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1804. office of bailiff of Malden at a corporate assembly at which The King

he himself presided, having been sworn in before the three against next in place and office to himself, such swearing in was HARPER. ; holden bad under the statute. This is not an objection of

form merely, but of substance, growing out of the words [ 215

of the charter itself. The object of requiring the oath of office to be taken before certain persons is, that they may attest the solemnity of the pledge. An affidavit sworn by a commissioner before himself would not be received for defect of the attestation that the oath had been properly administered and taken. [Lawrence, J. Does the charter in this respect mean more than that the oath shall be taken before the same'assein bly by whom the election is made? The same objection, if pushed to the extreme, might be said to apply to the election even of a burgess; because the oath is to be taken not only before the last mayor and bailiffs for the time being, but also before the burgesses who attend, of which description the party himself would be one.] He then referred to R. v. Tucker (a), where the word burgesses, out of whom the mayor of Weymouth was to be chosen, received a limited construction, as excluding aldermen, though they were in a general sense burgesses.

Lambe for the defendant. First, as to the supposed in, eligibility of a bailiff to be elected mayor, from the words of the charter, the material clause is that which directly pro. fesses to regulate the election of mayor, and that expressly directs the mayor, bailiffs, and burgesses, or the greater part of them, to chuse one of themselves to be mayor ; which, in the grammatical and legal construction of the whole clanse taken together, must refer to the mayor, bailiffs, and burgesses. The relative must refer to the whole antecedent sentence, and not to the last member of it, The choice is to be made by the collective branches of the corporation, or

" the greater part of them,” out of themselves. Tbe word [ 216 ] them cannot refer merely to burgesses, because an election

by the burgesses alone, without the attendance of the mayor and bailiffs, would certainly not be good: then the word themselves cannot be taken in a more limited sense than the word them which precedes it. In R. v. Morris (6), where the election of mayor was to made by a majority of the

(a) 4 Bro. Parl, Cas. 455.

(0) 4 East, 17—26.

several several integral definite parts of the corporation and other 1801. , burgesses and inhabitants for ibe time being, Lord Ellenbo-,

The KING rough said, that no grammatical construction would admit

against that the words for the time being, should refer merely to in HARPER habitants as the antecedent last named: they must certainly refer to all the constiquent parts of the corporation before named. Then the clause is relied on, appointing the first mayor to hold over until some other burgess shall be appointed. But that expression does not occur in any other part of the charter. And after the first appointment of offi. cers, all succeeding bailiffs would necessarily be burgesses, and would not cease to be such by becoming bailiffs; and none but the first named officers were to hold over till their successors were appointed. The natural course of coining inlo office would be first as a burgess, then as a bailiff, and then as mayor. To say that a bailiff is ineligible to be mayor, is to require a retrograde motion. The case of R. v. Tucker (a) is very distinguishable; for there the direction was tbat the mayor and alderrnen should name, not one of themselves, but four of the burgesses and inhabitants, out of which number the whole body were to choose a mayor. So that burgesses was there put in contradistinction to the mayor and aldermen. 2dly, As to the incompatibility of the offices of mayor and bailiff, that.objection only applies where the same person holds the two offices at the same time; but here the defendant ceased to be bailiff at the instant [ 217 ). he became mayor. And he continued bailiff until his appointment as mayor was perfected by swearing in. There. fore the swearing in was before the several integral parts of the corporation, supposing it to be necessary that both the bailiffs should attend, which is not certain; for in the clause for making by-laws, one of the most essential powers of the corporation, the attendance of one bailiff only is required. And the oath of the new bailiffs is required to be taken before the 's last bailiff'(a); which shews that the charter contemplated that one of the bailiffs might be elected mayor. 3dly, As to the swearing in, considering the nature of these promissory oaths of office, which are not like judicial oaths punishable fur the breach of them by an indictment for

(a) 4 Bro. Parl, Cas. 455.

(0) Vide note (a) p. 210.

perjury,

1804.

The King

against HARPER,

[ 218 )

perjury, being merely binding on the conscience of the officer, there is no incongruity in bis taking it (as it is called) before himself. The Judges of the superior courts take the oath of office before theinselves and each other; so of other officers. The word before, means no inore than in the presence of, and does not imply that the oath is administered by those before whom it is to be taken to the oilicer taking it; but he takes it in their presence. However, if there were any objection on that ground, it may easily be obviated by first choosing one of the old bailiffs to be the new mayor, who continues bailiff till sworn in, and then choosing the two new bailiffs, who may immediately be sworn in before the old mayor · and old bailiffs, and then the new mayor will be sworn in before the last mayor, as the charter requires, and the new bailiffs, who will then be in office.

