb  in a information for perjury a motion be make that the defendant may not  challenge for want of hundredors and it be deny because the subject will  thereby be oust of a privilege to which he be entitle by Jaw the statute of h  cap enact that in trial for murder in corporation that there shall be no  challenge for want of freeholder by which it appear that there may be such a  challenge at commonlaw in case of the crown and peer William certain where  freeholder be necessary hundredors be equal so this act be make for the  advancement of justice it ought to have the most beneficial and extensive  construction imaginable but to say that the crown shall a have a jury de co  poor comitatus be to deprive it of the benefit and advantage of a act of  parliament it be true that general the crown shall not be oust of its  prerogative by a act of parliament unless it may express mention but that rule  can affect this case for here the crown have no prerogative it be liable to  the inconvenience recite in the preamble as well as the subject and then sure  it ought not to be debar of a share in the remedy the intention of this act  may be further collect from the next clause which plain prove that the  lawmaker take it to extend to cage of the crown for it express except all  appeal indictment and prosecution on penal statute and what occasion can there  have be for that exception if the former clause have not take in any crown  case at all but I think it deserve to be consider whether this prosecution be  proper a suit of the crown or not it seem to be no more than a contention  between two corporation whether the letter patent grant to one side or those  grant to the other shall prevail both be contend for a royal charter and the  crown be perfect indifferent who obtain it the judgement in this case will be  only for the benefit of the party for here can be no judgement of punishment  for the usurpation as in information in the nature of quo warrantos peer  William sir Peter king the word of this act be as general and comprehensive as  possible every venire facias for the trial of any issue in any action or suit  that there may be challenge both to the array and to the poll in the case of  the crown appear from Keilw a and this statute be make for the remedy of that  mischief in all case where it may possible happen before some few only be  except by name but in the present case Mr attorneygeneral be contend for the  crown that it shall not have the benefit of a very useful and advantageous law  this be like a man disable himself light sect I know no instance in the law  where the crown be exclude out of general statute make for the benefit and  advantage of prosecutor the case wherein the crown be hold not to be bind be  where it will otherwise be debar precedent right or prerogative but in the  case at bar the crown be before this act in the same condition with the  subject and I hope it will appear that this be not placitum coron but at most  a civil action bring in the name of the crown see sir Oliver butler case vent  lev in Mr brewster case Mod holt c I say this be a writ of right though take  it either way videlicet as a suit of the crown or of the subject this venire  be wrong and if so we be in the only method to take advantage of it the  sheriff have peer William er p do his duty and obey the command of the writ  and therefore we can not challenge the array but come to the court to quash it  challenge be for default of the sheriff where the writ be right quash be for  error in the writ itself peer William Mr Salkeld the great objection in this  case be that the act of the Ann be a statute of Jeofails and that therefore  this case be not comprehend within it this act of parliament consist of  distinct branch which be separate law some of they be statute of Jeofails and  other statute alterative of the commonlaw and the clause upon which this  question arise be of the latter sort statute of Jeofails concern such fault as  will vitiate the judgement and make it erroneous if give and be to enable the  court to amend such fault or to overlook they and to give judgement  notwithstanding the clause about venires be not of this nature but be a entire  alteration of the law in this particular make that to be right now which be  wrong before et such vice line statute of Jeofails make no alteration in the  law for the error they concern continue so notwithstanding but only provide a  remedy that they may not prejudice the party the chief reason why the statute  of Jeofails have not be hold to extend to the crown be that such word be use  in they as always exclude the crown videlicet plaintiff and defendant  demandant and tenant c otherwise here so far as this be a statute of Jeofails  the crown be not comprehend within it with so far as it be a act of alteration  the crown be include peer William thus in the Edward cap the first clause  change the course of plead and by that the king have be always hold to be bind  but the second clause which provide that no man shall be prejudice for want of  form in plead pound be a law of Jeofails have for that reason be hold not to  extend to the crown so of pound car cap Northey attorneygeneral pro queen the  practice of the crown office ever since the make of this act in all case of  information as well in those not except as in those comprise within the  exception have be to award the venire de vicineto and it be never controvert  till now and to this purpose I will apply what I have hear my Lord hale say on  like occasion that judge ought to have a great regard to practice when the  matter be not res integran and when thing have go on in that course a great  while without be break in upon as to what have be say that the word of this  act extend to case of the crown the h cap have word as general videlicet any  process or plea and yet be never take to extend to the crown the clause in the  statute of fraud car c p sect whereby execution be make to bind from the  delivery of the writ to the sheriff have general word videlicet every writ of  execution and yet the crown be hold not to be bind by they notwithstanding it  have no prerogative in the case before I wonder to hear this