was sworn by the mayor and jurats? But this depends on the former issue; for after the mayor and jurats right is set forth to be the sole right, and the defendant says he was duly admitted, it is, he was admitted according to the right insisted on by the plea. And if the mayor and jurats have not the sole right, we are not to suppose they have any other right; for the defendant has confined himself to the sole right. He says, he was duly admitted; which must be by the right set forth by the plea, which is the right of swearing solely by the mayor and jurats. The question therefore is, Whether the mayor and jurats have the sole right? If you find for the king, or for the defendant, in the first issue, you must find the second issue in the same manner. Verdict for the king in both issues. 496. Case of the KING against RICHARD ELLES:* 8 GEORGE II. A. D. 1734. Upon an Information, in the Nature of a Quo WARRANTO, by the To this the defendant has pleaded, That the said town and port is an ancient town and port, and one of the five ancient ports of this kingdom; and that the barons and inhabitants of the said town and port are, and for the space of ten years last past, and long before, were, and have been, one body corporate and politic, by the name of mayor, jurats, and commonalty of the town and port of New-Romney, in the county of Kent; and the office of mayor to be a public office, and an office of great trust and pre-eminence, as by the information is supposed. King's Coroner and Attorney, against the Defendant, to shew by what Authority he claims to be Mayor of the Town and Port of NEW-ROMNEY, at the Relation of Benjamin Man, Tried at Kent Assizes, held at Maidstone, the 6th of August, 1734, before the Right Hon. the Lord Chief Justice Eyre. Mr. Knowler. MAY it please your lord prerogative, and also against his crown and digship, and you gentlemen of the jury; this is an nity: whereupon he prays process, &c. information, in the nature of a Quo Warranto, against the defendant Elles, to shew by what authority he claims to be mayor of the town and port of New-Romney: and the information sets forth, That the town and port of NewRomney is an ancient town and port, and one of the five ancient ports of this kingdom; and that the barons and inhabitants of the said town and port are, and for ten years last past, and long before, were, and have been, one body corporate and politic, in deed and in name, by the name of the mayor, jurats, and commonalty of the town and port of New-Romney, in the county of Kent; and that the office of mayor of the said town and port is, and for and during all the time aforesaid hath been, a public office, and an office of great trust and pre-eminence, within the said town and port, touching the rule and government of the said town and port, and the administration of public justice within the same town and port; and that Richard Elles, of the town and port of New-Romney aforesaid, yeoman, on the 19th of April, in the seventh year of his present majesty, at the town and port of New-Romney aforesaid, did use and exercise, and from thence continually, to the time of filing the information, hath used and exercised, and yet doth there use and exercise, without any legal warrant, royal grant, or right whatsoever, the office of mayor of the said town and port, and to have, use, and enjoy all the liberties, privileges, and franchises thereof; which the said Richard Elles upon his majesty, hath usurped, in contempt of his majesty, and to the great damage and prejudice of his royal And that the late queen Elizabeth, by her letters patent, dated at Northaw, the 4th of August, in the fifth year of her reign, did will and graut, that the barons and inhabitants of the said town and port (who before were incorporated by the name of jurats and commonaity, as she was informed) from thenceforth, for ever should and might be one body in itself incorporate, in deed and name, by the name of mayor, jurats, and comnionalty of the town and port of New-Romney, in the county of Kent. And thereby made and ordained John Chessman, then one of the said jurats, mayor of the said town and port, to have and exercise that office until Lady-day then next ensuing, if he should so long live; and did thereby make, ordain, approve, and confirm John Percker, William Ipse, George Holton, Laurence Fane, and Jeffery Tomkin, then jurats of the said town and port, to have and exercise that office during their respective lives, in manner and form as the jurats of the said town before that time ex * See 2 Strange, 994; and Kyd on Corpo-ercised their said offices. rations. And thereby willed and granted, that upon Lady-day then next ensuing, in the parish church of St. Nicholas, within the said town and