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meeting, nevertheless the said J. C. not regarding his duty in that behalf, nor the statute in that case made and provided, upon the said, &c. the same so being the day appointed by the said charter for such election as aforesaid, unlawfully and voluntarily absented himself from the said assembly or meeting, and from such election as last aforesaid, contrary to the form, &c. [as in first count] And the jurors aforesaid, upon their oath aforesaid, do further Third count. present that the said borough of I. so being an ancient borough as aforesaid, and the said letters patent having been so made as aforesaid, and the said J. C. so being such bailiff as aforesaid, upon the Monday next before the feast of St. Michael the archangel, in the forty-third year of the reign of our lord the now king, aforesaid, the same being the day appointed by the said charter for the election of a bailiff of the said borough, with force and arms, at, &c. aforesaid, he the said J. C. did knowingly and designedly prevent and hinder the election of a bailiff of and for the borough aforesaid, contrary to the form, &c. in contempt, &c. and against the peace, &c.

stable for not

liament after being sumand moned by the high bailiff for

That J. P. late of, &c. before and on, &c. was and from thence Against a conhitherto hath been and still is a constable and peace officer of our attending at said lord the king, within and for the town and borough of S. in the an election for a burgess to county aforesaid, and the jurors, &c. do further present that, on, &c. serve in paraforesaid, at, &c. aforesaid, in the town and borough aforesaid, Sir W. L. knt. then and still being high bailiff of the said town borough, had received a precept from the sheriff of the said that purpose. county of S. requiring him the said high bailiff to cause to be elected one other fit and discreet burgess of the said borough, in the place of A. B. Esq. whose then late election had by the lower house of parliament been declared void, to be and appear at the parliament then holden at Westminster, to do and consent to those things which in the said parliament should happen to be so ordained, and that in obedience to the said precept the said Sir W. L. so being such high bailiff as aforesaid, did then and there appoint Friday the 18th of, &c. then next, at 10 of the clock in the forenoon of the same day, at a certain place called St. Margaret's Hill, in the town and borough aforesaid, to read and publish the same precept, and then to proceed to such election, whereof the said J. P. so being such constable and peace officer as aforesaid, afterwards to wit, on the said, &c. at, &c. aforesaid, had notice and the said J. P. was then and there duly requested and enjoined personally to attend with his constable's staff on the occasion aforesaid, at the said place, called, &c. within the said town and borough, on, &c. aforesaid, and also personally to attend from day to day and every day during the continuance of the said poll at the said election with his said constable's staff. And the jurors, &c. do

further present that in pursuance of the said appointment so made as aforesaid, and in obedience to the said precept, the said Sir W. L. so being such high bailiff as aforesaid, by F.T. gent. his deputy bailiff in that behalf did afterwards, to wit, on, &c. then next at ten of the clock then next in the forenoon attend at the said place called, &c. in the said town and borough, and did then and there read and publish the said precept, and proceed to such election as aforesaid, and a poll being then and there demanded at the said election, the same continued on that day and on Monday and Tuesday the 21st and 22nd days of November following, at a certain place called, &c in the town and borough aforesaid, and it was thereupon by means and on occasion of the several premises aforesaid, the duty of the said J. P. as such constable and peace officer as aforesaid, to have attended with his said constable's staff on each and every of those several days at the said place called, &c. within the town and borough aforesaid, during the continuance of the poll at the said election, to keep the peace of our said lord the king within the said town and borough, nevertheless the said J. P. so being such constable and peace officer as aforesaid, and well knowing all and singular the premises aforesaid, but not regarding such duty as such constable and peace officer, did not nor would attend with his constable's staff on each or every or any of the said several days aforesaid at the place called, &c. within the town and borough aforesaid, during the continuance of the said poll, at the said election for the purpose aforesaid, but unlawfully, wilfully and obstinately, and contumaciously neglected and omitted so to do, in contempt, &c. to the evil example, &c. and against the peace, &c.

Against a con

AGAINST MINISTERIAL OFFICERS FOR NOT
ACCEPTING OFFICE, &c.

