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![handle is hein.slavery/ssactsengr1011 and id is 1 raw text is: NOTES OF CASES IN K. B. ETC.
Denison, J.-The sole ground for setting aside judgments, &c. in civil actions, is
the putting the other party in as good a condition as before: therefore formerly the
Court refused to do it, if a trial had been lost; but now they do it on consent that
the judgment (if it passes against the party applying), shall be entered nunc pro tunc.
So they have restrained the party from pleading the Statute of Limitations, or the
Insolvent Debtors' Act, and confined him to such pleas as would bring the true merits
to be tried; but never have suffered it, where it would put the adverse party in a
worse condition : which would, most certainly, be the case here, where the defendant
has discharged himself from the penalty by a regular, and legal, judgment of non
pros. ; and the reason urged for granting this application (that the plaintiff is out of
time to bring another action), weighs strongly with me against it; for, the cause
being out of Court, and the penalty thereby saved, the Court can never restore it,
without putting the defendant in a worse condition.
This case differs widely from amendments before judgment, whilst all is in paper,
which was the case Mr. Norton (85] cited, and that of The Duchess of Marlborough v.
Whitmore, and many others: but here the cause is out of Court, and it would be giving
a fresh action to the common informer.
Wilmot, J., concurring, the motion was denied.
Absente, Foster, J.
THE KING agt. RICHARDSON.-K. B. Upon the removal of nine portmen for non-
attendance at the Courts of a corporation, and an election of a new portman by
the only remaining one, held, that an incidental power of amoving for offences
against the institutions of a corporation is vested in the body; but that an
absence from the Courts, without having received any special requisition to
attend them, was not a sufficient cause for the amotion of officers whose presence
was not always indispensable. 1 Burr. 517, S. C.
[See S. C. 1 Burr. 517 (with note).]
This case was argued, the last term, by Mr. Gould, for the prosecution ; and Mr.
Serjt. Poole, for the defendant, as follows:
Information in the nature of a quo warranto against the defendant, to shew, by
what authority he claimed to exercise the office of a portman of the town, and
borough, of Ipswich. The information states, that Ipswich is an ancient corporation,
consisting of bailiffs, burgesses, and commonalty; and that there are twelve portmen,
which are officers concerning the administration of public justice. Plea, admits the
corporation to be ancient, &c., and to have been incorporated by various names, and
confirmed by charter, 17 Car. II., which (inter alia) regulates the election of the port-
men (upon death, resignation, or removal), to be made by the others, or residue of
the portmen, or the major part of them. There is a like direction with regard to the
twenty-four constables of this corporation. That this charter confirms the ancient,
customary, days of holding a general assembly of the corporation, called a great
Court, viz. on the 8th of September, in every [86] year, for the particular purpose of
electing bailiffs for the ensuing year, on the 29th of September, to proceed to the
general business of the corporation ; and also they have power to meet at any other
times when the bailiffs should see necessary, previous notice being given of such
extraordinary great Court. Custom, that portmen should be chosen by the others,
or residue, or the major part, out of the burgesses, in a reasonable time after the
vacancy. That it is the duty of the portmen to attend the great Court, to advise,
and assist, the bailiffs in the government of the corporation.
That, on the 8th of September, 1755, James Wilder, and nine others, were the ten
surviving portmen; and, there having been several great Courts, at which none of the
said portmen, except Wilder, attended, and Wilder alone attending at this Court, of
which due notice bad been previously given, it was ordered by the Court, that notice
should be given to the other nine, to appear at the great Court on Michaelmas Day
then next, to shew cause, why they should not be removed from their said office for
such non-attendance.
On the 20th, due notice was given, and they were severally, and respectively,
summoned to appear.
That Wilder only attending at the said Michaelmas Court, further time was given
2. I[NY. 85.
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