case the king against jones S c bro p c and Ed verdict give upon a information  in nature of a quo warranto whether it may be set aside all the judge of  England equal divide S c ante S c post S c stram S c bro p c this be a  information in nature of a quo warranto against Jones and Powell for pretend  to be burgess of Brecknock in Wales and to show by what authority they claim  to be burgess c upon not guilty plead the cause come on to trial at the assize  in Hereford and upon hear the evidence the counsel for the king desire that  the matter may be find special for that it appear by the charter of this  corporation that the burgess and all other officer thereof shall be choose de  inhabitant and that the defendant Jones and Powell be not inhabitant of  Brecknock but there be evidence give that the usage have be against the  charter the jury give a general verdict upon the usage videlicet that the  defendant be not guilty and now it be move to set aside this verdict for two  reason first because it be give against evidence second because the jury  refuse to find a special verdict which they ought to have do when it be  require and because of the difficulty of the case this question be refer to  all the judge of England this reference be not make in the present case but in  the case of the mayor of Salisbury note to the former edition a whether a  verdict by which the defendant be find not guilty on a information in nature  of a quo warranto can be set aside and a new trial grant and the judge be  equal divide two against two in each court so that not one court be unanimous  in opinion of either side but six of they be of opinion that the verdict may  be set aside and six be of a contrary opinion modern report and it be now move  again to set aside this verdict for the reason beforementioned the court be of  opinion that since this be become a question whether it can be do or not it  ought to be determine that it be certain a verdict in a criminal case can not  be set aside for find against evidence but then the question will be whether  this case be criminal and as to the other reason for set aside this verdict  which be that the jury refuse to find the matter special there seem to be some  colour in it for upon such refusal even a verdict give by a special jury and  upon a trial at bar have be set aside and certain it will not be deny but that  a misdemeanour of a jury will avoid their verdict and it be a misdemeanour in  they to refuse the find a special verdict when desire because every man have  as much right to have a point of law determine by the judge as he have to have  any matter of fact try by a jury and it will be unreasonable that it shall be  in the power of any jury to hinder the trial of matter in such a due method as  the law prescribe therefore a rule be make that the plaintiff shall show cause  why this verdict shall not be set aside and upon another the first account to  be find of this case be in Hilary term Geo towards the end of the term at  which time the defendant come to show cause note to former edition b day the  counsel for the defendant offer the follow reason why this verdict ought not  to be set aside and a new trial grant first for that it be never yet determine  that any court can set aside a verdict or grant a new trial where the  defendant be acquit in a quo warranto bring against he for usurp any franchise  and a information in nature of a quo warranto be a criminal prosecution in  which prosecution the court will never set aside any verdict and grant a new  trial it be so adjudge in the case of the king modern report er p v read t ray  lev side c which be a information against the defendant for perjury in give  false evidence at a trial of a cause in the court of king bench he be acquit  upon the information and upon a motion for a new trial upon a affidavit make  that some material witness to prove the perjury be absent it be not grant the  case of the king v sir John Jackson lev a go far than any case of this nature  which be a action of trespass bring by the plaintiff Jackson against one  primate and the plaintiff have a verdict with which the defendant primate be  not satisfy he indict the witness modern report of the plaintiff for perjury  which be ready for trial sir John Jackson order his servant to beat and  imprison those witness who be to prove the perjury so that they can not be at  the trial and thereupon the defendant be acquit now though all this matter  appear to the court upon a motion for a new trial it be not grant because it  be in a criminal case in which the party be acquit but a information be order  against Jackson who be convict and fine and this be likewise a criminal  prosecution in the very nature of it it be true by the statute of whether c a  man be admit to try his private right in a information the word of which  statute be if any man shall usurp a office in a corporation it shall be lawful  for the proper officer of the king bench court to exhibit a information  against he in the nature of a quo warranto at the relation of any person  desire to prosecute who shall be mention in such information as relator  against such usurper and to proceed as usual c and though by that statute a  information have the quality of a civil action videlicet if the defendant  shall be find guilty he shall pay cost and so