case sir james smith case the judgement give in quo warranto against the city  of London that the liberty thereof be seize into the king hand do not dissolve  the corporation or move the member thereof from their corporate office and  therefore if a alderman of the city after the statute of will mary sess c S  which enact that if any person then have any office shall neglect to take the  oath therein prescribe before the first of August next ensue the say office  shall be void neglect to take the say oath within the time mention it be a  forfeiture of his office to which he be not restore by the statute of will  mary sess c S which enact that all officer of the say city who right hold any  office therein at the time the say judgement be give shall be confirm in and  have and enjoy the same as full as they hold they at the time the judgement be  give except such as have be remove for any just cause  SC show SC Carth SC  skin SC holt SC Mod mandamus to be restore to the place of a alderman of the  city of London the substance of the return be that sir James smith be a  alderman of the say city on the thirteenth day of February that he be duly  choose accord to the custom c that modern he continue a alderman thereof until  the first day of August that he do not take the oath enjoin to be take by all  person in office by virtue of a Act of parliament make in the first year of  the king and queen which oath be to be take before the say first day of August  for which reason he be deprive and have not be elect since the word of the  statute will mary sess c be that if any person now have any office or  employment civil or military shall neglect or refuse to take the oath thereby  appoint to be take in such manner as by this Act be direct before the first  day of August or soon if require thereunto by any order of his majesty in  Council before such person as by the say order shall be appoint to take and  receive the same that in such case the say office and employment of the person  so neglect or refuse shall be void and be hereby adjudge void the first  question be whether sir James smith be a alderman at the time of the make that  statute and whether he continue so to be until the first day of August this  depend upon the judgement in quo warranto against the city of London for if  the corporation be dissolve by that judgement then by consequence sir James  smith be no alderman at the time of the make of the statute will mary c and be  not oblige to take the oath c and if so then a second question will arise  whether by the Act will mary sess c for the reverse the say judgement and for  restore the city to its ancient right the say sir James smith ought to be  restore the word of will mary sess c be these whereas a judgement be give in  the court of king bench upon a information in quo warranto against the mayor  and commonalty and citizen of the city of London that the liberty privilege  and franchise of the say mayor commonalty and citizen be a body politic and  corporate shall be seize into the king hand as forfeit and forasmuch as the  say judgement and the proceed thereupon be and be illegal and arbitrary and  for that the restore the say mayor and commonalty and citizen to their ancient  liberty of which they have be deprive tend very much to the peace and good  settlement of this kingdom c it be enact that the say judgement for the seize  into the king hand the liberty privilege or franchise of the mayor and  commonalty and citizen of London of be of themselves a body corporate and  politic c be hereby reverse annul and make void to all intent and purpose  whatsoever and that all officer and minister of the say city that right hold  any modern er p office or place in the say city or liberty thereof at the time  when the say judgement be give be hereby confirm and shall have and enjoy the  same as full as they hold they at the time of the say judgement give except  such as have voluntary surrender any such office or place or have be remove  for any just cause by will mary S c S it be also enact that all person so to  be restore and continue shall take the oath appoint by will mary sess c the  next term after such restitution under the penalty forfeiture disability and  incapacity in that Act provide a it be insist that by the judgement in quo  warranto if legal nothing be alter for execution be never sue forth Inst Ryley  placita Bac Abr notorious facts b it be like a recovery in a quare hinder  wherein the party have a title to a writ to the bishop but till then the  church be full now whether a body politic may be dissolve or not be a question  of great consequence and never yet receive any judicial determination it be a  thing not think on at the dissolution of monastery and never attempt but in  the late reign modern but admit such a judgement can be give it be not intend  that the corporation shall be dissolve thereby for sir Robert sawyer who be  then attorneygeneral say it be only that the king may lie his hand gentle on  the franchise it may be object that the very essence and be of a corporation  consist in its franchise when these be go or seize the corporation be dissolve  but a corporation be not know by such name nor take notice of as such by any  lawbook or