case the queen against Whitehorn mayor of Portsmouth in quo warrant against a  mayor if the defendant plead a election accord to the form of the charter and  issue be join on a replication not elect in manner and form c Qure whether it  be necessary for the defendant to show that he have receive the sacrament as  prescribe by the corporation Act car saint c this be a information in nature  of a quo warranto against Whitehorn for exercise the office of mayor in the  town of Portsmouth and against other for exercise the office of alderman  modern report Whitehorn plead the charter of king Charles the first  incorporate the town of Portsmouth c and set forth a particular clause in the  charter whereby it be declare that if the mayor shall die or for just reason  be remove it shall be lawful for the alderman to choose another mayor for the  remain part of the year until the time to elect come about again then be set  forth that the mayor die and that he be choose by the majority of the alderman  secundum form chart predict the attorneygeneral reply non dainties modus et  form c the alderman plead their be choose under the mayoralty of Whitehorn  issue be join upon non dainties modus et form secundum form chart it be insist  upon the trial at the assize that the defendant to prove the issue must first  prove themselves qualify by receive the sacrament accord to the statute of  king Charles the second a the corporation Act car saint c a which point  instead of be find special be save by the judge who try the cause substance of  a argument for the defendant it be say that this Act of parliament can not be  understand to make election void but voidable that the Act be make for  regulate not disturb corporation as it will do if it make all election of  person not qualify accord to it nullity that there be other modern report er p  statute with word altogether as strong as those use by this Act which have yet  receive such a interpretation that the statute Edward c say that the offender  shall be Self facto excommunicate yet a precedent conviction have be hold  necessary modern report it be say that act do by officer de facto though not  de jure in execution of their office be good a cro Elizabeth Harris v jay cro  James a if therefore Whitehorn be a de facto mayor that be enough to support  the election of the alderman suppose upon a general issue of dainties well non  dainties it will have be incumbent upon the defendant to prove themselves  qualify by take the sacrament yet upon this special issue of dainties well non  dainties secundum form chart this can not be necessary the charter be  altogether silent as to these qualification when issue be join upon a plea no  advantage shall be take of any matter collateral b and b in Hobart upon a  issue feoffavit well non the jury find a feoff but a covinous one and the  court be there of opinion that upon this issue a covinous feoff be a feoff and  that if the party will have take advantage of the covin he ought to have do it  by special plead it be there likewise say that a non estfactum can be plead  upon the statute of usury or sheriff bind nor can a letter of attorney by a  infant be avoid without special plead the reason of all these case seem to be  this that these thing have the appearance of feoff bind c though they want the  validity as it will have be no evidence upon this issue to have show a title  by a subsequent charter it be not reasonable the other side shall take  advantage of a subsequent Act of parliament c by car saint c no person shall  be place elect or choose mayor c who shall not have within one year next  before such election or choice take the sacrament and in default thereof every  such place election and choice be declare to be void but by Geo c no person  shall be remove by the corporation or otherwise prosecute for or by reason of  such omission and no incapacity disability forfeiture or penalty shall be  incur by reason of the same unless such person be so remove or such  prosecution be commence within six month after such person be place or elect  into his respective office c and see Harrison v Evans Kydon Corp king v Monday  Cowper king v smith term Rep c