disclaim1. Hence he cannot plead not guiltys. In like manner, he cannot plead non usurpavitt, or that he did not usurp the office in question. This appears from the nature of the charge, which calls on the defendant to shew by what authority he exercises the office in question, to which charge the pleas of not guilty and non usurpavit do not afford an answer. By stat. 32 Geo. 3. c. 58. s. 1, "the defendants to any information in the nature of a quo warranto, for the exercise of any office or franchise in any city, borough, or town corporate, whether exhibited with leave of the court, or by his majesty's attorney-general, or other officer of the crown on behalf of his majesty, and each and every of them, severally and respectively, may plead, that he or they had first actually taken upon themselves, or held or executed the office or franchise, which is the subject of such information, six years (15) or more before the exhibiting of such information, such six years to be computed from the day on which such defendant was actually admitted and sworn into" such office or franchise; which plea may be pleaded either singly, or together with such plea as they might have lawfully pleaded before the passing of this act, or such several pleas as the court, on motion, shall allow; and if, upon the trial of such information, the issue joined upon the plea aforesaid shall be found for the defendants, or any of them, he or they shall be entitled to judgment, and to such costs as they would by law have been entitled to, if a verdict and judgment had been given for them upon the merits of their title. The second section provides, that the prosecutor may reply a forfeiture, surrender, or avoidance, by the defendant, of the office or franchise happening within six years before exhibiting of the information, whereon the defendant may take issue, and shall be entitled to costs in manner aforesaid. The preceding statute having been made in pari materid with stat. 9 Ann. c. 20, is confined to corporate officers. But the defendant is entitled, by this act, to plead several pleas, although the limitation of time does not form the subject of one of his pleasy. r Per Holt, C. J. 12 Mod. 225. s Ib. t Queen v. Blagden, 10 Mod. 296. u See R. v. Brooks, 8 B. & C. 323. x R. v. Richardson, 9 East, 469. re cognized in R. v. M'Kay, 5 B. & C. 645, 6. y R. v. Autridge, 8 T. R. 467. (15) By 7 W. 4. and 1 Vict. c. 78, s. 23, proceedings by quo warranto against mayor, &c. must be commenced within twelve months. See ante, s. 3. p. 1175. Where the plea consists of several facts, from which the defendant infers that he is entitled to the office, the replication may contain a denial of any of the facts stated in the plea; but if it contain merely a denial of the inference drawn by the defendant from those facts, it will be bad; for that amounts merely to a denial of the law; for the judges are to determine whether the inference drawn by the defendant is fairly drawn. In an information against the defendant for usurping the office of portreve, defendant shewed a title, and concluded his plea, "and so he says that he did not usurp in manner and form as in the said information is alleged;" the coroner replied, that he did usurp in manner and form, &c. The replication was adjudged to be bad. VIII. Evidence. CORPORATION books are generally allowed to be given in evidence, when they have been publicly kept as such, and the entries made by the proper officers; not but that entries made by other persons may be good, as if the town-clerk be sick, or refuse to attend; but then the circumstances under which the entries have been made must be proved. Corporation books being of a public nature, examined copies of the entries therein may also be given in evidence: and consequently the court will not enforce the production of the original books, unless it appear to be necessary that they should be inspected on account of a rasure, new entry, or the like, which must be verified by affidavit. An entry in the public books of a corporation, is not evidence for them, unless it be an entry of a public nature. The deed of a corporation cannot be given in evidence without some evidence that the seal affixed to it is the seal of the corporation. It is not necessary to prove the seal of a corporation in the same manner as the seal of an individual, by producing the witness who saw the seal affixed: but when an instrument having a seal affixed to it, purporting to be a corporate seal, is produced in evi z R. v. Portreve of Honiton in Devon- b Brocas v. Mayor, &c. of London, 1 shire, E. 1 Geo. MS. a Per Cur. R. v. Mothersell, 1 Str. 93. Str. 307. c Marriage v. Lawrence, 3 B. and A. dence, it is necessary to prove that the seal is the seal of the corporation, if there be any doubt about it, otherwise any instrument with a seal to it might be produced in court as an instrument sealed by the corporation d. In a case, where it was insisted, that by the constitution of a corporation by prescription, no person was capable of being elected a common councilman, who did not inhabit within the borough, and also hold a burgage tenure; to prove that such was the constitution, a witness was called, who was an inhabitant of the borough, but had no burgage tenure. The court were of opinion, that he was a good witness, observing that there was a necessity of allowing such people in a question of this nature, since they must best know the right; besides, he was in effect a witness against himself, by saying, "though I am an inhabitant, yet I have no right to be chosen, because I have not a burgage tenure." In quo warranto for exercising the office of mayor, upon issue joined, that H. the presiding officer at defendant's election, was not then mayor; the title of H. to be mayor, and not merely whether he was mayor de facto, is put in issuef; and evidence was holden to be admissible, to shew that H. had not been lawfully elected, H. being then dead, but, before his death, an information having been filed against him for usurping the office. A regular usage for twenty years, unexplained and uncontradicted, is sufficient to warrant a jury in finding an immemorial customs. A custom for the steward of a courtleet to nominate certain persons to the bailiff, to be summoned on the jury, is a good customb. A person having a bare authority, and not being a party to the record, is not prevented from being a witness. And so a bailiff who executes a writ may be a witness if he is not a party in the cause, but an office is always an interest. See however, the statute 3 and 4 W. 4. c. 42. ss. 26, 27, ante, page 833. n., by which an objection to a witness solely on the ground of the verdict or judgment being produced for or against him, is removed. A judgment of ouster may be given in evidence to prove the ouster of a third person, by whom the defendant was admitted. In a quo warranto to try defendant's right to be a bailiff of Scarborough; in setting out his right, he shewed d Per Lawrence, J. Moises v. Thornton, h S. C. 8 T. R. 307. e Stevenson v. Nevinson, Str. 583. Ld. Raym. 1353. f R. v. W. Smith, 5 M. & S. 271. g R. v. Joliffe, 2 B. & C. 54. i R. v. Gray, Mayor of Tintagel, B. R. his own election under Batty and Armstrong, two former bailiffs, alleging, that at the time of his election they were bailiffs. Among many other issues the coroner took this, that Batty and Armstrong were not bailiffs, as alleged in the plea. The proof of this issue lying upon the defendant, he gave general evidence of the election and right of Batty and Armstrong. And to encounter that, the prosecutor gave evidence of the custom of the borough of electing bailiffs, and 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. 2ndly, 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 undoubtedly 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. 2ndly, 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 quo warranto to try defendant's right to be a mayor of Southampton, a judgment of ouster against his predecessor was read against him. Besides, 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. The insertion of the name of a town in Schedule A. of the Municipal Corporation Act, is prima facie evidence of the existence of a municipal corporation there, but may be rebutted by evidence, that the name had been inserted in the act by mistake; as in the case of Gatesheadm. 1 R. v. Grimes, 5 Burr. 2598. m R. v. Greene, 1 Nev. and P. 631. |