case austin vers osborn vide above p where person have a right to their  freedom the tortuous refusal of the mayor do not make their vote void for  admission be but a ceremony in a action upon the case the plaintiff declare on  a feign issue direct bythe court of king bench and the issue be whether the  plaintiff or defendant be duly elect mayor of the port and borough of hythe  one of the cinque port in the county of ken and upon the trial at the assize  at Maidstone in July before the Lord chief justice Parker the case appear to  be this by the charter grant to the corporation of hythe on the that of march  in the that of Elizabeth the election of the mayor be to be on the and of  February annual si some major obierit ante that which divides striving proximo  die post notice c a new mayor shall be elect for the residue of the year on  the that of August Mr deed then mayor die eoden die circiter Decimus horan the  horn be blow which be the usual notice of summon the court and the officer be  also send to summon all the burgess of the corporation upon which be assemble  and elect Stokes mayor for the remainder of the say year comens upon the and  of February next ensue when the annual election of the mayor be appoint by the  charter Osborn and Austin be candidate and the election be to be per jurat  partnership after the court be assemble one lake who at a former court have be  order to be admit to his freedom upon the pay a fine of S pay his fine and be  swear in a freeman and take the oath of allegiance and supremacy and then the  other officer of the corporation be continue and swear in and then Stokes the  mayor say that he will proceed to the election of a new mayor some person  present say that there be other who will take up their freedom to which Stokes  reply that he will not do any business that day except elect a new mayor and  then lie down his mace and the horn be blow to summons the freeman to the  election of a mayor then tournay Brockman Geo Kennet Richard Kennet Symonds  and rand who claim a right to be admit to the freedom of the port and borough  of hythe enter the court and demand their freedom and tender d which be the  usual fine pay for admittance and pray to be admit but Stokes refuse they upon  which those six person declare their vote for Austin and be exclude the court  the right to the freedom be by birth by marriage and by fine and it be allow  that Geo Kennet have a right to his freedom and though the right of the other  be controvert yet by a verdict find the same day upon a feign issue in another  action it be find that they all have a right to their freedom after exclude  those six from the court they proceed to the election of a mayor and there be  vote for the defendant Osborn and for the plaintiff Austin beside those six  who be exclude so that if those six be good vote Austin be elect otherwise  Osborn be elect and afterward it be consent that a case shall be make and this  matter argue the chief justice deliver his opinion that comens those six ought  to be reckon as good vote for Austin and that he be duly elect and the chief  justice say that it be not improper to take notice how Stokes become mayor for  the question here be whether there do not appear in this case such a  partiality as to make the election of the defendant void second if the vote of  the six ought not to be allow by which the election of the plaintiff will be  good as to the first matter the election of Stokes be not make pursuant to the  direction of the charter and though his election be not void yet his be elect  in such a manner show the intention of continue the office in one party comens  er p as to the other the six vote exclude ought to be allow for it do not  appear that there be any doubt of their right to be admit freeman but it  appear that they be entitle to their freedom and there do not appear to be any  doubt of it on the and of February for the mayor do not give that as a ground  for refuse they but say that he will do no more business that day then if they  have a right to their freedom and the court have no doubt of it if they have  do all that be in their power in order to be admit the tortuous refusal of the  mayor do not make their vote void for admittance be only a ceremony introduce  and use for more order and regularity the case of a tender and refusal which  amount to payment be very apposite to this matter if a copyholder to who use a  surrender be make pray to be admit in court and be refuse he shall be  tertenant against the lord though the lord do lose his fine comens if a man  approach as near as he can to the land this amount to a livery and the case  here be strong for it appear that the corporation have at that time power to  perform the ceremony and there can be no reason why they do not perform it  this be not proper to be consider as between the plaintiff and defendant but  between the person exclude and the corporation and then what cause can there  be for refuse their vote till admittance on the part of the corporation  nothing but matter of decency on the other part it will be manifest injustice  if their vote shall be reject and where the come petition be between a defect  in point of decency on the one part and manifest injustice on the other there  can be no question which ought to prevail but the chief justice after declare  his opinion say he will not preclude the defendant from take the opinion of  the court and therefore as he be of such opinion he can not in justice permit  the defendant to continue in his office yet he will order that if upon motion  by the defendant in court the first week of the term the court shall be of a  contrary opinion the insignia of the office which be now by rule deliver to  the plaintiff shall be redeliver to the defendant and a rule be make accord  this matter be touch on in court upon a motion for a information Trin Geo and  then chief justice Parker justice Pratt and justice powis be of the same  opinion which the chief justice now deliver but judge Eyre be of a contrary  opinion in Michaelmas term Geo the possession of the office and insignia of  mayor be resign to the plaintiff accord to comens the rule and the court in  Trin term be of the same opinion with the chief justice the defendant will not  be at the charge of argue this point but submit that judgement shall be give  against he and upon such submission the chief justice say that the matter be  worthy of be argue and he shall be satisfy to have it argue but he have  consider the case and be of the same opinion now as he be at the assize