sum which the party bringing the action claimed to recover was 761. It was unnecessary to prove the averment in the declaration of a request to give the note, because, by the contract between the parties, it was to be given on the arrival of the discharge. The rule for a new trial must be made absolute.

1833.

BROWN

against

DEAN.

Rule absolute.

A

The KING against JEFFERSON.

RULE was obtained in last Trinity term, calling upon Robert Jefferson to shew cause why an information, in the nature of a quo warranto, should not issue, requiring him to shew by what authority he claimed and exercised the office of one of the trustees for carrying into effect the several acts of parliament for regulating the harbour of Whitehaven in Cumberland. The grounds stated were," that a majority of the persons admitted

to vote at his supposed election to that office were not

qualified to vote; and that it did not appear at the said

Thursday,
Nov. 23d.

A quo warranto

information

was moved for against an officer elected by ballot, on

the ground that

tion of the per

a large propor

sons who voted were not qua

lified; but it

was not shewn

for whom the

votes of those

persons were given :

Held, that on this applica

election that, he, R. J., had a sufficient number of legal tion the officer

votes to entitle him to the said office." By several acts

could not be required to

prove his elec

tion valid, but

opposing par

(if that were

of parliament, recited and continued by 56 G. 3. c. xliv., (local and public), it is provided that, upon a certain it lay on the day in every third year, from and after, &c., fourteen ties to shew persons shall be chosen, nominated, and appointed by practicable) ballot by the majority of the inhabitants of the town Whitehaven at the time of such election dealing by way of merchandise in goods subject to certain duties, or being master, or having not less than a sixteenth share, of any vessel then belonging to the harbour of White

of jori

that his majority was bad votes. obtained by

1833.

The KING against JEFFERSON.

haven, which persons so elected shall (with certain
others) be trustees for carrying the said several acts
into execution. It was stated on affidavit in support
of the rule, that, on the day of election (August 3d),
in the year 1832, a ballot was taken for the election of
such trustees, and twenty-eight persons were balloted
for as candidates; that 1060 persons voted; that Jef-
ferson had 578 votes (the largest number obtained by
any candidate except one), and was one of the fourteen.
declared to be elected, and had since taken upon him
the office; that the lowest number of votes for any can-
didate elected was 497, and the highest number for a
candidate not elected, 495. One of the affidavits, made
by a person who assisted in taking the ballot, stated
that all persons were admitted to vote who asserted
themselves to be qualified as dealers. Another affidavit
stated the belief of the deponent, founded upon his
knowledge of the town and inhabitants, and upon en-
quiries made by him, that the majority of the persons
who voted for Jefferson were not qualified inhabitants,
and were persons not dealing, or only dealing colour-
ably, in articles subject to the duties, or were persons to
whom shares in vessels had been conveyed for the pur-
pose of the election, and who were not beneficially
interested therein; and, further, that if none but qua-
lified persons had voted, Jefferson would not have been
elected; and that several of the candidates not elected
had a majority over him of legal votes.
There were
also affidavits giving a list of about 600 persons who
had voted as dealers qualified under the statutes, but
who, it was alleged, were not so qualified, and of about
thirty others, who had voted as ship-owners, to whose
qualification there were also objections made. It was

not

not ascertained (except, in three or four instances, by the
affidavits of the voters themselves, now put in) for whom
any
of the disputed votes had been given. In opposition
to the rule a great number of affidavits were filed, deny-
ing the alleged incompetency of the voters, and shewing
that parties wishing to dispute the qualification of voters
had an opportunity of doing so as they came to ballot,
and that the votes of some were in fact refused, upon
objections so taken.

Sir James Scarlett now shewed cause. Assuming that this is an office for which a quo warranto would lie, no defect of title is shewn. Nothing is stated as to any persons who voted for Mr. Jefferson, but a belief that many of those who did so were not qualified. It is not said that any were objected to as they came up. The Court here called upon

Coltman (with whom was Wightman) contrà. There must be some mode of ascertaining whether the party elected had a majority of good votes or not, and this is a proper course for bringing it in question. [Parke J. It has been objected in this Court before, to the taking of votes by ballot on the election of a minister by parishioners, that it made a scrutiny impracticable. (a)] Here it is sworn in support of the rule, that there were 600 bad votes; the party shewing cause must prove that he had not such a number of those bad votes as would turn the election against him. [Denman C.J. The bad votes may be sifted off as the voters come into the room; but when they have been admitted to ballot, how can

(a) See Faulkner v. Elger, 4 B. & C. 455, 457.

