ufually expended in his office 60l. that for his refufal they had fined the defendant 60l. to recover which they had brought the action. The defendant pleaded nil debet, and, verdict and judgment being given against him in the King's Bench, brought a writ of error in the Exchequer Chamber, affigning for error, that the ftatute did not enable them to impose any fine, but only made the office void: but the court held, that the refusal to take the oaths was indirectly a refusal to undertake the office, and therefore within their power to fine given by the charter, and therefore affirmed the judgment (a).

IF a man be chofen to an office within a corporation, and he refuse to undertake the office, or to take the oaths neceffary to qualify him for it, it is faid, that a custom in a court of record of the corporation, as the court of aldermen in London, to imprison him till he take the oaths, is a good custom, because without fuch power, the corporation may at length be diffolved for want of a fufficient number of officers, or the government of it may not be able to fubfift, as a fine may not have the proper effect, because the person chosen may choose to pay the fine rather than serve the office (b).

BUT a cuftom for a private company within a city to commit is not good.-Grafton, one of the company of Drapers, was brought up to the Court of King's Bench by habeas corpus, and the cause of his imprisonment alleged in the return was, that being chofen of the livery he had refused to serve. To which the court faid "they might have fined him, and have brought an action of debt for the fum; but they could not imprison him." Keeling, C. J. however added, that the court of aldermen might imprison a man

(a) Starr v. mayor and commonalty of Exeter. 3 Lev. 116. (b) March. 189. Langham's cafe, cited 5 Mod. 158.

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who should refuse to accept the office of alderman, because they are a court of record, and they might otherwise want aldermen (a).

By what is here faid by Keeling, and the cafe of Clerke, which happened fome time after that of Grafton, it may be concluded, that the imprisonment of Grafton was fupposed to be by the private authority of the court of affiftants; and there feems to be a very important distinction between the power of fuch a court of a private company, established merely for the purposes of trade, and that of a fuperintendant court of a corporation for the purpose of general government.

THE cafe of Clerke came before the court on the return to a habeas corpus directed to the keeper of Newgate.The return ftated, after a proper introduction, that there were within the city several companies, guilds, and fraternities, of which the company of Vintners was one; that this company had a livery, to which fome of the freemen of the company were always chosen, and being so chofen, and fit perfons for the office, ufually held the fame, without fome reasonable excufe to the contrary.-That there was a court of record held in the city before the lord mayor and aldermen twice in every week, where rules and orders. were made in all things relative to the feveral companies, for the better government of the city, and that the companies were under the correction of that court.-That there was a custom in the city, that if any complaint should be made to the mayor and aldermen of the faid court, by the master and wardens of any company, of a liveryman chofen and refufing to take the office, being admonished by that court to accept it, then the mayor and aldermen had used to commit the perfon fo refufing to the cuftody of

(a) Grafton's cafe, 1 Mod. 10.

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the fheriffs of London, or any other officer, there to be detained until he should confent, and declare that he would take upon himself the faid office.--The return then stated, that before the iffuing forth of the writ, Clerke, being a citizen of London and a freeman of the company of Vintners, was chosen of the livery, and required to take upon him the office, which he refufed; on which complaint being made to the mayor and aldermen, by the master and wardens of the company, he was fummoned to appearwhich he did, and refused to take upon himself the office, and being admonished by the court, ftill refused, on which the court, by a warrant in writing, committed him to cuftody, there to remain till he should confent and declare that he would accept the faid office; and that this was the cause of his taking and imprisonment.

MANY exceptions being taken, fome to the form and others to the fubftance of the return, the court said, that a commitment till he fhould declare his confent to accept the office, was more than if he had been committed till he hould actually confent: and that therefore, though the court of aldermen might commit him till he should confent, yet they had no power to imprison him till he fhouid declare his confent. With deference to this authority, however, this distinction feems to be altogether abfurd: how is his confent to be known, if he do not declare it? If confent be taken merely as a fubmiffion of the mind, a commitment till he shall consent is nugatory: but in common acceptation, "to confent," implies an intimation of fome kind, that he is willing; and had the commitment been till he should confent, the declaration of his confent must have >een implied.

THE Court, however, further obferved, that the court of aldermen were the proper judges of an excufe made by

the

the defendant for not taking upon him the livery; and if they adjudged it infufficient, and appointed him to accept the office, and he refufed; this was a contempt of their authority, for which they might commit him: and afterwards Holt in particular faid, "that the court ought, as far as they could by law, to support the government of all focieties and corporations, especially that of the city of London; and that, if the mayor and aldermen should not have power to punish offenders in a fummary way, then farewell to the government of the city."

CLERKE was, however, discharged, on the ground that it did not appear by the return, that the keeper of Newgate was an officer belonging to the lord mayor and aldermen; and that they could not commit to any but their own officers; and therefore the commitment ought to have been to the cuftody of the fheriffs, who were known to be officers of the city (a).

In many cafes the Court of King's Bench will grant a criminal information against persons, for not taking upon them offices to which they have been legally elected (b): the cafe of Larwood is an inftance of this, in which no objection was taken, that an information was not maintainable against a person for refufing generally, but the defendant, as a diffenter, infifted on his being exempted.And before the final determination of that queftion, one Grosvenor, a diffenter, having been chofen one of the sheriffs of London, and refufing to take upon himself the office, an application was made for leave to file a criminal information against him; but on fhewing caufe, the court discharged the rule, it appearing there were acts of com

(a) Company of Vintners v. Clerke. 5 Mod. 156, 319. v. Clerke. Comyns, 24.

(b) Dict. per Buller, J. 5 Term Rep. 86.

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mon council which provided other remedies, and it being yet unfettled how far the refusal in such a person as the defendant was a crime, they did not think they ought to interfere in this way. However, they declared that, if the the point should be determined against the diffenters, and they should afterwards refufe, this might be a foundation to afk for an information (a).

IT feems, likewife, that an indictment may be maintained against a man for refufing to undertake an office in a córporation in the case of Vanacker, one objection made to the power of fining the party refusing, was, that he might be indicted, which, it was said, was a more proper remedy; and that he might be indicted, had been held in Norwood's cafe: to this the chief juftice answered, that if the party were indicted, that would not fave the forfeiture of the franchise, which would be incurred, if the city did not appoint to execute the office: but that an indictment would not lie in the pesent cafe, because the refufal was not at the time when the defendant ought to have entered on his office, but before; that if, indeed, the defendant had refused at the vigil of Saint Michael, he might have been indicted; but that for his refufal before, he could not, because he might have repented and entered on the of fice at the day (b).

. NOTWITHSTANDING this power of a corporation to compel their members to undertake the offices, yet, where two offices are incompatible, and a man is already in poffeffion of one of the two, they cannot, against his confent, elect him to the other: therefore, where one Bafton, who, being town clerk of B. was elected alderman, in order that he might be deprived of his office of town clerk, as thefe

(a) Rex v. Grosvenor, 2 Str. 1193.

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(b) 1 Ld. Raym. 499. 5 Mod. 440, 441.

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