port, one of the jurats of the said town and port should and might be chosen mayor, by the Jurats and commonalty of the said town and port, for one whole year then next ensuing; which said jurat, so elected to be mayor, if he should be present, should take his corporal oath, for the due execution of his office, before his predecessor, in like manner and form as the mayor of the town and port of Sandwich used to take it; and if such person so elected, should not be present, then at the next court to be holden within the said town and port and so from year to year, and from time to time, the mayor shall be chosen for ever. said town and port of Sandwich) according to the form and effect of the letters patent aforesaid: and by virtue thereof, the said Richard Elles, after his election and swearing aforesaid, upon the said 25th of March last, and from thence continually afterwards, until the time of exhibiting the information, at the town and port aforesaid, was, and still is mayor, and by that warrant claims to be mayor of the said town and port; and traverses the usurpation. The king replies, That the said Richard Elles was not one of the jurats of the said town and port, in manner and form as he hath alleged by pleading; and prayeth that this may be enquired of by the country; and the said Elles prayeth the like. So that, gentlemen, the first issue you are to try is, Whether the said Richard Elles was one of the jurats of the town and port of New Romney, in manner and form as he hath alleged by his plea ? And the second issue is, Whether the major part of the jurats and commonalty of the said town and port did chuse the said Richard Elles to be mayor of the said town and port for the year then next ensuing, according to the form and effect of the said letters patent, in manner and form as the said Elles hath also alleged by pleading? Gentlemen, the third issue is, Whether the said Richard Elles was duly sworn into the office of mayor of the said town and port, in manner and form as he hath alleged by pleading? And the fourth issue is, Whether the said Richard Elles did take his corporal oath, for the due execution of the said office of mayor of the said town and port, according to the form and effect of the letters patent aforesaid, in the manner and form as he hath alleged by pleading? And that every one of the jurats, from time to time, from thenceforth for ever, should be chosen by the commonalty, or the greater part of them there present, out of themselves, in like manner and form as before that time they had been used to be chosen there; yet so that the jurats at one time should not be, in the whole, above the number of twelve, besides the mayor. And the defendant by his plea further saith, That upou the 25th of March last, and long before, he was, and still is, one of the jurats of the said town and port: and so being a jurat as aforesaid, and John Coates, esq. then being mayor, and then one of the jurats, the then jurats and commonalty assembled themselves together in the parish church of St. Nicholas, within the said town and port, for the year then next ensuing, according to the tenor of the said letters patent; and being so assembled, then and there, at that assembly, the major part of the said jurats and commonalty then present there (of which said jurats the said John Coates, the then mayor, then was one, and present there) chose him the said Richard Elles, then being one of the jurats as aforesaid, to be mayor of the said town and port for the year then next And, gentlemen, the fifth issue you are to ensuing, according to the form and effect of try is, Whether the manner and form, in which the said letters patent: and the said Richard the said Richard Elles hatt. alleged himself in Elles being so chosen into the place and office his plea to have been sworn into the office of of mayor of the said town and port as afore-mayor of the said town and port of New said, after his said election, to wit, then and there, at the same assembly in the parishchurch aforesaid, he the said Richard Elles was duly sworn into his said office by Robert Loftie, then town-clerk of the said town and port, before the said John Coates, being the last predecessor of the said Richard Elles in the office of mayor of the said town and port; and the said Richard Elles, then and there, at the said assembly, took his corporal oath, for the due execution of his said office of mayor of the said town and port, before the said John Coates, his last predecessor as aforesaid, the said oath being administered by the said town-clerk as aforesaid, (the same being the like manner and form, in which the mayor of the town and port of Sandwich, in the said letters patent named, at the time of making the said