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have paid tithe for his hay, had he thought the respondent would have required it, yet he did not even submit by his answer to pay any tithe for the same, though the respondent had required it by his bill.

After hearing counsel on this appeal, it was ordered and adjudged that the same should be dismissed, and the decree therein complained of, affirmed. (Jour. vol. 25. p. 141.)

The right of electing the Sheriff's of the city of London, and county of Middlesex, being legally vested in the Mayor and Commonalty and Citizens of the city of London; in order that they might be the better enabled to execute so great a trust, an act of Common Council was made on the 20th of July, 7 Car. I. whereby it was enacted,

That if any citizen of London, being fitly qualified, should be duly elected and chosen to be one of [410] the Sheriffs of the city of London and county of Middlesex, and should refuse to take upon him the said office (unless he should be discharged by oath, as to the insufficiency of his estate not being worth £10,000 at the time of his election) he should forfeit the sun of £400 to the Mayor and Commonalty and Citizens, to be recovered by action of debt in any of the Courts of Record within the city of London.

On the 22d of July 1698, one Thomas Woods, citizen and tallow-chandler, of London, being qualified, was duly chosen to be one of the Sheriffs of the said city and county; but being at that time in Holland, upon his necessary occasions, he could not appear to give bond for executing the office as the said act directs, or to discharge himself in the manner thereby also directed, and therefore he was fined £400.

To recover this fine, an action was in Easter term 1702, brought against Woods in the Sheriffs Court, by the Mayor and Commonalty and Citizens, but this action was removed by habeas corpus into the Court of Exchequer, and upon a return made of the said act of Common Council, and after several arguments had thereon, the act was adjudged good and valid in law; and a procedendo being thereupon granted, judgment was afterwards given against Woods in the Sheriff's Court.

But to reverse this judgment, Woods, in Easter term 1703, brought a writ of error in the Court of Hustings in London, which court is by custom held before the Lord Mayor and Sheriffs, or before six Aldermen without the Mayor; and in which court only, a writ of error of a judgment given in the Sheriffs' Court lies; and, according to the custom of this court, Woods, together with the present plaintiff as his surety, became bound to the Mayor and Commonalty and Citizens of the city of London, in a bond of £800, conditioned to prosecute the said writ of error with effect, but which not being done, the same was by judgment of that court non-pross'd.

Whereupon, in Trinity term following, the present defendants brought an action of debt upon the bond, against Markwick in the Court of Common Pleas, to which he pleaded, that Woods did prosecute the said writ of error with effect; but upon a demurrer, judgment was given for the plaintiffs in that action; and this judgment was afterwards affirmed on a writ of error in the Court of Queen's Bench.

To reverse this judgment and the affirmance of it, Markwick thought proper to bring a writ of error in parliament, insisting (J. Montague, S. Cowper) that the £800 bond was illegal and void; and that the proceedings in the Court of Hustings were contrary to all rules of justice, for that the Lord Mayor of London, who was plaintiff