The King on the Prosecution of M. Scales, Esq. against The Mayor and Aldermen of London
| Jurisdiction | England & Wales |
| Date | 1832 |
| Year | 1832 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 96
IN THE COURT OF KING'S BENCH
For subsequent proceedings see 5 B. & Ad. 233.
the king on the prosecution of M. scales, esq. against the mayor and aldermen or london. Monday, January 30th, 1832. To a mandamus to the Lord Mayor and Aldermen of London, to admit and swear in A. B. to the office of alderman, they returned that the court of mayor and aldermen had, from time immemorial, the authority of examining 'and determining whether or not any person returned to them by the court of wardmote as an alderman, was, according to the discretion and sound consciences of the mayor and aldermen, a fit and proper person and duly qualified in that behalf, whensoever the fitness and qualification of the person so returned had been brought into question by the petition of any person interested therein; and that it was a necessary qualification of the person to be admitted to the office of alderman, that he should be a fit and proper person to support the dignity and discharge the duties of the office ; that A. B. having been returned to them by the court of wardmote as duly elected, a petition by persons interested in the election was presented to them, charging circumstances which rendered A. B. an unfit person to be admitted to the office of alderman; and that they took the petition into consideration, and having heard witnesses, did adjudge according to their discretion and sound consciences, that A. B. was not a person fit and proper to support the dignity and discharge the duties of the office : Held, that the custom set out in the return was good and valid in law : Held, secondly, that as the fitness of the person to be admitted was to be determined according to the discretion of the mayor and aldermen, it was sufficient for them to state in the return that they had exercised their discretion, and adjudged that A. B. was unfit, without giving particular reasons. The prosecutor of a mandamus, to which a return has been made, having moved for a concilium, and the Court having, upon argument, adjudged that the return is sufficient in point of law, cannot afterwards traverse the facts contained in the return. Qugere, whether after an issue in fact found in favour of the party making the return, the prosecutor can question the legality of the return. [For subsequent proceedings see 5 B. & Ad. 233.] Mandamus reciting that Michael Scales had been duly elected into the place and office of alderman of the ward of Portsoken, in the City of London, and ought to be admitted and sworn into the said office, and commanding the Mayor and Aldermen of the City of London to admit him thereto. The return began by stating (as in the case of The King v. The Mayor and Aldermen of London (9 B. & C. 1)), that the City of London was an ancient city, and that the citizens were a body corporate, &c., and that there were divers wards within [256] the city, and among others, that of Portsoken, and divers citizens and freemen who have been and been called aldermen, and that the office of alderman was one of public trust; that there was a Court of Record called the court of mayor and aldermen of the City of London; and that there were assemblies or courts called wardmote courts holden by virtue of precepts for, amongst other things, the election of aldermen, to which precepts returns were made into the court of mayor and aldermen : It then stated, that the court of mayor and aldermen, according to the custom of the city from time whereof, &c. have had, &c. the cognizance, jurisdiction, and authority of examining, hearing, determining, and adjudging of and concerning the election and return of every person elected into any place or office within the said city at any such wardmote court, 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 3B. &AD.257, THE KING V. MAYOR AND ALDEKMEN OP LONDON 97 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 said court of mayor and aldermen holden as aforesaid ; and that according to the custom of the said city from time whereof, &c. 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 [257] ward of the said city that such person should be a fit, able, and sufficient citizen and freeman of the said city; and also that a person to be admitted and sworn into such place and office as aforesaid, 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 honor and charge of the said city, according to the discretion and sound consciences of the mayor and aldermen of the said city for the time being. The return then stated (as in Bex v. Mayor of London) that a court called the court of common council had power to make by-laws for the better government, &c. of the said city, and it set out the by-laws made in the reigns of Richard the Second and Queen Anne, touching the election of aldermen, and stated that before the former, and ever since the latter by-law, the aldermen of the divers wards had been elected at such wardmote courts, one alderman for each ward. It then further certified that a vacancy having occurred in the office of alderman of the ward of Portsoken, a wardmote court was holden at which divers persons present voted for the prosecutor, and he claimed to be