case the king against LARWOOD a person may excuse himself for not execute the  office of sheriff on account of his not have take the sacrament S c salk S c  salk S c Mod S c skin S c Carth S c holt S c comb S c vent S c ld ray  information against the defendant set forth that king Henry the four have  grant to the city of Norwich to be a county and that the citizen and community  shall choose yearly a mayor and two sheriff and that king Charles the second  confirm the charter of Henry the four et beyond to go away that the mayor  sheriff and alderman shall choose one sheriff and the citizen and commonalty  the other that the defendant a freeman of Norwich be elect sheriff by the  mayor c accord to the charter of king Charles the second and upon notice of it  non prtitit sacrament duty nec duty super see assumpsit the defendant plead in  bar quid non to take in hand sacrament Gnaeus domini hic infra annum and  therefore by the statute of car c ipse be incapable et choice vacuan et ind  notice devoted to and aver that ad general a sitting Norwici to take in hand  sancram second will mary et to write underneath revelation second car and be a  inhabitant of Norwich replication that the defendant ut member Ecclesi  Anglican whithersoever you please year sacrament Gnaeus Dominic cepiss to  withhold et per diminution suum prorium to excuse non debet rejoinder  protestand quad non to withhold c be plead the Act of indulgence will mary and  aver quid be protestan dissentie c and repeat the averment in the bar and sir  same Ashtree pro ring demurrer after several argument at the bar it be this  term argue by the court the first exception be take to the information that it  do not appear by it that the defendant be lawful choose sheriff for king Henry  the four vest the election in all the modern report commonalty and citizen and  it be a interest vest in they which can be divest but by forfeiture or  surrender the king by modern report er p his letter patent can do this wrong  and particular patent of confirmation can make this alteration but it be  resolve by holt chief justice and Gregory justice contra Samuel Eyre justice  who hold the acceptance of the second charter by the commonalty do not  sufficient appear that the first charter have vest the election in the  populace and can not be divest by the second and place in a select number  without the assent of all but by such a assent it may and that here have  appear a sufficient acceptance by the election allege in the information which  be a execution of the constitution in the second charter and the defendant in  plead do not dispute his election but insist on his incapacity the second  exception be take to the rejoinder that the statute of indulgence ought to  have be plead in bar and that the plead it in rejoinder be a departure the  defendant in his rejoinder may make good and fortify the matter in his bar if  it be ad idem as if a statute be plead and he reply that it be repeal the  defendant may in rejoinder show it revive but here it do not fortify but be  new and not ad idem for in the bar he insist that the election be void by the  statute car and in the rejoinder though it be not void which contradict the  bar yet the Act of indulgence excuse it and this be admit on the defendant  part and resolve by the court to be a departure the three exception as to the  effect of the Act of indulgence whether nonconformity be a offence since the  Act of toleration holt chief justice and Giles Eyre justice will not give any  opinion because it be out of the case but Samuel Eyre justice declare his  opinion that the statute do excuse the defendant though otherwise liable the  four exception for the defendant it be urge that the statute of indulgence be  a general law which need not be plead and the defendant have sufficient show  himself to be within the qualification of it by the bar but per curian it be  resolve the defendant can not take advantage of the statute without plead it  first because it be a private statute a and extend only to protestant  dissenter of who no Act before have take notice second be it a private Act or  not the court can take notice whether the defendant be within it or not if he  do not show himself to be within it videlicet not only that he be a protestant  dissenter but also that he go to religious meeting c the principal point be  the matter in bar whether the modern report omission of the sacrament excuse  the execute of the office upon the statute of car and it be resolve per curium  first that the king can command the service of his subject and none can  disable himself per holt chief justice and Giles Eyre justice resolve that the  statute be not make to deprive the king of the service of his subject dissent  but that they ought to qualify themselves Giles Eyre justice resemble it to  the case of Elizabeth which require all people to come to church and hold that  a excommunication which disable a man to come to the congregation be no plea  because it be in his own default and holt chief justice say this case shall  not be intend better than the defendant have show it to be and therefore he  shall not be suppose for any scruple of conscience but out of a general  neglect of all thing sacred that by common intendment all the subject of  England be Christian and of the national church and by the ancient canon law  receive here as part of the commonlaw every one ought to receive the sacrament  once a year at least and this be also require by the rubric which be confirm  by Act of parliament and not do it be a offence and this offence be the  neglect and default of the defendant shall not excuse he from his duty and  service to which he be liable by the constitution of the government and this  plea be direct to contradict a maxim of law that no one shall be admit to a by  Geo c it be declare to be a public statute modern report er p stultify or  disable himself and be say that in London and other place since this statute  dissenter have be elect and submit to a fine and never dispute it but Samuel  Eyre justice differ and say no one debet bis to punish pro eoden fault which  here the defendant shall be punish on this information for not qualify second  he shall be punish for the same omission of the sacrament by ecclesiastical  censure three he shall be punish for accept the office without a qualification  judgement be give for the plaintiff b