session, without any aggravating circumstance, is no cause of forfeiture. In the case of the City of Exeter v. Glide", the return was, that the defendant (an alderman, and as such a J. P.) "recessit et habitationem suam reliquit et amovebat seipsum et familiam suam ad Topsam extra civitatem et officium suum reliquit:" it was agreed, that there could not be more apt and express words of the defendant's absence, than the words in this return. So, where a capital burgess left the borough, and lived out of it for several years, and neglected attendance at the public assemblies, &c. it was holden to be a sufficient ground for removing him. But where it was returned to a mandamus to restore an alderman, that the alderman on the 1st of May, 1766, departed with his family from the borough, and the liberties thereof, and entirely left the same, with an intent to reside with his family for the future elsewhere; and thence, and until and at the time of the amotion of him, did continually reside with his family out of the said borough, and the liberties thereof, contrary to the duty of his office; and then the return stated a removal on the 10th of September, 1766; the return was quashed, and a peremptory mandamus was awarded; Lord Mansfield, C. J. observing, that the party had not totally left the borough, that he was absent about four months only, and that he had not received any notice of the charge. The non-residence of a corporator is not ipso facto a forfeiture of the office, but the cause of amoval only; and consequently until amotion, there cannot be any usurpation upon which a quo warranto can be founded". Misemploying the corporation money is not a sufficient cause of disfranchisement, because the corporation may have their action for it (12). a 4 Mod. 33.1 Show. 258.364. S. C. c R. v. Mayor, &c. of Leicester, 4 Burr. d R. v. Ponsonby, free burgess of the borough of Newtown, Ireland. On writ of error. B. R. Michs. 1755. Ryder, C. J. 1 Ves. jun. 1. affirmed on error in D. P. Feb. 24th, 1758. 2 Bro. P. C. 311. Tomlin's ed. R. v. Heaven, alderman of Bedford, 2 T. R. 772. e R. v. Chalke, Ld. Raym. 226. (12) In this case another ground of removal was stated, viz. that the defendant had rased one of the books of the corporation; as to which the court observed, that it might be, that the entry was wrong, and he only made it as it ought to be; and farther, the rasure was not averred to be to the detriment of the corporation. A member of a corporation cannot be disfranchised, unless it be for an act which works to the destruction of the body corporate, or to the destruction of the liberties and privileges thereof; and not for any personal offence of one member thereof. It is competent to a corporation to accept the resignation of a member, and to choose another person in his room; but until such election, the party has power to wave his resignations. A return that the party obstinately and voluntarily refused to obey orders and laws, &c. contrary to the duty of his office and oath is too general; the particular laws ought to be specified. A return of misbehaviour in one office (e. g. chamberlain) will not afford a reason for his being amoved out of another, viz. that of a capital burgess1. Where it appeared by the return that the party had been chosen town-clerk, to hold at the will of the mayor and aldermen, yet as the defendants had not stated any determination of the will, but merely such reasons for his removal as were deemed insufficient, the court granted a peremptory mandamus. Although the return be insufficient, yet if it appears to the court, that the party has no ground for being restored, the court will not restore him'. Thirdly, the due execution of the power of amoval must be set forth in the return. If the person be within summons, i. e. if he be resident, he must be summoned to attend and shew cause against his disfranchisement; and that he was so summoned, must appear upon the return, unless it appear he was heard; for as the end of summons is, that he may be heard for himself, if he have been heard, want of summons is no objection". But if it appear upon the return, that he lived out of the limits of the corporation for several years, it is not necessary to return that he was summoned. In a return to a mandamus to a corporation to restore a member who has been removed, it should appear that the body removing, had proved the charge for which the member was removed. It is not sufficient to state, merely that he was present when the charge was made and did not deny itp. Where a burgess is constituted by patent under the common seal, he ought to be discharged in like manner. But if by election, there it is only entered in the book, and an order is sufficient to discharge him". If the members of a corporation are summoned to appear for one particular purpose, they cannot proceed to any other matter without the unanimous consent of the whole body'. Upon a return to a mandamus to restore a capital burgess, it appeared, that the power of amoving a member was in the mayor and aldermen; that the whole corporation having been summoned to elect a recorder, after that election was over, the mayor and aldermen separated from the rest and removed the plaintiff; and the removal was holden void", because there was no summons to meet as mayor and aldermen, but only as