case the king plaintiff John Ponsonby and other defendant in error that  February Mews dig v see Ann c S c o r rr the nonresidence of a free burgess  within the borough be not a sufficient ground for a information in the nature  of a quo warranto against such free burgess without a previous amotion or some  other proceed previous have against he for such nonresidence king James I by  letter patent under the great seal of Ireland date the that of march in the  that year of his reign constitute the town of Newtown in the county of down in  Ireland to be a free borough and body corporate consist of a provost twelve  free burgess and the commonalty with power to the provost and free burgess to  elect two member to serve in the parliament of Ireland and ordain that the  free brown burgess shall continue in their office during their life unless  they shall for misbehaviour or other reasonable cause be amoved from their  office and they be to be amoveable by the provost and the majority of burgess  accord and when any of they shall die or be amoved the provost and the rest of  the free burgess shall elect other out of the best inhabitant of the say  borough to be free burgess in their stead this borough and other who have the  like charter have meet with difficulty and inconvenience in elect proper  person out of the inhabitant of the town to be free burgess and have therefore  frequent elect into that office other who be not inhabitant of the town and  doubt and question arise thereupon which be likely to disturb the peace of  those borough for prevent thereof a act of parliament be Geo two pass in  Ireland recite among other thing that many of the borough not be city who send  member to parliament have be hitherto oblige for want of protestant inhabitant  resident within their precinct to elect into the office of burgess and other  office person who do not inhabit or can not be resident within their precinct  and that it have be question whether person who be not inhabitant can within  the letter of the charter be elect into or act as burgess within such borough  and that it continue impracticable in most of the say borough to find  protestant inhabitant who on account of their circumstance be fit to be trust  in such office and that many suit and controversy may and be likely to arise  touch the legality of the election of person who be not inhabitant and the  peace and good government of such corporation may thereby be interrupt and  great mischief ensue if not timely prevent for remedy and prevention whereof  and for the more effectual quiet and establishment of corporation and secure  the right and privilege of person who have be or shall be elect into any of  the say office or franchise it be enact and declare that no person who have be  or shall be in all other respect duly elect and admit into any of the say  office or franchise in any town corporate or borough not be a city shall be  oust of any such office or franchise or be any way sue prosecute or molest for  or by reason only of his not be a inhabitant of or resident within such town  corporate or borough at the time of his election but that it shall be lawful  for all and every person and person who have be or thereafter shall in other  respect be duly elect and admit into any of the say office or franchise to  hold exercise and enjoy such office or franchise as full and effectual to all  intent and purpose as if such person or person be or be inhabitant of or  resident within such town corporate or borough at the time of his or their  election brown er p a gentleman of the borough of Newtown have a inclination  to increase his weight and influence in the corporation and for that purpose  to move several of the burgess who be not in brown his interest under pretence  of their not be inhabitant of the borough notwithstanding the above act of  parliament and without apply to the corporation to exercise their power of  amotion give they by the charter if they see cause endeavour to procure a  information in the nature of a quo warranto to be bring against all the  defendant under a act of parliament which pass in Ireland Geo two by which it  be enact that in case any person or person shall after the first day of  Trinity term usurp intrude into or unlawful hold any of the office or  franchise of burgess or other office of corporation it shall be lawful for the  proper officer with leave of the court to exhibit information in the nature of  a quo warranto at the relation of any person desire to prosecute the same  against such person and if it shall appear to the court that the several right  of diverse person may proper be determine on one information it shall be  lawful for the court to give leave to exhibit one information against several  person in order to try their respective right and in case any person against  who such information shall be exhibit shall be find guilty of a usurpation or  intrusion or unlawful hold any of the say office or franchise it shall be  lawful for the court as well to give judgement of ouster as to fine and that  the relator shall recover their cost and if judgement shall be for the  defendant that they shall recover their cost against the relator which act be  a transcript of the English statute of the that of Ann relate to the same  matter in England accord in Trinity term a information be exhibit in the court  of king bench in Ireland in the name of Thomas carter Esq the king coroner and  attorney at the relation of Hamilton Mclure as a nominal informer against the  right honourable John Ponsonby the honourable Richard Ponsonby Charles  Caldwell