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mistake, which confounds the end of the statute with the consequences of it, to argue upon the corporation act, as a mere vindictive law, made to punish an offence. The end and purpose of it was to be a protection to the constitution, by disabling all who did not profess the established religion, from being elected or placed in offices of government, as persons whom the legislature deemed not fit to be trusted with power; and appropriating such offices, and the powers annexed to them, to the members of the established church. The act cannot, consistently with the rules of sound construction, be so interpreted, as to expose Dissenters to another punishment, superadded to the loss of power. It makes no difference between burthensome and lucrative offices; for such a distinction would have been inconsistent with the principles, and destructive of the end of the act; which manifestly was to shut the door against Dissenters, as to power. If the consequence of that is to free them from offices which are burthensome, it gives the members of the established church an equivalent; namely, the privilege and exclusive capacity of enjoying those, which are accompanied with honour and profit.

It was still however objected by some, that if the defendant was allowed to shelter himself under the corporation act, the atheist, the infidel, and the profligate, and every one who desires to avoid a burthensome office, might do so likewise; and the corporation would have no means to compel a performance of corporate duties.

But to this objection it might be sufficient to say, that it was not applicable to the present case; for the defendant by plead-[477]-ing the toleration act, and by having qualified himself within the terms of it, had drawn a line between the scrupulous Dissenters, and persons of the odious stamp and character mentioned in the objection. The reality of the Dissenters scruples is supposed by the toleration act, and was admitted by the pleadings in the present cause.

It was then further argued upon the general merits of the case, that the defendant would have been liable to punishment for an usurpation, if he had taken upon him the office, in consequence of such a mere pretence, or colour of an election, as in the present case; an election, which the corporation was by the act prohibited from making, and under which the defendant was, by the same act, rendered incapable of accepting the office; and it would be contrary to reason, that any person should incur a penalty for not doing that, which it would have been criminal in him to have done. That the penalty imposed by the bye-law upon which this action was brought, could not be incurred by any but those who were duly elected by the livery to the office of sheriff, in consequence of a proper and legal nomination by the lord mayor; such previous nomination being essential to the subsequent election. The bye-law itself enacts and ordains, "that it shall be lawful for the lord mayor to nominate fit and able persons to be put in nomination to the livery," which is in effect a prohibition to nominate any person, not of that quality and description. But the defendant not having been qualified as the corporation act requires, was not a fit and able person, and could not be nominated as such by the lord mayor; on the contrary, he was under an absolute disability by act of parliament, of being either nominated or elected; and therefore, the pretended nomination of the lord mayor, and all the subsequent proceedings, and the election pursuant thereto, were mere nullities, and could not have any legal effect; any more than the nomination and election of a person rendered incapable by the judgment of a court of law could have had.

After hearing counsel on this writ of error, the Judges were directed to deliver their opinions upon the following question, viz.

Whether upon the facts admitted by the pleadings in this cause, the defendant is at liberty, or should be allowed to object to the validity of his election, on account of his not having taken the sacrament, according to the rites of the church of England, within a year before, in bar of this action?

And the Judges having taken a week's time to consider, and differing in their opinions, delivered them seriatim, with their reasons; Mr. Justice Hewitt, Mr. Justice Aston, Mr. Justice Gould, Mr. Baron Adams, Mr. Baron Smythe, and Mr. Justice Clive, were of opinion in the affirmative, and Mr. Baron Perrot in the negative: whereupon it was ordered and adjudged, that the judgment given by the commissioners delegates should be affirmed; and the record remitted. (Jour. vol. 31. p. 458. 470. 475.)