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tion, or other reasonable cause; and that as well the said James Kemp, as every other Mayor of the said borough, should, after his mayoralty expired, be a capital Burgess, to continue in the said office for his life; unless he should be amoved for reasonable cause as aforesaid. And the said King, by his said letters patent, did farther will and grant, that the Mayor of the said borough for the time being, or his Deputy, and the capital Burgesses of the said borough for the time being, or so many of them as should be then present, or the major part of them, every year, upon the feast of St. Matthew the Apostle; and that the capital Burgesses of the said bo-[295]-rough, or so many of them as should be then present, or the major part of them, whensoever the Mayor of the said borough for the time being, should happen to die within his year, or be amoved or depart from his office, should have power and authority to choose one of the capital Burgesses of the said borough, to be Mayor of the said borough until the next feast of St. Matthew the Apostle, and from thence until another Mayor should be elected, appointed, and sworn; and if at such election the number of voices should be equal, the Mayor or his Deputy, and if the Mayor was dead or amoved, then the senior capital Burgess then present, should have a double voice; and that he (the said Mayor), after he should be so elected as aforesaid, and before he should be admitted to execute his office, should take a corporal oath before the last Mayor his predecessor, or his Deputy, well and faithfully to execute the said office; and which oath the said last Mayor had authority thereby given him to administer.

On the feast of St. Matthew the Apostle, viz. the 21st of September 1722, one Joseph Penhallow, a capital Burgess, was duly elected, appointed, and sworn Mayor of the said borough of Penryn, but died within the year of his mayoralty, viz. on the 15th of March next after his election; and upon the 10th of May following, the plaintiff, also a capital Burgess, was elected Mayor of the said borough during the residue of that year; and from thence until another of the said capital Burgesses should be duly elected, appointed, and sworn into the said office, according to the said letters patent.

The plaintiff neither upon, or at any time after his election, took the oath directed by the letters patent, well and faithfully to execute his office; nor was he ever sworn and admitted into the said office of Mayor, according to the said letters patent; and yet, notwithstanding such default, he, upon the same 10th of May, did take upon him and execute the office of Mayor of the said borough; and from thence unto the 23d of January 1723, did, by usurpation upon the crown, continue to use and exercise the said office, contrary to the tenor of the said letters patent; and did claim to be Mayor of the said borough, and to have, use, and enjoy all liberties, privileges, and franchises belonging or appertaining to the office of Mayor.

Therefore to amove the plaintiff from the said office, and to punish him for such usurpation, an information, in the nature of a quo warranto, was, in Hilary term 1723, exhibited against him, at the relation of Henry Cruwys, Gent. by the King's Coroner and Attorney, in the Court of King's Bench at Westminster, to show by what authority he claimed to be Mayor of the said borough, and to execute such office.

To this information the plaintiff appeared and pleaded; and by his plea admitted the letters patent, and the election and swearing of Joseph Penhallow, Mayor of the said borough, and also his death. But he further by his plea said, that upon the said 10th of May, the office of Mayor being then vacant, and he being a capital Burgess of the said borough, was, by the major [296] part of the capital Burgesses, elected and appointed Mayor of the said borough, during the residue of the said year, and from thence until another Mayor should be elected and sworn; and that after such his election, he did, on the same day, duly and according to the form and effect of the said letters patent, take a corporal oath, well and faithfully to execute the said office, and was then admitted into the said office of Mayor of the said borough; and therefore prayed, that the said office, liberties, privileges, and franchises might be adjudged and allowed unto him. To which plea a replication was put in by the King's Coroner and Attorney, and it was thereby traversed and denied, that the plaintiff was elected and appointed Mayor of the said borough, as he had alledged in his plea. And it was thereby also traversed and denied, that he did take a corporal oath, well and faithfully to execute the said office, or was admitted into the office of Mayor of the said borough, modo & forma, as he had also alledged in his said plea.