case the king against bow heart the mayor and burgess OF Malmsbury Saturday  may if a burgess on his admission take the oath of abjuration and supremacy  but unintentional and through the default of the townclerk omit to take the  other oath require by law the court after a interval of eight year will not  grant a information quo warranto against the burgess on the application of the  townclerk a motion be make for leave to file a information against the  defendant upon a affidavit of the townclerk of Malmsbury for that one gawen  heart of the say borough of Malmsbury be admit to be a capital burgess thereof  in the year and have not take the oath of abjuration and supremacy when he be  admit a rule be make for the defendant to show cause why a information in the  nature of a quo warranto shall not be file and now the defendant produce  several affidavit by which it appear that the say heart do take all the oath  which be tender to he at the time he be admit a capital burgess and also that  he take the oath of abjuration and supremaut some short time afterward at a  quartersession hold in Wiltshire and be himself make affidavit that he believe  he have take all the oath requisite for he to take at the time of the election  it be urge for the defendant that it plain appear that he have not neglect to  take the oath out of any disaffection to the government but mere because they  be not tender to he by the townclerk at the time when he be choose capital  burgess he the townclerk be the proper person to tender the same and who shall  be intend to know the penalty in not take they and though in rigour of law his  not take the oath make his election void yet since it be mere through the  neglect of the townclerk and who have now acquiesce without any modern report  manner of prosecution for above eight year by Geo c to any information quo  warranto the defendant may plead in bar that he have hold the office or  franchise for six year precede the information a therefore this burgess ought  not to be damnified especial since this prosecution seem to be carry on at the  instance of a great person who offer heart be wife a thousand guinea the night  before the day of the last election of member to serve in parliament to  persuade her husband to give his vote and interest to a person who then stand  candidate to be choose a representative for the say borough which she refuse  as appear by her own affidavit and therefore this townclerk be put on to  prosecute the husband on the other side it be say that the question be not  concern the misbehaviour of the townclerk but whether this heart be duly  choose a capital burgess and it seem very plain that he be not because the  statute require that he shall take the say oath otherwise his election be void  and if so it can now be make good neither will length of time or any pretend  ignorance of the statute enable a person to officiate contrary to the express  word of the Act itself for if he be a usurper the long continuance in his  office will not shelter he from a information because it be positive require  by the statute that he shall take the oath before he be admit to the office  Pratt chief justice if he do not take the oath at the time of his admission to  be a capital burgess he be not qualify to be a burgess and the length of time  wherein be continue to be so will not obstruct the fill a information against  he but then after so long a time there ought to be a clear proof of his wilful  refusal or voluntary neglect to take the oath but certain a information ought  not to be grant upon the oath of the townclerk himself because it be his fault  that this heart do not take the oath and it be likewise his duty to discover  the not take they which he have not do for so many year together therefore  length of time shall gain a presumption in his favour especial when by other  affidavit it be prove that be take all the oath be believe to be requisite for  he to take at the time of his election if the crown please a information may  be file in the name of the modern report er p attorneygeneral but we can file  any but upon probable cause and none appear here the rule must be discharge  powys justice be of the same opinion Eyre justice of the same opinion  fortescue justice the probability of the evidence be so much on the defendant  side that if I be to be a juror in this cause I shall acquit he in the case of  the queen v jefferies concern the borough of Bridgwater be take the oath of  allegiance three day after his admission for which a information be pray but  deny and he be never reelect after eight year we ought not to put the  defendant to a trial to prove that be take the oath of allegiance at a proper  time it have be hold that no tender of the oath be necessary contrary to leo  so the information be not grant but the rule be discharge see king v William  stram king v newling term Rep king v smith term Rep a