case John prowse plaintiff Samuel foot defendant in error that march Mews dig  way see Pender v r bro p c the charter of a corporation direct that the  alderman shall be choose annual yet this clause be only directory and do not  determine the office of alderman at the end of the year after his election but  the person legal elect and swear into the office shall continue until his  death or removal in the same manner as a person elect into the office of  Mayor Where a charter direct that the mayor shall continue in office until  another be duly elect and swear the successor though duly elect can act till  swear and if he do judgement of ouster may be give against he viner vol p can  in Michaelmas term the defendant commence his action against the plaintiff  complain against a false return make by the plaintiff to a writ of mandamus  which issue out of the court of king bench and declare that the borough of  Truro in the county of Cornwall by letter patent date the twenty of June saint  Elizabeth be incorporate by the name of mayor and burgess of the borough of  Truro in the county of Cornwall and that the say queen by the letter patent  appoint twentyfour of the most discreet inhabitant to be assist to the mayor  and four of the say twentyfour call capital burgess to be alderman that the  mayor and capital burgess shall have a councilhouse that the mayor and capital  burgess and common Council or major part of they yearly on the that day of  October shall name one of the alderman to be mayor for the year ensue who be  to hold the office for a year and until another be choose into his place and  that the defendant be a alderman of the say borough be on the that of October  duly elect and swear mayor of the say borough The declaration further state  that the plaintiff be a capital burgess and former mayor of the borough have  in his custody the regalia belong to the borough which the defendant request  he to deliver but he refuse that thereupon the defendant in Michaelmas term  year george king bring his writ of mandamus direct to the plaintiff which writ  suggest that the defendant be duly elect and swear mayor and thereby entitle  to the regalia of the borough for the use and benefit of the say borough  command the plaintiff to deliver the regalia to the say defendant for the use  and benefit of the say borough or show cause to the contrary the then next  Hilary term and that to this writ of brown mandamus the plaintiff false return  that the defendant be not duly elect nor duly swear into the office of mayor  of the say borough etcetera to this declaration prowse plead not guilty and  issue be join the court of king bench direct a trial at bar accord the cause  come on to be try in Trinity term follow and upon the trial foot give in  evidence the letter patent of the that of June saint Elizabeth by these letter  patent the queen after recite that the burgess and inhabitant of the say  borough of Truro have time out of mind several franchise liberty and privilege  as well by prescription as by diverse charter and grant incorporate the say  borough by the name of mayor and burgess of the say borough of Truro in the  county of Cornwall and thereby appoint that there shall be twentyfour of the  most discreet inhabitant who shall be always aid and assist to the mayor in  all matter and cause relate to the good government of the borough and that the  mayor and common Council or major part of they of who the mayor and two  alderman be always to be three shall have power to make bylaw brown er p and  statute for the good government of the say borough as shall seem most  convenient to they and likewise appoint four of the twentyfour burgess who  shall be call Aldermen The queen also appoint the mayor and burgess to choose  a recorder to continue so how day see bene to bear about and to act by himself  or his sufficient deputy and that the mayor burgess and common Council or  major part for the time be shall elect two member to parliament and appoint  Thomas burgess to be the first mayor to continue from the date of the say  letter patent until the that of October follow and until another burgess shall  be elect and swear mayor accord to the order and provision for elect a mayor  mention in the say letter patent if he the say Thomas burgess shall so long  live and appoint he the say Thomas burgess mayor for the time aforesaid and  further appoint Henry raw and twentythree other burgess to be the first  capital burgess and to continue so how day see bene to bear about and appoint  Robert Tonkreke to be the first recorder the charter likewise appoint Henry  raw William Hughnam John Rosega and John Robert four capital burgess and  inhabitant to be the four first alderman to continue from the date of the say  letter patent to the that of October follow and until other burgess shall be  elect and swear accord to the order and provision for elect a mayor in the say  letter patent mention if they or any of they shall so long live and appoint  they alderman for the time aforesaid which say alderman be to be always aid  and assist to the mayor in all cause and matter relate to the say borough and  the good government thereof and two of they at least to be present at all  assembly to vote for the election of the mayor and other officers These letter  patent further grant to the mayor and burgess and their successor that the  mayor and capital burgess and common Council for brown the time be or the  major part of they shall have power for ever after yearly on the that of  October to choose one of the alderman to be mayor who be swear shall bear the  office of mayor for one year then next follow and until another shall be  choose in his place and that the mayor so elect shall be swear before the last  mayor his predecessor if live and present and if dead or absent then before  the recorder and the rest of the alderman and burgess present and so as often  as it happen and that if the mayor shall die or be remove during his mayoralty  the common Council for the time be or the major part of they shall meet in the  guildhall or other convenient place in the say borough within twelve day after  notice of the death or removal of such mayor and choose one of the four  alderman before the capital burgess then present to be mayor in his place and  such person to be swear before the recorder and the rest of the alderman and  capital burgess then present Mr foot at this trial far give in evidence that  upon the that of November Henry Vincent junior then mayor of the say borough  and who have be mayor for several year die and thereupon within twelve day  after the death of the say Henry Vincent videlicet the that of the say month  of November the common Council of who the aforesaid Samuel foot and Samuel  ennys be two who have be elect and swear alderman of the say borough about  five year next before and have from thence always act under such election and  swear as alderman to that time and then claim to be alderman be present and  assent be duly assemble do name and elect the say Samuel foot to be mayor in  the place of the say Henry Vincent to hold to the that of October then next  follow and until another shall be elect and swear in his place that the say  Samuel foot afterward videlicet the that