The King against Thomas Johnson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1836 |
| Date | 01 January 1836 |
| Court | Exchequer |
English Reports Citation: 111 E.R. 1250
IN THE EXCHEQUER CHAMBER.
S. C. 6 N. & M. 870; 5 L. J. Ex. 282. Affirmed in House of Lords, 6 Cl. & F. 41; 7 E. R. 613 (with note).
the kino against thomas johnson. 1836. A custom of the City of London, for the court of mayor and aldermen to examine and determine whether or not a person elected alderman of a ward, and returned to the said court as such alderman, be, according to thsir discretion and sound consciences, a fit and proper person and duly qualified, is a valid custom. So a custom, that, when the inhabitants of any ward shall three times return to the said court the same person to be alderman, who shall be by the said court, according to the former custom, adjudged on such three returns, according to the discretion and sound consciences of the mayor and aldermen, not a fit person to support the dignity and discharge the duties of the office, the mayor and aldermen may, for remedy thereof, nominate, elect, and admit a fit person, being a freeman, out of the whole body of the citizens, to be alderman of such ward. The latter custom is not abrogated by stat. 11 G. 1, c. 18, s. 7. Nor by the by-law of the city, 13 Ann. " for reviving the ancient manner of electing aldermen," which, after reciting that, by the ancient custom of the city, when any ward beccirae vacant of an alderman, the inhabitants of that ward, having right to vote, were wont to choose one person only, being a citizen and freeman, to be alderman of the ward, enacts that, for reviving that custom, and restoring to the inhabitants their ancient right of choosing one person only to be their alderman, there shall from thenceforth, in all elections of aldermen of the city, at a ward mote to be holden for that purpose, be elected, according to the said ancient custom, only one able and sufficient citizen and freeman, to be returned to the court of mayor and aldermen, which 5AD.*B.9. THE KING V. JOHNSOX 1251 person so elected shall be by them admitted and sworn. On quo warranto for exercising the office of alderman of London, the defendant pleaded the two first-mentioned customs, and that, M. S., being three times returned by the ward, and adjudged unfit by the mayor arid aldermen, they elected the defendant. The relator took issue upon the existence of the customs, and replied that M. S. was a fit, &c., upon which issue was joined. The jury having found the customs, the Judge, without consent of parties, discharged the jury from giving a verdict on the issue as to the fitness, &c. of S. Held, that he might properly do so. [S. C. 6 N. & M. 870; 5 L. J. Ex. 282. Affirmed in House of Lords, 6 01. & F. 41; 7 E. E. 613 (with note).] Quo warranto for the office of alderman of the City of London. Pleas. 1. That the City of London is, and from time immemorial hath been, an ancient city, and that the citizens and freemen of the said city during all that time have been a body corporate, &c.; the plea then stated [489] (as in Rex v. The Mayor of London (9 B. & C. 1)), the constitution of the city as to its wards and aldermen, and the court of mayor and aldermen (b), and the custom of holding wardmote courts for election to offices. It then described, as in that case (page 4), the court of common council, and stated, as there, the authority of the mayor, aldermen, and commons, assembled in common council, to make by-laws : and that, from time immemorial,- until the making of a by-law or act of common council, 21 Ric. 2, touching the election of aldermen, whereby it was ordained that for the future, in the elections of aldermen, two at least, honest and discreet men, should be chosen arid presented to the mayor and aldermen, so that either of them, whom they should choose, might be admitted and sworn ; and also after the making of another by-law or act of common council of 13 Ann., "for reviving the ancient manner of electing aldermen," whereby, "after reciting (amongst other things) that, by the ancient usage and custom of the City of London, when any ward of the said city became vacant and destitute of an alderman, the inhabitants of that ward, having a right to vote in such elections, were wont to choose one person only, being a citizen and freeman of the same city, to be alderman of the same ward, for reviving the said ancient custom, and restoring to the said inhabitants their ancient rights and privileges of choosing one person only to be their alderman, it was enacted that, from thenceforth, in all elections of aldermen of the said city at a wardraote to be holden for that purpose, there [490] should be elected, according to the said ancient custom, only one able and sufficient citizen and freeman of the said city, not being an alderman, to be returned to the court of mayor and aldermen, which person so elected should be by