Esq William Colvill Hugh Darley Benjamin Burton John ware James  turner and Margetson sander charge they several with have usurp the office of  a free burgess and to show by what warrant they have exercise and do then  exercise and claim to have and use the privilege and franchise of a free  burgess of the say borough to this information the defendant appear and plead  several and in each of their plead state the material part of the charter and  then the particular of their respective defence the defendant John Ponsonby by  his plea say that on the saint day of October the provost and free burgess of  the say borough of Newtown for the time be or the great part of they assemble  themselves at Newtown aforesaid in the borough of Newtown aforesaid in the say  county of down in the usual place for assemble themselves within the say  borough and the franchise of the same to elect and choose a fit and proper  person into the office of a free burgess of the say borough then vacant and do  then and there duly elect and choose he the say John Ponsonby as and for one  of the free burgess of the say borough brown pursuant to the say letter patent  and the usage of the say borough be first duly convene for that purpose and he  further say that since the say election the provost and free burgess of the  say borough of Newtown for the time be do not give he notice of such his  election or require he to be admit into the say office or to take the oath of  a free burgess of the say borough and that he at any time since his say  election as aforesaid be not admit into the say office and do not take the  oath of a free burgess of the say borough of Newtown in the say letter patent  mention and specify to be take by every free burgess of the say borough of  Newtown but be ready when require to accept the say office of a free burgess  of the say borough of Newtown and to take the oath of office of a free burgess  of the say borough and the oath by law require and that he have not at any  time since his say election as aforesaid or at the time or time in the say  information allege or during any part thereof use or exercise the office  privilege and franchise of a free burgess of the say borough of Newtown as by  the say information be allege but he say that by force and virtue of his be  elect and choose a free burgess of the say borough of Newtown as aforesaid he  claim to be entitle to be swear into the office of a free burgess of the say  borough of Newtown accord to the order and direction of the say letter patent  and the usage of the say borough and then brown er p to use and exercise the  office privilege and franchise of a free burgess of the say borough and then  he traverse the usurpation charge against he the defendant Benjamin Burton  plead the same plea different to move and the seven other defendant who have  be duly elect admit and swear into and act in the office of burgess of the say  borough conceive themselves well entitle to exercise the same put in several  plead insist on their right and traverse the usurpation the coroner after  demand oyer of the charter of the corporation and have it grant and set forth  verbatim reply to each of the nine defendant plead several as follow the say  Thomas carter say that by any thing above in plead allege by the say John  Ponsonby the say office privilege and franchise of a free burgess of the say  borough of Newtown claim by he in manner specify in the say plea ought not to  be allow unto he for that the say Thomas carter say that after the time of the  elect the say John Ponsonby as and for one of the say free burgess of the say  borough that be to say on the d day of October in the year he the say John  Ponsonby have notice at Dublin that he be so elect and yet the say John  Ponsonby within seven day after such election or at any other time before the  that day of June in the year do not apply to be admit and swear into the say  office of burgess but the say John Ponsonby for the space of two year and  seven month and upward that be to say from the saint day of October to the say  that day of June do brown not reside or live at any place within the say  borough of Newtown but the say John Ponsonby wilful and without any reasonable  cause and know he be elect as aforesaid during the say last mention time be  absent from the say borough and do reside without the limit of the say borough  and eighty mile from the same that be to say at Dublin whereby the say John  Ponsonby forfeit the say office privilege and franchise of a free burgess of  the say borough of Newtown by he claim in manner aforesaid and all his right  and title thereto and cease to be a free burgess of the say borough or to have  any right to be admit and swear into the say office nevertheless the say John  Ponsonby during the time above specify in the say information do claim and  still claim to have and use these privilege and franchise as by the say  information be suppose and this the say attorney and coroner be ready to  verify wherefore he desire judgement and that the say John Ponsonby be convict  of the premise and exclude from the say privilege and franchise by he claim in  manner aforesaid etcetera the coroner reply in like manner to the defendant  Benjamin Burton plea and as to the plea of the defendant Richard Ponsonby  above plead the say Thomas carter say that by any thing above in plead allege  by the say Richard Ponsonby the office privilege and franchise of a free  burgess of the say borough of Newtown above claim by he ought not to be allow  and adjudge to he for that the say Richard Ponsonby after the say saint