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(1839) 1 Mac&Rob 1

REPORTS OF CASES UPON APPEALS AND WRITS OF ERROR, AND QUESTIONS OF PEERAGE, DECIDED BY THE HOUSE OF LORDS, Session of Parliament 1839, 2 & 3 VICTORIA.

(Error from the Exchequer Chamber, England.)

(No. 1.)

The King, Plaintiff in Error

v.

Thomas Johnson, Defendant in Error

[ 19th February 1839.]

Counsel: Erle — Hurlstone
Attorney General (Sir John Campbell) — Recorder of London (Law) — Bullock

Subject_Custom — City of London — Stat. 11 Geo. 1. c. 18. sec. 7. — Jury. —

On quo warranto for exercising the office of alderman of London the defendant pleaded two customs of the city of London; viz. a custom for the court of mayor and aldermen to examine and determine whether a person elected alderman of a ward, and returned to the said court as such alderman, be, according to their sound discretion and consciences, a fit and proper person and duly qualified; and also a custom that where the
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same person shall be three times elected to be alderman by a ward, and three times rejected by the court of mayor and aldermen as not a fit and proper person, and not duly qualified to support the dignity and discharge the duties of the office, the mayor and aldermen may for remedy thereof nominate, elect, and appoint a fit person, being a freeman, out of the whole body of citizens to be alderman of such ward; and further pleaded that a party who was three times returned by a ward had been adjudged unfit by the mayor and aldermen who elected the defendant; the relator took issue upon the existence of the customs, and replied that the party rejected was fit and qualified, upon which issue was joined. The Lord Chief Justice at the trial directed the jury, that if they were of opinion that the customs aforesaid had existed from time immemorial down to 1689, of which there was evidence, they should find for the customs, notwithstanding a city bye-law of the 13 Anne, and the statute 11 Geo. 1. c. 18., which, as alleged by defendant, had put an end to the customs. The jury then found the customs, and the Lord Chief Justice, without consent of parties, discharged the jury from returning a verdict on the issues as to fitness, &c. as being immaterial. Upon verdict for the defendant, and bill of exceptions by relator, Held (affirming the judgment in error from the Exchequer Chamber, which affirmed the direction of the Lord Chief Justice,) 1. That the stat. 11 Geo. 1. c. 18. and the city bye-law of the 13th of Queen Anne, relating to the mode of election, stood well with the customs as proved, and did not touch the power of rejection and selection in the mayor and aldermen.

2. That where the jury have found their verdict on all the material issues joined, the judge who tries the cause may, without the consent of the parties, discharge the jury from returning any verdict on issues that in his opinion are immaterial.

Subject_Practice.

Per Lord Wynford.—In deciding on bills of exceptions, it is the practice of the Court not to go into the whole record, but to decide upon the points raised by the bill of exceptions.

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Statement.

In February 1831 a vacancy having occurred in the office of alderman of the ward of Portsoken, Michael Scales and Daniel Whittle Harvey were respectively candidates for that office, on which occasion Scales was chosen by a majority of the inhabitants of the ward. A petition was then presented to the court of mayor and aldermen against the admission of Scales to the office of alderman, and that court having taken the petition into consideration, adjudged that he was not a fit and proper person to be alderman, and refused to swear him in. Two other elections subsequently took place, on each of which occasions Scales was chosen by a majority of the inhabitants, but the court of mayor and aldermen refused, as before, to swear him in, and after the last election appointed the defendant, Johnson, to the vacant office of alderman, alleging a custom that when the same person has been three times elected as alderman by the inhabitants of any ward, and three times rejected by the court of mayor and aldermen as unfit, that then the court of mayor and aldermen may elect as alderman any freeman out of the whole body of the citizens.

