justices, and is referred to by the stat. 1 G. 1, st. 2, c. 5, yet by the express words of that statute the power is given to the quarter sessions in the case of a town: so that unless there be some other statute that can be embodied into and made a part of the legislative provision of the statute 57 G. 3, there is clearly no founuation for the present application to the court. In support of the application it was contended, that the statute 8 G. 2, c. 16, and 22 G. 2, c. 46, were to be so considered.

The 8 G. 2, c. 16, relates only to the statutes of hue and cry. It directs that in actions against the hundred the process shall be served on the high constable, who is to defend, and if the plaintiff obtains judgment the sheriff is to produce the writ of execution to two justices of the county, who are to make an assessment as directed by the statute of queen Elizabeth, and are to include therein, in addition to the damages and costs recovered by the plaintiff, the necessary expenses of the high constable in defending the action.

The 22 G. 2, 46, s. 34, extends the remedy given by the 8 G. 2, (which, as before observed, was confined to the statute of hue and cry,) to all actions against the inhabitants of any hundred, and directs the sheriff to produce the writ of execution to two justices of the peace for the county, as directed by the 8 G. 2, and thereupon requires the justices to raise, by taxation, as well the costs and damages recovered, as the expense incurred by any inhabitant in defending the action.

These are the only statutes upon the subject, and of these the only one that mentions the inhabitants of a town is the 1 G. 1, c. 5, and this statute *152] makes a distinction between the inhabitants of a hundred and those of

a town; and as to the first directs the assessment to be according to the 27 Eliz., that is by two justices of the county; but as to the latter, that is the inhabitants of a town, gives the authority to the justices at the quarter sessions. If, therefore, we were to grant the writ in the present case, we should be giving relief for costs to a defendant, in a case in which no statute has, in terms, given such relief, and should also order the relief to be administered by two justices, although the only statute providing for the case of a town has given the power of relief to the justices at quarter sessions. To do this would be to ordain and make a new law, which we have as little inelination as authority to do. For these reasons the rule for the mandamus must be discharged.

Rule discharged.

The KING v. The Mayor and Aldermen of the Borough of

PORTSMOUTH.

Where a charter does not require the members of a corporation to he resident, the court will not grant a mandamus commanding the corporation to meet and consider of the propriety of removing from their offices nonresident corporators, unless their absence has been productive of some serious inconvenience.

An alderman is not bound to reside within the borough, unless that is necessary to the discharge of the duties of his office, or required by the charter.

THIS was a rule calling upon the mayor and aldermen of the borough of Portsmouth, to show cause why a writ of mandamus should not issue, directed to them, commanding them to assemble themselves together within the said borough, and consider of the propriety of removing certain persons *153] (naming them) *aldermen of the borough, from their respective offices of aldermen. Portsmouth is a borough by prescription; but by a charter of the 3 Car. 1, that king granted that they should be a corpora

tion, by the name of "mayor, aldermen, and burgesses;" that there should be within the borough one alderman elected mayor, and that there should be likewise within the borough twelve other burgesses, to be elected as therein mentioned, who should be aldermen, and that the aldermen for the time being should be called the council of the borough, and should be from time to time aiding and assisting the mayor in all causes and matters touching or concerning the borough; that whensoever any of the aldermen for the time being should die or be removed from that office, (which aldermen or any of them the said king willed should be removable for any offence or default, or reasonable cause, at the discretion of the mayor, and the rest of the aldermen of the said borough for the time being, or the greater part of them;) then it should be lawful for the mayor, and the rest of the aldermen for the time being, or the greater part of them, to elect one other or more of the burgesses of the borough to supply the place of the alderman or aldermen happening to die or be removed; that any person elected mayor or alderman, refusing to accept the office after notice, should be subject to such fines and amerciaments as should seem reasonable to the mayor and aldermen, or the major part of them; that there should be a recorder elected by the mayor and aldermen, and that the mayor, aldermen, and burgesses might have a court of record, to be holden before the mayor, recorder, and aldermen, or any four of them, of whom the mayor or recorder should be one, on every Tuesday; that the mayor and recorder, and *every mayor, for one year, after serving the office of mayor, and three other aldermen should be justices of the [*154 peace for the borough, to be elected annually by the mayor, aldermen, and burgesses; and in case of death or vacating the office of alderman, another to be elected in his room. It appeared by the affidavits, that the aldermen mentioned in the rule had not for several years resided within the borough; one of them had, during that time, been elected one of the justices of the peace for the borough; he resided five miles from Portsmouth, and always attended when justice business was going on. It did not appear that any obstruction of justice or serious inconvenience to the inhabitants of the borough had resulted from the absence of the parties named.

