another choice, he should forfeit 100l. for every fuch offence, to be recovered, with cofts of fuit, by fuch perfons as fhould fue for the fame in any of her Majefty's courts of Queen's Bench, courts of feffions of counties palatine, or courts of great feffions in Wales, by action of debt, bill, plaint, or information, wherein no effoin, protection, or wager of law should be allowed, nor any more than one imparlance; one moiety to her Majefty, and the other to him or them who should fue for the fame."

AT common law, where by charter the election of the mayor was appointed to be on a particular day, and alfo gave a power of holding over, then if no election was made on the charter day, there could be no election on any fubfequent day in the fame year, except on the death or removal of the mayor in being, because an election on any other day was not according to the authority given by the charter; and this ftatute of Queen Anne does not seem to have made any alteration in the common law in this respect: it renders void the re-election of the fame person, in the cafe "where his duty is to prefide at the election, and make return of members to ferve in parliament;" and it inflicts a penalty on every person holding over by means of his own wilful and unlawful act; but it makes no provifion for the election of another officer, nor does it take away the right of holding over.-This is manifeft, both from the words of the ftatute itself, and from the cafe of the mayor and burgeffes of Tregony, which came before the court thirteen years after it (a). This was a mandamus directed to them, commanding them to choose a mayor, and fwear him into office; to which they returned, that the borough of Tregony was incorporated by letters

(a) Rex v. mayor and burgeffes of Tregony, 8 Mod. 111, Hil. 9 G. 1, 1723. 8 Mod. 127, East. 9 G. 1, 1724.

patent

patent of King James the first, by which it was provided, that the mayor and burgeffes should for ever after proceed to elect a new mayor on the Thursday next after Michaelmas day in every year, and that the new mayor thus elected, fhould be fworn by the mayor in being before he went out of his office, and that every mayor so chosen fhould continue in that office till another fhould be duly elected in the manner aforefaid: they further returned, `that the day of election being paft, they could not proceed to a new election except on the death or removal of the prefent mayor.-Though it was infifted that the day appointed was only directory, and that notwithstanding the day was paft, they might proceed to an election at any other time, as the mayor might be fick or abfent at the day appointed; yet the court held that they were confined to the day, and refused to grant a peremptory mandamus.

By an obfervation which fell from the Chief Juftice in the cafe of Alexander John, which occurred a few months after that of Tregony, there is some reason to suppose, that he thought the right of holding over was affected by this ftatute of Anne; but the circumstances of that cafe were fuch as to leave this question unaffected by the observation. Some differences had arifen in the borough of Leftwithiel, in the county of Cornwall, in consequence of which the corporation had omitted for several years to elect any capital burgeffes, from the number of whom the mayor, by the conftitution of the borough, was to be chofen; on which account, no new mayor having been elected, Alexander John had continued in that office, under a clause of holding over, till the year 1724, when an application was made on the profecution of one John John, for an information, in the nature of quo warranto, against him, on the ground that he had never been duly chofen a capital bur

gefs,

gefs, and that confequently he could not have been duly chofen mayor.-In answer to the application, the defendant faid, that he was chofen a capital burgefs in the year 1697, and that as many of the inhabitants as were living at the time of the application, saw he was duly elected, except the profecutor who now complained against him: and it was contended on behalf of the defendant, that as there had been fo long an acquiefcence under that election, it should not now be brought in queftion; for if it should, it might as well be inquired whether the defendant was a freeman before he was a burgefs, and whether he was a burgefs before he was a capital burgefs, which would be attended with many inconveniences.

THE Chief Juftice faid, "the fact was plain, that the defendant had been mayor of this place for fixteen years (a) together, which was a sufficient cause for an information ;" but he is not reported to have faid any thing on the right of holding over, or how it was affected by the ftatute of Queen Anne.-The rule was made abfolute, and a trial being had, and a verdict found for the plaintiff, a motion was made to fet afide the verdict, which the court took time to confider, and agreed that, in the mean time, Justice Fortescue should confult with Baron Price, who tried the cause, and report his opinion: Fortefcue afterwards informed the court, that the opinion of the Baron was, that the verdict was not against evidence, but that the proof was only by one witnefs, that the defendant was a capital burgefs duly elected, and that the evidence that he was not duly elected was given by John John alone; that an objection had been taken at the trial to his evidence, but over-ruled, and that the Baron was fatisfied with the verdict.

(a) He meant eighteen.

THE

THE ground of the application for a new trial was, that John John, who was the only witness against the defendant, having been served with a rule of the court to produce the corporation books at the trial, had not done it; and that if the verdict fhould ftand, this inconveniency must follow, that all the acts of the corporation ever fince the defendant had been mayor, must be avoided; because, if he was not lawful mayor, all the corporate acts done by him were void.

THE majority of the court, against the opinion of Juftice Fortescue, refused a new trial, because the judge who tried the cause, was of opinion that the verdict was not against evidence; and obferved that, as that was the cafe, the only reafon which remained in favour of a new trial was, that from long continued poffeffion, the defendant must be presumed to have been duly elected, and that an inconveniency would enfue from the avoidance of all corporate acts for fo many years paft: and as to this, they faid, that if the question at the trial had been, whether the defendant had had a right to vote or not, or whether he had taken the oaths or received the facrament within the time limited by the ftatute, his being mayor, in point of fact, and a long acquiefence under such a mayoralty, would be a ftrong evidence for him; but when the queftion only was, whether he was duly elected into the office, "that was a queftion concerning the right," and in such case the long poffeffion of the mayoralty, or the many inconveniencies that would follow if he was not duly elected, ought not to be regarded (a).

FROM the whole of this cafe, no very fatisfactory conclufion can be drawn; the ground of the application for the information was the ineligibility of the defendant to

(a) Rex v. Alexander John. 8 Mod. 132.

the

the office of mayor at the time of the election: the Chief Juftice paying little attention to that, thinks the length of time he had held the office a fufficient reason for granting the information: the trial is had upon the queftion of eligibility; and that question, by the verdict, is given against the defendant; the ground of application for a new trial is, that length of poffeffion ought to have prevented the evidence of ineligibility from having been received: the court think that long poffeffion is not to be regarded as opposed to the direct evidence of ineligibility; but they do not use it as an argument against the defendant, and a principal reafon in support of the verdict, which they ought to have done, if they had thought the right of holding over could not justify so long a poffeffion.

REASONING from the nature of the thing, independently of authority, I fhould conclude, that a clause of holding over was inferted in the charter, merely to provide against any inconveniency that might arife from the accident of no election of a new mayor on the charter day, and to enable the corporation to elect at any time after that day, without the death or removal of the preceding mayor.-What effect the statute of 11 G. c. 4, has on this clause, will be more properly examined in another place.

SECTION IV.

Of the manner of enforcing the undertaking of an office within a Corporation.

THERE are feveral ways in which a member of a corporation may be compelled to take upon him any office or place to which he is appointed or elected, or at least, in