office of a capital burgess in the room of Blake, "for want of due notice of such election being given to the "electors;" they held the objection to be sufficiently answered by it's being found, that no one of them was "then resident within the borough." For, if they were "not within summons, it was not necessary to summon "them.' Secondly, a question having been made, "whether the special verdict found on the information against John "Leigh for usurping the office of mayor, and the judg "ment given thereupon against him, were EVIDENCE in "the present cause against Grimes for usurping the office "of capital burgess and to what degree it ought to "be allowed;" they held it to be admissible, but NOT conclusive.* 1770, REX V. GRIMES. [5 Durn. 72.] V. Rex v. J. S. 1109. Hebden 2 Sir Thirdly, they held that John Leigh's election to his mayoralty was not pursuant to the directions given by the charter, for the election of a mayor; it having been made by four only of the electors, when there were eleven existing. The reasonable construction of the charter they held to be, that the mayor and a major part of the subsisting burgesses must meet the directions of the charter are," that the mayor and eleven burgesses, vel major દ pars eorum, are to meet, in order to proceed to such "election." AFTER the major part of the subsisting [Cow. 243, number are so assembled together, then indeed the major 330.] part of those who are so assembled are to elect and nominate and the majority amongst those so assembled in volves the whole number; who are all bound by the determination of the majority of such a meeting. But here the mayor and a major part of the subsisting burgesses did not meet. For, at the time of John Leigh's election to the office of mayor, there were eleven chief burgesses subsisting; and the meeting at which he was elected was composed of the minor part of them, namely Benjamin Leigh, the then mayor, and three of the others; being only four in all whereas the whole number was eleven ; of whom seven were absent. JUDGMENT for the KING. This is clear upon the express words of the charter. [ 2602 KIMBER, qui tam, &c. versus BLANCHARD. (S. C. 2 B1. 690.) Friday 11th ships up the THE question was, whether the defendant had incurred 1770. KIMBER, QUI TAM, "Thames and Medway," by piloting the vessel of which he himself was master. cr 46 The first section of this act recites" that there has been "time out of mind, and now is, a very useful and well"regulated society or fellowship of PILOTS of the TriniRLANCHARD." ty-house of Dover, Deal, and the Isle of Thanet, who "have always had the sole piloting the load-manage of "all ships and vessels from the said places, up the rivers "of Thames and Medway;" and that "by the usage "and good rules and orders of the said society, every 66 person must appear at a Court Leet of load-manage, "and be publicly examined by some of the elder and more "experienced members of the said society and fellow"ship, touching his skill and abilities in pilotage, before "he is to be admitted a member of the said society or "fellowship, or ought to undertake the conducting and "piloting any ship or vessel from the beforementioned "places up the said rivers; whereby ignorant and dangerous persons have been prevented from undertaking "such pilotage, and there hath been from time to time, "a sufficient number of safe and able pilots for the said "rivers maintained and kept up ;" and also that "not"withstanding the many and great advantages of the said "society or fellowship to the public, several unqualified persons have of late taken upon them the piloting and "conducting ships or vessels by and from the places be"forementioned, up the said rivers of Thames and Med66 way, who have not been admitted into the said society "or fellowship, or undergone any examination of their "abilities for such service; whereby the said useful so"ciety or fellowship hath been much discourged; and "several ships and vessels with their cargo and mariners "have been lost or in the utmost danger and hazard:" for remedy whereof, it enacts That if any person or persons shall (after 1st August 1717) take upon him or themselves to conduct or pilot any ship or vessel by or from Dover, Deal, or the Isle of Thanet, to any place or places in or upon the said rivers of Thames and Medway, before he or they shall be first examined, as has been usual by the master and wardens of the said society or fellowship, for the time being, touching his or their abilities, and shall be approved and admitted into the said society or fellowship at a Court of load-manage, by the Lord Warden of the Cinque Ports, for the time being, or his deputy, and the said master and wardens for the time being; every SUCH person or persons shall, for the first offence, forfeit ten pounds; for the second, twenty pounds; and for every other offence, forty pounds; to be sued for, &c. &c. one moiety thereof, to the informer; the other, &c. &c. [ 2603] Mr. Serjeant Leigh, on behalf of the plaintiff, argued, 1770. KIMBER, QUI TAM, V. that this act of Parliament professedly made for the safety of ships, the encouragement of this useful society of able and experienced pilots, the suppression of unqualified pretenders, and the preservation of ships and cargoes and of the lives of mariners, was as clear and explicit as possible in excluding ALL other persons whatsoever, who had BLANCHARD. not previously undergone a proper examination of their abilities to perform such service, and been regularly approved and admitted into this useful and well-regulated society. Mr. Cox, on the contrary, on behalf of the defendant, considered this act of Parliament as pointed against persons resident at Deal and Dover and the Isle of Thanet, and undertaking to pilot ships up the Thames and Med way, without being properly qualified for it. But it could never mean, he said, to preclude a master of a ship or vessel from navigating his own vessel, if he was willing, desirous, and able to do it. It could not mean to