The first count of the declaration stated that the defendant, before and at the time of the committing of the grievances thereinafter mentioned, and after the passing and coming into operation of the 6 & 7 Vict. c. 18., intituled, &c., was mayor of the borough of Abingdon, in the county of Berks, which borough, before and at the time of the committing of the said grievances was, and now is, a borough that returned and returns one member to serve in parliament, and that to the defendant, as mayor of the said borough, by virtue of his said 1846. PRYCE V. BELCHER. the poll-books; that he was requested so to do; but that he, contriving and wrongfully and fraudulently and wilfully and maliciously intending to injure and damnify the plaintiff, and to hinder and disappoint and deprive him of the benefit of his right and privilege aforesaid, instead of entering and recording the plaintiff's vote in the poll-books, to the end and intent aforesaid, refused so to receive the same, or to admit and allow the same to be so entered and recorded, to the end and intent aforesaid; but, on the contrary thereof, caused the vote of the plaintiff to be entered in the column of votes tendered in the poll-books, and at the close of the poll refused to reckon, include, and cast up, and did not reckon, &c., the plaintiff's vote among the votes given for that candidate; whereby the plaintiff was deprived of the benefit of his right to vote at that election: the count disclosed a primâ facie cause of action. Semble, that The third count-after stating the writ and precept, that the plaintiff was a burgess and on the register, and that he tendered his vote alleged that it was the duty of the defendant, as returning officer, to enter the vote on the poll-books without entering into or allowing a scrutiny; but that the defendant, knowing the premises, but contriving and wrongfully, fraudulently, wilfully, and maliciously intending to injure and damnify the plaintiff, and to delay him in the exercise of his privilege of voting, and deprive him of the benefit of his said privilege, wrongfully ordered and allowed a scrutiny to be held with regard to the plaintiff's vote, and his right and qualification to vote, and wrongfully took upon himself to adjudge and determine, at and after such scrutiny so ordered and allowed, that the plaintiff was not entitled to give, and had no qualification enabling him to give, his vote at that election; whereby the plaintiff was delayed, hindered, and obstructed in the exercise of his said privilege of voting, and a burgess was elected for that parliament, the plaintiff's vote being so hindered and obstructed, &c.:- Held, that this count also disclosed a primâ facie cause of action — inasmuch as it was possible that the delay arising from the holding of a scrutiny (which is prohibited by the 6 & 7 Vict. c. 18. s. 82.) might have had the effect of preventing the plaintiff from exercising his right of voting, and, if so, that the action would be maintainable, the act of the defendant being wrongful, and having caused a particular damage to the plaintiff. Held also, that the words subsequent to the per quod amounted to an averment of matter of fact, and were not mere matter of legal inference from the preceding allegations. 1846. PRYCE v. BELCHER. office of mayor, of right belonged the execution of any writ or precept for the election of a member to serve in parliament for the said borough, which should be delivered to him, so being such mayor as aforesaid, and to be and officiate as returning officer at such election: that, on the 30th of June, 9 Vict., a certain writ of our lady the now Queen issued out of the court of Chancery of the said lady the Queen, directed to the then sheriff of Berkshire aforesaid, reciting that Sir Frederick Thesiger had been then lately chosen burgess for the borough of Abingdon, in the said county, for the then present parliament of the said lady the Queen, summoned to be holden at the city of Westminster, of the said lady the Queen, on the 19th of August, 5 Vict., on which day the said parliament was begun and holden, and from thence, by several adjournments and prorogations had been adjourned and prorogued, and there then holden; and reciting that the said Sir F. Thesiger, having been so chosen a burgess for the said borough as aforesaid, had since then accepted the office of Attorney-General of the said lady the Queen, as by a letter of the trusty and well-beloved councillor of the said lady the Queen, C. S. Lefevre, speaker of the lower house of parliament of the said lady the Queen, more fully and plainly appeared; by means whereof the subjects of the said lady the Queen, of the said borough, had been deprived of a burgess to treat for the benefit of the said borough in the said parliament of the said lady the Queen; nevertheless, the said lady the Queen, being unwilling that the commonalty of Her kingdom in Her said parliament assembled to treat of business concerning the said lady the Queen, the state and defence of Her kingdom and the church, from the aforesaid cause, should be lessened or diminished, whereby those affairs might not have a due end, did command the said sheriff, that, in the place of the said Sir F. Thesiger within the borough aforesaid, one other fit and discreet burgess of the aforesaid borough, proclamation of the said writ, and of the day and place, being first duly made, freely and indifferently, by those who should be present at the proclamation, according to the form of the statute in that case made and provided, he should cause to be elected; and that the name of the said burgess he the said sheriff should cause