By the Court,
Savage, Ch. J.In my opinion, the plea and rejoinder are both bad. The plea sets out a good title for one year, but no more. The defendants were called upon directly to shew by what title they held and exercised the offices of trustees after May, 1839. To say that they were duly elected in 1838, is no answer, without shewing something more. By the statute, the trustees hold till the first Monday of May succeeding their election, and until a new election of trustees, and until the new trustees take the oath of office. It was the duty of the defendants to have notified and held an election on the first Tuesday of May, 1839; and though this might have been subsequent to the expiration of *424their offices, yet the statute provides that they shall hold un- ^ ^e election shall be held, and the new trustees shall take ^he oath. It might happen that the new trustees would all decline to take the oath, and then the defendants would be legaily m office for the year 1829; but the court will not presume such a state of things. It is not enough' to say that there has been no election, and therefore they hold. There could be no regular election, without a previous act by the defendants, giving notice of such an election. If there was no election, the defendants are chargeable with the omission, and thus they hold by their own wrong, and the presumption is, against the wishes of the freeholders and inhabitants. In substance, therefore, the plea is defective.
The replication shews the fact that the defendants, in violation of their duty, neglected and refused to notify an election in 1829, or to preside at such election. The rejoinder, protesting against the wrong of the defendants, and their neglect of duty, admits that they inadvertently omitted to give notice, &c.; that is, they forgot it. Forgetfulness is no excuse for the non-performance of a public duty; particularly where those who thus forget their duty are to hold an office in consequence of such forgetfulness. The protestation does not aid them ; in this suit it is an admission of the allegation protested against. The other matters set forth constitute no excuse nor justification of their omission of duty, and moreover they constitute those faults in pleading which are designated in the special causes of demurrer.
The defendants were, however, trustees de facto, and for certain purposes their acts are good. Their title could not be inquired into collaterally ; but in this proceeding they are required to give an account to the people, and must shew a good title; not a colorable one. Their title, according to their own shewing, rests upon their own neglect. If it be admitted for one election, the defendants may be trustees for life. The plaintiffs are entitled to judgment of ouster against the defendants; not against the corporation.
Judgment for plaintiffs on demurrer, with leave to defendants to amend, on payment of costs.