The King against Osbourne
| Jurisdiction | England & Wales |
| Judgment Date | 15 November 1803 |
| Date | 15 November 1803 |
| Court | Court of the King's Bench |
English Reports Citation: 102 E.R. 856
IN THE COURT OF KING'S BENCH.
[327] the king against osboitrne. Tuesday, Nov. 15th, 1803. The surrender of a charter is void for want of enrolment. Where a charter granted to the mayor and commonalty that "any alderman being wanted, the rest of the aldermen might nominate two burgesses, for the choosing of one of them as alderman by the commonalty (per communitatem) held that commonalty included the whole corporation, and that an alderman so elected by the votes of the other aldermen, as well as the burgesses at large, was properly elected. It seems that cotempo-raneous and continuing usage may be resorted to in aid of the construction of doubtful words in an old charter. Where an information in nature of quo warranto was moved for on the ground of a disputed mode of election, which alone was in controversy at the time of the defendant's election, and which ground was afterwards answered on shewing cause, the Court would not in their discretion make the rule absolute to try another incidental and secondary question, as to whether there were a sufficient interval of time allowed between the nomination and election of the defendant, no person's right having been set aside by means of such acceleration of the election, if it were accelerated. A rule called on the defendant to shew cause why an information in nature of quo warranto should not be exhibited against him to shew by what authority he claimed to be one of the aldermen of the borough of Kingston-upon-Hull. This was founded on affidavits stating that this was an ancient borough, incorporated under divers charters prior to that of the 4 Jac. 2; by which latter, reciting the surrender by the corporation of all prior charters, liberties, and franchises, into the King's hands, and which he had accepted, King James II. incorporated the burgesses by the name of the mayor and burgesses of the borough, &c.; and granted that there should be on mayor, and one sheriff, one recorder, &c., and thirteen honest and discreet men inhabiting and residing within the same town or borough, to be called-aldermen, which aldermen are thereby also declared to be the common council of the borough and justices of the peace. It then stated the mode of electing the mayor by the same charter to be, that on every Monday next before the Feast of St. Michael, &c. the mayor, aldermen, and burgesses, should assemble at the Guildhall, and that the mayor and aldermen, or the major part of them for the time being, so assembled, should nominate two of the aldermen, and that the mayor and the rest of the aldermen, and also the burgesses, or the major part of them so assembled, should elect one of the said two aldermen so nominated to be [328] mayor, who should serve the office for the year ensuing, and until another was in due manner elected and sworn. It then stated the mode of electing aldermen, that if any or either of the aldermen should die, or be removed, or depart from the said office, the mayor and the rest of the aldermen and burgesses then remaining or surviving, or the major part of them, (of whom the mayor to be one,) should elect, nominate, and prefer one or more other of the burgesses for the time being, in the place or places of the same alderman or aldermen so happening to die, be removed, or depart, to supply the aforesaid number of thirteen aldermen. Which said letters patent, the relators stated, were, as they understood and believed, accepted by the said mayor and burgesses, and are now in full force and effect. The affidavits then stated a vacancy by the death of one of the aldermen, and a notice, signed on the 3d of May 1803 by several of the burgesses, and delivered to the mayor, requiring him to appoint a day and hour, by sufficient public notice, for the election of an alderman, when and where the burgesses at large might proceed to the election of another burgess from amongst themselves to be alderman, &c. That no answer was returned to this, but the mayor and aldermen afterwards met about 12 o'clock on the same 3d of May, and about one o'clock the same day proceeded from the council chamber in the Guildhall to...
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