letters patent, was, and ever since hath been, and been used and accustomed to be sworn into the said office of mayor of the Romney, be the like manner and form, in which the mayor of the town and port of Sandwich, in the said letters patent named, at the time of making the said letters patent, was, and ever since hath been, and been used and accustomed to be sworn into the said office of mayor Sandwich aforesaid, in manner and form as he hath alleged by pleading? of If therefore, gentlemen, evidence is laid before you, to prove that the defendant Elles, be ing one of the jurats of this town and port, was duly elected and sworn into the office of mayor, then, gentlemen, you will find a verdict for him, Serj. Darnell May it please your lordship, and you gentlemen of the jury; I am counsel for the defendant Elles; and you will please to observe, that, by very great art, these issues are all turned upon the defendant to prove. By his plea he sets forth the constitutions of the town and port of New-Romney; that he was duly chosen into the office of mayor, and had taken the oaths. But the other side turn every thing upon him by proof: they say, he was not a jurat; that the major part of the jurats and commonalty did not chuse him; and then, merely to multiply issues, and for delay, say, you are not a jurat; the major part of the jurats and commonalty did not chuse you; you are not duly sworn; that he did not take his oath of office according to the form of the letters patent; that the manner and form, in which the said Richard Elles is alleged by his plea to be sworn into his office, is not according to the customs of Sandwich. My lord, and gentlemen of the jury, there has lately been a very great contest in the Court of King's-bench about the officers of this town; and there were two candidates for this office of mayor, one Wightwick, and the defendant Elles; and upon the poll it appeared, that Elles had eleven votes, and Wightwick ten; so that Elles was chosen mayor by the majority of one voice: but the presiding officer said, he had a man who was appointed to take the poll; by which poll it appeared, that Gibbon and Darby, who had never been allowed to be freemen, had polled; and then, upon that poll, there were twelve votes for Wightwick, and eleven for Elles: upon which the oath of office was administered, and both candidates were sworn. Gentlemen, on application to the Court of King's-bench, Elles by affidavits made it appear, that Gibbon and Darby had no right to freedoms; on which the Court declared, the point would turn on Gibbon's right; and then the question was, Whether persons marrying freemen's daughters had a right to freedoms? and Darby's right was to abide the fate of that. But they have declined this, and turn all the circumstances of proving upon us. We shall therefore, gentlemen, fully prove every one of these issues to you by witnesses; in the course of which evidence, you will hear, gentlemen, of very great sums of money offered to engage those freemen, who were in Elles's interest, to vote for Wightwick. We shall prove to you, gentlemen, that 100%. was offered for one vote, and even so large a sum as 1,000l. for another, in order to procure Wightwick to be mayor. Under these circumstances, gentlemen, two Mandamus's issued from the Court of King'sbench to admit these two men; for they all agreed there was no right by marrying; and then these two persons were sworn in by virtue of these Mandamus's. Romney, where there were two acting mayors at one and the same time; and the Court granted this information, to try which of them was duly elected. Upon this five issues are joined: and the first issue you are to try, gentlemen, is, Whether Elles was a jurat? And we shall shew he was first elected a freeman, and then, in due manner and form, a jurat. The second issue is, Whether the mayor, jurats, and commonalty of the town and port of New-Romney, did chuse the defendant Elles mayor? Gentlemen, in this town, we see, there are twentyone voters: Wightwick stood in opposition to Elles; the town clerk took the poll; and on casting it up, there appeared to be for Elles eleven votes, and for Wightwick ten; so that Elles was duly chosen mayor. But another person pretended to take the poll, and set down such persons as he thought fit, and amongst them Gibbon and Darby, as voters for Wightwick; and that cast the majority of voters on Wightwick: but Darby and Gibbon's votes ought not to have been taken, their right being by marrying freemen's daughters; whereas there is no such custom, nor ever was, nor ever attempted till the year 1723, when it was set up by this Gibbon and thereupon the Corporation ordered it to be entered in their books, that he was not to be admitted, for that