case the king against Serle mandamus to swear a mayor c ante salk pl mandamus  to the defendant late mayor of Penryn in Cornwall to swear Peter pindar mayor  he be duly elect the defendant make this return videlicet that this town be  incorporate by letter patent make by king James the second and to consist of a  mayor and so many burgess that they be to choose a mayor every year out of the  capital burgess who be to act as mayor for a year and until another be duly  choose that on saint Matthew day be the day appoint by the charter and in such  a year one Penhallor be choose and swear mayor and die within the year that  after his death the corporation proceed to a new election accord to their  power so to do by virtue of the letter patent who choose the now plaintiff  mayor who for some time act under this election that afterward a information  in nature of a quo warranto be bring against he for usurp this office of mayor  prout to stand open per the same instead of prout pater per record and that he  justify by virtue of the say elect on on which justification two issue be try  the first be whether the plaintiff be duly elect mayor the second be whether  he be duly swear into the office and the first issue be find for he and the  second against he and thereupon a general judgement of a motion or ouster be  give against he videlicet quod Petrus Pinda nullo modus see intromitta c send  ab the same et the dawn whithersoever you please inside exclude et amove but  do not say that this judgement be give upon this information and now he move  for a mandamus the defendant plead this judgement of ouster against grant that  writ it be insist for the grant it that though the judgement of ouster be  enter against he yet as his right to be mayor be by virtue of his election and  the right of exercise modern report that office be by virtue of his be swear  so the judgement against he for usurp the office not be duly swear can be no  bar to his exercise it when he be duly swear the judgement in this case be  like where several issue be try and some find for the plaintiff and some for  the defendant it be true in such case the court will give leave to enter  judgement for the plaintiff but they will likewise give the defendant leave to  take advantage of the issue find for he as they appear in the same record this  may be compare to a attainder where the heir or executor of the person attaint  bring a writ of error though in such case be can neither have executor or heir  yet the attainder can be plead in bar to the writ for non valet exception the  same rei pron  interrog  pelitur disintegration so in the present case to  return a judgement of ouster for not be swear as a cause why the plaintiff  shall not now be swear be as much as to say you be not swear therefore you  shall never be swear because you exercise this office before you be swear it  may likewise be compare to a deed of feoff where the feoff enter before livery  and seize make by the attorney who be to make it he the attorney shall never  say that he be not oblige to make livery because the feoff enter before it be  make it be true the plaintiff be not duly swear at the time he be elect but if  he can not be swear afterward then the charter will be lose because he be not  mayor not be swear and there be no mayor to act in the mean time if a special  information shall issue against this mayor for not be swear and he be find  guilty certain be may be swear afterward which be the same case as appear on  this record and most of the case of this nature be for malfeasances after  election it be to be consider that there be a writ of quo warranto proclaim c  and a information in nature of a quo warranto as in this case that the  judgement in the one be final it be a civil suit and the king writ of right  but it be not final in a information in nature of a quo warranto but if it be  so general yet it can not be so in this case because the plaintiff right  appear in the same record therefore a general judgement of ouster ought not to  be enter but it shall be with a salvo jure as in the king case when judgement  be give against he in a quo warranto it be true where the judgement be for the  king against the modern report very liberty claim and this upon a information  in nature of a quo warranto there it be final but in the present case the  right of the plaintiff appear on the very face of the record therefore though  the modern report er p nonswearing may be a good return for not admit the  plaintiff to act if he shall for that purpose and to have the insignia of the  office deliver to be a good return to this mandamus which be only to swear he  ready exercise the office of mayor but that may be compare to the case of a  copyholder who enter before admittance yet be may be admit afterward it be  likewise true that a mandamus have be deny to swear a mayor after the a side a  year but that be where he have no right to hold over and therefore can not be  swear where his right be determine which be not this case for here be a power  by the charter to hold over therefore the judgement of ouster though enter  general shall be consider as a judgement until what time for the ousting a man  from a liberty or the seize thereof be quite different from the ousting one  from the officiate in a office beside a mandamus give no right but put a man  into possession which may be afterward dispute by every man who have a right  and therefore a peremptory mandamus be desire it be argue for the defendant  that all the right of the plaintiff must be lose by this general judgement of  ouster and in this case the election and swear be but one entire justification  and one of they be find against the plaintiff judgement final shall be give  against he and be shall not afterward be admit to claim any right by virtue of  a election precedent to such judgement because that judgement have extinguish  all his right now the judgement both in the writ of quo warranto and in the  information in nature of a quo warranto be the same which appear in several  entry and they differ only where the party be oust from the franchise and  where it be seize by the king for where it be enter with a salvo jure there  the judgement must be against the king so unless the plaintiff can show some  new title he have no right to be swear nor can he be swear by virtue of any  right he claim by the former election because all that right be determine by  this judgement the court the question be whether Peter pindar have still a  subsist right to enjoy the office of mayor and that he have not the defendant  modern report return on this mandamus the constitution of the corporation and  to choose a mayor yearly who be to act for a year and until another be duly  choose they likewise return the information and the judgement of ouster and  rely on the same the year be out so that the principal question be whether  this judgement be a good bar to he from be now swear it be true it appear on  the same record that Peter pindar be duly elect though not swear it seem that  by that mean he shall be preclude from this office but the judgement give in  this case be the constant judgement in such case and the court must take it to  be good while it be unreversed therefore take it abstract as the court must do  without consider whether it be a proper judgement or not it be as full a  amotion as can be and therefore Peter pindar be entire exclude while this  judgement stand in force for which reason a peremptory mandamus be deny