day of  January in the year for the space of three year and four month and upward that  be to say from the say saint day of January to the that day of June in the  year do not reside or live at any place within the aid borough of Newtown but  the say Richard Ponsonby wilful and without any reasonable cause and contrary  to the trust repose in he by the say letter patent and contrary to the law of  the land during the say last mention time be absent from the say borough and  do reside without the limit of the say borough and eighty mile from the same  that be to say at Dublin whereby the say Richard Ponsonby forfeit the say  office privilege and franchise of a free burgess of the say borough of Newtown  by he claim as above and cease to be a burgess thereof nevertheless the say  Richard Ponsonby during the time above specify in the say information do usurp  and still usurp those privilege and franchise on our now Lord the king as by  the say information be suppose and this the say attorney and coroner for the  say Lord the king be ready to verify wherefore he desire judgement and that  the say Richard Ponsonby be convict of the premise and exclude from the say  privilege and franchise by he claim etcetera and the coroner reply in like  manner to the plead of the six other defendant the defendant rejoin several  and the two defendant who have be only brown er p elect and not swear or admit  into the brown office of a burgess videlicet John Ponsonby and Benjamin Burton  rejoin that they have not due notice of their election and tender a issue on  that fact and the seven other defendant who have be elect swear admit and act  in the office of burgess rejoin several that they have at all time attend the  duty of their office the coroner thereupon demurrer in law and assign for  special cause of demurrer to the replication of the defendant John Ponsonby  and the other nonacting burgess that by the plaintiff replication notice be  charge in general and that those two defendant by their rejoinder have not  answer that charge direct nor be the issue tender by they a direct answer  thereto but a negative pregnant and for that whether the notice be due notice  or not be a matter of law and not of fact to be try by a jury and to the  replication of the defendant Richard Ponsonby and the six other act burgess  the plaintiff assign for special cause of demurrer that these defendant by  their rejoinder have not traverse or confess and avoid the coroner replication  the defendant several join in demurrer and upon argue these demurrer in  Michaelmas term the court unanimous give judgement against all the defendant  as follow videlicet that the rejoinder of the defendant John Ponsonby be not  sufficient in law to maintain the allow and adjudge unto he his say claim of  the say office privilege and franchise of a free burgess of the say borough it  be therefore consider by the court that the say John Ponsonby shall not in any  manner intermeddle with or concern himself in and about the say office  privilege and franchise of a free burgess of the borough of Newtown aforesaid  but that he shall be absolute forejudged and exclude from ever exercise or use  the same or any of they and that the say John Ponsonby in order to satisfy the  Lord the king on account of his say usurpation shall be take etcetera and that  the say Hamilton Mclure the relator shall recover against the say John  Ponsonby pound S d for his cost accord to the statute the like judgement be  give against the defendant Burton the other burgess who only claim and have  not be swear into or act in the office the judgement against the defendant  Richard Ponsonby be that his rejoinder be not sufficient in law to maintain  the allow and adjudge to he the office privilege and franchise of a free  burgess of the say borough it be therefore consider by the court that the say  Richard Ponsonby shall not in any manner intermeddle with or concern himself  in and about the say office privilege and franchise of a free burgess of the  say borough of Newtown but that he shall be absolute forejudged and exclude  from ever exercise or use the same or any of they for the future and that the  say Richard Ponsonby in order to satisfy the Lord the king on account of his  say usurpation shall be take etcetera and that the say Hamilton Mclure the  relator shall recover brown against the say Richard Ponsonby pound S d for his  cost accord to the statute and the like judgement be give against the other  six defendant the defendant conceive themselves aggrieve by this judgement of  the court of king bench in Ireland bring a writ of error therefrom returnable  into the court of king bench in England and have remove the record the  defendant assign the general error and the plaintiff rejoin that there be no  error upon argue the cause in the court of king bench in England in Michaelmas  term all the judge of that court be of opinion that the judgement of the court  of king bench in Ireland be erroneous and therefore reverse the same but to  reverse this judgement of reversal a writ of error be bring in parliament and  on behalf of the plaintiff in error it be contend t jewel a Wedderburn that  this as well as the other charter grant at the same time plain appear to have  be grant with a view to supply the town in the north of Ireland with  protestant inhabitant and for that end all the inhabitant for ever and none  else be incorporate by the name of provost free burgess and commonalty of the  borough of Newtown and although for particular purpose the provost and free  burgess have a power give they to admit foreigner