Imatges de pàgina
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zoth of March, 1758; in virtue of which election, it alleged, that the common feal, books, papers, and records belonged to him; but that the defendant refused to deliver them; on which the plaintiff had, on the 12th of April, profecuted a writ of mandamus, returnable on Friday next after one month from Eafter, 1758; which was accordingly returned on that day.-So that it appeared on the face of the declaration, that this mandamus was actually returned within fix months after the plaintiff's election to the office.

AT the trial it was contended, on behalf of the defendant, that the plaintiff ought to prove his having taken the facrament, according to the rites of the church of England, within a year next before his election. And a verdict was taken for the plaintiff, fubject to the opinion of the court on this objection. In fupport of the objection it was contended, that "by the ftatute of George the firft, it was open to the defendant in this cafe, because the return had been made within the fix months; for that, although fuch incapacity might be taken away by this ftatute, in a case where fix months had elapfed fince the election, without any removal by the corporation, or prosecution commenced and carried on without delay; and confequently a return that the party was not elected, founded only on this incapacity and disability, but not made till after the expiration of the fix months, would indeed be a falfe return, and the plaintiff would have no need to prove his having taken the facrament within the year: yet in the prefent cafe, where the return was made within the fix months, it was not a false, but a true return, if the fact were, that he really had not received the facrament within a year next before his election: for, as the incapacity created by the ftatute of Charles, ftood, in this cafe, unremoved by that of George the first,

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the plaintiff remained still liable to a removal by the corporation, or to a profecution to be commenced within fix months." The foundation of all this reasoning, however, must have been, that this objection taken within fix months, by any party and in any manner, was as effectual as if enforced by removal or profecution, which is directly contrary to the words of the ftatute, which are "that no incapacity, difability, forfeiture, or penalty fhall be incurred by reafon of having omitted to take the facrament; unless fuch perfon be so removed, or such profecution be commenced within fix months," &c. which clearly excludes every other manner of enforcing the objection, but removal or profecution and Lord Mansfield said, that as there was here no fuch removal or profecution within the time limited, the plaintiff's election confequently stood confirmed and became abfolute. He therefore thought this a clear cafe, and that there was no force in the objection; he did not think it like the cafe of Tufton and Nevifon, because that arofe on the officers bringing a mandamus to fwear him into his office, being then out of poffeffion; whereas this plaintiff was in poffeffion of the office, and only brought his mandamus for the infignia, and other things belonging to it (a).

ON a mandamus to fwear one Marten into the office of mayor of Winchelfea, it appeared by a special verdict, that the mayor must be chofen out of the jurats; that the plaintiff, on the first of May, 1739, was chofen a jurat, and fworn in and continued to act as a jurat till the 7th of April, 1740, when he was chofen mayor: and that he had received the facrament within a year before his election to

(a) Crawford v. Powell. 2 Bur. 1013. 1 Bl. Rep. 229. In this Jaft book there is only a fhort note of the cafe, which is evidently very inaccurate,

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be mayor, but not within a year before he was chofen a jurat: the question was, whether the ftatute of George the first could operate, fo as to give him the benefit of the non-profecution in fix months, with regard to the previous qualification? And the court held that it did, for that otherwife he would be under fome degree of difability or incapacity, when the ftatute fays exprefsly that none shall be incurred (a).

In all cafes in which the objection of not having received the facrament within the year, may be taken against a perfon elected to a corporate office, I apprehend the proof of having received it must lie upon him; both because it would be hard to put the opposite party to the proof of the negative, and because the party claiming under an election muft fhew that he was qualified to be elected.

IN the cafe of Tufton, before mentioned, it was contended on the behalf of the defendant, that the proof of this previous qualification lay upon the plaintiff: to which it was answered, first, that at the time of the election this objection was not made to Mr. Tufton; and this the counfel proved by witneffes; from whence they contended, that he could not expect this objection would be made at the trial, and therefore could not come prepared to meet it: and in the next place, they faid, that if the defendant intended to infist on proof of this matter, he ought to have given notice of his intention before the trial, that the plaintiff might have an opportunity of coming prepared to prove it, if he could. But the court were unanimous in opinion, that it was incumbent on the plaintiff to prove his having received the facrament within the year, notwithstanding the objection had not been taken at the time of the election, and that no notice had been given to the plaintiff that

(a) Marten v. Jenkin. 2 Str. 1145.

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he would be called upon to prove it; and they mentioned fome other cafes in which the fame point had been fo determined, particularly one concerning a member of the corporation of Buckingham; only that in the latter, a difference was taken between the case of a member of a corporation who had been long in poffeffion of his office, and where the prosecution was recent; that in the first cafe, notice ought to be given that this would be infifted on at the trial, and that in the other, fuch notice was not neceffary (a).

THE determiation in the cafe of Crawford and Powell does not contradict this pofition; for though the objection made by the counsel was, that the plaintiff had not proved his having taken the facrament; yet the decifion of the court went upon the principle, that even had it been proved that he had not taken it, the objection could not have been admitted.

BUT where a question is raised about a person's title to a corporate office after the fix months have elapsed, it is not incumbent on him to shew that there was no profecution commenced within the fix months; because fix months' poffeffion gives a prefumptive title: thus in the cafe of Marten, the verdict being filent as to any prosecution, a doubt was raised, whether it was fufficient for the court to give judgment upon; and whether it should not have been found negatively that there had been no profecution; and the court held it fufficient, for that the plaintiff had nothing more to do than to find his election, and its confirmation by fix months' poffeffion; that what was to avoid it should come from the other fide; and that as it was not found that there had been a profecution, which it lay upon the defendant to fhew; they could not be warranted in saying

(a) 2 Ld. Raym. 1354, 1355. Vid. 1 Str. 585.

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that the plaintiff's election was done away; and therefore they gave judgment for the plaintiff (a).

BESIDE the oaths to government, which are to be taken in confequence of the corporation act, there are oaths particularly applicable to the offices of corporations, which relate folely to the faithful discharge of the duty incumbent on the officers, or the preservation of the rights and privileges of the corporate body (b): and the taking of these oaths, it is faid, may be enforced by the courts impowered to administer them, by imprisonment till the party fubmit (c).

BUT where the charter is filent with refpect to an oath of office, it is doubtful whether any fuch oath can be adminiftered at all, and whether, under a general power to make byelaws, a corporation can make a bye law impong an oath. If fuch an oath be prescribed, but the charter is hient as to the person who is to adminifter it, no particular perfon, it feems, is appointed by the law to do it, but a dedimus muft be fued out of Chancery for that purpose; and this is faid to have been the cafe of Devizes (d).

ALL the oaths ought to be administered at the time of the party's being admitted to the exercife of the office, and till they are adminiftered, his title to hold the office is not complete.-By the express provision of the corporation act, the oaths to government are to be taken at the fame time with the oath of office, in default of which the election is declared to be void.-And by the ftatute 11 G. 1, c. 4, f. 4, the mayor, bailiff or bailiffs, or other chief officer or officers, who fhall be elected in pursuance of the directions of that act, fhall take the oath or oaths by law re

(a) Marten v. Jenkin. 2 Str. 1145.

(b) Vid. March, 179, 189.

(c) Id. ibid.

(d) Vid. 1 Str. 537, 539. 1 Barnard, 80. Rex v. Wake.

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