there was no such custom; which we shall call our witnesses, and fully prove to you. : The third issue, gentlemen, is, Whether the defendant Elles was duly sworn into the office of mayor, in manner and form as by his plea he hath alleged? And we shall shew you, that he was sworn by the town-clerk, before the mayor. The fourth issue is, Whether Elles took his corporal oath, for the due execution of the office of mayor, according to the form and effect of the letters patent? The fifth issue is, Whether the defendant Elles was sworn according to the manner and form as the mayor of Sandwich is sworn? Gentlemen, we shall call our witnesses, and make it plainly appear, that these issues are for the defendant Elles; and then we hope you will find a verdict for him accordingly. Mr. Marsh. My lord, in order to be a jurat he must be a freeman, L. C. J. Eyre. Was he a jurat? Mr. Knowler. He acted as a jurat. Serj. Darnell. His acting as a jurat is evidence, prima facie, that he was a freeman. L. C. J. Will you admit he was a jurat? Mr. Marsh. They may go on; I shall make no bargains. Serj. Darnell. Swear Mr. Loftie. (Which was done.) We object to him. Serj. Darnell. To prove an assembly-book, Associate reads: "John Tooke, mayor. At a common assembly held the 23d December, 1730, mayor, jurats, and commonalty duly elected Edward Batchelor and Richard Elles to be jurats." Mr. Lacy. The election-day is the 25th of March. L. C. J. This proves an election the 23d of December, 1730. Was he duly sworn? Serj. Baynes. Yes, my lord. Read his swearing. Associate reads: "4 January, 1780, Batchelor and Elles took the oath of jurats." L. C. J. Go on, issue by issue: first, Whether Elles was a jurat? They insist, by custom, the jurats must be sworn every year: prove it. Serj. Darnell. My lord, they have given us notice, that every qualification of the jurats and freemen would be objected to. Mr. Knowler. A jurat (so MS. Q. mayor) is said to be an annual officer. We shall prove, my lord, that Elles was chosen for the year 1734. L. C. J. Mr. Wellard, you must not talk more than necessary. Mr. Marsh. It is necessary to be a freeman, in order to be a jurat. Serj. Darnell. A man is a jurat; is it necessary he be a freeman, in order to be qualified for a jurat? Mr. Marsh. If the entry be sufficient, it is needless to go on. L. C. J. The qualifications of a jurat are, a jurat he must be, to be a mayor; for a jurat, he must be a freeman. Mr. Marsh. These points are often disputed. L. C. J. Dispute what you will; but he was owned a freeman by the corporation when he was made a jurat. Mr. Marsh. He was sworn before the mayor and jurats only. L. C. J. The entries are all so. Nothing has been read to shew they might not swear him. If he was sworn by the mayor and jurats, that must be proved: we had nothing of that in the last cause. Serj. Darnell. The question is, Whether the major part of the mayor, jurats, and commonalty, did duly chuse him mayor, according to the form and effect of the letters patent? and in order to prove that he was duly chosen, we are to shew what were the number of jurats and freemen that voted for Elles; for which purpose I shall call Mr. Loftie: Mr, Marsh. We object to Loftie: he was one of the persons who voted for Elles, and therefore has given his opinion already. L. C. J. I never knew it denied a corporation-man that voted; he is a legal witness. Serj. Darnell. Mr. Loftie, were you present at the last election of a mayor for Romney? Loftie. Yes. Serj. Darnell. Whare was it made? Serj. Darnell. What number of freemen were present and voted ?-Loftie. Twenty-one, Mr. Lacy. Are you town-clerk of Romney? Do you keep a book ?-Loftie. Yes. Mr. Lacy. Where is that book? Loftie. Mr. Wellard took it away. Mr. Wellard. Here it is. Loftie. Mr. Wellard and Mr. Wightwick took away the books, and Mr. Wightwick bas entered the proceedings of that day himself. L. C. J. Are there any entries made by you of the proceedings of that day? Loftie. I have a copy of the poll, my lord. L. C. J. Why were they not entered? Loftie. Because Coates insisted I should take the poll according to the minutes they had taken. L. C. J. And you did not think it right? Loftic. No, my lord; because they had taken Gibbon and Darby's votes, who, I thought, had no right to vote. Serj. Darnell. You take an oath; what is that oath ? Loftie. To enter faithfully and right all the proceedings of the corporation. L. C. J. You did not make an entry of the poll, because every body did not agree to it; but you took a copy of the poll. Read the oath of the town-clerk, Associate reads: Mr. Knowler. Read the poll again, Loftie. "Wightwick and Elles-The votes for mayor "For Wightwick :-John Coates, esq. Wightwick, Batchelor, Rutton, Bassett, Joshua Coates, Odiham Coates, Wilson, Haffenden, Dree." These were all that voted for Wightwick, but Gibbon and Darby, who, I apprehended, had no right to vote; and therefore I did not insert their names. "For Elles :-Himself, Robert Mascall, Norman, Tookey, Smith, John Mascall, Weeden, Langdon, Loftie, Benjamin Cobb, William Gray. Mr. Marsh. Darby and Gibbon were there, but you did not take their votes.