mitted to his freedom: the defendants returned that they could not admit him, because to be a freeman of the city of Lincoln, was to have a place of profit in the government; each freeman being entitled to a vote in the election of two citizens to serve in parliament for the city, and to have pasture for three horses in the common; and that Morrice had refused to take the oaths in the common form, though he offered to take his folemn affirmation. The principal queftion in this cafe was, whether this was fuch a place of profit as fell within the provifo of the ftatute, and it was determined that it was not: the Chief Juftice obferved, that Morrice had a precedent right to have his freedom; and that the Quakers were ufually admitted in London on their folemn affirmation: and accordingly the party in the prefent cafe was admitted (a). A PERSON who is already in poffeffion of one office, is not, for that reason, disqualified to be elected to another, whether the two offices be incompatible or not: if they be not incompatible, they may of courfe be held together; if they be incompatible, the election or appointment to the second, and acceptance by the party elected or appointed, vacates the firft.-The rule is general, applying both to offices at common law, and to offices in corporations. Thus, if a judge of the Common Pleas be appointed a judge of the King's Bench, this vacates the office of judge of the Common Pleas, because it is part of the business of the one to correct the errors of the other: fo, if the King's remembrancer in the Exchequer be appointed a baron in the fame court, the first office is void,, because a man cannot be a judge and a minister in the fame court (b). (a) Rex v. mayor of Lincoln, 5 Mod. 402. (b) Pop. 28, 29. B b 12 Mod. 190, So, So, if a town clerk be elected mayor, in a corporation where the mayor holds a court of record, and the town clerk is a minifter of the court, if he accept the office of mayor, the place of town clerk is ipfo facto void (a). AND there is no distinction between the case where an inferior officer is appointed or elected to a fuperior office, and that where a fuperior officer is appointed or elected to an inferior office. Thus, if a judge of the King's Bench accept of an appointment to the place of judge of the Common Pleas, which has fometimes been the cafe, this vacates the place of judge of the King's Bench.-The greater number of the cafes that have occurred on this subject, have, indeed, been of inferior officers appointed or elected to fuperior offices; but in the decifions no diftinction has been made between the two claffes. SIR William Trelawney (b), having been steward of the borough of Weft Loe, was elected into the office of capital burgess, which was alleged to be an inferior office to that of steward; an application was made for an information against him, in the nature of quo warranto, for acting as a capital burgefs, on the ground that the office of steward being superior to that of capital burgess, he was ineligible to the latter in answer to the application, it was contended, that the offices were not incompatible; but, that if they were, it would be the first office that would be vacated by the acceptance of the fecond; and Lord Mansfield faid, "it feemed to him very strong, that if the two offices were incompatible, the acceptance of the latter would imply a 2 Keb. 92. (a) 1 Sid. 305. (b) Rex v. Sir William Trelawney, steward and capital burgess of West Loe. 3 Bur. 1615. Surrender furrender of the former," though it was not now neceffary to determine it, because it did not appear that the two offices were incompatible, all the evidence that could be traced, fhewing a confiftent usage for an hundred years back, "that the steward, if a capital burgess before, had remained a capital burgess, after he became fteward." IN the cafe of Milward and Thatcher, this point was indifputably fettled. In that cafe the following facts were found by fpecial verdict: that the borough of Haftings was a borough by prefcription; of which the town clerk had immemorially been elected by the mayor, jurats, and freemen, on the third Sunday after Eafter in every year: that in pursuance of fuch immemorial ufage, the defendant was, on the third Sunday after Eafter, in the year 1782, elected clerk by the mayor and jurats, who are magiftrates exercifing judicial authority within the borough, and the freemen, pursuant to the custom; that the defendant was annually elected and fworn into the office every year, from the year 1782, till Sunday the 29th of April; on which day the plaintiff was elected town clerk by the mayor, jurats, and freemen, and fworn into the office, agreeably to the ufage. That the plaintiff at the time of his election was, and ftill continued to be a jurat. That he had never acted as a jurat fince his election to the office of town clerk; but had ever fince acted as town clerk, though without the confent of the defendant: that there were within the borough twelve jurats, who fat as judges in a court of record, immemorially holden within the borough; and also held pleas of the crown. That the mayor and two jurats might hold fuch court of feffions, but that all the jurats had a right to attend as judges without being fummoned: and that there had been many inftances within the borough, of jurats Bb 2 being being elected to the office of town clerk, and ferving in that office. Two questions were made on this fpecial verdict: firft, whether the offices of jurat and town clerk were incompatible; and secondly, if they were, whether the plaintiff being, at the time of his election, in possession of a superior office, was eligible to an inferior one, On the part of the defendant it was admitted, that a person in possession of an inferior office might be elected to a superior one incompatible with the inferior, and that the acceptance of the former vacated the latter; but it was contended, that the converfe of the propofition was not true; that a man already in poffeffion of a fuperior office, was abfolutely ineligible to an inferior, and that the election to the latter was void. THE Court faid, that whether the offices in queftion were compatible or or not, the plaintiff muft in this cafe have judgment; the iffue had been directed to try whether he had been duly elected to the office of town clerk: if the offices were compatible, his being a jurat before was no objection to his election; and if they were incompatible, the election to the latter office was good, because the acceptance of the fecond vacated the firft. With regard to the distinction, which had been attempted to be made, between being elected from an inferior to a fuperior office, and from a fuperior to an inferior office, there was neither reason nor authority to support it. The cafe of the King and Trelawney, as far as it went, was an authority against the distinction as to any option which the party might be faid to have, there could not be a ftronger inftance of an option than the plaintiff's conduct; he had accepted the office and acted in it. There was no doubt that his intention was to keep both offices: but if he was mif taken taken in the law, and chofe to accept the last office; he muft abide by the confequences, because it was his own act (a). WHETHER one office in a corporation be incompatible What Corpor with another, depends entirely on the conftitution of the Offices are corporation in which the queftion arifes, whether it be a corporation by prefcription or by charter; as if the King by his charter were to say there should be a mayor, twentyfour jurats, and a town clerk, the corporation, by their own act, could not reduce the number by confolidating two of these offices (b), because the corporate body would then confift of twenty-fix diftinct members: in the case of Sir William Trelawney, the office of fteward was held. not to be incompatible with that of capital burgess, because there was nothing in the constitution of the borough which rendered it fo, and it was confiftent with the ufage of a century, that the offices might be united in the fame perfon.-And, in the fame cafe, Lord Mansfield faid, that if "he fhould be chofen mayor, it might then be a queftion, whether his acceptance of that office did not vacate his office of steward:" from which it is evident that he did not think that the offices of mayor and steward were naturally and neceffarily incompatible, but that they might or might not be fo according to the conftitution of the borough. In the case of Pike, chamberlain of Portsmouth, the question whether that office was compatible with that of alderman, depended on another, "whether by the conftitution of the borough, the aldermen were neceffarily auditors of the chamberlain's accounts:" if they were, the offices were incompatible; otherwife not. The charter was filent (a) Milward v. Thatcher, 2 Term Rep. 87, 88. (b) Dict. pr. Buller, Juftice, 2 Term Rep. 88. B b 3 on incompatible. what not. |