set out, and the bye laws made in the reigns of Richard the Second and Queen Anne. It then stated that a court of wardmote was holden on Tuesday the 5th of December 1831, and by adjournment on other subsequent days, in and for the said ward of Portsoken, before the then mayor of the said city, by virtue of a precept for that purpose before then duly issued according to the custom of the city, for the election of an alderman of the ward in the room of Sir J. Shaw, resigned, the said M. Scales, who had been returned to the court of lord mayor and aldermen to be alderman of the said ward, having been adjudged not to be a fit and proper person to support the dignity and discharge the duties of the said place or office; at which court of wardmote divers persons, being then present, voted for Scales as alderman, and he, by reason thereof, claimed to be duly elected into the said office, and a return to the said precept was afterwards, on the 3d of January in the year of our Lord 1832, made into the said court of mayor and aldermen then duly holden in the Guildhall of the said city, according to the said custom, stating to the said court, that so far as the majority of votes or polls was concerned, the said M. Scales was elected alderman of the said ward. The return then, after stating the petition of several freemen against the admission of Scales, in nearly the same terms as in the affidavit against the rule, proceeded as follows: "Whereupon the said court of mayor and aldermen, being then and there duly holden in the Guildhall of the said city, according to the said custom, took the said petition into consideration, and having heard the petitioners by themselves and their agents, in the presence and hearing of the said M. Scales, and also having heard R 4 1833. The KING against The Lord Mayor and Aldermen of LONDON. 1833. The KING against The Lord Mayor and Aldermen of LONDON. heard the said M. Scales touching the merits of the said election, and his qualification and fitness to be such alderman as aforesaid, and having heard all that was alleged or offered, as well by and on behalf of the said petitioners as of the said M. Scales, did, according to the said ancient custom, examine, determine, and adjudge of and concerning the merits of the said petition, and of and concerning the qualification and fitness of M. Scales to be admitted and sworn into the office of alderman of the ward of Portsoken; and due deliberation being thereupon had, the said Court did adjudge and determine, according to the discretion and sound consciences of the said mayor and aldermen, that M. Scales was not, at the time of the said supposed election, nor at any time since, a person fit and proper to support the dignity and discharge the duties of the said office of an alderman of the said city, nor a fit and proper person to entitle him to be admitted and sworn into the place and office of alderman of the said ward; and the said court of mayor and aldermen did further adjudge and determine that the said M. Scales was not, and in truth and in fact the said M. Scales was not, duly elected to be alderman of the said ward of Portsoken, at the election mentioned in the return to the said precept, nor eligible to be a candidate at the said election. And they further certified that for the several causes aforesaid, and each of them respectively, the said M. Scales is not a fit and proper person to entitle him to be admitted and sworn into the place and office of alderman." Sir James Scarlett now moved to quash the return. The return is inconsistent. It first states an election of Scales by the citizens, and that he was rejected by the court of mayor and aldermen, and then afterwards that he he was not duly elected. The Queen v. The Mayor and Aldermen of Norwich (a). Per Curiam. That case shews that there would be an inconsistency if the return had stated, first, that Scales was elected, and then that he was not elected. That was cited in Alderman Winchester's case (b), where the same objection was taken. The answer is, that the return here states certain acts done towards an election, then that the court of mayor and aldermen decided that those acts did not constitute a due election of Scales, and lastly that he was not duly elected; there is no inconsistency, and the Court so decided in Alderman Winchester's case, which, therefore, is an authority in point in favour of the present return. (a) 2 Ld. Raym. 1244. Judgment for the defendants. (b) 9 B. & C. 1. 1833. The KING against The Lord Mayor and Aldermen of LONDON. BLANEY against HOLT. BLANEY against Fardell. } Bail of MORGAN. THE nature and grounds of the motion in these cases will appear from the judgment, which was delivered in the course of the term by DENMAN C. J. An application was made by Mr. Platt to set aside an order of my brother Littledale for staying the proceedings on a recognizance of bail on payment of In a case arising New Rules of Hilary term 2 W. 4. this Court stayed proceedings in an action on a recognizance of bail, (where the action against the original before the defendant was the sum of 60l., being the amount of the recognizance of the by bill,) on bail in an action of Blaney v. Morgan, together with the costs of these actions. There is probably some mistake payment of double the sum sworn to', and costs of the action against in the bail. 1833. BLANEY against HOLT. in saying that 607. is the amount of the recognizance; the order should probably have been double the sum sworn to, because if there was a sum certain mentioned in the recognizance, there would be no ground for Mr. Platt's application, which is made on the ground that there is no sum certain mentioned in the recognizance. The proceedings against the original defendant were by bill; and it was contended, that as the form of the recognizance is that the bail should pay the condemnation money and costs in general terms, the bail could not be relieved but on payment of the sum sworn to and the whole of the costs; but it was admitted, that if the proceedings had been by original, then, as the bail are bound in a sum certain and which is double the sum mentioned, they would not, in any event, be liable beyond that amount. In the Common Pleas they are each liable to that extent. We have no distinct account how the difference arose in the form of the recognizance by bill; it might be connected with the old course of the Court as to bail by bill, which was that they are liable to the full extent of the damages in all the actions that should be brought against them by the same plaintiff in the same term. And though the entry in the recognizance of bail is "in placito prædicto" only, yet by that entry he seems to have been considered to be subject to all actions in the same term, by the same plaintiff, against the same party, though not at the suit of a stranger. This practice was found productive of so much inconvenience that a rule of Trinity term, 22 Car. 2., was made to limit the responsibility of the bail; and by another rule of of Easter, 5 G. 2., the bail shall be liable for so much as is indorsed on the process, or for any lesser sum which the plaintiff may recover; the last rule itself is silent as to costs; but in a note to the rule of the edition of 1742 (and the notes to that edition are considered authority as to the practice) there is added, "together with costs of suit." Several cases have occurred since to the same effect, not necessary to notice, up to Jacob v. Bowes (a), where what we have just mentioned is stated as the practice as to the sum sworn to, and the extension of the rule as to costs. That, however, was by original; but the Court say there is no difference in practice between the two modes of proceeding. And the question is, what is to be the amount of the costs; whether the whole costs however great, or whether they are to be limited so as that, upon the whole, the bail shall not be liable to more than double the sum sworn to. And we think that it is to be limited so as that the bail shall not be liable to more than double the sum sworn to. It would be singular that the bail should incur a greater or less degree of liability according as the action was commenced by bill or by original; the bail, if opposed, justify in both cases in double the sum sworn to; and they can never contemplate a different degree of liability in the two cases. The plaintiff looks for the same sum in each case; and he cannot require that they should justify in a greater sum in one case than the other. The bail to the sheriff are not liable to more than the penalty of the bail-bond, whether the proceedings be by (a) 6 East, 312. 1833. BLANEY against HOLT. |