On quo warranto at the relation of Samuel Dalton against Thomas Johnson, for unlawfully exercising the office of alderman of the ward of Portsoken in the city of London,—

Plea 1.—That the city of London now is, and from time whereof the memory of man is not to the contrary hath been, an ancient city, and the citizens thereof a body corporate and politic: that there are divers wards, and amongst others the ward of Portsoken, and divers citizens and freemen have been called aldermen, one to each ward, which office of alderman is one of

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great trust and pre-eminence: that the court of mayor and aldermen is held within the said city for the purpose (amongst others) of admitting and swearing into the office of alderman persons duly elected thereto and qualified to fill the office: that wardmote courts are held within the city for the election by the inhabitants of the ward of persons into the office of alderman, by virtue of precepts issued by the mayor, to which precept returns are made into the court of mayor and aldermen: that there is an assembly called the court of common council, holden before the mayor and aldermen and the commons of the city, which has power to make bye-laws: that from time immemorial until the passing of a bye-law on the 1st August in the 21st of King Richard the Second, whereby it was ordained, that for the future in the elections of aldermen two honest and discreet men should be presented to the mayor and aldermen, so that either of them whom they should choose might be admitted and sworn; and also after the passing of a bye law made on the 15th of April in the 13th year of the reign of Queen Anne, intituled “An act 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 from thenceforth in all elections

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of aldermen of the said city, at a wardmote to be holden for that purpose, there 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 office of alderman, and from thence thitherto the aldermen had been elected at the wardmote courts, one for each ward.

The first plea then stated, that the court of mayor and aldermen have the cognizance, jurisdiction, and authority of examining, hearing, determining, and adjudging concerning the election and return of every person elected into any place or office at a wardmote court, (whensoever the merits of such election or return had been brought into question by the petition of any person interested therein,) and also of examining and determining whether or not any person so returned to the court of mayor and aldermen as an alderman of any ward, was according to the discretion and sound consciences of the mayor and aldermen a fit and proper person, and duly qualified, (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 court of mayor and aldermen,) and that it was a necessary qualification of the person to be elected, admitted, and sworn alderman of any ward that such person should be a fit and proper person to support the dignity and discharge the duties of the office of alderman, and the honour and charge of the city, according to the discretion and sound consciences of the mayor and aldermen.

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The first plea further stated, that within the 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, viz., that whensoever the inhabitants of any ward should three times return to the 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 mayor and aldermen, not a person fit and proper to support the dignity and discharge the duties of the place and office of an alderman upon such three several returns, that then the court of mayor and aldermen lawfully might for remedy in that behalf nominate, elect, and admit a fit and proper person, being a freeman of the city, out of the whole body of the citizens, to be alderman of any such ward being so made destitute of an alderman.

The plea then stated the three successive elections and rejections of Scales, and the election of the defendant by the court of mayor and aldermen, in pursuance of the said ancient custom last above mentioned.

Plea 2.—The second plea was the same as the first, except that in the custom first set out it alleged the right of the court of mayor and aldermen to adjudicate generally on the fitness of the person elected, without the allegation of a petition to raise the question.

The third plea stated that in the election at which Scales and the defendant were candidates the latter was duly elected.

The replication denied the jurisdiction of the court of mayor and aldermen, traversed the custom to elect after three rejections as set forth in the first and second pleas

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respectively, and, denying the allegation in the third plea, averred, in reference to the first and second pleas, that Scales at the times of the first, second, and third elections was an able and sufficient citizen, &c. and a fit and proper person to support the dignity, &c., to which there was a rejoinder, and issues thereon.

At the trial before Lord Denman, C. J., at the sittings in London after Michaelmas term 1834, the counsel for the King tendered evidence in support of the issues as to the fitness of Scales, at the several times when he was so rejected by the mayor and aldermen, to support the dignity and discharge the duties, &c., which being objected to, the Chief Justice refused the evidence offered, and wholly discharged the jury from giving any verdict upon the issues as to fitness, &c.; and the attention of the Chief Justice being directed to a certain act of parliament made and passed in the eleventh year of the reign of King George the First, intituled “An act for regulating elections within the city of London, and for preserving the peace, good order, and government of the said city, ¹” the Chief Justice directed

_________________ Footnote _________________

¹ The act founded on is entitled “An act for regulating elections within the city of London, and for preserving the peace, good order, and government of the said city.” There is a general recital in the preamble:

“Whereas of late years great controversies and dissensions have arisen in the city of London at the elections of citizens to serve in Parliament, and of mayors, aldermen, sheriffs, and other officers of the said city; and many evil-minded persons, having no right of voting, have unlawfully intruded themselves into the assemblies of the citizens, and presumed to give their votes at such elections, in manifest violation of the rights and privileges of the citizens, and of the freedom of their elections, and to the disturbance of the public peace: And whereas great numbers of wealthy persons, not free of the said city, do inhabit and carry on the trade of merchandize and other employments within the said city, and refuse or decline to become freemen of the same, by reason of an ancient custom within the said city restraining the freemen of the same from disposing of their personal estates by their