author of credit in the case of Heyward v Fulcher palm sir W Jones  a it be say that a name and power make a corporation and this may be either by  prescription patent or Act of parliament some writer and those of no mean  account in the law affirm that though the king may create a corporation yet he  can dissolve it neither can they dissolve themselves by any voluntary  surrender see king v grey Mod and king v amery term Rep b but if any of the  member offend against the privilege grant to they a quo warranto may be bring  against such offender only and not against the body politic see borough of  Colchester v Scabear burr Bl Rep c they further affirm that nothing can be  seize into the king hand but such which be part of the ancient inheritance of  the crown and then it be immediate extinct or else such thing which have a  existence and may be restore as fair market c that most of the authority which  seem to warrant a contrary opinion happen to be in the Iatter part of the  reign of Henry the three and between that time and the reign of Richard the  second which be tumultuous time and most of the corporation be then seize but  then also the king take more or less of the government as the party offend  Ryley d if the fault be in the mayor then be cease the mayoralty and put in a  custos which be in order to preserve the corporation and the writ of  restitution be always accord to the seizure it be true the judgement in quo  warranto be various as when the franchise be total usurp then the judgement be  quod extingua but when they be abuse it be quod to take in hand which import a  future time and therefore that the franchise have still a be and this be the  judgement in this very case but it seem to be contradictory in itself for the  first part of it be quod freedom et privileg c to take in hand et seisantur in  manis king and the latter part of it be quod to take in hand ad satisfaciend  modern lord king de fine his pro usurpation freedom c then as to the Act of  will mary c it set forth that this judgement be illegal and arbitrary which be  as much as to say that it have not the form of law and therefore it be void if  so the corporation be still in be neither can it be object that the parliament  be of opinion that the franchise be go by that judgement for though the Act  take notice that it will tend very much to the peace of the kingdom to restore  the mayor commonalty and citizen c to their ancient liberty from which they  have be deprive yet it do not follow from thence that they be deprive by this  judgement for it may be by force or any other mean nay it be so far from  import that the corporation be dissolve that it suppose it to have existence  for it enact that all officer who have rightful any office at the modern er p  time of the judgement shall be confirm which imply that the body politic have  then a be otherwise those word be of no signification Pemberton sergeant argue  for a peremptory mandamus and that by the judgement in the quo warranto the  corporation be dissolve for otherwise the liberty and franchise must remain  which can not be because to take in hand et seisantur in manus king and this  appear more plain from the very nature of a corporation which be a artificial  body constitute of several member like a natural body it be unite by its  franchise and it be call a franchise by the very letter patent of  incorporation for all corporation be make by letter patent or act of  parliament though in some place they prescribe to they which in itself imply a  former grant if then this body politic be a franchise or if the essential part  thereof be make up and consist in franchise then it seem plain that in all  concession and grant of franchise there be a tacit condition imply in those  grant that the person to who they be make shall use they just and it be such  condition which if break will determine the very grant itself this be one way  by which a corporation may be destroy so likewise for misuser and abuser the  whole franchise be forfeit for ever yearbook Edward pl Inst a now the proper  remedy for the king to take advantage of such a condition break be by a quo  warranto which be call the king writ of right in which the suppose abuse of  modern franchise be examine and either the defendant be acquit or the  franchise to take in hand which be the final judgement it be true there be two  sort of judgement upon the proceed on this writ for if the party make default  at the return of the venire facias then the judgement be quod to take in hand  nomin severity which be but a temporal judgement till he appear and it be  replevisable but if the replevin be not bring during that term in which the  venire facias be returnable the franchise be for ever lose Inst see king v  amery term Rep that a judgement of seizure until what time c against a  corporation in default of appearance operate as a final judgement to dissolve  the corporation if they do not appear in the same term or the next at far b  but if he appear and make out no title then the judgement be quod freedom c to  furnish in manus king c yearbook Edward pl   entry king v Staverton Yelv c so  that immediate upon the enter of the judgement the party be oust and no more  liberty remain in he the