1833.

The KING against JEFFERSON.

VOL. V.

3 K

any

1833.

The KING against JEFFERSON.

any scrutiny take place?] A candidate might prove that he was duly elected. Suppose, for instance, 1000 persons vote in all: it would not be possible, by merely striking out 600 as bad from the whole number given, to ascertain which candidate was duly elected; but if one could shew that, after deducting 600 from those given for him, he had still 300 good ones, it would be impossible for any other candidate to shew more than 100 good votes. There is no hardship in requiring this. If a quo warranto went, the party must prove affirmatively that he was duly elected; for that purpose he might produce the persons who voted. [Denman C. J. That would be against the principle of the ballot. Taunton J. Upon this application it is for you to impugn the title; you are not to ask the Court for a fishing information. Parke J. According to the mode in which you put the case, no person who had not 801 votes could prove himself duly elected.] That may be inconvenient, but a great injustice would follow if some such proof were not required. The returning officer might admit whom he pleased, and after the election there would be no means of investigating the votes. [Taunton J. That is the vice of the system: we are not bound to find a remedy for it. Denman C. J. It might be remedied by pointing out the bad votes as they came in. Parke J. The only remedy would be to exclude bad votes at first.]

Per Curiam (a). No primâ facie case is made for this application. The officer is called upon to shew title without the possibility of proving it. All the bad

(a) Patteson J. was in the bail court hearing motions, Littledale J. having gone to Guildhall,

votes may have been for the opposing party. The rule must be discharged.

1833.

The KING

Nov. 23d.

GRACE PEARSON, THOMAS SPEDDING, and JAMES Friday,
PEARSON, against WILLIAM PEARSON.

AS

SSUMPSIT for work and materials, for goods sold, and on the money counts. Plea, the general issue. At the York Summer assizes 1832, a verdict was taken for the plaintiffs, subject to a reference of the cause to William Turner, gentleman. The arbitrator made his award, in which, after stating that the plaintiffs were executrix and executors of the will of William Pearson

deceased, he set out an agreement in writing, made,

By a contract in writing between plaintiff's (three executors) and defendant, (tes

tator's heir at reciting an law) after

all the parties, that certain goods of the

agreement of

testator should

be sold, and

the executors

should receive

the proceeds for and towards

payment of the

March 7th, 1828, between the defendant and the plain- that S., one of tiff James Pearson of the one part, and the plaintiffs and plaintiffs, Grace Pearson and Thomas Spedding (described in the said agreement as two of the executors of W. P.) of the other part. The agreement recited that W. P. deceased, by his will, left all his real and personal property to the use of the said Grace, his widow, during her life, and after the determination of that estate, to the use of

testater's debts;

defendant

agreed, that if session of the said goods, he would pay to S.

he took pos

the value thereof, or give

security for such payment, on or before, &c. One of the plaintiffs and the defendant also undertook, if the proceeds of the testator's personal property should not be sufficient for payment of the debts, to raise, and pay to S., a sufficient sum to enable him to discharge them. Defendant took the goods first mentioned, but did not pay for them or give security, and afterwards, finding that they were more than he wanted, he made a verbal agreement with the plaintiffs, that he should select so much of the goods as he wished for, and take the same at the prices they had been appraised at, and that the residue should be taken and sold by the plaintiffs. He accordingly selected and took such goods, (being of a smailer value than those first bargained for,) but did not pay for them; Plaintifs, as executors, took the residue : Held, that supposing the action to be grounded on the written contract, S. was named therein merely as the agent of the plaintiffs, and therefore they need not declare specially upon the contract to pay the money to him.

Semble, per Denman C. J. and Parke J., that the second contract might be considered as substituted for the first, and forming a new and distinct ground of action.