to be inserted in certain indentures to be thereupon made between him the said sheriff and those who should be present at such election, whether at the said election he the said burgess should be present or absent, that he the said sheriff should cause him to come to the said parliament, in such manner that the same burgess so to be chosen might have full power and sufficient authority, for himself and the commonalty of the said borough, to do and consent to those things which in the said parliament of the said lady the Queen by the common council of her said realm (by the blessing of God) should happen to be ordained upon the aforesaid affairs; willing, nevertheless, that neither the said sheriff nor any other sheriff of the kingdom of the said lady the Queen in any wise should be elected; and that the election so made the said sheriff should distinctly and openly, under his seal and the seals of those who should be present at such election, certify to the said lady the Queen, in her Chancery, forthwith, remitting to Her the said lady the Queen one part of the said indenture annexed to the said writ, together with the said writ; that the said writ, afterwards, and before the committing of the grievances thereinafter mentioned, to wit, on the 1st of July in the year aforesaid, in the said county of Berks, was delivered to one J. B. Monck, Esq., the sheriff of the same county of Berks, to be executed in due form of law; that by virtue of the said writ the aforesaid J. B. Monck, so being then and there sheriff of the county 1846. PRYCE 1. BELCHER. of Berks aforesaid, afterwards, and before the committing of the grievances hereinafter mentioned, to wit, on &c., made his certain precept in writing under the seal of him the said J. B. Monck of his office of sheriff of the county of Berks aforesaid, directed to the mayor of the borough of Abingdon aforesaid, reciting the aforesaid writ of our lady the Queen to him the said sheriff directed; that, by his precept, and by virtue of the said writ, he the said sheriff did require him the said mayor,because the execution of the said writ belonged to him the said mayor, that he the said mayor should forthwith cause a burgess to be elected for the said borough in the place of the said Sir F. Thesiger, according to the command of the said writ, and that, when the said precept should be executed, he the said mayor should make known to him the said sheriff immediately after the said election made, so that he the said sheriff might certify the same, together with the said writ, and that precept return to our lady the Queen in Her Chancery forthwith; that the said precept, afterwards, and before the committing of the grievances hereinafter mentioned, to wit, on &c., at the borough of Abingdon aforesaid, in the same county of Berks, was delivered to him the defendant, then, and until and after the return of the same writ, being mayor of the said borough of Abingdon as aforesaid, to be executed in due form of law; that, by virtue of the said precept, and by virtue of the writ aforesaid, they the said burgesses of the borough of Abingdon, being in that behalf duly forewarned, to wit, on the 8th of July, in &c., at the borough of Abingdon aforesaid, before him the defendant, so being mayor and returning officer as aforesaid, were assembled to elect a burgess for the said borough, according to the exigency of the writ and precept aforesaid; that, during that assembly, to that intention, and before such burgess by virtue of the writ and precept aforesaid was elected, to wit, on &c. last aforesaid, at the borough of Abingdon aforesaid, he the plaintiff then being, and the plaintiff averred that he then was, a burgess of the borough aforesaid, and the name of the plaintiff being then inserted, and then standing and being, and the plaintiff averred that his name was then inserted and then stood and was, in the register of voters then in force for the said borough, to wit, the register of all persons entitled to vote in the election of a member to serve in parliament for the said borough, made and formed according to the provisions of the statutes in that case made and provided; and, the plaintiff's said name being and standing, and the plaintiff averred that his said name then stood and was, No. 216. in the said register of voters; and the plaintiff being then entitled, and the plaintiff averred that he was then entitled, to give his vote for the choosing of a burgess of the said borough according to the exigency of the writ and precept aforesaid, before him the defendant, mayor of that borough, to whom then and there it did duly belong, as such returning officer as aforesaid at the said election, to take and allow the vote of him the plaintiff of and in the premises, was ready and willing, and the plaintiff then offered to give, and then and there tendered his vote for choosing James Caulfield, Esq., a burgess for that parliament, by virtue and according to the exigency of the writ and precept aforesaid; and he the plaintiff was then and there willing and ready to answer, and did then and there answer in the affirmative, to him the defendant, so being such returning officer as aforesaid, the questions authorised by the act of parliament aforesaid to be put by the returning officer at any election of a member or members to serve in parliament, if required on behalf of any candidate, to any voter, at the time of his tendering his vote at any such election, and which he the defendant, so being such returning officer as aforesaid, was then required on behalf of Sir F. Thesiger, a candidate at the said election, to put, and 1846. PRYCE ย. BELCHER. |