them admitted and sworn, well and truly to execute the said office of alderman ; " and from thence hitherto,-the aldermen of the divers wards, and amongst others of the ward of Portsoken, have of right been elected and chosen at such wardmote courts as aforesaid, holden as aforesaid in the respective wards by virtue of precepts, &c., one alderman for each ward. The plea then stated, "That the said court of mayor and aldermen, holden as aforesaid, according to the custom of the said city from time immemorial, have had, and of right ought to have had, and still of right ought to have, the cognizance, jurisdiction, and authority of examining, hearing, determining, and adjudging of and concerning the election and return of every person elected into a place or office within the said city at any such wardmote court holden as aforesaid, whensoever the merits of such election or return have been brought into question by the petition of any person interested therein, to the said court of mayor and aldermen holden as aforesaid, and also of examining and determining whether or not any person so returned to the said court of mayor and aldermen, as an alderman of any ward of the said city, is, according to the discretion and sound consciences of the mayor and aldermen of the said city for the time being, a fit and proper person and duly qualified in that behalf, whensoever the fitness and qualification of the person so returned has been brought into question by the petition of any person interested therein to the [491] said court of mayor and aldermen holden as aforesaid, to wit at the City of London aforesaid, and that, according to the custom (b) Adding, as one of the functions of this court, the admitting and swearing in of persons duly elected aldermen. 1252 THE KING V.JOHNSON 5AD.&B.492. of the said city from time immemorial, it hath been and still is a necessary qualification of the person to be elected, admitted, and sworn into the place and office of an alderman of any ward of the said city, that such person should be a fit and proper person to support the dignity and discharge the duties of the said office of an alderman of the said city, and the honour and charges of the said city, according to the discretion and sound consciences of the mayor and aldermen of the said city for the time being, to wit at," &c. " That within the said City of London there now is, and from time immemorial there hath been, and still is, a certain ancient and laudable custom there used and approved of, viz. that, whenever it should happen that the inhabitants of any ward of the said city should three times return to the said court of mayor and aldermen the same person to be alderman of any such ward, who should be by the said court, according to the custom aforesaid, adjudged and determined, according to the discretion and sound consciences of the said mayor and aldermen, not a person fit and proper to support the dignity and discharge the duties of the said place or office of an alderman of the said city upon such three several returns, that then the said court of mayor and aldermen lawfully might and may, for remedy in that behalf, nominate, elect, and admit, and they have been used and accustomed so to nominate, elect, and admit, a fit and proper person, being a freeman of the said city, out of the whole body of the citizens of the said city, to be alderman of any such ward, being so made destitute of an alderman, to wit at," &c. [492] The plea then stated that a wardmote court was holden, February 8th, 1831, to elect an alderman for Portsoken (that office being vacant by the resignation of Sir James Shaw), at which election Michael Scales was a candidate, and had a majority of votes, and was returned to the court of aldermen as elected ; but, on petition, the court of mayor and aldermen, after hearing the parties (on March 22d, 29th, &c., 1831) touching the merits of the election and the qualification and fitness of M. S., adjudged and determined (May 10th, 1831), according to their discretion and sound consciences, that M. S. was not a person fit and proper to support the dignity and discharge the duties of the said office ; and he was then by the said then court of mayor and aldermen rejected as insufficient for the said office. That, the vacancy by Sir James Shaw's resignation not having been filled up, another wardmote court was held. The plea then stated the proceedings on a second election, when Scales was again returned ; and that, on petition to the court of mayor and aldermen, he was again, January 3d, 1832, rejected as not being a person fit and proper, &c.(a). The plea then stated a third election, June 26th, 1833, at which Scales and the defendant were candidates, and Scales was returned ; and that, upon petition, the court of mayor and aldermen, on October 29th, 1833, "did take the said last-mentioned petition into...
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