Thirdly,-For any offence of a mixed nature, as being an offence not only against the duty of his office, but also a matter indictable at common law (10). Misemploying the corporation money is not a sufficient cause of disfranchisement, because the corporation may have their action for it.

Although the return be insufficient, yet if it appear to the court, that the party has no ground for being restored, the court will not restore him2.

Thirdly, the due execution of the power of amoval must be set forth in the return. 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 ita.

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 not elected, was holden to be bad. Where, upon a mandamus commanding defendant to take upon himself the office of common council-man of the borough of Leicester, the return was, that by a by-law, persons refusing to fill the office were subject to a certain fine, and that defendant had paid the fine; it was holden, that the return was insufficient, as it did not state that the fine was to be in lieu of service.

y R. v. Chalke, Lord Raym. 226.

z Per Cur. in R. v. Tidderly, 1 Siderf. 14.

a R. v. Faversham, 8 T. R. 352.

b R. v. Doncaster, Say. R. 40.

c R. v. M. of York, 5 T. R. 66.
d R. v. S. Bower, the younger, 1 B. &
C. 585.

Mansfield, C. J. R. v. Richardson, 1 Burr. 539. It is the infamy which renders the corporator an improper person to be continued in an office of trust; therefore, if the crime for which he is convicted be such as does not carry such infamy with it, it will be no cause of disfranchisement; as if he were convicted of a simple assault. Bull. N. P. 206, cites R. v. Derby, 9 G. 2.

(10) Where the offence is criminal in both respects, the difference seems to be that if it consists of one single fact, as burning the charters of the corporation, bribery, &c. there must be a conviction; but not where it may be considered as abstracted, the one from the other, as riot and assault, upon any other member, so as to obstruct the business of the corporation, ib.

4. The same certainty is required in the return, as before the stat. of Queen Annee.

5. The rule is, not to presume every thing against the return, but not to presume any thing either one way or the otherf.

6. The return must not contain two inconsistent causes, otherwise the court will quash the whole return. But several consistent causes may be returnedi; 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 holden', 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 return m. Where a return of a mandamus to restore a party to a corporate office is defective in form, but, on the whole, it appears that there is good ground for amotion, the court will not award a peremptory mandamus; the only effect of which would be to compel the corporation to restore an officer whom they would be bound immediately to remove in a more formal manner". Clerical mistakes in the return may be amended, even after it is filed". The prosecutor of a mandamusP, to which a return has been made, having moved

for a concilium, and the court having, upon argument, adjudged that the return is sufficient in law, cannot afterwards traverse the facts contained in the return.

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 contraryP; 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: but 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 made, or if the matter concern the public government, and no particular person be so interested as to maintain an action, the court will grant

p Bull. N. P. 201.

q R. v. Overseers of St. Chad's, Salop, H. 8 G. 2. MS. Bull. N. P. 201. S. C.

r Carth. 172.

s Per Holt, C. J. Lord Raym. 564.

an information against the persons making the return. The return must be filed and allowed before the information can be moved for. A mandamus was directed to the mayor, bailiff, and burgesses of A. The mayor made a return"; a motion was made to stay the filing of it, upon a suggestion, that the return was made against the votes of the majority, who would have obeyed the writ. But the court resolved, that they could not refuse the mayor's return, because he was the principal officer to whom the writ was directed, and actually delivered; and, as he had returned and brought in the writ, it was not fit that the court should examine upon affidavits, whether the majority consented. But if the mayor had made any return, contrary to the votes of the majority, it was at his peril, and the way to punish him was by information.

Note. Where several join in an application for a mandamus, they may all join in the action for a false return. And if in such action or information the return be falsified, the court will grant a peremptory mandamus; however, it cannot be moved for until four days after the return of the postea, because the defendants have that time to move in arrest of judgmenty. In an action for a false return, the plaintiff set out, that he was chosen upon the first of October, according to the custom. Upon evidence it appeared, that the custom was to choose on the 29th of September, and that the plaintiff was then chosen; and this was holden sufficient to support the declaration, for the day in the declaration is but form. If the mayor of a corporation procure a false return to be made, it will be sufficient evidence against him, that the mandamus was delivered to him, and that the mandamus has such a return made; and that will be presumptive against him, that he made that return, unless he shews the contrary; for the mayor or any other member of the corporation, or others, who shall procure a false return to be made, are liable in their private capacitya. In an action brought in C. B. for a false return, the plaintiff obtained judgment; the court of B. R. refused to grant a peremptory mandamus: Holt, C. J. observing that every mandamus recites the fact prout patet nobis per recordum, and that they could not take notice of

t Surgeons' Comp. Salk. 374. R v. Mayor of Nottingham, H. 25. G. 2. Bull. N. P. 203. S. P.

u R. v. Mayor of Abingdon, Salk. 431. Carth. 499. S. C.

x Green v. Pope, Lord Raym. 125.

y Per Holt, J. C. Buckley v. Palmer,
Salk. 430, 1.

z Vaughan v. Lewis, Carth. 228.
a Per Cur. R. v. Chalice, Lord Raym.
848.

the records of the Common Pleas (11). Before the stat. 9 Ann. c. 20, except in extraordinary cases, an attachment did not issue for want of a return, until after the return of an alias and pluries writ of mandamus and disobedience of a peremptory rule to return. But by that statute, reciting that persons who had a right to the office of mayors, or other of fices within cities, towns corporate, boroughs, and places, or to be burgesses or freemen thereof, had either been illegally turned ont, or had been refused to be admitted thereto, and had no other remedy to procure themselves to be admitted or restored, than by writs of mandamus, the proceeding on which were very dilatory and expensive, it was enacted,

1. That a return should be made to the first writ of mandamuse.

2. That the persons prosecuting such writ might plead tof, or traverse all or any the material facts contained in the return, to which the persons making such return should reply, take issue, or demur; and such further proceedings should be had therein, as might have been had if the persons suing such writ had brought their action on the case for a false return; and in case a verdict should be found, or judgment given for them upon a demurrer, or by nihil dicit, or for want of a replication or other pleading, they should recover damages and costs, and a peremptory writ of mandamus should be granted without delay for them for whom judgment shall be given, as might have been if such return had been adjudged insufficient; and in case judgment shall be given for the persons making such return, they shall re

cover costs.

3. The stat. for the amendment of the law (4 Ann. c. 16.) and all the statutes of jeofail shall be extended to writs of mandamus, and the proceedings thereupons. The power of

b Anon Salk. 428. probably the S. C.
as is reported by the name of Green
v. Pope, 1 Lord Raym. 128. where
S. P. is said to have been ruled.
c See Skinn. 669.

d Bull. N. P. 203.
e S. 1.

f S. 2.
g S. 7.

(11) Yet where in an action for a false return, judgment was given for the defendant, and upon a writ of error judgment was reversed in the Exchequer Chamber, the Court of K. B. granted a peremptory mandamus before judgment entered, saying, it was a mandatory writ, and not a judicial writ founded upon the record. Bull. N. P. 202.