oblige such a person to stop at one of these places, to take in a pilot, under so severe a penalty, when he was able and willing to pilot his own vessel, and perhaps unable to pay a pilot. In London, you can't employ a non-freeman to carry a bundle: but you may carry it yourself. And he argued from an expression used in a subsequent act of parliament, made about three years after this act of 3 G. 1. namely 7 G. 1. c. 21. § 14. that the former did not extend to such ships and vessels as did not want the assistance of a pilot. For, this latter act, which refers to the former, and proposes to remedy the mischiefs not sufficiently prevented by it, allows of eighteen of these Trinity-house pilots being ordered to ply constantly at sea, to be ready to conduct up the Thames and Medway such ships and vessels as may have OCCASION for them :" which plainly implies that there might be other ships and vessels, which had no occasion for them, and therefore were not obliged to employ them. But THE COURT were so clearly of opinion for Mr. Serjeant Leigh, that they stopt him from replying; as the case was so very plain, that it was unnecessary for him to say any thing more upon it dered and they or That the POSTEA be delivered to the PLAINTIFF. See the construction of this Statute dis- per, 1 Sir John Strange, 249 to 261 2604] Mr. Justice Aston was in Chancery, sitting there as one of the Lords Commis. sioners of the Great Seal FAIRCLAIM, on the demise of JAMES EMPSON, against THIS " not THE cause came on to be tried at the last assizes held for the county of York, before the Honourable Mr. Jus tice GOULD; when it appeared in evidence, that Thomas Hammand, Miles Oddy, Roger Shackleton and Jane his wife, and Patience Readshaw, being seised in fee of the [3 Burr. 1275.] tenements hereinafter mentioned, according to the custom of the forest of Knaresbrough in the said county, (where lands pass by surrender and admittance) did on the first day of August, 1721, ont of Court according to the custom of the said forest, surrender one messuage with all edifices and appurtenances to the same belonging, and also six acres of land, meadow or pasture, be the same more or less, with all the appurtenances to the same belonging, situate, lying, and being in Beckwith cum Rosset, within the village of Killinghall, then in the ocenpation of William Lawson, or his assigns; as to one moiety of the said premises, to the use and behoof of the said Jane Shackleton, her heirs and assigns for ever, according to the custom of the forest aforesaid; and as to the other moiety of the said premises, to the use and be. hoof of the said Patience Readshaw, her heirs and assigns for ever, according to the custom of the said forest. THAT, at a Court held for the said forest of Knares [2605] brough, on the 17th day of August aforesaid, the said Jane Shackleton and Patience Readshaw were respectively duly admitted tenants upon the said surrender, according to the custom of the said forest.. THAT, in the month of July 1723, the said Patience intermarried with Emanual Empson; and on the 19th September following, the said Emanual and Patience his wife, out of Court, according to the custom of the said forest, surrendered the said undivided moiety of the said tenements, to which the said Patience had been admitted as aforesaid, (being the premises in question in this cause,) to the use and behoof of the said Emanual Empson and Patience, their heirs and assigns for ever; and that, at a * 1770. Court held for the said forest, on the 17th day of October in the year 1723, the said Emanual Empson and Patience FAIRCLAIM his wife, were duly admitted tenants thereof according to the said surrender. That in the year 1724, the said Patience died without issue, and the said Emanual survived her; and that on the 20th day of April 1728, the said Emanual also died without issue. THAT, at a Court held for the said forest on the 29th May 1728, Benjamin Empson, brother and heir at law to the said Emanual, was, according to the custom of the forest, admitted tenant to the said moiety of the said tenements; to hold to him, his heirs and assigns for ever, according to the custom of the said forest. THAT, in Hilary Term following, the said Benjamin Empson obtained judgment in ejectment by default against the said William Lawson, tenant of the premises, in his Majesty's Court of Common Pleas at Westminster, for the said moiety; and that afterwards, on the 10th day of April 1729, the said William Lawson, then tenant of the whole premises, by writing under his hand, acknowledged to have attorned tenant to the said Benjamin Empson, for the said undivided moiety of the said messuage and premises, and in pursuance thereof, afterwards once paid rent for the same to the said Benjamin Empson. THAT the said Benjamin. Empson died on the 5th day of June 1734; and, at a Court held for the said forest on the 24th day of July following, Benjamin Empson, an infant about nine years of age, his nephew and heir at law (by Ann Watson his mother,) was admitted tenant to the said undivided moiety of the said tenements; TO HAVE AND TO HOLD to the said Benjamin the nephew, his heirs and assigns for ever, according to the custom of the said forest. THAT the last-mentioned Benjamin Empson died on the 9th day of August 1754, leaving James the lessor of the plaintiff, his eldest son and heir at law, an infant between ten and eleven years of age, and who afterwards at a Court held for the said forest, on the 15th day of October 1766, was admitted tenant to the aforesaid undivided moiety; to have and to hold to him, his heirs and assigns for ever, according to the custom of the said forest. THAT the abovenained Jane Shackleton died in 1729, leaving the present defendart then an infant, her eldest son and heir at law; who afterwards, at a court held for the said forest on the 13th August 1729, was by Poger Shackleton his father and guardian, adinitted tenant to her undivided moiety of the said tenements; TO HOLD the V. SHACKLE TON. [2606 |