Page:The English Reports v1 1900.pdf/1456

The plaintiff by his replication to the defendant's first plea, protesting that the two sheriffs of the said city of London for the time being, as being sheriffs of the said city, are not, nor were [470] at any time whatsoever, persons bearing an office, place, trust, or employment relating to or concerning the government of the said city of London; said, that by a certain act of parliament made in the 5th year of the reign of King George I. intitled, an act for quieting and establishing corporations, it was enacted,

That all and every the member and members of any corporation within this kingdom, and all and every person or persons then in actual possession of any office, that were required, by the therein recited act of the 13th of King Charles II. intitled, an act for the well governing and regulating of corporations, in the plea of the said defendant above-mentioned, to take the sacrament of the Lord's supper, according to the rites of the church of England, within one year next before his election or choice into such office, should he and were thereby confirmed in their several and respective offices and places, notwithstanding their omission to take the sacrament of the Lord's supper as aforesaid; and should be indemnified, freed, and discharged of and from all incapacities, disabilities, forfeitures, and penalties, arising from such omission; and that none of their acts, nor the acts not then avoided of any who had been members of any corporation, or in actual possession of such offices, should be questioned or avoided for or by reason of such omission; but that all such acts should be, and were thereby declared and enacted to be as good and effectual, as if all and every such person and persons had taken the sacrament of the Lord's supper in manner as aforesaid; nor should any person or persons, who should be thereafter placed, elected, or chosen, in or to any the offices aforesaid, be removed by the corporation, or otherwise prosecuted for or by reason of such omission; nor should any incapacity, disability, forfeiture, or penalty, be incurred for or by reason of the same, unless such person should be removed, or such prosecution be commenced, within six months after such person's being placed or elected into his respective office as aforesaid.

The plaintiff filed the same replication to all the other pleas. To which the defendant demurred generally. And the plaintiff having joined in demurrer, judgment was, on the 21st of April 1757, given in the Sheriff's Court, over-ruling the defendant's plea, and that the plaintiff should recover against the defendant his debt aforesaid, and also £174 10s. 7d. for his damages and costs.

In Hilary term 1758, the defendant brought his writ of error, returnable in the Court of Hustings in the city of London; and having removed the record, the defendant assigned the general errors, and the plaintiff rejoined, that there was no error; and after several arguments, the Court of Hustings affirmed the judgment, and adjudged the plaintiff £95 3s. for his damages and costs.

The defendant conceiving himself to be aggrieved by this affirmance of the judgment, obtained a special commission of [471] errors, directed to Sir John Willes, Knt. then Chief Justice of the Bench; Sir Thomas Parker, Knt. Chief Baron of the Exchequer; Sir Michael Foster, Knt. the Honourable Henry Bathurst, Esq. and Sir Eardly Wilmot, Knt. Justices, or any two of them, to inspect the said judgment, and affirmance thereof, at the Guildhall of the city of London, and if there should be any error therein, to correct the same; and having brought the record before the said Justices, the defendant assigned the general errors, and the plaintiff rejoined that there was no error therein.

After three solemn arguments, the said several judgments of the Sheriff's Court, and the Court of Hustings, were on the 5th of July 1762, reversed by the unanimous opinion of all the said Judges then surviving; namely, the Lord Chief Baron Parker, Mr. Justice Foster, Mr. Justice Bathurst, and Mr. Justice Wilmot, the Lord Chief Justice Willes being before that time dead.

In the several arguments of this cause, an objection was taken to the form of the declaration, because it had not set forth the charter of King John, to shew the court what right the city had to elect their sheriffs; but this objection was over-ruled in the Sheriff's Court, and in the Court of Hustings; and no opinion was given thereon by the Judges, in delivering their judgment at Guildhall, which they gave upon the merits only.

But to reverse this judgment so given, a writ of error was brought in parliament; and on the plaintiff's behalf it was argued (C. Yorke, F. Norton), that the city of London, and every corporation, has a right to the service of all their members, in