Page:The English Reports v1 1900.pdf/439

action was founded on the statute of 7 and 8 William III. chap. 25. sect. 6. whereby it is enacted,

That every bailiff and [70] other officer, to whom the execution of any writ or precept shall belong, for electing of members to serve in Parliament, shall forthwith deliver to such person or persons as shall desire the same, a copy of the poll taken at such election, paying only a reasonable charge for writing the same; and that every bailiff and other officer, to whom the execution of any writ or precept, for electing of members to serve in Parliament shall belong, for every wilful offence, contrary to this act, shall forfeit to every party so aggrieved, the sum of 500l. to be recovered by him or them, or his or their executors or administrators, together with full costs of suit.

The declaration stated, that the town of Ivelchester is an ancient borough, and that the burgesses and inhabitants of the said borough, time out of mind, have chosen two burgesses, to serve in Parliament for the said borough. That on the 17th of January, 1 Georgii Regis, a writ issued out of Chancery, directed to the sheriff of Somerset, commanding him to cause to be chosen two knights for the said county, and two burgesses for every borough within the same county, to serve in the Parliament to be bolden at Westminster on the 17th day of March then next following; which writ, on the 26th of January, was delivered to John Trevillian, esq. then. sheriff for the same county, who, the same day, made his precept to the said Thomas Smith, then bailiff of the said borough of Ivelchester, to whom the execution of the said precept did of right belong, for the election of two burgesses to serve in Parliament for the said borough, according to the said writ.—That by virtue thereof, on the 2d day of February following, it was proceeded to an election for the said borough; when Sir James Bateman, William Bellamy, John Hopkins, and the plaintiff, stood candidates, and several electors voted for Sir James Bateman and the plaintiff, and several others for the other two candidates; and a poll being then demanded, was had, and taken in writing by the said bailiff.—That on the 10th of the same month, the plaintiff required the said bailiff to deliver him a copy of the said poll, and was ready, and offered to pay him any reasonable sum of money for the writing thereof, as ho should require; but the said bailiff did not deliver the same, but contrary to his duty, and the said act of Parliament, voluntarily and utterly refused to deliver him a copy of such poll; whereby the plaintiff was entitled to demand and recover the said penalty of 500l.

The defendant Smith having pleaded the general issue, the cause was tried at the Lent assizes, holden for the county of Somerset 1716, before Mr. Justice Eyre, and a substantial jury; when, after a long trial, and upon full evidence, a verdict was given for the plaintiff to the satisfaction of the judge; it appearing, that Smith, who was a practising attorney, had behaved himself in a very arbitrary manner, and that his whole proceeding as bailiff, and particularly this for which the action was brought, was in open defiance and contempt of the law.

[71] The Court of King's Bench having given judgment for the plaintiff Phelipps, upon this verdict, the defendant Smith brought a writ of error in the Exchequer Chamber; where the judgment was affirmed by all the Judges of the Court of Common Pleas, and the Barons of the Exchequer unanimously.

But to reverse this judgment of affirmance, and also the original judgment, Smith brought his writ of error in Parliament; and though he appeared by counsel on the arguing it, yet I have not been able to find a printed case on his behalf, if any was ever printed.

On the part of the defendant in error, it was said (T. Lutwyche, J. Comyns), that this action was founded on a law made to remedy many great abuses committed by officers concerned in elections of members, to serve in Parliament; which had long been complained of, and by which, if a remedy had not been timely applied, the very constitution of Parliaments might, in a great measure, have been subverted. And since the fact was clearly verified by the verdict, and the ground and nature of the action, as well as the form and manner of the proceedings, had been approved of by the judgment of all the Judges of England, it was hoped that the judgment of the Exchequer Chamber would be affirmed, with costs.

Accordingly, after hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the Court of King's Bench, and the affirmance thereof in the Exchequer Chamber, should be affirmed; and that the record should