a part of the whole body. Upon the issue of non fuit electus major, the constitution was admitted to be, that the mayor was chosen out of the aldermen, therefore the defendant insisted that the plaintiff should prove his being an alderman. The fact of his being chosen an alderman was this; all the common council (who were the electors) except one, met at a public house to drink, where they were acquainted that W. had resigned, whereupon it was proposed to choose the plaintiff, which was objeced to by two or three; however he was sworn in, and this was holden not to be a good election, because they were not corporately assembled for want of a previous summons; and therefore it was absolutely necessary that every one of the common council should be present and consent. So, where upon evidence it appeared that the corporation met upon a particular day (pursuant to a by-law) for the election of a mayor, it was holden" they could not proceed to the election of an alderman for want of summons, there being no custom to warrant it. p R. v. Faversham, 8 T. R. 352. q Per Holt, C. J. R. v. Chalke, Lord Per Raymond, J. Machell v. Nevin- son, Lord Raym. 1357, and 11 East, 84. n. where S. P. was decided. t Musgrave v. Nevinson, Lord Raym. 1358. u Bull. N. P. 209. cites 2 Raym. 1355. It is not a good return to state, that the party was incapacitated of being elected, for the proper way of trying whether he was capable of being elected, is by an information in nature of quo warranto. So, where all the proceedings of the election were set forth in the writ, concluding "by reason whereof A. was elected," a return, stating that A. was elected, was holden to be bad'. 4. The same certainty is required in the return, as before the stat. of Queen Anne.. 5. The rule is, not to presume every thing against the return, but not to presume any thing either one way or the other". 6. The return must not contain two inconsistent causes", otherwise the court will quash the whole return. But several consistent causes may be returned"; and where the causes are not inconsistent, although some are bad, yet the court may admit the good and reject the bad. It is not necessary that every part of the return should be good; the court will not quash it, if on the whole it state a sufficient reason to justify the party making it. To a mandamus to restore J. S. to the office of sexton, the defendant returned, that J. S. was not duly elected according to the ancient custom of the parish, and, further there was a custom for the inhabitants in vestry to remove the sexton from his office, and that J. S. was removed pursuant to such custom: it was holdenf, that there was not any repugnancy in saying, that J. S. was not duly elected; but that being in fact elected, they had, according to an ancient custom, removed him. In either case, they were equally entitled to exercise that right. The return, therefore, was allowed. The return need not be under the seal of the corporation, nor need it be signed by the mayor; for the return of a mandamus is matter of record, and acts done by a corporation upon record, are not required to be under hand or seal, for in such case an action lies against a body politic, or the persons who procure the false returns. x R. v. Doncaster, Say. R, 40. a R. v. Lyme Regis, E. 19 G. 3. c Adm. R. v. M. of Cambridge, 2 T. R. 456. See also R. v. M, of York, 5 T. R. 66. d Wright v. Fawcett, 4 Burr. 2041. It remains only to observe, that clerical mistakes in the return may be amended, even after it is filed". VI. Of the Remedy, where the Party, to whom the Writ of Mandamus is directed, does not make any Return, or where he makes an insufficient or false Return. THE first writ of mandamus always concludes with commanding obedience, or cause to be shewn to the contrary!; but if a return be made to it, which upon the face of it is insufficient, the court will grant a peremptory mandamus, and if that be not obeyed, an attachment will issue against the persons disobeying it. If no return be made, the court will grant an attachment against the persons to whom the mandamus was directed; with this difference, however, that where a mandamus is directed to a corporation to do a corporate act, and no return is made, the attachment is granted only against those particular persons who refuse to pay obedience to the mandamus: bnt where it is directed to several persons in their natural capacity, the attachment for disobedience must issue against all, though when they are before the court the punishment will be proportioned to their offence. If the return upon the face of it be good, but the matter of it false, an action upon the case lies for the party injured, against the persons making such false return. And where the return is made by several, the action may be either joint or several, it being founded upon a tort; but if it appear upon evidence that the defendant voted against the return, but was over-ruled by a majority, the plaintiff will be nonsuited'; and though the return be made in the name of the corporation, yet an action will lie against the particular persons who caused the return to be madem, or if the h R. v. Lyme Regis, E. 19 G. 3 Doug. k R. v. Overseers of St. Chad's, Salop, 157. i Bull N. P. 201. H. 8 Geo. 2. MS. Bull, N. P. 201. S. C. 1 Carth. 172. " m Per Holt, C. J. Lord Raym. 564. |