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the jury, that if they were of opinion that the customs set forth in the two first-mentioned pleas had existed from time immemorial down to the year 1689, then,

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last wills and testaments: And whereas great dissentions have arisen between the aldermen and commons of the common council of London in or concerning the making or passing of acts, orders, or ordinances in common council;” it then goes on to make various provisions, and recites the general evils which the act was intended to remedy; and the seventh section is in these words:

“And whereas divers controversies and disputes have arisen in the said city of London touching the right of election of aldermen and common councilmen for the respective wards of the said city; for quieting all such disputes and controversies for the future, it is hereby further enacted by the authority aforesaid, that from and after the said first day of June in the year of our Lord 1725, the right of election of aldermen and common councilmen for the several and respective wards of the said city shall belong and appertain to freemen of the said city of London, being householders, paying scot as herein-after is mentioned and provided, and bearing lot when required in their several and respective wards, and to none other whatsoever.”

The 15th section is in these words:

“And to the intent that a final end may be put to all disputes between the mayor and aldermen and the commons of the common council of the said city, touching the making or passing of acts, orders, or ordinances in common council; and that no act, order, or ordinance may for the future be made or passed in common council without the full consent of the representative body of the said city, according to the ancient constitution of the same; be it enacted by the authority aforesaid, that no act, order, or ordinance whatsoever, at any time from and after the said first day of June 1725, shall be made or passed in the common council of the said city, without the assent of the mayor and aldermen present at such common council or the major part of them, nor without the assent of the commons present at such common council or the major part of them.”

In the 16th section the right of election of the lord mayor and aldermen to various offices is preserved to them, and taken out of the operation of the general words in the prior part of the act:

“Provided always, that nothing in this act contained shall extend or be construed to extend to any election, nomination, or appointment in common council of any common serjeant, town clerk, judges of the sheriffs court, coroner, common crier, commissioners of sewers, garbeller, and the governor and assistants of London of the new plantation of Ulster in Ireland; but that the election, nomination, or appointment of all or any of the said officers shall or may, from and after the said first day of June 1725, be made by the mayor, aldermen, and commons in common council assembled, or the major part of them; any thing in this act contained to the contrary thereof notwithstanding.”

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in his opinion, that act of parliament did not put an end to such customs, or prevent them from finding, and that they should find for the customs.

Judgment of K. B.

The postea, as drawn up, contained a finding for the defendant upon the four issues as to the customs stated in the first two pleas, but against him upon the issue on the third plea; and as to the remaining issues the postea stated that the jurors were discharged from giving any verdict. The judgment was that the office claimed by the defendant be allowed and adjudged to him, with costs.

A writ of error was thereupon brought, which was argued in the Exchequer Chamber on 2d June 1836 ¹, before Tindal, C. J.; Park, Gaselee, Bosanquet, and Vaughan, Justices; Parke, Bolland, Gurney, and Alderson, Barons.

Judgment in Exchequer Chamber, 8th June 1836.

Tindal, C. J., on 8th June 1836, delivered the judgment of the Court.

“This case comes before us on a bill of exceptions tendered to Lord Denman on the trial of this cause by the counsel of the party on whose relation the information proceeded. The exceptions taken to the direction of the Lord Chief Justice to the Jury were two; first, that he refused to allow witnesses to be examined in support of the issues raised upon the pleadings, with respect to Michael Scales being an able and sufficient citizen and freeman of the city of London, and a fit and proper person to support the dignity and discharge the duties of an alderman of that city, and that he wholly discharged the jurors from giving any verdict upon those issues; and,

_________________ Footnote _________________

¹ 5 Ad. & E. 488.

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secondly, that the Chief Justice directed the jury, that if they, thought the customs set forth in the two first-mentioned pleas had existed from time immemorial down to the year 1689, the act of 11 Geo. 1. c. 18. did not put an end to such customs; and in that case he directed them to find a verdict for the defendant on the four issues first in order on the record.

It will be more desirable, in the first place, to state our opinion as to the second exception, as the judgment formed by us on that will form the groundwork of the opinion at which we have arrived upon the subject of the first.

