The King against Courtenay
| Jurisdiction | England & Wales |
| Judgment Date | 01 February 1808 |
| Date | 01 February 1808 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 567
IN THE COURT OF KING'S BENCH.
9 EAST, 246. THE KING V. COURTJSNAY 567 [246] the king against courtenay. Monday, Feb. 1st, 1808. The charter of Saltash empowers the mayor, justice of the peace, and the rest of the aldermen (seven in all), or the major part of thenvof whom the mayor and justice to be two, when it shall seem to them convenient and necessary, to elect as many free burgesses as shall please them, and to the same free burgesses so elected to administer an oath, &c. The defendant was elected a free burgess in Oct. 1804, and in Dec. 1806, at a meeting of six out of the seven aldermen, in consequence of a mandamus to them to fill up the vacant place of alderman, and which meeting the mayor said was held for that sole purpose, the defendant tendered himself to be sworn in; against which three aldermen protested, one of whom immediately left the assembly ; but before the other two protesters withdrew, the mayor, with the assent of two other aldermen, administered the oath of office to the defendant. Held, 1. That the swearing in of the burgess might well be at a time subsequent to the election ; he having had a present legal capacity to be sworn in at the time of his election ; and therefore not like the case of an infant elected. 2. That the act of swearing in, being merely ministerial, may be done by the mayor, as presiding officer, in the presence of the majority of the mayor and aldermen, by whom such act was required to be done, whensoever and howsoever assembled, and without any previous summons for this purpose; there being no dissent by the majority at the time when the oath was so administered. 3. Though three, an equal number of those first assembled, protested against the defendant's being sworn in when he first tendered himself to take the oath, yet one of the protesters having withdrawn, it was competent to the majority who remained to administer the oath; no vote having been come to by the major part at first assembled to preclude the body from doing the act at that meeting. 4. Quaere, whether, if it be found against a defendant in quo warranto, that, though duly elected, he was not duly sworn in, there can be any other judgment against him than of ouster absolute; there being no instance of a judgment of ouster quousque. An information in nature of a quo warranto was filed against the defendant, calling upon him to shew by what authority he claimed to be a free burgess of the borough of Saltash; which stated that Saltash is an ancient borough, "incorporated by the name of the mayor and free burgesses of the borough, &c.; that there is an indefinite number of free burgesses; and that the defendant, on the 18th of December 47 Geo. 3, used and exercised, and usurped the office of a free burgess of the borough, and still doth, &c. without any legal warrant. The defendant in his plea set forth a charter granted by His present Majesty, in the 14th year of his reign, whereby he incorporated the village of Saltash by the name of the Mayor and Free Burgesses of the Borough of Saltash ; and thereby granted that one of the aldermen, to be elected in the manner therein mentioned, should be the mayor; that there should be six other free burgesses of the inhabitants of the borough, to be elected as therein mentioned, besides the mayor for the time being: viz. seven [247] capital free burgesses of the inhabitants of the borough in the whole, who should be the aldermen and council. That the mayor of each preceding year should be a justice of the peace until a new mayor should in due manner be elected and sworn. That it should and might be lawful for the mayor and justice of the peace, and the rest of the aldermen for the time being, or the major part of them, (of whom the mayor and justice of the peace were to be two,) from tiiae to time, and at all times thereafter, when and so often as to them it should seem convenient and necessary, to nominate, elect, and prefer, so many and such,persons to be free burgesses as should please them ; and to the same free burgesses so elected to administer an oath faithfully to execute all things which in the place of a free burgess belonged to be done ; and this without any commission or further warrant to be obtained from the King, &e. The plea then stated the acceptance of the charter: and that afterwards, on the 1st of October 1804, John Buller Esq. then being mayor, John Cleveland Esq. justice of the peace, and E. Hickes, E. Thomas, James Buller, and J. Gaborian Esqs. aldermen, assembled at the Guildhall of the borough to nominate and elect free burgesses, did nominate and elect the defendant a burgess ; and that being so elected the defendant afterwards, and before his user or claim of the said office, on the 18th of December 1806, at the Guildhall, before the said James Buller, then being mayor, the said John Buller, then being justice of peace, and S. Drew Esq. and the said E. Hickes, J. Cleveland, and 568 THE KING V. COTIRTENAY 9 EAST,248. J. Gaborian, then being aldermen of the borough, was duly sworn into the said office of a free burgess, and took the oaths prescribed by the charter; by virtue whereof the defendant claimed to be a free burgess of the borough. [248] The replication took issue on several facts stated in the plea; 1st, that the said John Buller, J. Cleveland, R Hickes, B. Thomas, James Buller (the aldermen), and J. Gaborian, did not duly assemble to nominate and elect free burgesses in manner and form as pleaded. 2dly, that they did not nominate and elect the defendant into the office of a free burgess, in manner and form, &e. Sdly, that the defendant was not duly sworn into the said office in manner and form, &c. 4thly, that the mayor, and justice of the peace, and the rest of the aldermen for the time being, or the major part of them, (the; mayor and justice of the peace being two) did not administer such oath to the defendant, nor was the defendant sworn, as by the charter is required. On all which facts issues were joined. At the trial at Bodmin the first and second issues, upon the due assembling of the mayor, justice, and aldermen for the election of the defendant as a free burgess, and the fact of his election by the same persons in manner and form as alleged in his plea, were found for him. As to the 3d and 4th issues, upon the fact and the regularity of the defendant's having been sworn into the office of a free burgess, the jury found a special verdict to the following effect: That on the 18th of December 1806, the place of one of the aldermen being vacant, Jatnes Buller^ the mayor, John Buller, the justice of peace, E. Hickes, J. Cleveland, S. Drew, and J. Gaborian, aldermen of the borough, (being the two quorum officers and six out of the seven aldermen,) and divers free burgesses, were assembled in the Guildhall of the borough, on due notice, in obedience to a writ of mandamus issued out of B. E. commanding them to proceed to the election and swearing in of an alderman of [249] the borough, in the room of E. Thomas, deceased. That at such meeting the defendant came and offered himself to be sworn into the office of a free burgess, and to take the usual oaths; grounding such claim on his election thereto of the 1st of October 1804 ; the mayor having before that time said that the meeting was for the sole purpose of electing an alderman. That E. Hicks, S. Drew, and J. Gaborian, (three of the aldermen,) on the defendant's so offering himself to be sworn in, protested against his being sworn in, and against doing any thing at that meeting except electing and swearing in an alderman; for which, as they alleged, the meeting was held ; and delivered to the mayor a written protestation as follows-" We hereby protest against every proceeding of the Court this day unconnected with the election of an alderman. 18th December 1806 (signed) E. Hicks, J. Gaborian, S. Drew," (together with the names of 16 free burghers, and directed) " To the mayor of Saltasb, the justice, the aldermen, and free burgesses of the said borough." That the three aldermen, E. Hicks, S. Drew, and J. Gaborian, then rose to leave the room; but the mayor proceeded to administer to the defendant the oaths used and required at the swearing in of a person duly elected into the office of a free burgess; which oaths were so administered to the defendant after E. Hicks (one of the three protesting aldermen) had withdrawn, and before S. Drew and J. Gaborian (the two other protesting aldermen) left the...
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