Page:The English Reports v1 1900.pdf/1479

Whereupon the defendant, in his return to this writ, set forth the letters patent, information, pleadings, trial, verdict, and judgment already stated; and he further certified and averred, that the election of the said Peter Pender into the office of mayor, in this return mentioned, and in his plead to the said information also mentioned, were one and the same election; that the said Peter Pender, at any time before or after the said election, had not been elected into the said place or office of mayor of the said borough of Penryn, in the said writ mentioned; and that therefore, he the said defendant could not, nor ought to administer to the said Peter Pender, the oath for the execution of the said office of mayor, and the other oaths aforesaid, or to admit and swear him into the said office.

The matter of this return coming to be argued in the said court of King's Bench, in Easter term 1725, the court were unanimously of opinion, that the return was good and sufficient in law; and therefore allowed the same, and refused to grant a peremptory mandamus.

Whereupon Pender brought his writ of error in parliament, insisting that this judgment was erroneous, and ought to be reversed (T. Lutwyche, T. Hussey); in regard it appeared, both by the verdict of the jury and by the return itself, that he was rightfully elected into the said office of mayor; and that no other person had been elected or sworn into that office since, nor could be, unless he was sworn and admitted, in pursuance of such his election.

On the other side it was, in the first place, submitted (P. Yorke, C. Wearg), whether any writ of error lay in the present case, which was merely an award of the court, and not a strict formal judgment; but if such writ of error did properly lie, it was contended that the allowance of the return was just, and according to the rules of law; for that after the judgment of ouster was regularly given against Pender, his whole right under that election was extinguished, in consequence of his own misbehaviour and usurpation, in acting without being sworn; and he being totally forejudged of all claim under such election, could not have any right to the said office of mayor, or ever intermeddle therein, unless upon a new election, subsequent to the said judgment. It was therefore prayed, that this writ of error might be quashed, or that the proceedings in the court of King's Bench might be affirmed with costs.

After hearing counsel on this writ of error, and reading a judgment of the House, dated the 21st of April 1724, in the following words, viz.

After hearing counsel to argue the errors assigned upon a writ of error between the Dean and Chapter of Dublin, plaintiffs, and the King, defendant; wherein the unanimous opinion of all the Judges then pre-[507]-sent is mentioned; viz. that no writ of error will lie upon the award of a peremptory mandamus;

it was ordered and adjudged, that this writ of error being brought upon proceedings at common law only, on a writ of mandamus, should be quashed. (Jour. vol. 22. p. 625. 627.)

The deanery of Armagh is in the gift of the crown, but the advowson of the rectory of Armagh belongs to the archbishop of Armagh and his successors. And these two preferments having been enjoyed for several turns by one and the same person, it was imagined that the rectory was a part, or member of the deanery, though not really so.