case the king against nance if a mayor be choose on the day prescribe by Geo c  it be sufficient to swear he in before the preside officer as the statute  require although by the constitution of the borough a new mayor be to be  present at the next court leet and swear in before the town clerk information  in nature of quo warranto against the defendant for illegal exercise the  office of mayor of Grampound in the county of Cornwall the defendant by his  plea set out the constitution of the borough that it be a borough by  prescription and consist of a mayor eight capital burgess or freeman and a  unlimited number of free burgess or freeman that the custom be for the mayor  capital burgess and freeman to meet on Sunday next before michaelmasday in the  townhall to choose a mayor and that the capital burgess or a major part of  they nominate two capital burgess other than the stand man to the mayor who  strike out one of they and that the remain capital burgess and the stand man  be then put in nomination for the freeman to choose one of they mayor for the  ensue year and then he plead by way of averment that the stand man be he who  be put in nomination the last year but not choose the plea then set out the  fact of this election that on Sunday next before Michaelmas be the  twentyeighth of September there be no election of a mayor accord to the custom  and on Monday the twentyninth of September one pierce the defendant Nance and  one more three capital burgess and a great number of free burgess meet to  choose a mayor accord to the statute that at that assembly no mayor appear and  that pierce who be the senior capital burgess then present and the near in  place and office to the mayor preside at that assembly that pierce and Nance  the defendant nominate themselves and pierce strike off himself and that Nance  the defendant and more who be the stand man be put in nomination to the free  burgess who choose Nance the mayor for the year ensue that Nance afterward  modern before his admission take the oath of office before pierce who preside  at the election and so warrant the defendant claim to be mayor the king  coroner in his replication admit the constitution as to the manner of election  but state a further part of the custom with regard to the swear modern er p  that the person so elect ought to be present at the next court leet before the  jury of the court which be hold always within one month after Michaelmas  yearly and to be swear in and admit before the townclerk or his deputy at such  court in the presence of the precede mayor and that the defendant Nance be not  present at the court leet nor swear thereat several other issue be join and a  verdict for the defendant in all of they but as to this part of the  replication relate to the presentment and swear there be a demurrer and  joinder the question on argue the demurrer be whether as the defendant Nance  be choose on the day prescribe by the statute of Geo c and not on the  prescriptive day it be sufficient that he be swear before the preside officer  at that election without be present at the court leet or whether the  presentment or swear at the court leet be necessary after a election pursuant  to the Act of parliament the counsel for the defendant insist that as this  election be on the day prescribe by the Act of parliament the direction of the  Act must be follow and that the usage of the borough suppose a election have  be on the prescriptive day will be entire out of the case before this Act it  be a question whether the corporation be not dissolve if the mayor have no  power of hold over and a election have not be make on the prescriptive or  charter day and to assist this a writ be frame on the statute of Westminster  the second c to put they again in motion after this omission for the mayor  office be then at a end it be a doubt whether they can act without a head to  remedy these inconvenience the statute of Geo c be make which provide for a  election after the prescriptive or charter day the first section recite the  inconvenience which often prevent a election on the charter or prescriptive  day and direct ail election on another day and in what manner and before who  the second section give a mandamus from the king bench to any officer of the  corporation require they to attend such election the three section direct a  mandamus to the court leet require they to hold a court in order to swear in  any mayor or other head officer if necessary the four section relate to the  swear and be as follow that the mayor bailiff or bailiff or other chief  officer or officer who shall be elect pursuant to the direction of the Act  shall take the oath or oath by law require at the time of his admission into  such office before such officer as shall preside at such election in pursuance  of this Act modern who be hereby require and authorize to administer such oath  or oath and shall have the same privilege precedence power and authority in  all respect as any mayor bailiff or bailiff or other chief officer or officer  of the same city borough or corporation elect on the day or time fix by  charter or usage for that purpose ought to have or enjoy that this clause give  the preside officer the same power on the statute day of swear the newelected  mayor c as the court leet will have have if the election have be on the  charter or prescriptive day and be not only directory but compulsory and that  the clause which give a mandamus to the leet to hold a court for the swear be  to be construe reddendo one one that be when the election be on the  prescriptive day the swear must be at the leet but when on the statute day  before the preside officer it be argue for the king that by