verdict was found for the king. A new trial was afterwards moved for, on the ground that the witnesses were competent and ought to have been received. The case having been very fully argued, Lord Hardwicke, C. J. observed, that it would be proper to consider the objections against James and Pascho Hoskins separately, the strongest of which lay against James, the elisor." The objections against James are principally two: 1st, that he is interested in the proof of this custom, because he has derived his right, and executed his authority, under that custom which he was called to prove. 2dly, that he is interested if there is no such custom; for then the former mayor had not any authority to choose him as an elisor, and consequently he will be liable to be punished in an information in quo warranto, for exercising such a power. As to the 1st objection, that James derives his own authority from this custom, I think the proper answer to it is, that his authority is ended, and his claim is not that of an office or franchise, but only a naked authority. For he is only an elisor chosen by the corporation, for the purpose of returning a jury to choose a mayor; and that is not an office, but an authority constituted for that particular purpose. And I am not aware of any case, where a person having a bare authority only, and not being a party to the record, as James was not, was ever hindered from being a witness as in the case of sheriffs and their officers, who are always allowed to be witnesses to prove the execution of the process, and what was done under it, if they are not parties to the record. And therefore I think James had no interest in this office. As to the 2d objection, of his being liable to be punished by an information, for a wrong exercise of his power, I think it is by much the most material one. But it goes to his credit, and not to his competency, as I think; for I don't know of any case where ever it has been held, that a man was an incompetent witness, because he was possibly liable to be punished in an information in nature of quo warranto, for a past act, the lawfulness of which he may probably support by the testimony he is about to give in another action, to which he is not a party. And it is every day's experience, that persons who have formerly executed offices in a corporation, are produced to prove what they did when they were in the office, and what has been usually done in their time; though, in all such cases these officers have been liable to be punished by informations for their unlawful acts, the statute of limitations not extending to informations in quo warranto. And yet such witnesses have been always allowed as the best evidence. And should we determine that no person is a competent witness in matters : belonging to corporations, who is by possibility liable to be punished by information, we should shut out a great deal of good evidence. Wherever any unlawful act is done in a corporate assembly, the whole assembly is liable to be punished by informations; and yet the persons who were present at such assemblies are always allowed to be good witnesses; and if they were not allowed, there would be no evidence as to such acts at all. The case in 2 Ro. Ab. fo. 635. pl. 3. which says, if three several men, upon a suit in chancery, depose that J. S. made such an arbitration, &c. and upon that the party grieved brings three several actions against them for perjury, each of them shall be a competent witness for the other in the several actions, is full as strong as this, which case is mentioned in 2 Hale's History of the Pleas of the Crown, 280. And in 3 Keb. 90. a person interested was allowed to be a witness. Therefore, upon these reasons, without looking into, and comparing all the cases which have been cited at the bar, so as to distinguish one from another, (which, if I had done, it would have been difficult to have reconciled them together,) I think the objection to James Hoskins goes only to his credit, and not to his competency. And the objection to Pascho Hoskins is weaker than that to James. Whenever a question arises about the competency or credit of a witness, I am always inclinable, unless the objection is very strong, to allow it only to his credit; because, if the objection is allowed to his competency, it tends to shut out that light which an allowance only to his credit admits; and after the examination of the witness, the judge who tries the cause may make such observations to the jury upon the evidence of the witness as he shall think proper to take off the weight of the evidence." The other judges concurred, and a new trial was granted. 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 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 R. v. Hebden, E. 12 Geo. 2. MSS. F F VOL. II. 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 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. 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 vuster 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 judg ment 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. |