likewise shall the relator if  judgement be give against he yet still the prosecution be for a offence of a  mix nature and the civil part can be try without the trial of the criminal  part and there be no difference between a information in the nature of a quo  warranto and a information mere criminal as to the set aside a verdict in  either and hitherto such information have be account criminal prosecution and  that by the plain opinion of the legislature for it be well know that action  who lamb c information and indictment be except out of the statute of jeofails  and the reason be because those be all criminal prosecution and for that  reason they will not have extend to information in nature of a quo warranto  and therefore it be express provide by the legislature that all statute of  jeofails shall extend to such information it be true upon the first motion of  this matter in court there be some other reason offer for set aside this  verdict for some other misdemeanour of the jury videlicet that after one of  they be swear and have hear part of the evidence for the prosecutor he go out  of the hall to make water and be absent about two minute as the juryman  himself swear by affidavit b and but ten or fifteen yard distant and that when  they all withdraw modern report to consider of a verdict and can not agree  they all consent to poll and to find for that side on which the majority shall  fall and that seven poll for the defendant and thereupon they find a verdict  for he now as to this matter it be of no weight to set aside this verdict it  be not so much as mention when the verdict be bring in nor be any exception  make by the judge who try the cause to any of the jury who be impanel to try  the like issue the next day between the king v Powell the chief reason for set  aside this verdict be that it be give against evidence and their refusal to  find a special verdict when require for it be express provide by their charter  that the burgess of this corporation shall be choose de inhabitant but the  usage be contrary they give a general verdict upon the usage when they ought  to have find the matter special now in answer to the first reason it be the  constant rule never to set aside a verdict for be against evidence unless it  be insist to be so at the trial especial after a defendant be acquit and then  as to the other reason videlicet their find against the express provision of  their charter when they ought to have find that matter special they may have  cure it by special plead if they have think it proper so to do but this be not  a find against their charter because those person who live modern report er p  within such precinct and have usual be choose burgess and exercise other  office in that corporation may proper be say to be inhabitant thereof within  the meaning of this charter therefore this court without some extraordinary  inducement or great inconveniency show will not make a precedent to take away  the plea of autrefois acquit from the subject which be a fence allow by the  commonlaw against the insult of power on the other side it be argue to set  aside this verdict that a information in nature of a quo warranto be not a  criminal but a civil prosecution it be true the statute whether c be that if  the defendant be find guilty of a usurpation the court may fine he but that do  not make it a criminal prosecution because the fine be only a consequence that  the right be not in the person who be to pay it for the right be the only  thing and probable for that reason the counsel on the other side do not so  much as mention the fine modern report that which be now principal insist on  be the find against the express word of the charter which appoint that the  burgess shall be choose de inhabitant of the corporation when the defendant be  not inhabitant thereof it be true the charter confirm the usage there but it  can confirm such usage which be against the express word of the charter itself  so that the question be whether person who be not inhabitant of the  corporation can be good burgess thereof by usage which ought to have be find  special because the usage be inconsistent with the charter must for that  reason be quite destroy as in the case of the king v Philips where there be  two charter and the last contrary to the first it be resolve that the first be  merge in the last so in the principal case though it have be a ancient usage  to choose burgess not dwell in that corporation yet such usage must be merge  in the charter for that abrogate all the usage and custom which be  inconsistent with the charter and therefore they can never subsist against it  as to the misdemeanour of a juryman it be true if he eat or drink while the  verdict be under consideration he may be punish but that do not make it void  though it be otherwise if he absent himself because he can hear all the  evidence so as to be right inform of the whole for no man know what part of a  argument or what sort of evidence may convince he therefore he ought to hear  the whole because one part may either strengthen or weaken the other beside  the poll by the jury be like the fill in of cross and pile if cross for the  plaintiff if pile for the defendant and certain where verdict be give by the  majority of the poll they can be give upon due consideration of the cause  therefore