mayor, or other person who ought to hold the court, or preside at the assenibly, shall be absent, the nearest in place or office, having a right to vote, shall hold the court and preside. And in case no election shall be made upon the day, or within the time appointed by the charter or usage, or in pursuance of the foregoing directions, the court of King's Bench may award a mandamus, requiring the members or persons having a right to vote, or to do acts necessary to be done, in order to an election, to assemble themselves at a time prefixed in the writ, and to proceed to election, and to do the requisite acts, or to signify to the court good cause to the contrary. In cases where the mayor, &c. is to be nominated, elected, or sworn, at a court-leet, or other court, and by contrivance of the lord, steward, or other officer, or by accident, in not holding such court, no due nomination, &c. is made, the court of King's Bench may award a mandamus, requiring the lord, &c. to hold such court, and to do such acts as are necessary for such nomination, &c. Mayors, &c. elected in pursuance of this act, are to take the oaths required upon admission, before the officer presiding at such election, who is authorized to administer them. But the election will not be valid', unless as great a number of persons are present at, and concur in, the election, as would have been necessary in case the same had been made upon the charter-day, &c. Mayors", &c. voluntarily absenting themselves from, or knowingly and designedly preventing the election of any other mayor, &c. upon the charter-day, &c., shall, upon conviction, suffer six months' imprisonment, and be for ever dis abled from taking any office. Lastly, the persons to whom the mandamus is directed, are to make their return to the first writ. Such are the enactments and provisions of the stat. 11 Geo. 1. c. 4., which, as it is a remedial law, is to be expounded in the most liberal sense that the words are capable of (3). Per Lord Hardwicke, Ch. Ju, in R. v. Pole, B. R. Trin. 7 and 8 G. 2. MS. (3) "This being a remedial law, to prevent the inconveniences that may arise, by any accident, from non-elections, if the parliament uses such words in an act that will take in other cases within the same mischief, the court ought to construe such kind of acts as liberally as possible." Per Lord Hardwicke, C. J., in R. v. Pole, ub. sup. Hence, the court will grant a mandamus under this statute, to compel the members of a corporation to proceed to the election of a mayor, although more than one year, e. g. three or four years, have elapsed, since a regular election'. The statute is not confined to annual officers. Hence, where by the charter it was directed, that upon the death, removal, or amotion of a burgess, it should be lawful for the mayor and burgesses, within eight days next following the death, &c. to meet and nominate an inhabitant of the borough to be a burgess during life-the eight days after a vacancy having elapsed, without filling up the same, it was holden, that although the burgesses were appointed for life, yet the statute authorized the court to grant a mandamus. 66 In like manner it has been holden, that the words in the first section of the statute, 66 no election" are to be construed no legal election ;" and consequently although there has been an election, de facto, the court has a discretionary power, upon considering all the circumstances of the election, to award or not to award a mandamus, as the justice of the case may require. If the legality of the election de facto, be doubtful, and fit to be tried by information in nature of qua warranto, the court will not award a mandamus"; but if it appear clearly that the election was illegal, or a merely colourable and void election, the court will grant a mandamus; for in such case it would be nugatory to try the legality of the election in an information in the nature of quo warranto. And the court will grant a mandamus, not only for the head officer, but also for others who are necessary constituent parts of the corporation". In the following case the construction of the foregoing statute underwent considerable discussion. Quo warranto to try defendant's right to be mayor of Grampound, in Cornwall. y R.v. Burgesses of the Borough of Orford, M. 9 G. 2. MS. Bull, N. P. 201. 34 MS Serjeant Hill, p. 263. S C. there said by the court, that the Corporation of Macclesfield, Tr. 11 G. 1. was an authority in point. z R. v. Mayor and Burgesses of Thetford, 8 East, 270. a R. v. Newsham, Say. R. 211. Borough of Carmarthen. R. v. Bankes, H. 4 G. 3. 3 Burr. 1452. Borough of Corfe Castle. R. v. Mayor of Colchester, 98 G. 3. 2 T. K. 259. VOL. II. Grampound is a borough by prescription; and according to the custom of the place, the mayor is to be elected on a particular day, and to be sworn into his office by the steward, at the next court leet. The mayor neglecting to hold an assembly for the choice of a new mayor, one Pierce, a capital burgess, and the next presiding officer, together with the defendant Nance, held an assembly the day following for that purpose. And two capital burgesses being, according to the custom of the place, to be named by the capital burgesses, out of which the commonalty are to choose one to be mayor for the year ensuing, Nance and Pierce put each other in nomination; and Nance being elected by the commonalty, Pierce in a few days afterwards swore him in. Upon this record there were several issues in fact joined, which were tried at the assizes in Cornwall, and found for the defendant. And to the point of swearing before Pierce, there was a demurrer; and on the demurrer the single question was, whether upon the stat. 11 G. 1. c. 4. the right of swearing the new mayor devolved upon the presiding officer, as well as holding the assembly for his election; because, though the old mayor had been guilty of a default at the customary day, yet the lord of the leet had not, and might, for aught appears, have sworn in the new mayor at the proper time. After the case had been argued several times, Lee, C. J. delivered the resolution of the court thus: "We are all of opinion that the