The custom which forms the subject of the first and third issues is a custom that the court of mayor and aldermen, from time immemorial, have had the cognizance and determination of the election and return of every person elected into any place or office at any wardmote court, whenever the merits of such election were brought into question, and of examining and determining whether any person returned to them as an alderman of any ward of the city is, according to the discretion and sound consciences of the mayor and aldermen, a fit and proper person, and duly qualified in that behalf. The custom which forms the subject of the second and fourth issues, is a custom that whenever it should happen that the inhabitants of any ward should three times return to the court of mayor and aldermen the same person to be an alderman of any such ward, who should, upon such three several returns, according to the former custom, be adjudged and determined, according to the discretion and sound consciences of the mayor and aldermen, not a person

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fit and proper to support the dignity and discharge the duties of the place and office of an alderman of the said city, that the court may for remedy in that behalf, nominate, elect, and admit a fit and proper person, being a freeman of the said city, out of the body of the whole citizens, to be an alderman of such ward so made destitute of an alderman. The first custom set up is, therefore, a custom to approve or reject; the second is a custom to nominate and elect, in case the same person is three times returned by the wardmote, and three times rejected as unfit by the court of mayor and aldermen. Now the only exception taken to the direction of the Lord Chief Justice, which goes to the validity of the customs above set forth, is, that the jury should have been directed by him that the statute 11 Geo. 1. c. 18. is in direct contravention of those customs, and, in effect, has abrogated them altogether. To the validity of the first custom but little objection was made in the course of the argument; indeed, after the determination of the case of the King v. the Mayor and Aldermen of London ¹, where the legality of the custom of approval or rejection was brought distinctly before the Court of King's Bench, it is impossible to contend that it was not a legal custom still existing in full force, notwithstanding the statute of George the First.

The question, therefore, principally turns upon the effect of the statute, as to the custom secondly set forth. Now we think that custom, considered in itself, a legal and reasonable custom, supplying a

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¹ 3 Barne. and Adolph. 255.

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remedy where an evil is likely to occur from the exercise of the custom to approve or reject, and without which remedy the first would become neither useful nor reasonable, from the consequences that might frequently follow from its exercise. The question therefore becomes this, whether this custom in the second plea is repealed by the statute 11 Geo. 1.? and we are all of opinion that it is not in any way affected thereby. That statute was passed principally for the purpose of regulating the course of elections which take place at the wardmotes of the city, both of citizens to serve in parliament, of mayors and other officers, and, as the first section expresses, “of aldermen and common councilmen, chosen at the respective wardmotes of the said city,” and the first six sections of the statute are exclusively occupied with regulations as to the mode of taking the poll. The seventh section, after reciting that divers controversies and disputes had arisen in the city of London touching the right of election of aldermen and common councilmen for the respective wards of the city, enacts that, after the day therein specified, the right of election of aldermen and common councilmen for the several and respective wards of the city shall belong and appertain to freemen of the said city being householders, and paying scot and bearing lot when required, and to none other whatsoever. The seven following sections contain provisions as to particular cases of qualifications for voting at such elections, and the sections which follow are foreign altogether to the subject matter of the present inquiry; so that the statute

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taken altogether is no more than an enactment that the right of electing aldermen, amongst other officers, shall be by the freemen of the city, being householders, at the wardmotes of the respective wards, the poll to be taken, and the right of voting to be determined, in the manner and under the regulations described in the act.

Now the ancient customs, which are the subject of the present discussion, have themselves been confirmed amongst the other ancient bye laws and customs of the city by parliament; and the first observation that arises thereupon is, that as these customs were in full operation at the time of the statute, and as the statute is altogether silent about the powers of the court of lord mayor and aldermen, there is nothing that can be construed into a repeal of either of the customs. Again, it is to be observed that the exercise of this custom is in no way inconsistent with the statute, for the custom does not begin to operate until after the statute and all the provisions contained in it have had their full operation and effect. The alderman must be first elected at the wardmote by the electors qualified according to the provisions of the statute, at a poll taken in the manner therein prescribed, before he can be returned to the court of lord mayor and aldermen for approval or rejection. Then it is for the first time that the two ancient customs begin to have their force. They contain a mode of trial of the fitness of the return, made under the statute, after the election has taken place, and apply to a point of time which is altogether out of the provisions of the statute. In fact, the effect of the two customs, which are in effect acts of parliament,

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is this, that by the first the election at the wardmote is annulled, and by the second, after three rejections no further election at a wardmote is to take place. Now this is not at all inconsistent with a statute regulating elections only, in the case of their taking place at a wardmote. The statute, therefore, and the two ancient customs may both stand well together, and we see no reason whatever for holding that the customs are not in full force, notwithstanding the provisions of the Act.