Scarlett, Adam, Selwyn, and Erskine, showed cause against the rule. This rule was granted upon the authority of Rex v. Truro, H. T. 1821; but that case has no application to the present, for there residence was made necessary by the charter. But there is not a single syllable in the charter now before the court which makes the residence of aldermen necessary. In Rex v. Monday, Cowp. 530, which was a case on the same charter, it seems to have been taken for granted that the aldermen were bound to reside; but that rests on the statement of counsel; the charter itself contains no provision respecting it. There is no case in which it has been held that mere nonresidence vacates the office of an alderman, the mayor and the rest of the aldermen have a discretionary power to remove him, for any cause which appears to them sufficient, but that must be where some *inconvenience results [*155 from his absence. In the present case, nothing of that kind is shown. Five of the aldermen, viz. the mayor, the ex-mayor, and three other aldermen are to act as justices; four of those have always been resident, and the fifth so near as to be able to attend whenever it was necessary. The administration of justice has, therefore, never been impeded, and no inconvenience to the inhabitants of the borough, sufficient to call for the interference of this court, has been made out.

The Attorney General, Gaselee, and Merewether, contra. It has been declared, in a variety of cases, that where a charter expressly makes the residence of an alderman necessary, that is merely declaratory of the common law. The duty of residence is incident to the office; Vaughan v. Lewis, Carth. 227, City of Exeter v. Glyde, 4 Mod. 33. Holt 435. It is therefore immaterial whether residence be mentioned in the charter or not; and here the

aldermen have duties to perform which cannot but be neglected during their absence; they form the council of the borough, and must be at hand, to assist the mayor in all corporation business. The only question is, with respect to the mode of proceeding where aldermen absent themselves. Now the writ prayed for is connected with the administration of justice, and to enforce performance of that which is virtually if not actually made necessary by the king's charter. The subject is, therefore, entitled to it, according to Bull. N. P. p. 199. This is not by any means the first application of the kind: before the case of Rex v. Truro, it had been laid down by Ashurst, J., in Rex v. Heaven, 2 T. R. 772, “when a corporator *neglects the duties of his *156] office, the corporation should first take cognizance of it, and deprive him, and then it may be properly brought before this court. And there is no inconvenience in this mode of proceeding; for if any persons find themselves injured by the nonresidence of a corporator, and the corporation refuse to interfere and to do their duty, such persons may apply to this court for a mandamus, directed to the corporation to enforce a performance of their duty." In Regina v. Truebody, 2 Ld. Raym. 1275, Rex v. Mayor of Shrewsbury, Cas. temp. Hardw. 147, Rex v. Ponsonby, 1 Ves. jun. I, nonresidence was considered as a fault, for which a corporator might be removed. It is, therefore, very reasonable, that, in the present instance, the mayor and aldermen of Portsmouth, should at least meet and consider of the propriety of excr cising the power which they have to remove the aldermen who have, for a long period, ceased to reside within or near the borough.

ABBOTT, C. J. Applications of this nature are of modern introduction, and have probably grown out of the dictum of Ashurst J., in Rex v. Heaven, which has been cited. But that observation is confined to instances where persons find themselves aggrieved by the nonresidence of corporate officers. An alderman, when he accepts that office, takes upon himself the burthen of giving such attention to his office, as is made necessary by the public duties which he has to discharge. If residence within the borough is necessary for that purpose, it follows that he must reside there. But we should open a fruitful source of litigation if we were to listen too readily to applications of this nature. Public justice and public convenience should be the grounds of *the application; and this court ought not to interfere, unless for the *157] purpose of redressing some serious inconvenience. No case of that nature is established by the affidavits before the court. The nonresidence of some aldermen rather has the effect of casting an additional burthen upon the others, than of causing an injury to the public; and it does not appear that those who are resident think it necessary to make any complaint. Those who have had to discharge the office of justices of the peace have always been actually or virtually resident; the administration of justice has not, therefore, been impeded. For these reasons, and considering also the great and manifest inconvenience that would result from a too ready interposition, I think that we ought not to grant a mandamus in this case.

Rule discharged.

WILSON, Gent., One, &c., v. GUTTERIDGE.

The court will order an attorney's bill to be taxed, though it consists merely of a charge for drawing a warrant of attorney and attending a defendant respecting it.

TAUNTON, showed cause against a rule obtained by Brodrick, for referring to the master for taxation the plaintiff's bill of costs, to recover which this

action was brought. All the items in the bill, except three, relating to a warant of attorney, were agreed to be out of the statute 2 G. 2, c. 33. Those charges were for drawing the warrant of attorney and attending the defendant respecting it, but it never was engrossed or executed. Against this rule he cited the recent case of Burton v. Chatterton, 3 B. & A., 486, wherein all the former authorities were reviewed, and it *was decided that a charge for drawing an affidavit of a petitioning creditor's debt and bond to the chancellor in order to the striking of a docket was not within the statute. But Per curiam. The point there occurred on the statute as to the necessity of delivering a bill. But we have a paramount jurisdiction, independently of the statute, to refer an attorney's bill for taxation.