if there be nothing else in the case that be a sufficient reason to  set aside this verdict but it can not be object at the trial because this  misdemeanour be not then know as for the case of sir John Jackson who order  his servant to beat and imprison primate witness because they shall not be at  a trial to prove sir John witness guilty of perjury and thereupon those  witness be acquit and no new trial be grant it be true this be report in  levinz but there be no clear reason to support the judgement give in that case  it be no more than for a man to be discharge of one crime by commit another  for the modern report defendant in that case be acquit of perjury by beat and  imprison the witness who be to prove it at a trial ready to come on and no new  trial be grant because it be in a criminal case but admit it to be so in a  case mere criminal it be not so in a information in nature of a quo warranto  for if it shall it will be of the utmost ill consequence to all corporation  and it may endanger our very constitution but it be not a settle rule that a  new trial can be grant in a criminal case where the defendant have be acquit  for if the acquittal be upon a trial without due notice certain a new trial  may be grant and the rather because no bill of exception will lie where the  crown be concern in the prosecution the court first answer the objection and  say as to the misbehaviour of the juryman who be absent for two minute it be  not punishable but if it be it shall not avoid the verdict and as for their  poll and give a verdict where the modern report er p majority fall per Pratt  chief justice it be not like the case of the fillip for a shilling if cross  for the plaintiff if pile for the defendant because that be a verdict which  depend mere on chance but the fortescue justice be of a contrary opinion and  say poll be little better than chance that it be against the design of the  institution of jury and it be like the case of cross and pile for the jury  shall convince one another by good reason a poll be only give credit and  weight to the authority of the great number of the jury as to the objection  that the jury shall have find a special and not a general verdict upon the  usage it do not appear that the judge who try the cause direct they to find  the matter special for he may think that there be no negative word in the  charter to exclude their ancient usage that such custom and usage which they  have before the charter do still subsist so that this discharge they from the  imputation of find against the direction of the judge but if he have direct  they to find the matter special in such case the ought to find it so because  every subject bath a right to have a point of law determine by the court and  not to have it huddle up in a general verdict by a country jury modern report  the objection which go to the whole be that a new trial can be grant in a  criminal cause where the defendant be acquit now whether it may be grant or  not be a question fit to be consider it be true it be general hold that it can  and so it be adjudge in sir John jackson case but that be a very extraordinary  case for it be inconsistent with reason not to grant a new trial where a man  be acquit by his own artifice of a crime not capital for it be as have be  observe that where a man have commit one crime he shall have it in his power  to avoid justice by commit another but admit that case to be law then the  question will be whether a prosecution by a information in nature of a quo  warranto be a criminal cause or not upon which question the judge of England  have be equal divide Pratt chief justice if this be not to be look on as a  criminal prosecution I shall ready grant a new trial this late have be make a  question and be refer to all the judge who be equal divide in opinion six  against six and each court be also divide I be for a new trial king v Bennett  viner Abr pl S c stram b fortescue justice I be against a new trial and be so  still indictment be sometime use only for try a right and yet it be never  pretend to grant a new trial in they it be object that this be a mix sort of a  prosecution and not entire criminal if so still it be criminal it be object  that the fine impose be always small but it may be large Raymond justice these  information be only method to try the right and ought to be look on as civil  action and though a fine be impose yet that make no alteration for sometime in  action confess of a civil nature a fine be set as in action of trespass way et  arms this be my present opinion but I will advice the court be of opinion that  the verdict be against law for the charter be to be understand negative de  inhabitant and so destroy the usage and where a jury bring in a verdict  against law agreeable or not agreeable to the direction of the judge the  verdict ought to be set aside modern report but afterward on the last day of  Hilary term follow the chief justice declare that it be the opinion of the  whole court to grant a new trial if it can be grant by law but it be a point  wherein the judge have so much differ it ought to be well consider because it  affect all the corporation in England and that it be never yet know that a  verdict be set aside by which the defendant be acquit in any case whatsoever  upon a criminal prosecution modern report er p