defendant was well sworn. In this statute are several clauses making provision for particular cases. The first gives a remedy where a mayor or other chief officer shall not be chosen on the charter, or customary day, and there the next presiding officer is enabled to hold a court the day following, and to do all such acts for completing the election as the mayor or other chief officer ought to have done on the proper day, The next empowers this court to grant a mandamus where no election is had on the second day. The third provides for nominations, elections, and swearing, to be had in courts leet. This comprehends two cases; one, where the nomination, or election, is to be out of the leet, and is properly done on the charter or customary day, but the swearing is to be at the leet; the other, where the nomination is to be in the leet, and then the whole is to be perfected in the same manner as if done the day next following the charter or customary day. Here is no provision about swearing in the leet, where the nomination and election are to be out of it, and are made by a devolution to the next officer, after the regular day. The fourth is a general clause relating to the swearing, and gives the person entitled to hold the assembly under the act, the power to swear in the party elected. And by this clause we think Pierce was well authorized to swear the defendant, there being nothing in the statute to preserve the right of the leet, where the mayor is to be elected out of it, and is elected after the charter or customary time. It has been objected, that the mayor, on the proper day, could not have sworn in his successor, and that the presiding officer is only entrusted with the power of the mayor. But we think more is delegated to him, and that he has an absolute authority to complete the election. It was likewise objected, that the lord of the leet ought not to be deprived of this franchise without some fault in him. To which it may be answered, that if an election was not made on the regular day, it was doubtful before the statute, whether it could be made afterwards; and as this arose often from the neglect of lords, the parliament had little regard to this franchise, and therefore gave a new method of electing and swearing officers, by which corporations might speedily be furnished with regular magistrates. Lastly, it was objected, that the swearing was some days after the election. But this is not material, as he was sworn before he entered on the execution of his office; and, therefore, on this point judgment was given for the defendant." The last objection was again agitated in a late case of the King v. Courtenay, where the swearing in of a burgess was more than two years after his election; but the court held, that where the person elected has a present capacity of being sworn in at the time of his election, his title cannot be impeached on the ground of a mere omission to complete the election by an immediate swearing in; thereby distinguishing this case from the case of R. v. Carters, (which had been relied on in the argument) where the court held, upon the words of the charter incorporating the borough of Portsmouth, that the defendant, who had been elected a burgess, when an infant under six years of age, and sworn in after he had attained his age of 21, was not duly elected (4). It (4) The question, whether an infant was capable of exercising the office of burgess, was discussed in R. v. White, B. R. M. G. 2. MS. where the court granted an information on this ground only; observing, that as an infant could only bind himself for necessaries, it would be very strange if he could be entrusted with any public office, ▲ A 2 was observed, however, by Lord Ellenborough in R. v. Cour tenay, that the neglect to be sworn in for a great length of time, as above 20 years after election, might (as in the case of the King v. Jordan",) be deemed a waver or refusal to accept the election by the party elected, but did not vitiate the election itself; for otherwise the question of waver could not have arisen in that case. Where a person has been elected mayor of a corporation, who is disqualified on account of not having taken the sacrament within one year next before the election, the court, upon receiving competent information of this fact, will grant a mandamus to the electors to proceed to a new election, under the preceding statute, as if no election had been made1. An election completed after the departure of the presiding officer, who forms an integral part of the elective assembly, is void*. An assembly was regularly convened for the purpose of nominating and electing a new mayor, over which the then mayor presided. He declared that the persons, with whom the nomination rested, were equally divided, and consequently that no election could be made; and thereupon he directed proclamation to be made for dissolving the assembly. No objection was made to this, nor did any persons give notice, that they meant to proceed to make an election. But when the mayor was gone away, and a number of the burgesses also departed, considering the assembly as dissolved, the rest proceeded to make an election. It was holden', that this election could not be supported; for assuming it to be clear (though the point had never been judicially decided) that an election begun under one presiding officer, could be completed under another, yet this was not a continuation of the business begun before the mayor, but an attempt to continue that which had been concluded. Considering, also, the case upon the statute, and that if the mayor absent himself, the next in place and order present may preside; yet here the mayor did not absent himself, but did preside, and as presiding officer, determined upon the validity of the votes, that they were equal, and that no election could be had, and then dissolved the assembly; and all this without any objection made at the time; and in consequence of such dissolution of the assembly, unobjected to as it appeared, many of the freemen went away, and then the rest of them made the election h C. T. H. 255. i R. v. Corp. of Bedford, 1 East, 79. k R. v. Buller, 8 East, 389. |