case the king against the mayor OF weymouth Dorset if a charter authorize the  mayor and alderman to nominate four burgess as candidate for the mayoralty a  bylaw that any burgess though be be a alderman may be put in nomination be  void for it be contradictory to the charter which confine the nominees to the  bailiff only SC barn quo warranto to the defendant for exercise the office of  mayor for the borough of Weymouth in Dorsetshire not be qualify the defendant  plead that by letter patent in the fourteenth year of James the first it be  incorporate by the name of mayor diverse man call alderman two bailiff and  twentyfour capital burgess at large that once in every year the mayor and  alderman be to nominate four of the burgess be inhabitant one of who be to be  choose mayor by the commonalty at large that on the Feast of saint Michael the  mayor and alderman meet together and choose out four of the burgess be  inhabitant of who the defendant Tucker be one and that he be elect mayor by a  majority of the burgess at large and by this title be claim to be mayor the  relator in reply admit the charter as set out and say that the four person so  nominate be burgess and inhabitant but that the defendant Tucker be also a  alderman at that time and therefore disqualify to be choose mayor who ought to  be choose from the burgess at large and not from the alderman the defendant  rejoin and set out a bylaw use time immemorial by which any of the burgess who  be inhabitant may be put in nomination for the mayoralty though they be  alderman which will not prevent his be choose mayor and then aver that the  defendant Tucker be a burgess and inhabitant at the time of his nomination and  election to this the relator demurrer and the defendant join in demurrer in  support of the demurrer two question be insist on first as to the plead that  the defendant rejoinder be a departure from the modern er p plea for he shall  have disclose this whole matter in his plea and there have set out the bylaw  and not have insist on two different matter first the charter and then the  bylaw and cite I Inst a lev Lutw second that suppose the plead good yet that  the bylaw be void in itself be inconsistent with the charter and create a new  constitution and a new method of election different from what the charter give  for by the charter the mayor be to be choose out of the burgess at large but  this bylaw give a power of elect the mayor out of the alderman which the  charter never modern intend and rely on the case of the king v Phillips mayor  of Bodmin in Michaelmas term in the seven year of George the first where a  issue be join on a bylaw which appear by the plead to be inconsistent to the  charter and hold immaterial from what appear on the plead the court do not  give any opinion on the first objection but rest on the second only lee chief  justice say that if the bylaw will have give the defendant any right he have  deprive himself of the benefit of it by the departure in the plead for that  the defendant shall have show his whole case in the plea and there have set  out the bylaw as to the second objection they hold that the bylaw will be  entire out of the case for unless the charter give a power of elect any of the  alderman to be mayor the bylaw can not do it for it will be give a new power  to themselves which the charter do not intend nor can a bylaw explain a  charter for that must be do by the judge it can only contract or abridge and  enforce the power give by the charter for the good of the corporation but can  increase it and upon this foundation be the case of corporation determine   b  that it be to avoid popular discord and confusion this bylaw therefore will be  out of the case and the question will resort to the charter itself whether as  the fact now appear upon the plead here be a power give of elect the mayor out  of any of the alderman as well as from the burgess at large or whether the  four that be put in nomination must be confine to the burgess at large who be  not alderman as to that the court be all of opinion that by the charter the  alderman be exclude from be elect mayor which be confine to the burgess at  large not alderman and it will otherwise cause great confusion if the same  person be to act in two capacity when the charter plain consider they as  distinct person judgement be give for the king