case peter pender plaintiff the king defendant in error that march Mews dig  way see prowse v foot bro p c a charter direct that the old mayor shall  continue until another be duly elect and swear another mayor be duly elect but  he can act as mayor until he be swear and if he do judgement of ouster shall  go against he cost do not lie against the defendant to a information in the  nature of a quo warranto viner vol p can king James two by his letter patent  date Decimus seven of Mars year royal power his primo do grant and declare  that the borough of Penryn in the county of Cornwall shall be and remain for  ever a free borough and that the burgess and inhabitant of the say borough and  their successor shall be a body corporate and politic by the name of the mayor  and burgess of the borough of Penryn in the county of Cornwall and by the same  name shall have perpetual succession and that there shall be in the say  borough one of the most discreet burgess who shall be mayor of the say borough  and that there shall be in the say borough twentyfour capital burgess who  shall be aid and assist to the mayor for the time be in all matter concern the  say borough and the government thereof and the say king by his say letter  patent appoint and create James Kemp to be the first mayor of the say borough  to continue in the say office of mayor from the date of the say letter patent  unto the feast of saint Matthew the apostle then next follow and from thence  until another of the say borough shall be elect appoint and swear into the say  office he also appoint Richard Arundel baron of Frerise and twentythree other  person therein name to be the first capital burgess of the say borough to  continue in their office during their natural life unless they or any of they  by the mayor and capital burgess of the say borough for the time be or the  major part of they shall be amoved for maladministra brown er p cion or other  reasonable cause and that as well the say James Kemp as every other mayor of  the say borough shall after his mayoralty expire be a capital burgess to  continue in the say office for his life unless he shall be amoved for  reasonable cause as aforesaid and the say king by his say letter patent do far  will and grant that the mayor of the say borough for the time be or his deputy  and the capital burgess of the say borough for the time be or so many of they  as shall be then present or the major part of they every year upon the feast  of saint Matthew the apostle and that the capital burgess of the say brown  borough or so many of they as shall be then present or the major part of they  whensoever the mayor of the say borough for the time be shall happen to die  within his year or be amoved or depart from his office shall have power and  authority to choose one of the capital burgess of the say borough to be mayor  of the say borough until the next feast of saint Matthew the apostle and from  thence until another mayor shall be elect appoint and swear and if at such  election the number of voice shall be equal the mayor or his deputy and if the  mayor be dead or amoved then the senior capital burgess then present shall  have a double voice and that he the say mayor after he shall be so elect as  aforesaid and before he shall be admit to execute his office shall take a  corporal oath before the last mayor his predecessor or his deputy well and  faithful to execute the say office and which oath the say last mayor have  authority thereby give he to administer on the feast of saint Matthew the  apostle videlicet the saint of September one Joseph Penhallow a capital  burgess be duly elect appoint and swear mayor of the say borough of Penryn but  die within the year of his mayoralty videlicet on the that of march next after  his election and upon the that of may follow the plaintiff also a capital  burgess be elect mayor of the say borough during the residue of that year and  from thence until another of the say capital burgess shall be duly elect  appoint and swear into the say office accord to the say letter patent the  plaintiff neither upon or at any time after his election take the oath direct  by the letter patent well and faithful to execute his office nor be he ever  swear and admit into the say office of mayor accord to the say letter patent  and yet notwithstanding such default he upon the same that of may do take upon  he and execute the office of mayor of the say borough and from thence unto the  d of January do by usurpation upon the crown continue to use and exercise the  say office contrary to the tenor of the say letter patent and do claim to be  mayor of the say borough and to have use and enjoy all liberty privilege and  franchise belong or appertain to the office of mayor therefore to move the  plaintiff from the say office and to punish he for such usurpation a  information in the nature of a quo warranto be in Hilary term exhibit against  he at the relation of Henry Cruwys gentleman by the king coroner and attorney  in the court of king bench at Westminster to show by what authority he claim  to be mayor of the say borough and to execute such office to this information  the plaintiff appear and plead and by his plea admit the letter patent and the  election and swear of Joseph Penhallow mayor of the say borough and also his  death but he further by his plea say that upon the say that of may the office  of mayor be then vacant and he be a capital burgess of the say borough be by  the major brown part of the capital burgess elect and appoint mayor of the say  borough during the residue of the say year and from thence until another mayor  shall be elect and swear and that after such his election he do on the same  day duly and accord to the form and effect of