Page:The English Reports v1 1900.pdf/1454

excuse should then and there be offered on his behalf, as the said court should allow; and in case of such excuse allowed, then at such other subsequent court or courts as the said courts should appoint; and should then and there become bound to the chamberlain of the said city for the time being, his executors and administrators, by his bond or obligation, in the penal sum of £1000, with condition thereunder written or thereupon indorsed, that if he should personally appear on the vigil of Saint Michael the Archangel then next following, between the hours of twelve of the clock at noon, and three of the clock in the [467] afternoon, in the public assembly of the said Guildhall, in the place where the court of hustings was usually holden, and then and there in the presence of the lord mayor of the said city for the time being, and two aldermen of the said city for the time being, or in case of the absence of the said lord mayor, then in the presence of four of the aldermen of the said city for the time being, take the oath of office there usually taken by the sheriffs of the said city and county of Middlesex, then the said bond or obligation should be void; upon pain that every person so elected, who should not appear and become bound as aforesaid, should, if an alderman of the said city, or a commoner previously nominated by the lord mayor of the said city as aforesaid, forfeit and pay to the uses in the said act of common council mentioned, the sum of £600, or if he should not he then an alderman of the said city, or a commoner so previously nominated by the lord mayor of the said city, the sum of £400, and that all penalties and sums of money to be forfeited by virtue of the said act, should be recovered by action of debt in one of the courts of record of the King's majesty, his heirs and successors, within the said city.

The declaration then charged, that the defendant in error had been duly nominated on the 30th day of April 1751, by Francis Cockayne, Esq. then lord mayor, in pursuance of the power contained in the said act of common council for that purpose, as a fit and able person to be in nomination for the said offices of sheriffalty, and had not paid the £400 according to the provision of the said act of common council: that he was on the 23d day of July 1754, duly elected, according to the regulation of the said act of common council, to the said offices, and on the 24th of the same July had notice given him of his election that on the 30th day of the same July, being the next court of the lord mayor and aldermen of the said city after the said election, the said Allen Evans appeared, and declared his refusal, and absolutely refused to take upon himself the said office of one of the sheriffs of the said city, and to be one of the persons to be and serve in the said office of sheriff of Middlesex; and no other reasonable excuse was offered by or on the behalf of the said Allen Evans, or allowed of by the said court; and the said Allen Evans also refused to give bond, or otherwise comply with the provisions of the act of common council above recited, whereby he had forfeited the said sum of £600, and an action had accrued to the plaintiff for the same, for which he had brought his suit.

To this declaration, the defendant pleaded an act of parliament, made at the second meeting in the parliament of King Charles II. begun at Westminster, the 6th of May 1661, and there continued until the 20th of December, and from that day adjourned to the 7th of January then next ensuing, intitled, an act for the well governing and regulating of corporations, by which it is (amongst other things) enacted,

That from and after the expiration of [468] a certain commission, in and by the said act made and mentioned, no person or persons should for ever thereafter be placed, elected, or chosen in or to any of the offices or places in the said act mentioned, that should not have, within one year next before such election or choice, taken the sacrament of the Lord's supper according to the rites of the church of England; and that every person and persons so placed, elected, or chosen, should likewise take the oaths therein before mentioned, and subscribe the therein-mentioned declaration, at the same time when the oaths for the due execution of the said places and offices respectively should be administered; and in default thereof, every such placing, election, and choice was and is, by the said act, enacted and declared to be void.

The defendant pleaded also an act of parliament of King William and Queen Mary, begun at Westminster the 1st day of February, in the 1st year of their reign, intitled, an act for exempting their Majesties Protestant subjects, differing from the church of England, from the penalties of certain laws; by which