J. Clarke, in reply. It is admitted that the second mayor, that is the first elected mayor, must have been a burgess; then that gave a rule for all future elections. The only clause relied on by the defendants is that the election of mayor is to be made by the mayor, bailiffs, and burgesses, out of themselves, which by the defendant's construction must include the mayor as well as the bailiffs, if it include either: but it cannot include the mayor; because the new mayor is to take the oath of office before " the last mayor, his predecessor ;" then the predecessor must necessarily be excluded. Therefore the word themselves, as it cannot include all those before named, can only refer to burgesses, which is the last antecedent. And the exclusion of the bailiffs will make all the different parts of the charter harmonize, and avoid that inverted mode of election and swearing in, which is the only expedient offered for avoiding incongruity, and such as could not have been contemplated by the framers of the charter. The oath too is to be taken before the last mayor and the bailiffs for the time being. The word last is there applied tu the mayor, because the person to be sworn in is the new mayor : and for the same reason the new bailiffs are to be sworn in before the mayor and the last bailiffs. There is no instance before this of a bailiff having been elected mayor.

Lord ELLENBOROUGH, C. J., after the argument, said that the Court would look more particularly into the charters

before

PER.

before they delivered their opinion; though it appeared to 1804. him very difficult to sustain the defendant's election by the

The King expedient which had been suggested. And now his Lord against ship delivered the judgment of the Court. (After stating the '

[ 219 1 mode of election of the mayor and bailiffs as prescribed by the charter of Car. I, and the manner in which the defend. ant was in fact elected mayor.)

It appears to us reasonable to adopt that construction of the charter which is most agreeable to the natural order and course of proceedings, observed in such elections, and which will prevent all difficulties, rather than that which, unless some degree of management and contrivance is resorted to, would make it impossible to elect other officers; and particularly where the charter, as here, expressly directs that the first mayor should continue till some other burgess should be elected into that office, and the first bailiffs in like manner should continue till two other of the burgesses should be chosen to that office: thereby importing an exclusion of the same mayor and burgesses from being again immediately elected into the same offices at least. If the new mayor and bailiffs be elected from the burgesses only, exclusive of the old mayor and bailiffs (and the mode prescribed by the charter of swearing in the mayor coram predecessore, clearly shews that the word burgesses must be narrowed in construction to some extent, and so as to exclude the preceding mayor at least) it will then be immaterial which description of officers is sworn in first; for till the new mayor is sworn in, his predecessor will continue in office, at least for the whole of that day: and till the new bailiffs are sworn in, their preden cessors also will be in office. So that if the mayor be sworn in last, he will be sworn before his predecessor and the bailiffs; and though such bailiffs be the new ones, it will nevertheless satisfy the terms of the charter: and though the bailiffs are sworn in first, they will be sworn before the old 5220 T mayor (which will satisfy the words of the charter) and their predecessors the last bailiffs. This construction would also prevent any question as to the validity of a swearing in of the mayor before himself, supposing the words of the charter, instead of requiring, as it has done, a swearing in before the whole assembly, one of whom of course must be the person to be sworn, had limited the swearing to be before a part of

the

1804.

The King

against HARPER.

the assembly, as for instance, the mayor and bailiffs. We are of opinion, therefore, that this construction is the proper one to be put upon the terms of this charter, and that of course the election stated in the defendant's plea not being conformable thereto, was not well made ; and therefore that there must in this case be judgment of ouster against ilie defendant.

Judginent of Ouster.

ous

[ 221 ] Saturday, May 12th.

The King against DE MANNEVILLE. The father of a child is en. At the beginning of this term a writ of habeus corpus was titled to the

+ obtained, directed to the defendant, to bring up the custody of it, though an in, body of an infant of eight months old, the defendant's

. daughter, upon an affidavit from the mother and her friends breast of its mother, if that the defendant, who was a Frenchman, bad married the the Court see mother of the child, an English woman, by whom he had no ground to

Sute any this only child. That she not long after their marriage had motive to the separated herself from him, on account, as she alleged, of father injuri. :

to the ill treatment, and kept the child whom she was nursing with health or li. her. That on the night of the 10th of April last the defend. berty of such a child, as by

by ant found means, by force and stratagem, to get into the sending it out house where she was, and bad forcibly taken the child then

ins, at the breast, and carried it away almost naked in an open dom; the fa. thier being at carriage in inclement weather; with a view, as the mother the time an apprehended, of taking it out of the kingdom. However, alien enemy domiciled in when this part of the affidavit was afterwards more particuthis kingdom, Jarly referred to, it appeared that the only ground for such and the mother being apprehension of the mother was, that the defendant had an English. threatened to carry away the mother to a distance from her woman, and

the friends, and afterwards had threatened to take away the child only that he from her, and she was apprehensive that he meant to carry it meant to send

to some remote part of the kingdom, or to France. the child abroad, but Topping now (after the return read, and the child being assigning no ready to be produced in court when called for) said, that he sufficient reason for such bad afhdavits in answer, which he would wave reading, if her apprehen- not necessary, to prevent widening the breach between the 10n. *** 999 1 parents, But he contended, that the faiher was by law en.

titled

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