That our said sovereign lord the king and his predecessors, from stable or head-time whereof the memory of man is not to the contrary, have borough for not taking had and held and have been accustomed to have and hold a court office he being of view of frank pledge, once in every year, before the sheriff of elected there- the county of M. for the time being, in the torn of the sheriff of M. when made through the hundred of O. in the county of M.,

upon him the

to in due form

under a cus

tom. (x)

(x) See similar precedents, 4 Went. 332, 351. and other precedents, 4 T. R. 778. Dougl. 531. Cowp. 13. Cro. C. C. 145 to

154. Burn, J. Constable. Stark. 592 to 600. The offence. An indictment lies against a person elected to the office of high or

within the month after Easter in every year, and at the same court,. when holden there now is and from time whereof, &c. hath been

petty constable for refusing to execute its duties, 2 Stra. 920. So also against overseers for not taking upon themselves that office, 1 Stra. 101. and on the same priuciple, all other ministerial offices which the party is liable to exercise, 4 T. R. 778. The defendant may, however, in many cases, show ground of exemption by which his liability is overthrown. Thus it has been holden, that a college barber, though he does not reside within the university, but keeps a shop within the city of Oxford is privileged from serving the office. of constable, Dougl. 538. So an officer of the customs is exempted from acting as overseer of the poor, though he has not obtained his writ of privilege at the time of trial, for it is enough to justify him if he be in a condition to demand it, 8 T. R. 375. But one who is a resident within a private leet which is within the hundred, is not, therefore, exempted from serving the office of constable of the hundred, and a custom to elect persons thus situated to that office is valid, Cowp. 13. And it is laid down, that the inspector of lottery offices appointed by commissioners is not exempted from becoming constable, because that is an office which may be discharged by deputy, 1 Esp. Rep. 359.-There is one general ground of excuse from executing any parish or ward offices, by the certificate of a judge or Tyburn ticket, to be given to any person who apprehends and prosecutes to conviction any offenders against the statutes, 10 and 11 W. III. c. 23. and 5 Anne, c. 31. which operates as such an indemnity in the parish where the felony was committed; and before it has been used for this purpose, may be once transferred by sale or otherwise, and will protect the assignee in the same way as if he

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were the original possessor, 4 Bla. Com. 295. n. 2. Christian's Edition, see ante 1 vol. Index tit. Tyburn Ticket: Another exemption has been made in favour of protestant dissenting teachers duly registered according to the provisions of the act of toleration. By that statute (1 W. and M. c. 18. s. 11.) it is enacted," that every teacher or preacher in holy orders or pretended holy orders of a congregation, that should take the oaths therein required, and make and subscribe the declaration therein. mentioned, and also subscribe such of the articles of the Church of. England as are required by that act in manner therein specified, shall be thenceforth exempt from serving upon any jury, or from be-: ing chosen or appointed to bear the office of church-warden or overseer of the poor or any other parochial or ward office, or any other office in any hundred of any shire, city, town, parish, division, or wapentake." The necessity for subscribing any part of the articles of the Church of England mentioned in this clause has been recently done away, by 52 Geo. III. c. 155. s. 9. It should seem also, that the exercise of any office which is entirely incompatible with that to which the party is elected, will of itself excuse him without any express provision for that purpose, 8 T. R. 378. 1 Esp. Rep. 360. 1 Lev.. 265. The 33 Geo. III. c. 55. s. 1. gives power to two justices at petty sessions to punish constables, and peace and parish officers in a summary manner for neglect of duty. The indictment. It is essential to show that the defendant was bound to undertake the office, by setting forth how he was elected; and therefore, an indictment stating that the defendant being qualified to act as constable was debito modo electus, and that he had no