the swear before  the preside officer the lord of the leet will be deprive of his franchise  without any default in he but mere by the default of the precede mayor in not  go to a election on the prescriptive day the election it be true must be whole  either accord to the usage or accord to the Act of parliament and ought not to  be blend one with the other but the election and the swear be different and  independent thing and the one may be accord to the statute and the other by  the commonlaw accord to the usage which the lord of the leet ought not to be  deprive of without some default in he the question therefore will be whether  the constitution be break into in one instance ought not to be so likewise in  another and whether the preside officer on the statute day be to have a great  power or authority than the mayor will have have on the prescriptive day he be  not complete mayor till swear and by the usage of the borough he be not to be  swear modern er p till one month after this election then suppose the preside  officer on the statute day be to have a power of swear immediate after the  election this absurdity will follow that if there happen to be a election one  year accord to the statute and in another year on the prescriptive day the  former will continue in his office thirteen month and the Iatter only eleven  month the defendant Nance be not swear in on the day of election but at  another court before pierce who preside at his election now though pierce  legal preside on the election day yet no power be give he to call another  court in order to swear he in the three section relate to the swear as well as  the four and say where there be a contrivance in the lord of the leet in not  hold a court the swear shall be by mandamus to the lord of the leet c but  where there have be no contrivance or default in the lord of the leet to  deprive he of his franchise and privilege of swear will be a very hard  construction the mayor lose all his power by not go to a election on the  prescriptive day the preside officer who supply his place have only the same  power as the mayor will have have on the prescriptive day the mayor it be  plain have not the power to swear in modern why then shall the preside officer  on the statute day who only supply the place of the mayor have a great  authority than the mayor bad the whole tenor of the Act be to be take together  and this construction answer all the purpose of it and preserve the right of  all people who have be guilty of no default lee chief justice deliver the  opinion of the court the question be whether the defendant who have be elect  accord to the statute be bind by that part of the custom of this borough of be  present and swear at the court leet this question depend on the statute Geo c  the intention of the Act by the recital be to institute a manner of election  when there have be a failure on the charter or prescriptive day lest by that  mean the corporation shall be dissolve by the first clause of the statute the  person preside be to do every act belong to the election which the mayor may  have do on the prescriptive or charter day in the three clause it be  observable that the Act take notice where a nomination and election be  necessary at the leet and a provision be make for continue the nomination but  there be no notice take as to the swear at the leet the next clause be the  four which be a general clause and have no save or exception in it but direct  that the swear shall be before the preside officer by these clause it appear  there be a manner and form of election and swear prescribe by this Act and a  continuance of the nomination where it be to be at the leet and as the design  of the Act be to keep up the peace of corporation it supply the place of the  mayor then in be and have give a election on the next day and provide for the  swear by one general direction that if the election be at the leet the swear  must be there also but there be no direction to continue the swear at the leet  where there be not a election on the charter day and I take this to be the  sense of the Act that where there be a election on the charter or prescriptive  day if there be any default of the lord of the leet in not hold a court a  mandamus may issue to oblige he to do it it have also take care to continue  the nomination at the leet but as to the swear the clause be so general that I  think in all instance of election not on the prescriptive or charter day the  swear must be before the preside officer several objection have be make by the  plaintiff that the Act say that the preside officer shall have no more power  than the mayor have and if the mayor have no power to swear in why shall the  preside officer I agree as to the election that the preside officer have no  more power than the mayor have on the prescriptive day but as to the swear it  be express provide that it shall be before the preside officer it be also  object that the lord of the leet be guilty of do default the Act can not  intend to deprive he of his franchise to this I answer that the lord of the  leet have the swear if there be a election accord to the custom but if not it  be a doubt before this Act whether there can be any election at all and  therefore it be not to be wonder at if the parliament bad no regard to such  swear which be not preserve but on a election accord to modern the custom for  I do not see how the jury can present a mayor at any other day or by any other  person than be empower to do it by the custom therefore as the custom swear at  the leet be part of the custom of the borough it must be modern er p confine  to a election make in pursuance of the custom it be also say the defendant be  