Barnardiston king b the king and hoar how far a bylaw shall be intend on rule  to show cause why a information in the nature of a quo warranto shall not go  against the defendant for exercise the office of warden of the town of hull Mr  fazakerly say that the constitution consist of two warden elder brother  Barnardiston king b er p young brother and assistant and be appoint so by  charter in he do allow that this charter provide that the warden shall be  choose by the body at large out of the inhabitant but so long as any trace can  he have of their proceed the usage have constant be that the warden for the  time be the elder brother and six assistant shall nominate four of the  inhabitant as candidate for the succeed wardenship a reasonable time before  the election and that the election shall be by the body at large out of these  candidate so appoint the defendant be appoint as candidate and elect afterward  by the body in the manner that have be mention and therefore the single  question will be whether a bylaw shall not be intend to support this constant  usage accord to Rep he do allow that case be not so strong as the present one  because there the number of the elector be only confine but here the number of  person capable of be elect however Mr Crowle who be of the same side with he  cite two case that seem to come up exact to the present one one be that of  barber and poper Trin Geo the question there relate to a capital burgess of  the town of Macclesfield the charter provide that the capital burgess shall be  choose out of the capital burgess a usage there be and only for fifty year  that the common burgess shall nominate four of the capital burgess and such  usage be hold good the other case be that of the queen and Horner whether the  question there relate to a mayor of the town of Marlborough there be a usage  of the same nature and hold that a bylaw shall be suppose Mr reeves on the  other side answer that when the motion be original make the counsel for it  rely single upon the charter this usage that be suppose they have no  opportunity of deny and therefore the rule for the information ought to be  make absolute that the fact may be try the court say if the fact be admit they  believe there will be a good deal of difficulty to maintain the usage but  however to avoid expense to the party they think the best way will be to give  the counsel for the king a day to answer the affidavit and if the fact shall  then be admit to take the opinion of the court upon the agree state of it  accord enlarge the rule