—Was nobody else there? Did not Mr. Papillon and Wellard send, that they might be admitted to come to exercise their franchise of voting? Mr. Lacy. I desire to see the poll-paper, the very paper you took in the church, Mr. Loftie, Mr. Loftie produces the poll-paper, as before, Mr. Lacy. Did not you take another list of poll? Mr. Loftie produces another. Mr. Lacy. He took one list, and then, by Elles's direction, took another. Read it. Mr. Loftie reads another poll. "For Elles:-Elles, Robert Mascall, Norman, Tookey, Smith, John Mascall, Weeden, Langden, Loftie, Benjamin Cobb, William Gray." Mr. Marsh. Where docs this assembly meet ? Loftie. In the south chancel of St. Nicholas. Serj. Darnell. Is the door usually kept open, or shut? Loftie. Shut, to prevent people coming in, who have no business. Mr. Smith. Which of the two polls did you minute down first? Loftie. The last-delivered. Mr. Marsh. My lord, this is the principal issue; and we object to the evidence of this person who voted for this mayor. He has given his opinion already; and therefore I submit it to your lordship, whether he is a legal evidence? Or otherwise we insist, the persons taken down as pollers, that they are inore in number than he has given an account of. According to his list, they are but ten; but there must be four votes more added, two of which are persons not numbered by him. L. C. J. Were they elected by the mayor and jurats?-Loftie. Never, my lord. Mr. Wellard. Read my election, and then read my swearing. Associate reads: Nicholas Durrant, mayor, &c. elected Charles Wellard, an inhabitant and town-clerk, to be a freeman of this town and port; and he was ordered to be sworn, more solito, according to brotherhood and ghuestling." My lord, Darby's and Gibbon's rights to vote depend upon their being free of this corporation; and if we shew they are free, and are admitted, it will be sufficient reason for putting "Nicholas Durrant, mayor. At a common them on the poll for Wightwick; and then assembly of the town and port of New-RomElles cannot be mayor. Besides there is Mr.ney, in the common place, October 20, 1720, Papillon's right, who was not in the church, because the door was shut within-side; and Mr. Wellard was also a freeman, and he could not come in, the door being shut. We shall shew you, gentlemen, their qualification, and that they could not get into the church; that they went to the door, but there was no admission to be had; that they sent in a letter to the mayor, and demanded admittance; and if they had been let in, they had voted for Mr. Wightwick; and they having a right, and asserting that right, these votes ought to be allowed to them. In the first of the late king, there was the case of the mayor of Hythe tried before my lord Macclesfield at this place. Two persons offered their votes at the poll, and being refused by the presiding officer, the Court was of opinion, they were good votes. And therefore we humbly hope your lordship will allow these to be good votes, and, in consequence, that the jury will find for us. Mr. Lacy. The issue now before your lordship is, whether the major part of the jurats and commonalty did, or did not, chuse the defendant Elles mayor? By Loftie's poll it appears, there were eleven votes for Elles, and ten for Wightwick: so that, if either of the four votes disallowed by him shall appear to be good, then, gentlemen of the jury, they do not prove their issue. As to Mr. Papillon, he is a freeman, admitted and sworn; and though his vote was refused, he tendered it, and sent in a note in writing, signifying to the mayor that he voted for Wightwick, and is "December 19, 1720, he was sworn and admitted." Serj. Darnell. Is that the assembly-book? Serj. Darnell. My lord, all the entries of Swearing these people are in the assemblybook, and therefore it is but a delegated power. Mr. Lacy. Read the mandate for chusing two barons to send to parliament. Associate reads: mayor. At a common assembly of the said town and port of New-Romney, held in the common place there, the 23rd of March, 1731, elected David Papillon a freeman of this town and port; and he was sworn and admitted, more solito, according to brotherhood and ghuestling." Mr. Dodd called and sworn. Mr. Marsh. Were you present at the last election for mayor ?-Dodd. Yes. Mr. Marsh. Was Mr. Papillon there? |