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right of electing their sheriffs is taken notice of in public acts of parliament, particularly 11 Geo. I. for regulating elections in the city of London; and that however necessary this might have been thought, if the present action had been brought in the Courts of Westminster Hall, which cannot take notice of the customs and laws of the city, unless they are particularly pleaded; yet in the city courts, the laws and customs, and acts of common council of the city, are the laws which they must proceed by, and which the judges of those courts are sworn to observe, and consequently obliged to take notice of and the general course of precedence in those courts, in declarations upon acts of common council, is, to set forth the act of common council only, without alledging what right the city has to make bye-laws concerning the subject matter of the act, or how it arises; and the court of appeal, or on writ of error, must always judge by the same rule with the court wherein the cause is first commenced.

On the other side it was said (W. de Grey, F. Willes), that though the defendant had been always desirous of having his cause determined upon the true and real merits of the question between him, as a Protestant Dissenter, and the city of London; a question in which the whole body of Protestant Dissenters in this kingdom was greatly concerned, and on the real merits of which it was conceived, that the judgment given in the defendant's favour was pronounced; yet it must be observed, that the plaintiff who brought his suit as chamberlain of the city of London, and for the benefit of the city, had not in his declaration shewn such a ground, as to warrant the bringing the suít. For the action was founded on a supposed right in the city of London, to elect sheriff's for the city and county of Middlesex, and on a supposed breach of a bye-law relative to such election: such a right of election was a franchise, which could be supported only by grant, or prescription, which supposes a grant; but it was not stated in the declaration, nor did it any where appear on this record, how or by what means the city of London derived to themselves, or indeed that they had vested in them, any such franchise or right of election, which the bye-law was made to regulate. This was conceived to be a defect in the pleadings, which must be fatal to the suit; and such as would of itself be sufficient to overthrow the former judgments, given in favour of the plaintiff by the Sheriff's Court, and the Court of Hustings. That the duty [474] of members of a corporation to serve corporate offices, and the right of the corporation to compel them so to do, were not in the general now disputed, any more than the right of members to enjoy such offices, when they were legally and duly elected thereto; but both these rights of electing and enjoying, as well as the duty of serving, must be subject to the controul of the legislature; by which they might be abridged or extinguished, qualified or restrained. Thus the legislature after the restoration, intending to provide for what was thought a proper succession of officers, to be entrusted for the future with power and influence in the government of corporations, and to restrain and regulate the election of magistrates into such offices, by excluding persons who by their general habits and religious principles were deemed unfit to be trusted, and by absolutely prohibiting and declaring void the election of any such persons; did by the act of 13th Charles II. which was professedly made, according to the title of it, for the well governing and regulating of corporations, for the reasons therein mentioned, provide, and enact, "That no person should be elected into any office or place, concerning the government of such corporation, who should not, within twelve months next before, have received the sacrament of the Lord's supper, according to the rites of the church of England." And the defendant not having so received the sacrament within a year, was then under a legislative disability of being elected; and the corporation, by the same law, was absolutely prohibited from electing him, and the right of the one to elect, and both the right and duty of the other to enjoy and serve the office, was totally taken away. The pretended election in question was therefore a mere nullity, and a transgression of the law in the electors: and it was difficult to conceive, how the corporation could from their own transgression of the law, and breach of the statute, acquire a right of action, and entitle themselves to recover a penalty from an innocent person.

But it was objected by the plaintiff, that the disability arose from the defendant's own default; and that no person shall be allowed to plead his neglect of one duty, as an excuse for his not performing another.

This matter, independently of the toleration act, must now be considered in the same light, as at the time of passing the corporation act of Charles II. It was not the