Page:The English Reports v1 1900.pdf/971

Whereupon several issues being joined, the same were tried at the Lent assizes held in Cornwall, 1723, before Sir Robert Raymond, Lord Chief Justice of the Court of King's Bench and after a full evidence and hearing, the jury gave their verdict on the first issue, that the said Peter Pender was elected and appointed Mayor of the said borough, as he had alledged in his plea. But on the second issue, they found that the said Peter Pander did not take a corporal oath, well and faithfully to execute the said office; and that he was not admitted into the office of Mayor of the said borough, as he had by his said plea alledged.

In consequence of this verdict, the Court of King's Bench, in Easter term following, awarded judgment of ouster against him in the following words, viz.

Quod predictus Petrus Pender de & in officio libertat' privileg' & franches' predictis nullo modo se intromittat, sed ab eisdem, & eorum quolibet penitus abjudicetur & excludatur, &c. Et quod predictus Petrus Pender ad satisfaciendum domino regi de usurpatione prædicta capiatur, &c. Et quod prædictus Henricus Cruwys, relator supra nominatus in hac parte recuperet versus prefatum Petrum Pender octoginta libras pro custagiis fuis in & circa sectam suam in hac parte erogatis & expensis secundam formam statuti in hujusmodi casu edict' & provis.

To reverse this judgment, a writ of error was brought in parliament; and on behalf of the plaintiff in error it was insisted (T. Lutwyche, T. Hussey), that the judgment was erroneous, especially in that part of it which excluded him from the office; for it appeared upon the record, that his right to the office was established by the verdict of the jury, which found that he was duly elected; and yet whilst this judgment of ouster stood, the plaintiff could not have the effect of a mandamus from the King's Bench, to be sworn into that office, though the legality of his election was not disputed; and though no time was limited by the charter for his being sworn, nor was he by law debarred from having such mandamus, though he acted before he was sworn.

[297] On the other side it was argued (P. Yorke, C. Wearg), that by the statute 9 Ann, c. 20. it is expressly enacted,

That from and after the first day of Trinity term 1711, in case any person or persons shall usurp, intrude into, or unlawfully hold and execute any of the offices or franchises of Mayor, Bailiff, etc. therein mentioned, it shall and may be lawful for the proper officer of the Court of King's Bench, with leave of the said court, to exhibit one or more information or informations, in the nature of a quo warranto, at the relation of any person or persons, desirous to sue or prosecute the same, against such person or persons so usurping, intruding into, or unlawfully holding and executing any of the said offices and franchises. And it is declared, that in case any such person or persons, against whom any information or informations, in the nature of a quo warranto, shall, in any of the said cases, be exhibited, shall be found or adjudged guilty of any usurpation, or intrusion into, or unlawfully holding or executing any of the said offices and franchises, it shall and may be lawful to and for the said court, as well to give judgment of ouster against such person or persons, of and from the said offices and franchises, as to fine such person or persons respectively, for his or their usurping, intruding into, or unlawfully holding and executing any of the said offices and franchises; and also, it shall and may be lawful to and for the said court to give judgment, that the relator in such information named, shall recover his costs of such prosecution, to be levied in the manner therein before directed.

—That it being expressly required by the letters patent of incorporation, that the person elected to he Mayor, should take the oath of office before he should be admitted to execute such office, it became necessary for the plaintiff, in order to make his justification complete, to alledge that he did accordingly take such oath; and this allegation having been falsified by the verdict of the jury, the justification being intire, was destroyed, and he was found to be an usurper of the office; and consequently subject to the judgment of ouster, as being the only legal judgment in this case. It was therefore prayed, that the judgment of the Court of King's Bench might 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 should be affirmed and that the record should be remitted, to the end such proceeding might be had thereupon, as if no such writ of error had been brought into the house. And it being proposed, that the plaintiff should be ordered to pay costs to the defendant, by reason