a certain ancient and laudable custom there used and approved of, to wit, that certain inhabitants and residents within the said hundred, were then and there sworn to charge and enquire of and present those things that belonged to them in that court to present which said jurors so sworn and charged do also at that court chuse and present, and during all the time aforesaid have chosen and presented, and have been used and accustomed and of right ought to chuse and present two proper persons of the inhabitants and residents of the parish of Saint George the Martyr, within the hundred aforesaid, in the county aforesaid, to be headborough within and for the said parish for the year then ensuing, and until other inhabitants and residents of the said parish have been and are chosen and sworn into the said office for the preserving of the peace of our said lord the king, and for the apprehending of rogues, vagabonds and other suspicious persons within the said parish, and for the doing of all other matters relating to the said office of headborough, and that from time immemorial aforesaid, there was and yet is an ancient custom used and approved at the said court, that the said persons so chosen and presented should have notice given to them of such their said election and be summoned to appear in the said court upon such notice and summons, and then and there take their corporal oath for the due execution of their said office, and to execute the same. And the jurors aforesaid, now here sworn, &c. further present that at a court of view of frank pledge of our said lord the king, holden before S. F. esquire, and J. S. esquire, then and yet sheriffs of the county aforesaid, in the torn of the said sheriffs, through the hundred of O. aforesaid, in the county aforesaid, within the month after Easter in the year of our Lord 1755, to wit, on, &c. to wit, at, &c. within the hundred of O. aforesaid, in the county aforesaid, W. G., W. B., [here follow the names of thirty jurors] good and lawful men inhabiting and residing within the hundred aforesaid, were then and there sworn and charged according

tice thereof, but did not take the oath required on executing the office, was held to be invalid, 5 Mod. 96. Comb. 328. 4 T. R. 778. 1 Ventr. 305. 2 Stra. 1268. The custom, if the election be founded on a custom, should be truly laid in the indictment, and proved as it is stated, Dougl. 531.

If in an indictment against an overseer for not taking upon himself that office, it be stated that the defendant was nominated and ap-. pointed overseer for one year then

next ensuing, the allegation will suffice, for the court will presume the overseer's year to be intended, 4 T. R. 778. 1 Stra. 101. An indictment against a headborough for not taking the oath on admission to his office must state, that he was summoned before a justice of the peace so to do, or it will be quashed, Alleyn, 78. The prosecutor must produce and prove the appointment to the office, and parol evidence is not admissible, i Stra. 101. ante 259. note (0),

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to the custom of the said court to enquire of and present those things that belonged to them, in that court to present; and the same jurors at the said court so sworn and charged according to the custom of the said court, did chuse and present M. D. of the parish of Saint George the Martyr aforesaid, in the county aforesaid, yeoman, then being one of the inhabitants and resiants within the same last-mentioned parish to be one of the headboroughs within and for the said last-mentioned parish, and to execute that office for the year then ensuing, and until another inhabitant and resiant of the said parish last-mentioned, should be chosen and sworn into that office in the place and stead of the said M. D. for the preserving of the peace of our said lord the king, and for the apprehending of rogues, vagabonds and other suspicious persons within the same parish, and for doing and performing of all matters relating to the said office of headborough, (he the said M. D. then and there long before and ever since being an inhabitant and resiant within the same parish, and a fit and proper person to execute the said office as aforesaid), and that he the said M. D. after his being so chosen into the said office, to wit on the same, &c. aforesaid, at, &c. aforesaid, had notice thereof, and by a certain summons in writing was required personally to be and appear in the said court on the said, &c. aforesaid, and then and there take his corporal oath for the due execution of the said office, and to execute the same; which summons afterwards, to wit, on the same, &c. at, &c. aforesaid, was delivered to, and left with, the said M. D.; nevertheless the said M. D. not regarding his duty in this behalf, but intending and endeavouring the due execution of the said office totally to neglect and omit, after his being so chosen into the said office, and after such notice and summons as aforesaid, to wit, on the said, &c. aforesaid, did obstinately refuse to appear in the said court, and to take upon himself the said office, and to take the oath for the execution thereof, and he the said M. D. voluntarily, unlawfully, obstinately and contemptuously hath hitherto refused and still doth refuse to be sworn into and execute the same office, to wit, at, &c. aforesaid, to the great hindrance and delay of justice, to the evil example, &c. and against the peace, &c. [Second count like the first only stating the court to be a court-leet, see 4 Wentw. 334.] And the jurors aforesaid, upon their oath aforesaid, Third count, further present that the said M. D. on the said, &c. and long be- more general fore was and still is a resiant and inhabitant within the parish of, ing defend&c. aforesaid, in the county aforesaid, and then and there was and at sheriff's still is a fit and proper person to execute the office of one of the torn. headboroughs within the said parish of, &c. and that he the said M. D. at a court of our said lord the king, holden, on, &c. before

than first, stat

ant's election

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