It was further insisted in the course of the argument on the part of the relator that the bye law of the 13th of Anne had the same effect as to the annulling the customs set forth as the statute. It appears to us, however, to be unnecessary to give any other answer to this objection than that which has already been given as to the statute of George the First. Both stand precisely upon the same ground, the only difference between the two objections being this—that whilst the statute is by necessary implication only to be construed as speaking of the election at wardmotes of the city, the bye law is confined in express terms to that mode of election.

The other exception, tendered to the Lord Chief Justice at the trial, related to his refusal to receive evidence tendered to him upon the several issues before referred to, and discharging the jury from giving any verdict on the same. It appears to us that the four issues which are first in order upon the record having been found in favour of the defendant, and the defendant being entitled, in our opinion, notwithstanding the objections which have

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been taken, to judgment in his favour on those issues, it has become perfectly immaterial in favour of which of the two parties the jury might have found their verdict on the issues in question; for the fitness or unfitness of the party to fill the office of alderman having been determined by a court not only of competent but exclusive jurisdiction, any finding of a jury on that point is altogether inoperative and useless. If this record had contained a verdict in favour of the relator upon these issues, we should have allowed the defendant, notwithstanding such verdict, to enter up judgment for himself; and it is, therefore, unnecessary to say that we cannot agree to send those issues to be tried at a very useless expense before a second jury. Indeed the case of Powell v. Sonnett and others in error, in the House of Lords ¹, furnishes a decisive authority that where the jury have found their verdict on all the material issues joined, the others being perfectly immaterial as between the parties, they may be discharged by the judge who tries the cause from returning any verdict on issues that are immaterial, without the consent of the parties.

We therefore think the judgment of the Court of King's Bench must be affirmed.

My brother Bosanquet, who also heard this argument, requests me to say that he concurs in the judgment we have given.”

Argument of Plaintiff in Error.

The Exchequer Chamber having affirmed the judgment of the Court of King's Bench, a writ of error was brought in parliament, which came on for hearing on

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¹ 1 Bligh's Reports, 1827, p. 552.

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the 19th of February 1839 before the House of Lords, assisted by Chief Justice Tindal, Justices Littledale, Vaughan, Patteson, Williams, and Coleridge, and Barons Park, and Gurney.

Plaintiff in Error.—The principal points to be argued were:—1st. That the alleged custom for the court of mayor and aldermen to elect any person from the body of the citizens to be alderman in the event of their having three times rejected the person elected by the inhabitants of any ward is unreasonable, contrary to public policy, and void in law. The alleged custom of election is bad in law, for if such a custom prevailed, the court of mayor and aldermen might totally deprive the citizens of their right to elect their aldermen, and render their privileges in that respect subject to the arbitrary will and discretion of the court of mayor and aldermen, who would have only to reject as unfit the person three times elected by the citizens without giving any reason, and the election of every alderman would be in their hands. It is obvious how this alleged custom might be perverted to party and political purposes. It is not a reasonable custom that an irresponsible body should put aside the choice of the wardmote. Besides, if this custom existed of electing any person after the candidate chosen by the citizens has been thrice returned and rejected, there is no reason why the same custom should not exist when an individual has been twice or even once refused, and the consequence would be, as observed by Lord Tenterden in Rex v. The Lord Mayor of London ¹, “That the court of mayor and aldermen would have in their hands the absolute

_________________ Footnote _________________

¹ 9 B. & C. 1.

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control over all the elections to city offices by the wardmote courts.” A custom so liable to abuse is inconsistent with public policy.

