charter, and pursuant to the ftatute, and to adminifter the oath of office, &c. to the perfon elected mayor: which writ was delivered to the mayor and burgeffes; and public notice of the time and place of meeting given. That on the faid 20th of January, James Buller then being mayor and alderman, John Buller juftice and alderman, J. Cleveland, R. Hickes, J. Gaborian, S. Drew, and P. Spicer, aldermen, and 13 others named free burgeffes duly affembled at the Guildhall for the purpose of proceeding to the faid election, and the said Hickes, Gaborian, Spicer, and Drew, aldermen, being the major part of the faid mayor and aldermen, nominated and put in election for mayor the faid Hickes and Gaborian, aldermen, inhabitants and refidents in the borough. That after Gaborian had been fo nominated and put in election, the faid James Buller, together with John Buller and Cleveland, quitted the Guildhall, and abfented themselves from the laid affembly; but Hickes, Gaborian, Drew, and Spicer, aldermen, and the faid 13 free burgeffes continued together; and thereupon Hickes, who was then the nearest person present in place and office to the faid James and John Buller who fo abfented themfelves, prefided at the faid affembly: and fuch remaining aldermen and burgeffes then and there proceeded in the fame election, and named and elected Gaborian to be mayor, pursuant to the ftatute, who then and there in the absence of the faid James Buller the laft mayor, and the faid John Buller, who had so abfented themfelves, took the oath of office before Hickes and Drew, two of the aldermen, pursuant to the statute, and was thereupon duly admitted to the faid office: by means of which premises the defendant claimed to be mayor.

The replication took feveral iffues, 1. That Spicer at the time of the fuppofed nomination was not an alder

man,

1800.

The KING againft GABORIAN.

The KING against CATORIAN.

1809. man. 2. That the major part of the mayor and aldermen did not nominate and put in election Hickes and Gaborian to be mayor. 3. That Hickes was not the nearest perfon then present in place and office to James and John Buller. 4. That Hickes did not prefide at the said affembly. 5. That Hickes, Gaborian, Drew, and Spicer, and the 13 free burgeffes named did not name and elect Gaborian to be mayor pursuant to the directions of the flatute. And 6. That Gaborian did not take the oath of office, and was not duly admitted to the faid office according to the ftatute. Upon the trial of these iffues a fpecial verdict was afterwards found, which, with respect to the first issue, ftated certain facts relating to the due election of Spicer as an alderman, which were before stated and difcuffed in the case of The King v. Hawkins (a), and the decifion of the court having been there given upon them, no further argument was had upon that point.

With refpect to the 2d, 5th, and 6th iffues, the jury found, that on the 20th of January 1807 James Buller, the mayor, John Buller, the juftice, Cleveland, Hickes, Gaborian, and Drew, four of the aldermen, and also Spicer claiming to be an alderman as aforefaid, and feveral of the free burgeffes, affembled in the Guildhall, in obedience to the writ of mandamus mentioned in the plea, commanding the mayor and free burgeffes to proceed to the election and fwearing in of a mayor for the refidue of the year. That James Bulier, the mayor, prefided at fuch affembly, and he, together with John Buller, the juftice, and Cleveland, nominated and put in election for mayor the faid John Buller and Cleveland two of the aldermen; that Hickes, Gaborian, and Drew nominated. and put in election for mayor the faid Hickes and Gaberian, for whom alfo Spicer as alderman tendered his vote, (a) Ante, 10 Eaf, 211.

