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for the election of Mayor, in case the number of Aldermen then in being was at that time less than eight, the then Mayor and surviving Aldermen, as also the then Bailiffs, and capital and principal Burgesses, or the major part of them, being met together in the Guildhall for that [307] purpose, always proceeded to elect so many as were then wanting of that number, out of the Burgesses or inhabitants of the said borough and town, to be an Alderman or Aldermen, before the said then Mayor, Aldermen, Bailiffs, principal Burgesses, and other Burgesses and inhabitants, proceeded to the election of a Mayor for the year then next ensuing.—That on St. Matthew's day 1740, being the day on which the said Richard Tucker was supposed, by his plea, to have been so nominated, elected, and preferred to be Mayor as aforesaid, the number of Aldermen then surviving and remaining, exclusive of the said Richard Jordan, who then pretended to act as Mayor, was less than eight, (that is to say,) John Carsewell, John Friend, John Tucker, Richard Tucker, and Edward Tizard; and that the said Richard Jordan and the said Aldermen, upon St. Matthew's day aforesaid, did not proceed to elect so many as was then wanting of the said number of eight Aldermen, out of the Burgesses or inhabitants of the said borough and town. The replication then admitted, that the defendant Richard Tucker, and also the said John Tucker, John Friend, and John Carsewell, were all of them inhabitants of the borough and town aforesaid, at the time when they were supposed, by the said plea, to have been nominated as aforesaid; yet it alledged, that they and every one of them were also, at that time, Aldermen of the said borough and town.

Then the following matters set out in the plea were traversed; viz.—I. That the Mayor and Aldermen did not assemble for the purpose mentioned in the plea, as thereby was alledged; and thereupon an issue was joined.—II. That the major part of the Mayor and Aldermen did not choose and name the said John Tucker, Richard Tucker, John Friend, and John Carsewell, for the purpose in the plea mentioned, and thereupon a second issue was joined.—III. That the said John Tucker, Richard Tucker, John Friend, and John Carsewell were not declared to the Mayor, Aldermen, Bailiffs, principal Burgesses, and other Burgesses and inhabitants of the borough and town aforesaid, for the purpose in the said plea mentioned; and thereupon a third issue was joined.—IV. That the said Richard Tucker was not elected to be Mayor of the borough and town aforesaid, as he had by his plea alledged; and thereupon a fourth issue was joined.—V. That the said Richard Tucker did not take his corporal oath for the due execution of the said office, as he by his said plea alledged and thereupon a fifth issue was joined.—VI. That Richard Jordan was not Mayor of the said borough and town, as the said Richard Tucker by his plea alledged; and thereupon a sixth, issue was joined.—VII. That he, the said Richard Tucker, was not admitted into the said office of Mayor, as he had by his said plea alledged; and thereupon a seventh issue was joined.

To this replication Tucker rejoined, and thereby denied the custom of filling up the number of Aldermen before the election of Mayor, as set out in the replication; and insisted, that on the said feast of St. Matthew the Apostle, being the day appointed [308] by the said letters patent, for the election of a Mayor, and at the time of the nomination and election of the said Richard Tucker to be Mayor, there were eight Aldermen then surviving and remaining; and thereupon the eighth issue was joined.

By this rejoinder it was admitted, that the said Richard Tucker, John Tucker, John Friend, and John Carsewell, were Aldermen, as alledged in the replication; and likewise, that the King did, by his said letters patent, further grant to the Mayor, Aldermen, Bailiffs, Burgesses, and Commonalty of the said borough and town, in manner as set out in the said replication; but the said Richard Tucker alledged, that the said King did, by his said letters patent, further will and grant, that the Mayor, Aldermen, Bailiffs, and principal or capital Burgesses of the borough and town aforesaid, for the time being, or the major part of them, (of whom the Mayor to be one,) upon public summons to be made by the Mayor, should assemble in the Guildhall, to make bye-laws for the good rule and government of the said borough and town, and of all officers and ministers whatsoever within the same; and that after the making and acceptance of the said letters patent, viz. on the 1st day of September, in the 14th year of the reign of the said King James I. the then Mayor, Aldermen, Bailiffs, and principal or capital Burgesses, upon public summons by the Mayor, assembled together and there made a certain ordinance in writing, called a bye-law,