2dly. That the said custom of election is in direct contravention of the 11 Geo. 1. c. 18., and of the bye law passed in the 13th year of the reign of Queen Anne set out in the pleadings. The question in controversy is, whether the defendant can maintain that he has a right to the office of alderman in respect of a twofold custom, by which the court of mayor and aldermen have not only a right thrice to reject the same person chosen by the wardmote, but that if they shall so reject on three several occasions the person thus often presented to them, this court of mayor and aldermen lawfully may elect a fit and proper person, being a freeman, out of the whole body of citizens, to be alderman of any such ward so made destitute. The alleged custom is inconsistent with the 11 Geo. 1. c. 18., which defines the electoral body who shall have the exclusive right, and consequently the act of parliament must prevail. The seventh section of that statute declares that the right of election shall appertain to freemen of the city being householders paying scot and bearing lot, and to none other whatsoever. The 14th section enacts, that no person shall vote at any election of alderman who shall have been discharged from paying to the rates and taxes to which citizens of London inhabiting therein are liable. Although the persons composing the court of aldermen must of necessity be freemen, yet they need not, and in fact some of them are not, householders paying scot and bearing lot. [Lord Brougham.—Do not these words apply to the franchise in the wardmote?] The 16th

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section provides that the act shall not extend to certain officers, but that the election of those officers shall be made by the mayor, aldermen, and common council, thereby showing that the legislature made an express enactment where any right of election was intended to be continued to the mayor, aldermen, and common council, and excepted out of that act. The distinction betwixt electing and the right of setting aside the election is illustrated by the cases of Regina v. Mayor of Norwich ¹, and Wright v. Fawcett. ²

The alleged custom is also inconsistent with the bye law passed in the 13th year of the reign of Queen Anne, and if so, the bye law must prevail over the custom. The bye law shows upon the face of it the usurpation of the court of aldermen; it is entitled “An act for reviving the ancient manner of electing aldermen,” and the recital declares it to be made for the purpose of restoring the inhabitants their ancient rights and privileges of choosing one person only to be their alderman; and it enacts, that the person elected by the citizens should be by the court of mayor and aldermen admitted and sworn. The bye law and the act of parliament are uniform in their object, and the same right is established by both. Thus the bye-law was material in deciding as to the custom, of which last there was no evidence after 1689. Bye laws of the city of London not contravening any statute are of authority. Rex v. Mayor and Aldermen of London ³, Hutchins v. Player ⁴, and in the case of Wagoner ⁵, therein referred to.

_________________ Footnote _________________

¹ 2 Lord Ray. 1244.

² 4 Burr. 2041.

³ 9 B. & C. 1.

⁴ Sir O. Bridgman's Judgments, p. 272.

⁵ 8 Co. Rep. 121 b.

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3dly. That the Lord Chief Justice ought at the trial of this information to have allowed witnesses to be examined in support of the issues joined as to the fitness of Scales. The evidence rejected at the trial being in support of material issues should have been allowed to be adduced. If the replication upon which those issues are raised were bad in law, the defendant should have demurred. The power of judging of the fitness or not did not arise till after the election by the wardmote.

[ Lord Brougham.—If the issue be clearly immaterial the case of Powell v. Sonnett and others ¹ settled the point, that a judge is perfectly right in discharging the jury from finding a verdict upon such immaterial issue.]

The counsel for the defendant in error were not called on.

Ld. Brougham's Speech.

Lord Brougham.—My Lords, I wish to ask your Lordships whether it is necessary that the counsel for the defendant in error should be heard. The learned judges have come to assist your Lordships in the two cases appointed for hearing to-day; but that does not, I apprehend, imply that it is necessary they should be heard throughout, and it will involve a waste of time if there, is no reasonable doubt, and if the opinion of all the learned judges, as well as of your Lordships, is against the plaintiff in error, and in support of the judgment of the Lord Chief Justice, against whose decision the bill of exceptions was tendered, but which decision was affirmed in the court of error, the Court

_________________ Footnote _________________

¹ 1 Bligh's Rep. N. S. p. 552, and 3 Bing. 381.