but

but it was rejected by the prefiding mayor. That the mayor then declared that the nomination being equal, no election could be come to, and directed proclamation to be made for diffolving the said assembly. That no objection was made, nor was any request made to him to ftay and proceed in the election; and proclamation was accordingly made for diffolving the affembly by one of the town ferjeants, and immediately afterwards the mayor, the justice, and Cleveland, and several of the free burgeffes, and also the town ferjeants, went away and left the Guildhall; but Hickes, Drew, Gaborian, and Spicer, and several of the free burgeffes remained and continued in the faid hall. That after the mayor, the juftice, Cleve land, and part of the free burgeffes had fo left the hall, Hickes, being the nearest perfon then prefent in place and office to James and John Buller, took the chair and prefided, and the feveral aldermen and free burgeffes who fo remained in the hall proceeded to the election of a mayor out of one of the perfons who had been fo put in nomination as aforefaid, and gave their votes for the defendant Gaborian to be mayor. That the town clerk then and there, before Hickes the prefiding officer and Drew, administered the ufual oaths of office to the defendant. That a return to the mandamus was made by the mayor, the juftice, and Cleveland, and the feveral free burgeffes who left the hall with them, ftating (in fubftance) that at the meeting affembled in pursuance of the writ for the nomination and election of a mayor, three of the alder men prefent had nominated and put in election John Buller and Cleveland; and the remaining three aldermen (excluding Spicer) had nominated and put in election Hickes and Gaborian; but that no aldermen of the borough were by the major part of the mayor and aldermen nomiVOL. XI.

G

nated

1809.

The KING against GABORIAN.

1809.

The KING againf

GABORIAN.

nated or put in election for mayor. And that another return to the mandamus was alfo made by the faid aldermen and free burgeffes who voted for the defendant; ftating (in fubftance) that the mayor, aldermen, and free burgeffes affembled at the Guildhall on the 20th of January 1807, and that the mayor and aldermen having nominated and put in election for mayor Gaborian and Hickes, two of the aldermen, did then and there name and elect Gaborian into the office of mayor, according to the charter, and pursuant to the ftatute, and afterwards on the fame day, by and before the faid Hickes and Drew another of the aldermen, in the abfence of the laft mayor, did fwear him into his office, pursuant to the directions of the statute. But whether or not Spicer at the time of the fuppofed nomination in the plea mentioned was an alderman of the borough or whether or not the major part of the mayor and aldermen nominated and put in election for mayor the faid Hickes and Gaborian: or whether or not Hickes, Gaborian, Drew, and Spicer, and the feveral free burgeffes named, did ele&t Gaborian to be mayor, pursuant to the directions of the ftatute: or whether or not Gaborian were duly fworn into office, according to the ftatute; the jurors pray the advice of the Court, and find thofe iffues accordingly. And as to the 3d iffue, the jury find that Hickes at the time in the plea mentioned was the nearest person then prefent in place and office to James and John Buller, the mayor and juftice. And as to the 4th iffue, they find that Hickes did prefide at the faid affembly, as alleged in the defendant's plea.

:

A. Buller for the profecution, upon the facts found in regard to the 2d, 5th, and 6th iffues, touching the nomination, election, and fwearing in of Gaborian to the office

of

of mayor, contended that his title was invalid, upon the authority of The King v. Buller and Another (a), where an application having been made by the prefent defendant, claiming to be mayor under this election, for a mandamus to the then late mayor and deputy mayor to deliver up to him the infignia of his office; the Court were of opinion that the election, having been completed after the departure of the prefiding officer who formed an integral part of the elective affembly, was void. [Lord Ellenborough C. J. observed that the question was not raised there upon the ftat. 11 G. 1. c. 4. whether if the mayor did not prefide, the next in order could not prefide and make it a due election.] He then contended that this was not a good election under the ftatute. The object of the ftatute was to prevent the diffolution of corporations, and it points out two methods of proceeding in cafe the charter day has been flipped without an election; either to proceed to the election on the next day, (excepting Sunday) or on a day appointed by a writ of mandamus, on motion for that purpose: and in either cafe if the mayor, or other chief officer who ought regularly to prefide at and hold fuch election, be present and prefide at the fame, the election is to proceed and be made in the manner warranted by the charter or ufage. But if the mayor or other chief officer be abfent, then the nearest perfon then prefent in place and office to the person so abfenting himself fhall prefide in the elective affembly, and fhall have the feme power and authority in all refpects therein as belongs to the mayor or other chief officer, for doing any act neceffary to be done in order to fuch election. On this occafion the mayor did prefide; the election was proceeded

(a) 8 Eaft, 389.

upon

1809.

The KING against GABORIAN,