produced a record whereby judgment of ouster was given against Batty and Armstrong, to remove them from the office, as not being duly elected to it. And it being objected on the trial, that this record ought not to be read against the defendant, and the judge having allowed it to be read, and left the whole evidence on both sides to the jury, to consider whether these persons were bailiffs or not, and the issue being found for the king, defendant moved for a new trial; 1st, because this record was res inter alios acta, to which the defendant was neither party or privy, and so illi nocere non debuit; although the judgment should have been obtained by default, mispleading, ignorance of their case, or even by collusion, as the defendant was a stranger to it, he by law could not be let in to prevent any of those inconveniences, and therefore it ought not to have been admitted as any evidence against him, but, in the trial of his right, should have been totally rejected. 2dly, that the instances where records between other parties have been read, are, in cases of general customs, as in the city of London v. Clerk, Carth. 181. where, in a demand of toll, verdicts against other persons were read against the defendant, and were undoubtelly good evidence, amounting to no more than payment of the toll by strangers, which is always allowed as evidence to prove a custom. But, in this instance, the record was read to a single fact, viz. the election, which the law does not allow. Lock v. Norborn, 3 Mod. 141. where it is expressly laid down, that none can be bound by a verdict against another that is not party or privy to it, as the heir of the ancestor, or the like. 3dly, that this record, as read, must necessarily be conclusive evidence, and could not by law be left to the jury, as a matter that they could find against. Records are of so high a nature, that there can be no averment, much less parol proof admitted against them: and, therefore, to say that the whole evidence was left to the jury, was impossible; and the rather, because the credit of a record ought not, in any case, to be submitted to them.

On the other side were cited trials per pais, 206. Skin. 15. Brounker v. Sir Robert Atkins, where a nonsuit against a predecessor in the same office was read against a successor, because he came in privity, as an heir under an ancestor. So Rumball v. Norton, upon a traverse to the return of a mandamus, to swear plaintiff a burgess of Calne, on non fuit electus, a judgment of ouster against one of the plaintiff's electors was given in evidence against the plaintiff. So Mich. 13 G. 1. the King v. Bulcock, on a trial of a quo warranto to try defendant's right to be a mayor of Southampton, a judgment of ouster against his predecessor was read against him. Be

sides, it was objected that several other material issues were found against the defendant; and, therefore, though this evidence ought not to have been given, yet the party ought not to have a new trial.

Per Cur. This evidence seems to have been rightly admitted. The defendant has made the title of Batty and Armstrong part of his right; and if he gives evidence of the right of their election, can that be better disproved than by a judgment of ouster, wherein such election is declared to be void? Indeed this evidence was not of itself conclusive, but might have been repelled by proving fraud, neglect, or any other circumstance which would have abated the weight of the judgment. And if any thing of that kind had appeared, the force of it, as to the defendant, would have been greatly lessened. But what makes this case still plainer is, that defendant, by his plea, makes title under, and takes upon himself to justify, their election; and therefore ought to be bound by what has been transacted by them. And if this evidence had been erroneously admitted, yet here are many more issues found against him, to which no objection is made; and being any of them sufficient to entitle the crown to a judgment of ouster against defendant, there is no colour to grant a new trial on this point. And for these reasons it was denied.

But although a judgment of ouster against one corporator, is admissible against another, deriving title through him, it is not conclusive'.

IX. Judgment.

By stat. 9 Ann. c. 20. s. 5. it is enacted and declared," that in case any person, against whom any information, in the nature of a quo warranto, shall be exhibited in any of the said courts (14), shall be found or adjudged guilty of an usurpation, or intrusion into, or unlawfully holding and executing any of the said offices or franchises, it shall be lawful for the said courts respectively, as well to give judgment of ouster against such person from any of the said offices or franchises, as to fine such person for his usurping, &c. any. of the said offices or franchises; and the said courts, respectively, may give judgment, that the relator shall recover his

t R. v. Grimes, 5 Burr. 2598.

(14) Court of King's Bench, courts of sessions of counties palatine, or courts of grand sessions in Wales,

costs of such prosecution: and if judgment shall be given for the defendant, in such information, he shall recover his costs against such relator; such costs to be levied in manner aforesaid.