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of Exchequer Chamber. I have reason to believe the learned judges still retain their opinion; if I am wrong they will interfere; but I believe it is the fact, that they have heard nothing to shake their opinion; if so, I think it will be an unwarrantable waste of time to prolong the argument. My noble and learned friend ¹, formerly Chief Justice of the Court of Common Pleas, entirely assents to the view I have taken, that this judgment is perfectly right. I have attended most carefully to the argument of the learned counsel. I have never heard one syllable of the opposite side. I have not looked into the judgment of the court below. I have looked into the act of parliament, on which the main reliance is placed by the learned counsel, and I have not any doubt whatever in my mind; at the same time, if the learned judges were unanimously to tell me they have changed their opinion, I should have a doubt, and should desire to hear the other side. At present I humbly submit to your Lordships that the judgment of the court below be affirmed; and I do it in consequence of the view I take of this act of parliament, upon which the main reliance is placed. I am informed that the judges of the Queen's Bench have given no judgment. The Exchequer Chamber consisted of the judges of the two courts of Common Pleas and Exchequer. The learned judges of the Court of Queen's Bench are now, therefore, exercising their judgment; and if they have any doubt I will withdraw my motion, and consent to the argument proceeding.

(The learned Judges consulted together.)

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¹ Lord Wynford.

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My Lords, I find there is no doubt whatever existing among the learned judges of the Queen's Bench, so that it is so much fairer towards the party who is the plaintiff in error, for it is on his own showing that he has not been able even to raise a doubt. This entirely concurs with the view I have taken upon the subject. I have heard with the greatest attention every argument which has been brought forward by the learned counsel, not only whatever suggested itself to his own acute and experienced mind, but whatever the eagerness and the anxiety of the client, outstripping the professional zeal of the advocate, could suggest: we have heard him present his argument with all those additional reinforcements which a person so materially interested in the result might be reasonably expected to present; but the whole has left my mind entirely free from doubt.

My Lords, I consider that this act of parliament was intended to prevent the mischief which is stated in the preamble as the governing motive of the legislature. No doubt that mischief applied very much to persons unqualified intruding themselves in the choice of mayor, and in the choice of aldermen; for it says “that the right of election in the respective wards shall belong and appertain to freemen of the said city of London, being householders paying scot and bearing lot in their several and respective wards, and to none other whatsoever.” That is a clear and distinct enactment, relating entirely to who shall and who shall not exercise that franchise at the wardmote; it has no reference to what ought to be done in respect of admission in case of rejection. There is no reference to any custom, there is no reference even to any bye law; but in my

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opinion the act of parliament and the custom may very well stand together, because it is quite consistent with the custom that the wardmote shall be constituted in a particular way. The election is by the wardmote, but the approval may be in the mayor and aldermen; and really on that point I entertain no doubt. I need not inquire into the effect of the bye law which appears upon the record, but not on the bill of exceptions. But giving the party the benefit of it, it appears to me that the argument raised upon it comes to nothing, and that it is subject to the same observation as the other.

With respect to the point as to discharging the jury, I think it is quite clear that a judge has authority, even without the consent of the parties, to discharge the jury from giving a verdict where the finding cannot be material. In this case it is clear it could not be material. It might be material in the case put of a libel, to which the defendant pleaded the general issue and a plea of justification. It is said, when the jury have found not guilty, what signifies it whether it is true or false? It does not signify as to the question in this case, but it may signify as to the costs of that issue; because the plea of not guilty being affirmed by the finding of the jury, would discharge the defendant, and saddle the plaintiff with the general costs; but then there would remain the other question, who shall pay the costs of the special plea of justification? If that special plea were found one way one party would pay those costs, and if it were found the other way the other party would pay the costs. How then can it be said to be quite immaterial whether the publication is true or not? It is clear, therefore, that case does not apply to this,

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because whichever way this was found there would be no costs.

Upon these short grounds which I have run over, (and I am not aware that it is necessary I should detain your Lordships upon any other,) I have no hesitation whatever in asking your Lordships to determine this case without further discussion; it would be throwing away more of the valuable time of the learned judges, and of your Lordship's time, in this case, and I think it would be setting a wrong precedent, for the consequence would be, that if the learned judges had been summoned, even if the case turned out to be a clear one, which I think this is, you would be obliged to waste your time and theirs in going through the case: I will not be a party to laying down any such precedent. On these grounds I humbly move your Lordships that the judgment be affirmed.

Ld. Wynford's Speech.

Lord Wynford.—My Lords, a decision of mine having been referred to by the learned counsel at the bar, I beg to say that it appears to me I gave a right judgment, though perhaps with a wrong reason, as I find it reported. My Lords, I am happy to be informed that it is not my judgment, but the judgment of a learned judge much more likely to give a right reason than I am. I think a better reason might have been given for it.

