The state of the Protestants of Ireland under the late King James's government in which their carriage towards him is justified, and the absolute necessity of their endeavouring to be freed from his government, and of submitting to their present Majesties is demonstrated.

A Brief of the Case of the Charter of Londonderry, upon which Judgment was given against it.

Quo Warranto against the Corporation of Londonderry; to shew, why they Claim'd to be a Body Politick, and to have and use certain other Priviledges.

THE Corporation pleaded their CHARTER, whereby those Priviledges were granted to them, & eo Warranto they claim to have and use those Priviledges.

Tho King's Attorny Replies, and saith, That since their Charter; the Act of Settlement impowers the Lord Lieu∣tenant and Council, to make Rules and Orders for the Regu∣lating Corporations: That accordingly such Rules were made for this Corporation; among which, One was, That they were to Elect at a time different from that in the Charter, and Return the Names of the Persons the Corporation should elect yearly to be Mayor and Sheriffs, to the Lord Lieu∣tenant; and to be approved of, & unde ex quo, that they did not so elect, and send the Names of such elected, to be so Approved, they forfeited their Priviledges.

The Corporation in their Rejoynder gave a full Answer to this New Matter, raised in Replication on these New Rules; and set forth, That they did all along yearly elect, and send up the Names elected according to the Rules, and that they were Approved, &c.

But further insisted at the Bar, That they needed not to have any further Rejoynder to the said Replication, or given any Answer as to the Matter in the said Replication alledged; because, admitting the Allegations in the said Replication to be true, yet the Replication assigns no breach by the Corpo∣ration: For all that comes after the Unde ex quo, is but a Conclusion, and solely a Conclusion without any Premisses; for tho' the New Rules be set forth, yet 'tis not said in all the Replication, That the Corporation did not act pursuant thereto; but only saith, Unde ex quo, they did not, &c.

1. The Court said, The Answer given to the New Rules, was a Departure from the Matter pleaded; viz. They Justifie in the Plea by the Charter; and in their Rejoynder they say, They chuse according to the New Rules, which is another Warrant to chuse, and so the Plea vitious. To which the Corporation Reply'd, That a Departure is, when a Party in a Rejoynder sets up a New Title to a thing, or a New Justi∣fication not set up in the Plea: But here they still Justifie by their Charter, and the New Rules made subsequent, is only to the Modus of Chusing, in respect of Time, &c. but the Power of Chusing is still by the Charter.

2. The Plea was not only a Plain Answer to a short Que∣stion demanded by the Quo Warranto, viz by what Warrant they claimed their Priviledges; and the Matter of the New Rules was set up by the King in his Replication, to which they had no opportunity of Answering, till they Rejoyn'd.

3. If it had been material to be set forth in the Plea; yet it being a Condition subsequent (if any thing) and going in destruction of the Corporation Priviledges, they ought not first by the Rules of Law to set it forth; but it ought first to come on the Adversaries part.

4. The Corporation urged, That the New Rules did not in Law work any Forfeiture of Priviledges, in case they were not observed; for they were in the Affirmative only, and the Rule of Law is, That Acts in the Affirmative take not away a former Power of doing a thing, but the same may be done either the first way, or the second. Notwithstanding all which, on the said pretended defect in Pleading, the Merits of the Cause never coming in question, the Court gave Judgment against the Corporation.