case the king against the mayor and commoncouncil OF bedford if the custom of  a corporation be to elect thirteen commoncouncilman out of twentyfive burgess  and that the mayor shall be choose by the majority of the thirteen and a man  who be only a freeman and not a burgess be one of the twentyfive and be choose  a commoncouncilman such election be void and the corporation may proceed to a  new election of commoncouncilman a rule of court be make against the mayor and  commoncouncilman of Bedford to show cause why a information shall not be file  against they for a undue election of a burgess of the say borough the case  appear to be thus modern report the town of Bedford be a borough by  prescription and time out of mind on the Monday next after BartholomewDay have  put up twentysix burgess in nomination out of which they choose thirteen  commoncouncilman who when choose have vote in elect a mayor and other officer  in the say borough at the last election on Monday after BartholomewDay they  put one Benson in nomination with twentyfive more who be burgess but Benson be  only a freeman of the say borough and not a burgess and he be choose by the  majority of the other twentyfive burgess to be one of the thirteen  commoncouncilmen afterward the mayor find that Benson be not qualify to be one  of the twentysix burgess for the reason beforementioned proceed to a new  election and they choose one Devereux to be a burgess in the room of Benson  and now Hugh who be one of the other twentyfive burgess and put in nomination  as aforesaid and who be duly qualify and have most vote to be a  commoncouncilman next to the say Benson prosecute a information against the  mayor and the twelve commoncouncilman as not be choose by twentysix qualify  burgess for that Benson one of the twentysix be a freeman and no burgess and  therefore the whole election void as not warrant by the custom of the borough  the counsel for they insist that the rule may be discharge for when a election  be make by several person whereof some be qualify to choose and some not it be  good as to the person qualify for if it shall be otherwise and the election  whole void and that they can reelect there will be all end of this borough by  prescription for then they can neither have burgess nor commoncouncilmen who  be to name the bailiff and who have vote at the election of a mayor therefore  to avoid this inconvenience if one unqualified person be choose they may elect  another who be qualify as soon as they understand he be unqualified and this  have be the constant course in this borough the counsel for the prosecutor  deny this for they insist that where a election be make by one or more person  unqualified if it be void as to the person elect yet he who have most vote  next to the unqualified person elect shall be deem duly choose it be true that  where person apparent unqualified be nominate or put up for candidate in such  case a election make by or out of such person be entire void because it be a  undue election and shall not stand for any part especial modern report when by  the custom of the place such a determinate number of qualify person be modern  report er p to choose now in this case one of the person nominate to be a  burgess be only a freeman and no burgess and the choice of commoncouncilman be  to be make on a certain day and by a particular number of burgess if it be not  make on that day nor by that number the whole election be void but see two Geo  c a and not as to the unqualified person alone for if he have not be put in  nomination as a burgess he may have vote as a freeman the benefit whereof be  by this mean lose both as to himself and his friend it be true in some case  the borough may proceed to a new election as where the person choose do not  receive the sacrament within a year c or where he have not take the oath  because these be disability which arise after the election and may not be know  before but where the disability be apparent before the election as it be in  the principal case then it be void from the very beginning Pratt chief justice  and two other of the judge be of opinion that what be insist on by this motion  for the prosecutor will introduce a great inconveniency for if this shall be  adjudge a void election as to the whole then the borough will be destroy for  there can be any other mayor or any thing do by commoncouncilman therefore if  some unqualified as Benson be be put in nomination with those who be qualify  as the other twentyfive be and the unqualified person be choose as Benson  likewise be it avoid the election as to he only and not to the other twelve  commoncouncilman who be duly choose and qualify and where there be no fraud  but a plain mistake the reelection of a qualify person shall be good but the  four justice differ in opinion for it be not clear to he how thirteen  commoncouncilman who by the custom of the place be to be choose out of  twentysix qualify burgess can be lawful choose out of twentyfive for they may  as well be choose out of any other number if once the custom be break however  he be of opinion that Hugh who have the most vote of the twentyfive burgess  duly qualify next to Benson who be not qualify be duly choose therefore that  the plaintiff complain ought not to be hinder to try his right upon this  information modern report this be upon the first motion and the court be not  all of one opinion the rule be enlarge as to the person reelect and discharge  as to the rest and afterward on another day and upon another motion to set  aside the rule as to the person reelect the question be whether if one who be  unqualified be choose by a majority of those who be qualify and his election  be make void because be be unqualified a person who be qualify and have the  majority of vote next to he who be not qualify shall be adjudge duly choose or  whether they must proceed to a new election it be insist that Hugh who be  qualify and who have the most vote next to Benson who be not but yet be choose  shall be deem to be a duly elect burgess the new election of Devereux shall be  void and set aside it be no excuse to say that they do not know Benson be not  qualify at the time he be choose burgess because it be in their power to be  duly inform of the truth for they have all the boroughbooks in their custody  and ignorance can be no excuse where they have all the mean of know the truth  among themselves therefore all the vote give to Benson be throw away and he  who have the most vote next to he be duly elect and the borough ought not to  have proceed to a new election but the court hold the new election to be good  as well for the mistake in not know Benson be no burgess but a freeman at the  time of his election to be a commoncouncilman as for avoid a inconveniency  which otherwise will be incurable so the election of Devereux be hold good and  the rule discharge modern report er p modern report easter term the eight of  George the first in the king bench sir John Pratt Knt chief justice sir  Littleton powis Knt sir Robert Eyre Knt sir John fortescue aland Knt justice  sir Robert Raymond Knt attorneygeneral sir Philip York Knt solicitor general