into the commonalty yet none  but a inhabitant can exercise or claim to exercise the office of a free  burgess that the office of free burgess accord to the power give they by the  charter require residence inasmuch as they be to assist in make bylaw and with  the provost be vest with the sole power of admit freeman of move away brown er  p ing such free burgess as be guilty of offence and of choose other in case of  death or vacancy as also with the annual election of the provost and as often  as that office shall be vacant by death or otherwise to assist in choose  another free burgess to be provost for the remainder of the year and it be  only by they and the provost that member be elect to serve in parliament  therefore reside out of the borough in place where they can not be summon nor  attend the office be a abdication or forfeiture of their right to continue in  such office that it be admit by the plead that seven of the defendant have  exercise and hold the office of free burgess notwithstanding their  nonresidence which hold and exercise be contrary as well to their duty as free  burgess as to the intent and meaning of the charter be a unlawful hold and  exercise constitute the forfeiture within the operation of the statute of the  that Geo two and therefore they be liable to the judgement of ouster by virtue  of that statute that the two other defendant by their plead admit that they  have be elect in a manner apparent unlawful because they be not resident at  the time of their election nor have they take the oath require by the charter  or be admit since but have unlawful intrude into or usurp the franchise by  aver on record when legal question that they have a brown title to the office  by due election and in so do have act in order to maintain their claim of  right to admission in consequence thereof but that they be unlawful elect be  plain because they be not eligible at the time of their election as not be  resident and this defect be not cure by the Irish act of the saint of Geo two  for that relate only to such as have be elect and be admit which make it a  offence plain within the mischief intend to be remedy by the act of the that  Geo two for restrain act so injurious to the right of corporation that though  the provost and free burgess have a power of amoving such of their member as  be guilty of offence yet the court of king bench have also a power of amoving  they by judgement of ouster and that court be most proper apply to in this  case where nine out of twelve free burgess appear to be nonresident since it  be impossible to suppose that they can have be amoved by a majority of free  burgess if a application have be make to they for that purpose and suppose the  court of king bench to have power give they by the statute of the that Geo two  to pronounce the judgement of ouster in case of this nature a previous  application to the free burgess for a amotion will have be nugatory that the  defendant Richard Ponsonby turner ware Caldwell colvil sander and Darley have  not by their several rejoinder traverse or confess and avoid the replication  of the king coroner and attorney and that the rejoinder of the defendant John  Ponsonby and Burton be not answer to the replication of the say coroner and  attorney whereby they be respective charge in general with notice of their  election and to which charge they have not answer direct because the issue  tender by they that they have not due notice be a negative pregnant and also  because the question whether the notice which they respective have be notice  or not be a question of law and not a matter of fact to be try by a jury nor  be the matter express with sufficient preciseness and certainty on the other  side it be say c York d pool that several question arise on this record which  concern I the merit of the suit two the form of it I as to the merit the  defence of the party be of different nature and may be divide into those which  relate either to the seven burgess who have be admit and have act or to the  two burgess who have neither act or be admit as to the seven act burgess it be  submit that the judgement give by the court of king bench in Ireland have be  right reverse because the nonresidence aver in the replication be not in law a  sufficient cause of forfeiture absence from the place where a office be to be  exercise do not of itself imply nonattendance on the duty of it the nature of  the office of a burgess can require constant actual residence as in the case  of a mayor a recorder or other head officer of a borough in the corporation of  Newtown a free burgess be distinguish from the commonalty only by his right to  vote in brown three or four different sort of election the power if government  be give to the provost and the power of make bylaw be vest not in the select  body of free burgess but in the commonalty at large where the rule of law will  place it without any express grant brown er p but suppose that nonresidence  may be evidence prima fancy of neglect or desertion of a office in a  corporation yet it be well excuse by the matter plead in the rejoinder  videlicet that the defendant have attend the duty of their office general and  at all time when they have not a lawful excuse and be duly require and summon  for that purpose and this excuse be well plead without a traverse of the  nonresidence aver in the replication or confession and avoidance of it which  be the cause of demurrer assign by the coroner it be good without a traverse  because it be consistent with the truth of the replication and a excuse of the  fact not a denial of they it