In an information against defendant for exercising the office of mayor of Penryn, it appeared, that by the letters patent of incorporation it was directed, that the mayor elect, before he should be admitted to execute his office, should take a corporal oath, before the last mayor, for the faithful execution of his office. The defendant pleaded, that he was elected and duly sworn mayor; and issue being taken in the replication, both as to his being elected and sworn, upon the trial, the jury found that he was elected, but that he was not sworn; and thereupon judgment of ouster was given in B. R. Upon writ of error* brought in D. P. it was insisted, that the judgment was erroneous; for it appeared upon the record, that his right to the office was established by the verdict, which found that he was elected; and yet, whilst this judgment of ouster stood, the plaintiff could not have the effect of a mandamus to be sworn in, though the legality of his election was not disputed, and though no time was limited by the charter for his being sworn in, nor was he by law debarred from having such mandamus, although he acted before he was sworn in. For the defendant, in error, it was contended, that it being expressly required by the charter of incorporation, that the mayor elect should take the oath of office, before he should be admitted to execute such office, it became necessary for the plaintiff, in order to make his justification complete, to allege, that he did accordingly take such oath; and this allegation having been falsified by the verdict, the justification being entire was destroyed, and he was found to be an usurper, and consequently subject to the judgment of ouster, as being the only legal judgment in this case. The judgment of the court of King's Bench was affirmed (15).

In a subsequent term, viz. E. 11 Geo. Str. 625. Pender having applied for a mandamus to swear him into the office to which he had been elected, the court refused to grant it, in consequence of the judgment of ouster, which, according to the opinion of Raymond, C. J. did away the election, and, he thought, that without a new election, since the judgment, u R. v. Pender, Str. 582. Lord Raym. x 2 Bro. P. C. 294. Tomlin's edit. 1447. S. C. cited per Curiam.

(15) The judgment was affirmed without costs; the judges having delivered it as their opinion, that costs were not recoverable in this

case,

the party was not entitled to a mandamus. In this case, Lord Raymond, Powys, and Fortescue, Js. concurred in the propriety of the absolute judgment of ouster, which had been given in the former case, Raymond, C. J. observing, that he believed no precedent could be shewn, where the judgment was ever entered in any other manner. And Fortescue, J. added, that a quo warranto was the king's writ of right, and as against the crown want of swearing in was as much as want of an election; the jury, therefore, having found in effect, that he had no title to the office, it was of course, that he should be excluded from it by the judgment of the court. He remarked also, that he had never heard of any other judgment, and that it was reasonable to exclude a person who appeared to have no title. Reynolds, J. however, expressed an opinion, that there ought properly to have been a judgment of ouster quousque only, upon the finding of the jury, in the R. v. Pender. And in a late case of R. v. Clarke, (2 East, 75.) who having been ill sworn in, had afterwards disclaimed upon an information filed against him for usurping the office, and though having submitted to a judgment of complete ouster, he was held to be concluded from setting up again his original right, yet Lord Kenyon intimated, that there might have been a judgment quousque only against him. The same point was again agitated in the R. v. Courtenay, H. 48 Geo. 3. 9 East, 246. the court, however, being of opinion, that the defendant had been well elected and sworn in, were not required to pronounce any opinion as to the nature of the judgment; but they said, that after diligent search, they could not find, upon the files of the court, any precedent of a judgment of ouster quousque.

In the case of the King v. Biddle, Str. 952. the defendant confessed an usurpation during part of the time charged in the information, and from that time insisted on an election. The prosecutor having entered up judgment of ouster, the court ordered, that all the judgment, except that of capiatur pro fine, might be expunged, observing, that it would be hard that a subsequent good election should be done away, as it would be by the judgment of ouster. And they distinguished it from Pender's case, where the party had been guilty of an usurpation during all the time charged in the information.

A quo warranto information has, of late years, been considered merely in the nature of a civil proceeding; and consequently the court will grant a new trial".

y R. v. Francis, 2 T. R. 484,

CHAP. XXXIII.

REPLEVIN.

I. In what Cases a Replevin may be maintained. II. Of the Proceedings in Replevin at Common Law, and the Alterations made therein by Statute. III. Of the Duty of the Sheriff in the Execution of the Replevin. Of the Pledges.-Bond from the Party Replevying.-Sureties under Stat. 11 G. 2, c. 19. s. 23.

IV. Of claiming Property, and of the Writ de Proprietate probandă.

V. Of the Process for removing the Cause out of the inferior Court, and herein of the Writs of Pone, Recordari facias loquelam, and Accedas ad Curiam.

VI. By whom a Replevin may be maintained. VII. Of the Declaration.

VIII. Of the Pleadings:

1. Of Pleas in Abatement, and herein of the Plea of Cepit in alio loco.

2. General Issue.

3. Of the Avowry and Cognisance :

1. General Rules, &c. relating to the Arowry. 2. Of the Avowry for Damage FeasantPleas in Bar-Escape through Defect of Fences-Right of Common-Tender of Amends.

3. Of the Avowry for Rent Arrear-Pleas in Bar-Eviction-Non Dimisit-Non Tenuit-Riens in Arrear-Tender of Arrears.