deny to be a suit  of the crown since the same be bring in the name of the crown though for the  benefit of the party make it the suit of the crown as in quo warrantos c peer  William in a late case of a quo warranto of a claim of fishery in several will  the venire be award from one only and hold I enough because try by a jury of  the proper county so in the case at bar if the resolution in this case shall  be contrary to the receive practice it will shake all the judgement that have  be give upon information since the make of this act Raymond solicitor general  the word in several other clause in this statute be as general as in this and  yet the crown have be hold not to be comprehend within they for instance that  about demurrer and that about plead double queen v Foley a motion be make for  liberty to plead double and deny because not within the clause the word in  some of the former statute of Jeofails be as large and comprehensive as here  however they have not be hold to extend to the crown nay it appear to have be  he opinion of the maker of this act that neither those statute nor this of the  that and that of her present majesty can take in crown case for they have add  a clause at the end to extend this and all the statute of Jeofails to suit for  recovery of debt owe to the revenue which have be superfluous if the former  clause have be sufficient peer William er p but if this case be hold to be  within the annae I hope the same reason will bring it within other act of  Jeofails which contain word as general and comprehensive and then it will be  help by car cap the cause be try by a jury of the proper county peer William  Mr Lutwyche it be considerable in this case who be the person that take the  exception to this process and how he be prejudice by it why true the defendant  come and complain that he have have a great advantage put in his power than he  shall have have that he have have a liberty of challenge give he which by law  he ought not to have have the principal reason why the statute of Jeofails  have not be take to extend to the crown be because it be hot express name gild  this reason hold in the act of the that and that of her present majesty see  the that of h and also the late case of the queen v Tutchim mich annae in cro  car the venire facias be award from the town whereas it ought to have be from  the manor and hold ill in a quo warranto and that the statute of James I do  not extend to it notwithstanding that have a exception of some other crown  case as in this act the clause about plead double be general and use the word  defendant which be proper for all suit and yet hold not to extend to the crown  it be no objection to say that this be a sure for the benefit of the party for  go be information in the nature of a quo warranto but that this be proper a  suit of the crown appear in that the attorneygeneral reply and the proceed be  in the crownoffice for if it be not placitum coron it shall have come on the  civil side but if this act be take to extend to the case at bar there can be  no reason why it shall not likewise be within the car and it will be no  objection to say that this arise upon subsequent act for that statute have  always receive a vollarge construction and be extend even to local action try  in wrong county say queen see craft v boite sand n mayor of London v coal t r  peer William serjeant Pratt in his reply for the defendant queen v Foley be a  information in the nature of a quo warranto which be a criminal proceed and  beside the resolution be upon the clause about plead double which be not  general for though it use the word defendant which be a general term yet it be  restrain there by other word videlicet tenant and plaintiff in replevin the  case of Tutchim be upon a mere statute of Jeofails this be a entire alteration  of the law the clause which extend this and all the statute of Jeofails to  case of the crown mention only suit for the recovery of any debt and therefore  can affect the present question and certain if there be no provision for that  purpose it be impossible that those other statute shall extend to this case  because it arise upon a subsequent statute which hang make a perfect  alteration of the law in this point sir Peter king as to plead double see Poph  the word of the statute of fraud can possible extend to the crown for they be  every writ of become facias or other writ of execution and become facias be  first name the subsequent word can only mean execution at the suit of the  party Mr Salkeld the that Hen cap be graft on the former statute of Henry and  express tie down to it so that no general word can carry it any further peer  William nothing can be infer from any resolution upon the precede clause of  this statute for the very he of they exclude the crown videlicet saint party  demurrer dly plaintiff or demandant appear by warrant of attorney dly  defendant or tenant or plaintiff in replevin after consideration all the  justice and baron be unanimous and the Lord chief justice deliver their  opinion in court the same term Parker c I we be all of opinion though this  clause may have extend to cause of the crown have the objection come early yet  the constant practice ever since the make of the act have be otherwise and all  the precedent both in the both in the crownoffice and in the exchequer in case  not express except be de vicineto to make a contrary resolution in this case  will be in some measure to overturn the rustic justice of the nation for  several year pass beside we consider that it be matter of no great consequence  since it only give the defendant a privilege of challenge which otherwise he  will not have see hark   light a note a note it be a rule indeed that  precedent sub silence be of little or no authority but peer William er p that  be to be understand of case where there be judicial precedent to the contrary  but here there be none either on one side or the other the chief baron mention  a case in the exchequer which I remember it be a information about the  drawback upon salt and there as also in some other both here and in that court  all the exception be take that the wit of man can invent but this be