be also good without a express formal confession  or avoidance because it introduce new matter in aid of the plea which if true  tacit confess the fact of nonresidence allege in the replication at the same  time that it avoid the force of it that if nonresidence be a legal and  conclusive ground of forfeiture in this case it can only be object to the  defendant in the first instance by the corporation it be admit that they be  duly elect and as free burgess they come in by the grant of the body and hold  by that grant the power of amotion be incident by law to such a corporation  and direct give to they by their charter if they mistake the law and  disfranchise for a offence which do not amount to a forfeiture the party shall  be restore by mandamus and if they neglect to disfranchise where they ought  they may be compel to exercise their authority but till a amotion by a  corporate act there be no vacancy by consequence the defendant remain burgess  de jure and judgement can not be give against they in a quo warranto for a  usurpation No instance of this nature have be produce it will be attend with  the most dangerous consequence to the existence of corporation if the officer  of the king or a common informer may proceed per narrow passage to take the  disfranchisement of their own member out of their own hand with which both the  policy of the commonlaw unaltered by any statute and the charter of the crown  have entrust they and the court of king bench in England think this ground  alone sufficient to reverse the judgement in Ireland as to the two nonacting  burgess it be submit that the information can not be maintain because such a  information will not lie for a mere claim to be admit to a franchise but only  for a actual usurpation the ancient writ of quo warranto be the king writ of  right for franchise and liberty wherein judgement be give either for the  ouster or allowance of they and in some instance for the seizure the  information in nature of quo warranto be strict speak a sort of criminal  proceed to punish the usurper by fine for his misdemeanour the statute Ann  consider it likewise as a civil suit brown and make provision that judgement  of ouster may be give upon it for the sake of determine the right which before  that time have be doubt though practice in many instance the nature of the  proceed and judgement prove that the case to which they be apply must be that  of a unlawful hold and usurpation but a mere claim injure neither the crown or  the subject and can be no offence punishable as a misdemeanour by fine beside  it be absurd to oust or forejudge any man of a office or franchise which he  never exercise nor be even admit to but if this information will lie against  the burgess not admit upon the ground that the franchise vest in they before  admittance still it will be impossible to say that they have forfeit it they  plead that the corporation give they no notice of their election nor require  they to be admit and take the oath with a averment that they have always be  ready to accept the office when call upon the replication state that they have  notice general but do not within the proper time apply to be admit for which  neglect they have forfeit their office to this the defendant rejoin that they  have no notice from the corporation and take issue upon it the law warrant the  manner of their plead because they can be guilty of no default in not require  to be admit if the corporation their elector give they no special notice or  summons and because the not apply to be admit be not a forfeiture but at most  only a imply waiver of their office with which the corporation may dispense at  their pleasure and receive the defendant upon the election acknowledge in  these plead whenever they think fit two the form of the suit be manifest  improper and against the settle course of proceed in all case of this kind so  many defendant charge with usurpation of distinct office and with offence  which can be commit joint ought not brown er p to be join together in one  information their right and their defence be separate it tend to perplex the  plead and confound the judgement of the court all joint indictment against  several person for several offence be hold to be bad in this instance the  statute Ann adopt in Ireland Geo two make no difference for though it be  provide by that law that it shall be lawful for the court to give leave to  exhibit one information for the trial of the several right of different person  to the same or similar office or franchise in case where it may be proper yet  the legislature do not intend to authorize the practice where not only the  office be distinct but the situation and right of the party must be judge of  upon different premise of fact and law after hear counsel on this writ of  error the judge be direct to deliver their opinion upon the follow question  videlicet whether the nonresidence of a free burgess within the borough be a  sufficient ground for a information in the nature of a quo warranto against  such free burgess without a previous amotion or some other proceed previous  have against brown he for such nonresidence and the Lord chief baron have  confer with the rest of the judge present they all agree in opinion and hold  the negative of the question whereupon it be order and adjudge that the  judgement of the court if king bench in England reverse the judgement of the  court of king bench in Ireland shall be affirm and that the record shall be  remit to the end such proceed may he have thereupon as if no such writ of  error have be bring into the house jour vol p