not swear on the day of his election but on another day the twentysecond of  October whereas it shall be at the time of his election the day be put in  answer to the day charge in the information which be the twentysecond of  October but the day of swear in this case be not material if he be swear  before his admission as appear by the case of Vaughan v Lewis Carth and here  it appear that he be swear before be enter upon the office upon the whole the  word of the Act as to the swear upon the statute day be mandatory and such  volunteers such imposed be sufficient in the case of a Act of parliament but  this be ground on reason and give a operation to every clause of the Act  therefore we be all of opinion that this swear before the preside officer be  good and that there must be judgement for the defendant judgement be accord  give for the defendant it be now move in arrest of judgement on behalf of the  crown for that it appear by the defendant own show on the face of the record  that he have no right the objection to the defendant right be that there be no  good nomination for that pierce who be in loco majoris on the statute day be  not capable of be put in nomination with Nance for be then act as preside  officer and he can not act also as a capital burgess and principal for this  reason that if Nance have be strike off and pierce and the stand man put in  election and pierce have be choose mayor by the free burgess he can not have  be swear in for this court have determine that the swear must be before the  preside officer and not at the leet and as pierce be himself the preside  officer he can not swear himself in therefore for want of a good nomination  the defendant election must be void lee chief justice deliver the opinion of  the court this be a motion in arrest of judgement on behalf of the crown that  the defendant may be stay from enter up his judgement because it appear by his  own show that he be not well elect for want of a good nomination and if this  appear to be the case the motion will be very proper notwithstanding the  defendant have have a verdict for he because it will then appear by his show  that he have no title so be Carthew the custom be agree on by both side that  the major part of the capital burgess be to nominate two of their own body one  of who be to be strike off and the other to be put in election with the stand  man the crown object to the nomination which have be make in this case because  pierce who be the conominee with the defendant can modern not have be complete  mayor if elect for be can not have swear in himself and for another reason  that pierce be incapable of both nominate and strike off himself and though no  objection be make to Nance the defendant or to pierce as be capital burgess  yet it be say the nominees ought to be person either of who if elect will have  be capable of be the mayor as to this it be immaterial whether pierce can have  swear himself oh not for if there be any mean whereby the mayor may be swear  that be sufficient and if it appear that there be no person in be who can  swear he in when elect the crown may authorize a person to perform that office  for if the swear be not lodge in any particular person it will be in the crown  so that the objection as to pierce be incapable of swear himself will be easy  answer the second objection be to this purpose that pierce act on the statute  day instead of the mayor and as the mayor bad no power to nominate on the  prescriptive day so pierce who be no loco majoris can nominate on the statute  day this objection be ground on a fallacy for the reason why the mayor can  nominate be because the nomination be in the capital burgess and the mayor  power of act as a capital burgess be suspend during the mayoralty and yet it  be true that pierce have the same authority as the mayor on the statute day  here be a proper assembly of capital burgess and as such pierce nominate and  this power he use under the constitution but as preside officer he have  another right to strike off as well as to nominate and this he do by virtue of  the Act of parliament whereas he have the other by the constitution of the  borough it be then say that these right be incompatible if they bad proceed to  a election on the prescriptive day these right will have be exercise by modern  er p different person whereas their be at this time exercise by the same  person be owe to the default of the mayor who absent himself and it will be  very hard if pierce shall be deprive of his right as a capital burgess because  the mayor be wilful absent and as to their be incompatible the same person may  exercise different power in many case as in a writ of redisseizin the sheriff  be both judge and officer but there be no need here to go into this because  what pierce have do be under the particular direction of a Act of parliament  and occasion by the wilful default of the mayor the direction of the Act be  very plain that the right of every person shall be preserve on the statute day  and therefore pierce right as a capital burgess be preserve to he and then it  enact as to the preside officer that he shall have the same power as the mayor  will have have on the charter or prescriptive day therefore if the mayor have  be present he will have preside and strike off one and as pierce preside arise  from the default of the mayor it will be very hard to take away his right as a  capital burgess and to put any other construction on it will be to repeal a  remedial law modern here a nomination and a election be find and we be all of  opinion that the nomination be a good one and that the defendant be well elect  on the statute day the rule for arrest judgement be discharge