franchise be all determine as for the word to take in  hand in the judgement it can be say that it imply any future time when they  may be take c for it amount in legal construction to to take in hand   a d so  in a to move away shades of dead it be quod manus domini king to move away  because when the forfeiture be find the party be immediate out and the king be  then in possession and so the law have be take in such case therefore in a quo  warranto bring against the defendant for the claim of a courtleet the  judgement be that it shall be seize for misuser Rastals entry a and postea the  defendant petit rehabere per that which divides et ei to go away now if it  have not be take into the king hand what need be there of the word rehabere et  ei to go away as in the entry of that judgement some judgement in this proceed  be enter more at large coke entry b that the liberty franchise and privilege  in manus owner queen seisantur and that they remain in their hand c et in a  certain way eaedem freedom franchesiae et privileg extinguanturet to move away  and that the offender to take in hand to satisfy the queen de redemption svan  pro use et usurpation nest super dictam owner queen de freedom c but by the  word to take in hand in manus king which be the usual form of the enter of the  short judgement give in such case all the franchise be go and so the law have  be constant take to be yearbook Edward pl c one of the question put in sir  George Reynells case roll Abr d be whether upon the forfeiture of the office  of the Marshalsea the king can seize it without a to know facias first bring  and the Lord chancellor have ask the judge who modern er p assist he modern  how a seizure may be make Lord coke answer that by a inquisition and award of  seizure the king be in possession without any other writ or commission for  that purpose which show that by the word to take in hand there be a final  judgement and the franchise be dissolve there be but three case which can be  cite out of all the lawbook to prove that there ought to be a to know facias  before the king can make a seizure and these be in the yearbook Edward pl e  the second institute Inst f alian in Ryley relee placita parliamentaria g  which case be not to this purpose for it be true as my Lord coke have observe  upon the statute of articuli super Chartas Inst h that if a ouster Le main be  bring and afterward a precedent record be find to maintain the king title he  can reseize without a to know facias the reason be because he be out of  possession and by the office so find his title accrue before the livery but  where a judgement be final as in this case the franchise be then actual in the  possession of the king and the corporation be dissolve for the liberty which  unite the body politic be take away and then it be but as one single person  nothing be leave to distinguish they by the name of mayor alderman c and  therefore there needs no to know facias in such case that the corporation be  dissolve appear yet more full by the statute William mary c mention before for  thereby the judgement be declare to be illegal and in the preamble it be say  that it will tend very much to the peace of the kingdom to restore the mayor  and citizen c to their ancient liberty of which they have be deprive now it be  a very foreign construction to say that they may be deprive by force and not  by that judgement when it be plain that it be the opinion of that parliament  that they be deprive of their liberty by that judgement for otherwise those  word be void if therefore by this judgement the corporation be dissolve then  sir James smith be no alderman at the time of the make the Act of will mary c  and have no office modern at that time be not therefore oblige to take the  oath and though he have not take they yet he ought to be restore curian a  corporation may be dissolve for it be create upon a trust and if that be break  it be forfeit but a judgement of seizure can be proper in such a case for if  it be dissolve to what p p see shall it be seize therefore by this judgement  in the quo warranto the corporation be not dissolve for it neither extinguish  nor dissolve the body politic wherever any judgement be give for the king for  a liberty which be usurp it be quod to put out and that the person who usurp  such a privilege freedom c not at all intromitta c which be the judgement of  ouster but the quo warranto must be bring against particular person but where  it be for a liberty claim by a corporation there it must be bring against the  body politic in which case there may be a seizure of the liberty which will  not warrant either the seizure or dissolve of the corporation itself cro James  yearbook Edward pl and walker case co a therefore the corporation be not  dissolve sir James smith be still a alderman and ought to take the oath before  the first day of August and so judgement be give in Hilary term follow that no  peremptory mandamus ought to go dolben justice doubt upon the main point for  it seem to he that if the liberty of the city be seize then sir James smith be  no alderman c and that the parliament of William mary c do affirm the  judgement to be of force for they do not declare it to be void ab beginning  but illegal