duly elected alderman, and was returned duly elected to the court of mayor and aldermen ; that Robert Carter and others, being citizens and freemen, and being persons interested in the said election, presented a petition to the said court of mayor and aldermen on the 8th of March 1831, touching the merits of the said election, and against the admission and swearing in of the said M. Scales to the place and office of alderman of the ward of Portsoken, the effect of which petition was, that the said M. Scales was not a freeman of the city, having been admitted to his free-[258]-dom as having served an apprenticeship, whereas he had bound himself to such apprenticeship before he had attained the full age of fourteen years, and not afterwards, contrary to the laws and customs of the city: and that Edward Colebatch and others, being citizens and freemen, and being persons interested, &c. also petitioned the court on the same day and year, touching the fitness of M. Scales to be admitted and sworn into the said office, charging circumstances which in the judgment of the last-mentioned petitioners rendered the said M. Scales an unfit and improper person to be so admitted and sworn, and praying that the mayor and aldermen would direct proper inquiries to be made into the character, the conduct, and the integrity of M. Scales ; and that they would not permit him to be sworn a member of the said court until the said mayor and aldermen were satisfied of his fitness to perform the duties which would be cast upon him, and to support the high honour and respectability of the said ancient corporation ; and that evidence might, if it should so seem fit, be adduced and heard in support of the said petition. Whereupon the court of mayor and aldermen (after adjournment, and on divers days which were mentioned,} took the petitions into consideration ; and having heard the petitioners and M. Scales by their respective counsel and witnesses touching the merits of the election, and the qualification and fitness of M. Scales to be such alderman as aforesaid, did, according to the said ancient custom, examine, determine, and adjudge of and concerning the merits of the said petitions, and the qualification and fitness of M. Scales to be admitted, &e.; and adjudged that the said M. Scales was not, and they did then certify that in truth and in fact M. Scales then and there was not a [259] sufficient freeman of the said city to hold the said place and office, for the reason stated in the said first petition in that behalf; and they did also adjudge and determine, according to the discretion and sound consciences of the said mayor and aldermen, that the said M. Scales was not a person fit and proper to support the dignity and discharge the duties of the said place and office of an alderman of the said city ; and they certified that for the causes aforesaid, and each of them respectively, M. Scales was not a sufficient citizen and freeman, nor a fit and proper person to entitle him to be admitted and sworn into the place and office of alderman of the said ward of Portsoken, according to the custom of the said city; and they returned that the said M. Scales, for the reason in K. B. xxxix.-4 98 THE KING V. MAYOR AND ALDERMEN OF LONDON SB. & AD. 260. that behalf before alleged, was not duly elected into the place and office of alderman of the said ward of Portsoken, as by the said writ was supposed and suggested ; and for these reasons and causes they, the said mayor and aldermen, could not admit and swear, nor ought they to admit and swear the said M. Scales into the said place and office, &c. as by the said writ they were commanded. The prosecutor having moved for a concilium, the case was set down in the Crown paper, and in last Michaelmas term was argued by Platt for the Crown. The return must be quashed because the custom therein alleged is bad in point of law. By that...
To continue reading
Request your trial
-
Minister for Immigration and Multicultural Affairs v Yusuf
...House of Representatives, Parliamentary Debates (Hansard), 28 April 1977 at 1395–1396. 106 See eg R v Mayor and Aldermen of London (1832) 3 B & Ad 255 at 273–274 [ 110 ER 96 at 102–103]; referred to in Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 675 per Deane 107 See eg Adams......
-
The Queen on the Prosecution of Wray v the Governors of the Darlington Free Grammar School
...question of discretionary rejection and amotion was discussed, and many authorities cited, in Rex v. The Mayor and Aldermen of London (3 B. & Ad. 255), where the judgments of the Court do not go to the length which must be contended for on the other aide. Secondly, judgment non obstante ver......
-
The Queen against Payn
...situation as if the former motion had not been made. The judgments delivered by this Court in Rex v. The Mayor and Aldermen of London (3 B. & Ad. 255, 279), shew what was then considered the practice as to disputed returns. [Lord Denman C.J. We only said, in Rex v. Payn (6 A. & E. 392, 402)......
-
The King against Thomas Johnson
...be alderman of the said ward, and that the said several elections of the said M. S. to (a) See Bex v. The Mayor and Aldermen of London, 3 B. & Ad. 255; Bex v. 5 B. & Ad. 233. SAD. &E. 4M. THE KING V. JOHNSON 1253 be such alderman had, upon each such return, been rejected by the said court o......