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said borough, and then being the Common Council of the said borough, with the assent of the Commonalty of the said borough, did make a certain reasonable statute, act, and ordinance, commonly called a bye-law (not now extant in writing), for the avoiding of popular confusion in the election of Burgesses and Freemen of the said borough, whereby it was ordained, that the Mayor and the Aldermen, or the major part of the said Aldermen of the same borough, for the time being, by themselves, and without the concurrence and assistance of the Commonalty of the said borough, might, and might be able, at all future times for ever thereafter, to [333] elect and admit such and so many of the more discreet, honest, and quiet men and inhabitants of the same borough, to be the Burgesses and Freemen of the same borough as to them should, from time to time, seem fit and convenient; to which said bye-law the Mayor and Commonalty of the said borough of Helleston have, from the making thereof, hitherto conformed themselves, and the same still is in full force, in nowise reversed, repealed, or annulled, to wit, at the borough of Helleston aforesaid. And the said John Hoblyn, John Rowe, Thomas Arundell, John Plomer, James Bonetto, and Henry Higgs the younger, further say, that afterwards, to wit, on the said 2d day of November, in the 5th year of the reign of the said Lord the now King, in the said information mentioned, at the borough of Helleston aforesaid, John Willisins, Esq. then Mayor of the said borough, together with the major part of the Aldermen of the said borough, did elect and admit them the said John Hoblyn, John Rowe, Thomas Arundell, John Plomer, James Bonetto, and Henry Higgs the younger, (they the said John Hoblyn, John Rowe, Thomas Arundell, John Plomer, James Bonetto, and Henry Higgs the younger, then and there being of the most discreet, honest, and quiet men and inhabitants of the said borough), to be Burgesses and Freemen of the said borough; and thereupon they the said John Hoblyn, John Rowe, Thomas Arundel, John Plomer, James Bonetto, and Henry Higgs the younger, on the same day and year last aforesaid, did take upon themselves, and each of them did take upon himself, the office of a Burgess and Freeman of the same borough, to wit, at the borough of Helleston aforesaid; and by reason of the premises, they the said John Hoblyn, John Rowe, Thomas Arundell, John Plomer, James Bonetto, and Henry Higgs the younger, on the same day and year last aforesaid, and from thence continually afterwards, to the time of exhibiting the said information, were, and still are Burgesses and Freemen of the said borough of Helleston, and each of them was, and still is a Burgess and Freeman of the said borough; and by that warrant, they the said John Hoblyn, John Rowe, Thomas Arundell, John Plomer, James Bonetto, and Henry Higgs the younger, for and during all the time in the said information in that behalf mentioned, at the borough of Helleston aforesaid, have, and each of them hath severally used and exercised, and still do, and each of them doth there severally use and exercise, the office of a Burgess and Freeman of the said borough; and for and during all that time, have, and each of them hath there severally claimed, and still do, and each of them doth there severally claim to be a Burgess and Freeman of the said borough, and to have, use, and enjoy all the liberties, privileges, and franchises to the said office of a Burgess and Freeman of the same borough belonging and appertaining, as it was and is lawful for them to do.

To this plea the prosecutor replied, and issues were joined to be tried by a jury.

[334] Another information of the like nature, having been filed against Abraham Head and others, they insisted on the same right, and the same matters were put in issue as in the present cause; and that cause being tried at the summer assizes for Cornwall, in 1769, by a special jury of that county, a verdict was found for the defendants upon all the issues. But notwithstanding this verdict, the prosecutor, in Michaelmas term following, moved the court for leave to enter judgment against the defendants, insisting, that the bye-law on which they had grounded their title, was repugnant to the charter, and void; and the court being of that opinion (4 Burr. 2515), leave was given accordingly.

In consequence of this determination, the prosecutor in the present cause obtained leave of the court to withdraw his replication; and having put in a general demurrer to the plea, the court, in Easter term 1770, gave the following judgment, viz.

Whereupon all and singular the premises being seen and fully understood by the court here, and mature deliberation had thereon, it is considered and adjudged, by the said court