of December follow be swear before  the recorder and capital burgess and the say Samuel foot and Samuel ennys so  claim to be alderman then present accord to the say letter patent That upon  the that of October the say Samuel foot mayor as aforesaid and the say capital  burgess and common Council of who the say Samuel ennys and Richard plint be  two and which say Richard plint have some year before be elect alderman and be  then in that assembly swear before the say Samuel foot into the office of  alderman duly assemble themselves in the guildhall of the say borough to elect  one of the alderman for mayor for the year ensue and the say Samuel foot mayor  as aforesaid and the capital burgess and common Council be so assemble the say  Samuel ennys and Richard plint so as aforesaid be alderman and present and  assent elect the say Samuel foot to be mayor of the say borough brown er p for  the year ensue and the say Samuel foot on the saint of November follow be  swear before the say Samuel ennys then deputy recorder and the capital burgess  and the say Samuel ennys and Richard brown plint so be alderman as aforesaid  be then present foot also prove the writ of mandamus and the return make by  the defendant prowse as state in the declaration and further that he the say  Samuel foot be elect and swear alderman on the that of October and that no  other person have be elect or swear in the place of any of the say alderman at  the end of their respective year but that they the say Samuel foot and Samuel  ennys have continue ever since their say first election to be alderman to act  in the office of alderman by virtue of such their election that Richard plint  on the that of October be elect alderman of the say borough and afterward  swear into the office of alderman before Mr foot who claim to be mayor as  aforesaid in the say common Council assemble on the that of October and that  the swear of the say Richard plint into the say office of alderman on the that  of October be before the election of the say Samuel foot on that day into the  office of mayor that the say plint claim to be a alderman by virtue of such  his election and that no other person have be elect alderman in the place of  the say Richard plint in opposition to the evidence thus give on the part of  foot the defendant prowess counsel object and insist that neither foot ennys  or Richard plint be alderman at the several nomination of the say Samuel foot  to be mayor of the say borough and that there be not two alderman present at  the several nomination of the say Samuel foot to be mayor because there have  not be any annual election of alderman as they insist by the say letter patent  ought to be yet the plaintiff foot be counsel insist that there be two good  alderman present at the several nomination of the say Samuel foot to be mayor  accord to the say letter patent but the court of king bench be of a different  opinion and declare to the jury that the say Samuel foot Samuel ennys and  Richard plint be not and do not continue alderman at the say several  nomination of Samuel foot to be mayor and that there be not two alderman  present at the nomination of the say Samuel foot to be mayor accord to the say  letter patent as there ought to have be and for that reason the several  nomination of the say Samuel foot to be mayor of the say borough be void and  therefore direct the jury to find a verdict for the defendant prowse which be  do accord but the counsel for foot pray a bill of exception which the judge  allow judgement be give for the defendant prowse whereupon the plaintiff foot  bring his writ of error in the exchequer Chamber and after two solemn argument  the judgement give in the court of king bench be by the unanimous opinion of  the judge reverse the defendant prowse thereupon bring his writ of error in  parliament and on his behalf it be insist p York t Hussey that the word of the  charter be plain that two alderman shall be elect yearly that the elector by  the charter have power only to elect brown a person be a alderman to be mayor  and that there must be at least two of the alderman present at every election  and therefore it be conceive that the defendant foot be not a alderman at  either of his pretend election and consequent not capable of be choose mayor  that neither ennys or plint be alderman at the time of the election they as  well as foot have be choose alderman several year before and never reelect and  plint not have be swear till seven year after his election that if the first  election of Mr foot can possible be suppose good yet he have in his  declaration insist upon a election on the that of October be the charterday  and which election be clear ill he shall not be allow to resort back to  another election not insist upon in his declaration to which Mr prowse for  that reason can not be suppose to have any opportunity of give a answer it be  therefore hope that the judgement of the exchequer Chamber will be reverse and  the judgement of the court of king bench affirm on the other side it be say t  Lutwyche c Talbot that the only question in this case be whether upon the  clause of the charter and the fact before state it do not appear that Samuel  foot be duly elect mayor of the borough of Truro that it appear by the record  that two alderman be present at the election of brown er p foot to be mayor  who be himself also a good alderman notwithstanding the say alderman be elect  some year before for though there be a power give by the charter to elect  alderman annual yet it be insist that this clause be only directory in that  respect and that the office of alderman be not by virtue of that clause to  determine at the end of the year after his election but that the person who be  legal elect and swear into the office continue until another be choose in his  room or until his death or removal in the same manner as a person elect into  the office of mayor that the clause in the charter appoint and name the first  four alderman have a reference to the clause for elect the mayor as well with  respect to the time and manner of elect alderman as their continuance in  office and as it appear that no other person have be choose into the office of  alderman in the room of foot ennys or plint they ought more especial to be  esteem good and sufficient alderman the opinion therefore of the court of king  bench that there be not two alderman present at Mr foot be election to be  mayor that foot himself be not a good alderman and that his election into the  office of mayor be void and the verdict give thereupon and the judgement find  on that verdict be apprehend to be erroneous and that foot have good reason to  bring a writ of error the judgement of the king bench be right reverse and  that judgement of reversal ought to be affirm accord after hear counsel on  this writ of error it be order and adjudge that the judgement give in the  exchequer Chamber shall be affirm and that the record shall be brown remit to  the end execution may he have thereupon as if no such writ of error have be  bring into the house and it be further order that the plaintiff shall pay or  cause to be pay to the defendant the sum of pound for his cost sustain by  reason of bring the say writ of error jour vol p