With respect to the motion made by my noble and learned friend, I entirely concur in it. The case is so extremely plain that it appears to me impossible that any two lawyers can doubt about it. With respect to the point of the consent of parties being required where a judge feels it to be his duty to disencumber the cause

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of a parcel of lumber perfectly immaterial to the real issue, it would be absurd if he was not at liberty to do that without the consent of the parties; and in this case I conceive if the issues in question were immaterial he was perfectly justified in discharging the jury from finding a verdict upon those issues, though the parties might refuse to consent. At the same time I agree with my noble and learned friend that if the finding upon those issues made any difference either in the costs or in any other respect, he must have the consent of the parties. The issues in question became immaterial when the existence of the custom was established, and as their being found one way or the other could make no difference to the parties, it appears to me the learned judge did perfectly right in getting rid of them.

It seems impossible to doubt that the act of parliament applies to the first election, and may very well stand with this bye law. As my noble and learned friend very properly observed, we cannot take any notice of the record, for there is no exception to it. It is the practice of the Court not to go into the whole record, but to decide upon the points raised by the bill of exceptions; but that is not very material, because the statute clearly applies only to the first election, and not to what might be done after the first election is over. The legislature saw that it was likely that great mischief might arise if some mode was not found to prevent any improper persons from interfering at the wardmote. The words of the statute applied distinctly to the wardmote, and the statute being intended to regulate the first election, it said that none shall interfere but persons duly

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qualified, according to the terms of that act; and the wardmote having elected a person whom the court of lord mayor and aldermen do not think a proper person to be elected, the lord mayor and aldermen interfere upon that. Under this bye law the matter is entirely in the hands of the lord mayor and aldermen.

It appears to me that that point is perfectly clear, and that what they have done with respect to the rejection of one candidate, and the election of another candidate,—these elections having taken place of a person whom the lord mayor and aldermen did not consider a proper person to fill the office,—is perfectly justified in law. For these reasons I entirely concur in the motion made by my noble and learned friend.

Ld. Chancellor's Speech.

Lord Chancellor.—My Lords, I entirely concur in the course proposed to your Lordships. It can never be said that because your Lordships have thought fit to call in the assistance of the learned judges the course of proceeding should be different if your Lordships on hearing one side feel no doubt, and there is no question to be referred to the learned judges. It does so happen that we have the opportunity of ascertaining on the present occasion, that all the learned judges, and all your Lordships here present, are of one opinion upon the subject of the present case, and therefore it would be extremely imprudent to occupy further time upon the consideration of the subject, when the statement of the plaintiff in error has not created any doubt in the minds of any of your Lordships.

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My Lords, with reference to the construction of the act, it appears to me abundantly clear, that the seventh section was not addressed to any thing like the present case; it was to regulate the right of original election, leaving to be decided by the existing custom what was to be done with the party so elected. The question is, what power there is in the court of aldermen to deal with an election by the wardmote; and the seventh section, being confined as it is to the original election, does not touch any right which may exist elsewhere of controlling the admission of the person to be invested with the office of alderman.

With regard to the rejection of the evidence of fitness, in the present stage of the case, in the view that your Lordships take of it at all events,—that is utterly immaterial, this custom being found to exist, and your Lordships being of opinion that it is a legal custom, and that the court of aldermen have the power contended for, the eligibility of the party being a matter entirely in their discretion, and subject to their judgment; the opinion of the jury with respect to his fitness could never be material; for these reasons I entirely concur in the opinions expressed by my noble and learned friends, that the judgment of your Lordships should be for the defendant in error.

Mr. Attorney General.—My Lords, I move for costs.

The House of Lords ordered and adjudged, That the judgment given in the said Court of Exchequer Chamber for the said defendant, affirming a judgment of the said Court of King's Bench, be, and the same is hereby affirmed;

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and that the record be remitted, to the end execution may be had thereupon as if no such writ of error had been brought into this House: And it is further ordered, That the said plaintiff in error do pay or cause to be paid to the said defendant the costs incurred in respect of the said writ of error, the amount thereof to be certified by the clerk assistant.

Solicitors: Owen and Dixon — R. F. Newman, Solicitors.

1839