not so  much as mention peer William we do not think fit to break in upon a entire  practice and shake so many judgement upon a matter of so small moment and  therefore be all of opinion that the venire be well award the rule must be  that the last trial be set aside upon the other point on payment of cost about  three day after this rule for a new trial as pronounce the defendant move that  some person may be name to receive the cost it not appear certain who be the  prosecutor in this cause whereupon Mr attorneygeneral name Borret the queen  solicitor and acquaint the court that the prosecution be carry on at the  proper expense of the crown afterward the solicitor on both side go before the  master and the cost be tax on Saturday the d of November and on the Tuesday  follow Mr Lechmere make a motion upon notice against the taxation of cost in  general and against some item allow by the master in particular he insist that  though they have submit to a rule for the payment of cost when the cause  appear even upon the plaintiff own show to be mere a contention between the  old and new corporation upon the validity of their several charter yet now it  appear in another light and be own by the attorneygeneral as a government  prosecution carry on at the charge of the crown they ought not to be estopped  by that rule from make it a question whether in the case of the crown cost be  due by law this be peer William the first time they take advantage of that  point quod to be concession per cur to prove that in case of the crown or such  as be proper government prosecution cost be not due he urge the course of the  exchequer where cost be never pay unless there be a relator or some other  security to answer cost to the party which there be not in this case nor can  there be because the prosecution be in remember and not in mask and for that  he produce a manuscript of baron Lechmere see attorneygeneral v Ashburnham si  stuff that on the crown side in this court cost have be so far from be allow  in any case that it have be think necessary to provide by act of parliament  vide that that Gul mark cap that there shall be a recognizance give to answer  cost in some particular case but this be none of those that the law have  provide no judgement nor process for cost nor method to bring they into the  exchequer that if it be otherwise it will be very unequal for the queen pay no  cost for not go on to trial nay Mr attorney may enter a Nola attendance or a  to go from processus even when the jury be ready to give their verdict at the  bar without cost to the subject in the case of the queen v Collins Michaelmas  Ann in a information for a battery upon a customhouse officer in the execution  of his office a motion be make for cost for not go on to trial and upon Mr  harcourt affirmation that no cost be ever allow in government prosecution the  same be deny peer William that in the case of the queen v clerk which be a  information for a nuisance videlicet for erect copper mill upon the river  Thames there be a verdict for the queen which by consent be set aside upon  payment of cost the second verdict be for the defendant who thereupon move for  cost which be deny for this reason sure because the statute of the that of  Henry cap extend only to trial by nisi prius and no at the bar as it be in  that case so in hill W et m in scacc in my Lord Montgomery case which be a  inquisition on his estate and but in the nature of a ejectment there be a  verdict for the defendant and a new trial grant without cost that here be no  prerogative in the case for the queen and subject be on equal foot if the  queen do not pay cost she ought to receive none that this verdict be set aside  as unjust for a misbehaviour to the jury in the face of her majesty who be  suppose to be always present in nor court of queen bench peer William er p  which court see plain no just judgement can be enter up on that verdict and  yet the defendant be tell that this injustice must be fasten upon they unless  they pay two or three hundred pound to be deliver from it sure this be to pay  for justice contrary to great Charta which say no one vendem the whole of the  laws that in capital case if a jury shall obstinate find general peer William  where the court have direct they to find the matter special the court no doubt  will set aside such verdict and that without cost they will not take away the  life of a man because he have not money to pay cost to the crown now the  consequence of this suit be of equal concern tothis corporation as that of a  capital prosecution to the life of a particular person for the very life and  be of this corporation be in question and if cost be once admit in the case  those writ of to know facias though they have not yet so harsh a sound in the  ear of englishmen yet he will undertake to prove they will have ten time more  pernicious effect than quo warrantos of old for a judgement in a quo warranto  do not destroy the franchise but a corporation may still notwithstanding that  have another struggle for its liberty but in the case of a to know facias the  judgement be a repeal of the charter and if a jury can for once be so manage  as to give a partial verdict it be but get those cost tax as a poor borough be  not able to pay and the business will be do they can not pay the cost and  without that they shall not have a new trial in order to come at right and  justice this be lie the axe to the root of the tree the crown indeed be always  a unequal match for the subject but if the weight of cost be throw into the  scale this will become such a addition as will make its prosecution heavy than  they will be able to bear note Mr justice Littleton powis be absent all this  term be indispose with the gout contra argent v Darrell ld ray S c salk ace  Musgrave v Nevinson ld ray S c stram and see farewell v Coker post Vol two  king v Bennett stram but see bright v einon burr king v mawbey t r by the  record in the crown office it appear that the defendant be notwithstanding  order to pay cost and that afterward on a new trial the jury find a special  verdict but this do not appear to have be ever argue peer William de term S  the number three