the say letter patent take a  corporal oath well and faithful to execute the say office and be then admit  into the say office of mayor of the say borough and therefore pray that the  say office liberty privilege and franchise may be adjudge and allow unto he to  which plea a replication be put in by the king coroner and attorney and it be  thereby traverse and deny that the plaintiff be elect and appoint mayor of the  say borough as he have allege in his plea and it be thereby also traverse and  deny that he do take a corporal oath well and faithful to execute the say  office or be admit into the office of mayor of the say borough modus form as  he have also allege in his say plea brown er p whereupon several issue be join  the same be try at the lend assize hold in Cornwall before sir Robert Raymond  Lord chief justice of the court of king bench and after a full evidence and  hear the jury give their verdict on the first issue that the say Peter Pender  be elect and appoint mayor of the say borough as he have allege in his plea  but on the second issue they find that the say Peter Pender do not take a  corporal oath well and faithful to execute the say office and that he be not  admit into the office of mayor of the say borough as he have by his say plea  allege in consequence of this verdict the court of king bench in easter term  follow award judgement of ouster against he in the follow word videlicet quod  preceding Petrus Pender de in duty freedom privilege franch preceding nullo  modus see intromitta send ab the same the dawn whithersoever you please inside  abjudice to shut out c et quod preceding Petrus Pender ad to give satisfaction  lord king de usurpation prediction to take in hand c et quod prediction Henry  Cruwys relator above naming in here part recupere versus prefatum Peter Pender  eighty libras pro custagiis fuis in daughter of the Sun sectan svan in here  part pay out expenditure sencundam form to cause to stand in hujusmodi  grammatical case edict to will to reverse this judgement a writ of error be  bring in parliament and on behalf of the plaintiff in error it be insist t  Lutwyche t Hussey that the judgement be erroneous especial in that part of it  which exclude he from the office for it appear upon the record that his right  to the office be establish by the verdict of the jury which find that he be  duly elect and yet while this judgement of ouster stand the plaintiff can not  have the effect of a mandamus from the king bench to be swear into that office  though the legality of his election be not dispute and though no time be limit  by the charter for his be swear nor be he by law debar from have such mandamus  though he act before he be swear brown on the other side it be argue p York c  Wearg that by the statute Ann c it be express enact that from and after the  first day of Trinity term in case any person or person shall usurp intrude  into or unlawful hold and execute any of the office or franchise of mayor  bailiff etcetera therein mention it shall and may be lawful for the proper  officer of the court of king bench with leave of the say court to exhibit one  or more information or information in the nature of a quo warranto at the  relation of any person or person desirous to sue or prosecute the same against  such person or person so usurp intrude into or unlawful hold and execute any  of the say office and franchise and it be declare that in case any such person  or person against who any information or information in the nature of a quo  warranto shall in any of the say case be exhibit shall be find or adjudge  guilty of any usurpation or intrusion into or unlawful hold or execute any of  the say office and franchise it shall and may be lawful to and for the say  court as well to give judgement of ouster against such person or person of and  from the say office and franchise as to fine such person or person respective  for his or their usurp intrude into or unlawful hold and execute any of the  say office and franchise and also it shall and may be lawful to and for the  say court to give judgement that the relator in such information name shall  recover his cost of such prosecution to be levy in the manner therein before  direct that it be express require by the letter patent of incorporation that  the person elect to be mayor shall take the oath of office before he shall be  admit to execute such office it become necessary for the plaintiff in order to  make his justification complete to allege that he do accord take such oath and  this allegation have be falsify by the verdict of the jury the justification  be entire be destroy and he be find to be a usurper of the office and  consequent subject to the judgement of ouster as be the only legal judgement  in this case it be therefore pray that the judgement of the court of king  bench may be affirm with cost accord after hear counsel on this writ of error  it be order and adjudge that the judgement give in the court of king bench  shall be affirm and that the record shall be remit to the end such proceed may  he have thereupon as if no such writ of error have be bring into the house and  it be propose that the plaintiff shall be order to pay cost to the defendant  by reason brown er p of the bring the say writ of error it be order that the  consideration of cost shall be reserve till the next Tuesday at which time the  party on either side be at liberty to be hear by one counsel of a side touch  the matter of cost only and that all the judge in town shall then attend jour  vol p this matter accord come on at the time appoint be Tuesday the d of march  when one counsel of a side brown be hear the two Lord chief justice deliver it  as their opinion that cost do not lie in this case jour vol p