Page:The English Reports v1 1900.pdf/1083

assembled:—That the Mayor, Aldermen, and Commoners, in Common Council assembled, for time out of mind, had, and ought to have the cognizance, jurisdiction, and authority of examining, hearing, determining, and adjudging of and concerning the election of every person in or to the place of office of one of the Commoners of the said Common Council. But waiving an issue thereon, they traversed, that the cognizance and examination of the election of every person to the office of a Common Council-man of the city, had, time out of mind, belonged, or ought to belong to the Court of the Lord Mayor and Aldermen; and prayed, that a consultation might be granted. And by this way of pleading, the defendants endeavoured to put in issue the jurisdiction of the Court of the Lord Mayor and Aldermen, which was not at all in question in the cause.

The plaintiffs therefore replied, that a consultation ought not to be granted to the Common Council to proceed; because the Mayor, Aldermen, and Commoners, in Common Council assembled, had not, time out of mind, nor ought to have the jurisdiction or authority, of examining, hearing, or determining, concerning the election of every person to the office of Common Council-man, as the defendants alledged; and upon this, the plaintiffs tendered an issue, by concluding to the country.

But the defendants, declining to join issue on this point, which was the true and only matter in question on the prohibition, demurred; and the plaintiffs having joined in demurrer, the cause came on to he argued in Michaelmas term 1718; when the whole Court of King's Bench unanimously gave judgment for the plaintiffs.

Whereupon the defendants in prohibition brought two several writs of error in parliament to reverse these judgments; but I do not find any printed case on their behalf.

In support of the judgments, the defendants in error contended (E. Northey, T. Reeve), that the attempt to put in issue the jurisdiction of the Court of the Lord Mayor and Aldermen, was to try a matter which was no part of the cause; and if tried, would have been perfectly immaterial, as it could not have entitled the defendants in prohibition to a consultation; for if it had been found by a jury, that the Court of Aldermen had no jurisdiction in this matter, it would not from thence have followed, that the Common Council had a jurisdiction in it; and the allegation of the want of jurisdiction in the Common Council, being the only ground for granting the prohibition, it was incumbent on the defendants to have [465] maintained the jurisdiction which the Common Council pretended to; and if they had not such a jurisdiction, the prohibition ought to stand, it being the business of the Court of King's Bench to keep all inferior courts within their proper bounds, and not suffer them to exercise a jurisdiction which does not belong to them; and in such case, it matters not where the authority or jurisdiction to determine the right of election is, if it be not in the Common Council; and therefore, though the jurisdiction was alledged in the declaration to be in the Court of the Lord Mayor and Aldermen, yet that was but matter of form, and could not be examined on this prohibition, which was only to examine whether the Common Council had any right or not.

On the day appointed by the house for arguing these writs of error, counsel for the defendants appeared; but no counsel appearing for the plaintiffs, who severally made default, it was ordered and adjudged, that the judgments given in the Court of King's Bench, should be affirmed; and that the records should be remitted, to the end execution might be had thereupon, as if no such writs of error had been brought into the house and it was further ordered, that the said Peter Bolton and Edward Bridgen, should pay to the said Robert Jeffes and Stephen King, the sum of £30 a-piece, for their costs sustained by reason of the bringing the said writs of error. (Jour. vol. 21. p. 71.)