burrow king versus Latham et all six of the InBurgesses of Wigan Monday that  June SC Bl information quo warranto grant to try a doubtful right upon show  cause why information in nature of quo warranto shall not be grant against  these six who right depend upon that of thirteen other person who have vote in  the election of they into their office to show by what right they claim their  franchise of inburgesses of this corporation it appear to be incumbent upon  the prosecutor to invalidate the right of three out of the thirteen in order  to turn the scale of the election they have vote as be resident inburgesses  but two of the thirteen be object to by the prosecutor affidavit as be  alderman and thereby disqualify to vote as inburgesses five as have be legal  disfranchise and never legal restore and six as not be actual and good fide  resident in Wigan at the time of the election so that it be pretend that even  all the thirteen be illegal vote however it be agree that the election will  not hold good if only three of these thirteen vote can be prove bad one it be  therefore insist on the part of the prosecutor that the election be bad but  beside this there be another general objection to the validity of the election  namely that the court at which the election be make be improper hold and  therefore all that be do at it be total void and a absolute nullity for the  prosecutor allege and swear to the best of their information and belief that  it be essential necessary to the competency of the corporate court that at  least one of the bailiff shall be present at it whereas there be no bailiff  present as be very positive swear at the original court which be adjourn to  the subsequent day upon which subsequent day of adjournment the defendant be  elect at the adjourn court consequent the adjourn court be as the prosecutor  allege a incompetent one and just the same as no court at all and every thing  transact at it must be nugatory ineffectual and void they also insist and  their opponent agree that it be necessary for the inburgesses who vote to be  resident in Wigan at the time of their vote and the only dispute be whether  six of those who vote for these six defendant be actual and fair so in fact or  only colourable and fallacious so the affidavit be very long and the several  ques burrow tions that arise be much litigate at the bar the court take time  to consider cur advis Lord Mansfield now declare their opinion and say that Mr  justice denison who be now absent have also be consult by they and they be all  of opinion that the rule shall be make absolute in order to try the right in  dispute the first question whether the presence of a bailiff be or be not  essential necessary to the hold of a court be general and go direct to the  validity of the election of the defendant and the affirmation of this on one  side and the denial of it on the other be both swear exact in the same manner  both side swear to their apprehension and belief the bailiff be not indeed  name in the style of the court but yet they may by the constitution of the  borough be a essential part of the court therefore as it do not appear whether  the court at which the defendant be elect be a competent one or not a  information must go upon this ground alone unless there have be such a  acquiescence as ought to prevent it dly though a acquiescence for a great  length of time may be a sufficient reason why the court shall not interpose  quietan to move yet here be no length of time burrow er p it be only three or  four year No certain rule be fix for the particular and exact length of time  that shall be consider as a acquiescence and perhaps it be better that none  shall be absolute fix for circumstance may very much vary the case in this  respect dly as to the residence too of the elect inburgesses the fact be  dispute and therefore must be try thly the disfranchise inburgesses have be  restore by the mayor alone upon a mandamus but it be allege that he alone have  no right to restore they and that he do it contrary to the consent and opinion  of the body therefore their right appear to be doubtful thly the two that have  be choose alderman be say to have refuse accept that office and their right be  say to have be twice try already and settle by two verdict and therefore ought  not to be now thus dispute and litigate over again burrow thly it be urge that  the right of person elect ought not to be send down to trial upon a  supposition of a deficiency of right in their elector until the right of such  elector have be first try and disallow and it have be question and debate how  far the right of a elector who be in office and hold a franchise de facto can  be attack upon a information grant and try against a person elect by he or  whether his right must then and upon that occasion be take for grant as he be  a corporator de facto when he give his vote but as we be of opinion that these  rule must be make absolute on the first point which be a general and if true a  fatal objection to the validity of the election the information will be for  usurp the office upon the crown and the crown may take what issue they thick  roper to show such usurpation there be no instance of preclude the crown from  insist upon any objection that they shall be advice to take issue upon in  order to show the defendant to have usurp the franchise therefore we neither  need to give nor shall give any opinion upon the other point nor do the line  seem to be full and clear draw and fix where the right of the elector can be  go into at all or how far they can be go into on the trial of the right of the  elect rule make absolute for information the end of easter term g trinity term  geo b r