[*158

Rule absolute.

STORER v. RAYSON.

The court will not set aside the service of a latitat served in a wrong county, without an affidavit that the place where it was served is not on the confines of the county into which it issued.

LANGSLOW, moved to set aside the service of a latitat directed to the sheriff of Leicestershire, upon an affidavit of defendant, that he was served at his house situate in the county of Northampton, and not in the county of Leicester, and that there was no doubt or dispute about the same. [Abbott, C. J. Is the place where the defendant was served on the confines of the county of Leicester?] The affidavit is silent as to that, but the statement is rendered unnecessary by the distinct allegation, that there was no doubt or dispute about the place being in the county of Northampton, Chace v. Joyce, 4 M. & S. 412, Hammond v. Taylor, 3 B. & A. 408. If this service be good, a sheriff may, in all cases, execute a writ beyond the limits of his county, although the boundary is perfectly well known.

*Per curiam. In several recent cases it has been held, that to sup

port such a motion as the present, the affidavit must state that the [*159 place where the writ was served is not upon the confines of the county into which it is issued.

+ See 1 Chitt. Rep. 15.

Rule refused.t

NESTOR v. NEWCOME, et al.

In trespass against a magistrate for an act done in execution of his office, the court, after issue joined, and notice of trial given, allowed the defendant to withdraw his pleas, pay money into court under the 24 G. 2, c. 44, s. 4, and plead the general issue de novo.

TRESPASS for an act done by Newcome, in his office of magistrate; the other defendant acted by his orders. Pleas, general issue and a justification. After issue joined and notice of trial given, a rule was obtained for defendant, Newcome, to be at liberty to withdraw his pleas, pay money into court by way of amends, and plead the general issue de novo.

Chitty, showed cause, and contended, that the statute 24 G. 2, c. 44, s. 4, merely authorised the payment of money into court before issue joined. The defendant in this case is therefore clearly too late, notice of trial having been given.

Brodrick, contra, cited Devaynes v. Boyes, 7 Taunt. 33.

Per curiam. That is a direct authority, the point having been expressly brought under the consideration *of the court. It is very common under

*160] the statute of set-off, to allow the general issue to be withdrawn and pleaded de novo with notice of set-off. The sum to be paid in must be men tioned in the rule, as the whole is done by the leave of the court.

Rule absolute.

THE KING v. JOSEPH TURNER.

If a defendant remove an indictment here by certiorari, giving the usual recognizance under stat. 5 W. & M. c. 11, and be found guilty, and die before the day in bank, his bail are liable to pay the costs.

AN indictment found against the defendant, at the quarter sessions for the borough of Doncaster, in the West Riding of the county of York, for an assault, was removed into this court by certiorari, and recognizances were given in pursuance of the statute 5 W. & M. c. 11, s. 3. The indictment came on to be tried at the York Lent assizes, 1824, when the defendant was convicted, but he died before the day in bank. The master of the crown office taxed the costs of the prosecution, which not being paid, a rule had been obtained by Brandt, calling upon the defendant's bail to show cause why the recognizances should not be estreated, and an affidavit was filed, showing that Charles Lister, the husband of Ann Lister, was the party grieved.

D. F. Jones, now showed cause. This application is probably founded upon the authority of Rex v. Finmore, 8 T. R. 409. But that case seems to be deserving of further consideration. The statute of William and Mary, in terms applies only to cases of "conviction," which *ought to be *161] construed to mean a conviction by judgment, and not merely by verdict; otherwise, though the conviction might be set aside, upon a motion in arrest of judgment, or upon a writ of error, the defendant's bail might be charged with the costs of a defective prosecution. But if conviction under this act means a conviction by verdict, then the prosecutor ought to have taxed his costs immediately after the verdict, and endeavored to obtain them from the defendant, which might have exonerated the bail. At all events, the prosecutor should have demanded the costs of the representatives of the defend ant, before making this application to the bail, who stand in the situation of sureties. In the case of Rex v. Lyon, 3 Burr. 1461, which is cited in Rez v. Finmore, there was a forfeiture of the recognizance, for the defendant did not proceed to trial according to notice. Here the bail did every thing that it was possible for them to do, in pursuance of their recognizance. The defendant appeared, pleaded, and was tried, and that he did not appear to receive judgment arose from the act of God.

ABBOTT, C. J. The case of The King v. Finmore, cannot be distinguished from the present, and we see no reason to disturb it. The third section of the stat. of the 5 & 6 W. & M. c. 11, is express that the recognizance shall not be discharged till the costs, when taxed, are paid. Though it be true that the failure arose from the act of God, the expense to the prosecutor is nearly the same as though the defendant had received judgment. As to the alleged neVOL. X.-11