removal, and that they may deal with the case upon the 1822. The KING v. The JUSTICES of NORFOLK. 1822. The KING v. The JUSTICES of NORFOLK. abandonment, the order of removal could be considered as valid and conclusive with reference to the settlement; and that the Court has said that it was conclusive because the party had abandoned; and consequently that there was no necessity of appeal after abandonment. It is said that the respondents might go and enter continuances until the pauper's husband is discharged and becomes purged of his disqualification. Cui bono?-for if the respondents once abandoned the order of removal, finding that they had not sufficient materials to support it, the case is to be considered as if no order had been made; and therefore they remain in the same situation with reference to the settlement as if the continuances were entered until the man could be discharged. And indeed it is more beneficial to the appellant parish that continuances should not be entered, because they would have the burthen of maintaining the paupers until the witness was qualified; whereas, by waiting until the man was in a condition to be examined, the question might then be immediately heard and decided, when the Quarter Sessions might have a power ultimately of awarding costs and re-imbursing the appellants for all the expences they have incurred. Undoubtedly the respondents ought to have borne the expence incurred by the appellants up to the time when they gave notice of abandoning the order; and if an application had been made to the Sessions for those expences, I cannot but believe that the Justices would have made an order for that purpose. I think, however, that we should be going beyond our duty if we were to grant a mandamus in this case; and therefore the rule must be discharged. BEST, J.-I think we should be deserting our duty, and departing from that principle upon which this Court grants a mandamus, if we were to make this rule absolute. The principle upon which this high prerogative is used by The KING t. The JUSTICES of NORFOLK. the Court, is only to prevent the failure of justice. I 1822. think that if we were to grant the writ in this case, we should be promoting a failure of justice. The Sessions have wisely exercised the discretion vested in them; and it appears to me that, after the appellants are told by the respondents that they mean to abandon the order, the appellants ought not to have gone on with the appeal, thereby increasing those expences which are so loudly and so justly complained of in the discussion of settlement cases. Acting upon principle, I think this is a case in which we ought not to interfere. Rule discharged, but without costs (a). (a) Vide Rex v. Llanrhydd, Burr. S. C. 658. and Chulbury v. Chipping Faringdon, 2 Salk. 488. The KING v. GEORGE LANE. Thursday, January 31. constable be WILLIAMS, J. last Term obtained a rule, calling The office of upon the defendant to shew cause why a writ of quo war- ing a burthenranto should not issue to compel him to shew by what authority he executed the office of constable of the township of Aylesbury, in the county of Lancaster; and Cross, Serjt. now shewed cause against the rule. The has only question in this case is, whether the defendant been elected to his office of constable by proper and com some office, this Court will not put a person de facto elected, and sworn in by the court-leet, to the expence what authority of shewing by office, at the he holds the petent electors. It is not disputed that he was in fact relation of a different body claiming the elected that he took the necessary oaths of office-and of persons that having so done, he was compellable to serve; for it is right of elecquite clear, that having been elected and sworn in, his re- tion, where fusing to serve would have rendered him guilty of an of- do not shew fence, for which he would have been liable to be indict those persons custom in their an immemorial ed and fined. But this question is one which cannot now body to elect. 1822. The KING v. LANE. be raised; for upon a similar application only last Term, in the case of the constable of Oldham, the Court said, that as the office was one of burthen and responsibility, and conferred no privileges or emoluments upon the party, they would not, under such circumstances, call upon him to argue his right. It seems, that in this township there are two separate bodies which claim the right to elect the constables, and the present application is an attempt to decide this disputed claim at the expence and trouble of the defendant. The defendant was elected at the courtleet by a jury, and sworn in before the steward of the Court; and it is objected that he ought to have been elected at the General Town Meeting. Upon general principles, and according to the prevalence of usage, the court-leet has the power of electing constables; and the case of The King v. Barnard (a) is directly in support of that proposition. At the General Town Meeting another individual was nominated and chosen; but he was never sworn in: and if it was wished to try the question of the right of election, the proper application would have been for a mundamus to compel the steward of the court-leet to swear in the person elected at the General Town Meeting. This principle is clearly laid down in the case of The King v. Goudge (b). The primâ facie right of election is in the court-leet; the defendant was elected by the jury of that court, and was sworn in by their proper officer: being thus elected, he was compellable to serve; and unless immemorial usage can be shewn of a right in the Town Meeting to elect, the defendant having been chosen to a laborious and burthensome office, should not be called upon, at his own personal trouble and expence, to argue his right to execute that office. J. Williams, contrà, being asked by the Court whether he was in a condition to prove an immemorial custom for (b) Stra. 1213. (a) 1 Ld. Raym. 94. the Town Meeting to elect a constable, and for the courtleet to accept and to swear in the person so elected, and answering in the negative, BAYLEY, J. (a) said,—It may be a very proper subject of inquiry, whether the court-leet does or does not possess the right to elect a constable independently of the inhabitants assembled in a General Town Meeting, but I think that question cannot properly be raised before us by the present application. There is no sort of evidence produced before us now of an immemorial custom for the inhabitants to elect, and for the court-leet to accept the person by them elected, and, in the absence of such evidence, it would be going a great deal too far for us to presume the existence of such a custom. We are indeed bound to presume the contrary here; and doing so we are bound to adopt a rule in this case, which may be considered as a precedent, and may prevent a renewal of similar applications. The office of constable is a burthensome office, and the individual elected is bound under a penalty for contempt to serve; and therefore I think we ought not to call upon him to shew by what authority he does serve, at least until evidence is produced before us by the relators to prove that authority insufficient. BEST, J.-I am altogether of the same opinion. The defendant has been, whether rightly or not, de facto elected to a burthensome office, which he could not refuse to accept and execute without exposing himself to serious consequences. Without proof that his election was bad, we cannot presume it to be so; and it would be a great hardship, under such circumstances, to call upon him to support his claim to an office which he is compelled to execute. I think this rule must be discharged. Rule discharged. (a) Abbott, C. J. and Holroyd, J. were absent. 1822. The KING v. LANE. |