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corporation offices, or to a pecuniary, or some other compensation in lieu thereof; which in the present case has been provided for, by a succession of acts of common council, giving an exemption to any person nominated to the office, on payment of a reasonable fine and it would be a great hardship, that the private scruples of any of the members, should throw the whole burthen of the corporation offices upon the rest of them; especially, when every member upon his admission assents to this bye-law, amongst others, as the terms of his being entitled to many lucrative advantages, which he acquires by his admission into the freedom of the city of London; and at the very time of such admission must know, though the corporation cannot, his inward scruples against qualifying himself for these offices. That it was not the intent of the corporation or toleration acts, to abridge this right of the city of London, and other corporations, over their own members, in support of their franchises; or to deprive them of the remedies provided by their bye-laws, for enforcing their said rights, by pecuniary fines and penalties stipulated amongst themselves, which are not properly to be considered as punishments, but in the nature of damages to the corporation, in satisfaction for the loss of their member's service; and so the law considers all penalties for the inforcement of private rights, even when given by [472] act of parliament. That the construction of the corporation act contended for by the defendant, that it is absolutely prohibitory upon the electors, not to elect any person who shall not have received the sacrament according to the rites of the church of England, within one year before the election; and that such election shall in all respects, and to all purposes, be absolutely void; was contrary to former resolutions of courts of law, and particularly in the case of the King v. Larwood (1 Lord Raym. 29), and might be attended with dangerous consequences, as it might open the door to others, as well as the conscientious and scrupulous Dissenters, to evade the service of all burthensome offices, either by a wilful and avowed neglect of the sacramental qualification, or in the case of Dissenters, by introducing a more constant and strict non-conformity than they have generally professed; in order to lay a foundation for proving, whenever it may become necessary, the reality and conscientiousness of those scruples, which the defendant alledged in his pleas, as the ground of not having it in his power to qualify himself for this office. That these and all other inconveniences might be removed, and the full purpose of the corporation act answered, by the distinction established in the case of the King v. Larwood, and the King v. Read, and never since over-ruled; that no one shall excuse himself from the obligation of serving these offices, even in a course of criminal proceeding, much less on a private bye-law of a corporation, by his own default, or voluntary omission; and that in these cases, his election, notwithstanding his want of qualification, shall not be considered as void, so as to excuse him, but as voidable only against him, in respect of any advantages he might claim under it. And the statute 5 Geo. I. set forth in the plaintiff's replication, which confirms the election of such as have been in possession six months, shews, that the legislature have considered these elections as voidable only, and not as absolutely void. That though, since the toleration act, it might not be illegal in a Dissenter, duly qualified, not to have communicated with the church of England, yet it was apprehended, it could not appear in this cause, that it was not a voluntary omission in the defendant not to have done so; and it was conceived, that a voluntary omission can never be an excuse from a prior obligation. A Protestant Dissenter, as such, does not profess an absolute non-communion with the church of England; for the most conscientious of them have at times occasionally conformed, not for lucrative employments only, but in devotion and charity. And as to the defendant's allegation in his pleas, that he never had communicated, nor could in conscience communicate with the church of England; this was a matter not capable of proof, or of being put in issue to a jury, nor possible to be known, but to God and his own conscience. And therefore the alledging it, and that the corporation had notice of it at the time of the election, was totally immaterial upon these pleadings, and not admitted as a fact upon this record; because, by [473] the rule of law, nothing is admitted as a fact upon a demurrer, but such a fact as is well pleaded, and upon which the other party may take an issue; which in this case the plaintiff could not have done.

As to the objection to the declaration, that it had not set forth the charter of King John, to show what right the city of London has to the election of sheriffs; it was answered, that that charter is only a charter of confirmation, and that the city have this right prescriptively, and by custom, as part of their ancient constitution: that this