case the king and queen against LARWOOD to a information against a person for  not take upon he the office of sheriff be thereto duly elect the defendant may  plead the corporation Act by which none shall be elect unless they have take  the sacrament within a year and the toleration Act by which protestant  dissenter who shall scruple to take the sacrament c be exempt from the penalty  thereof S c salk S c salk S c skin S c Carth S c holt S c comb S c vent S c  Mod S c ld ray information against the defendant set forth that the city of  Norwich be a ancient city incorporate who liberty be confirm in the five year  of Henry the four which king make it a county and give the inhabitant thereof  power to choose two sheriff every year that on the twentysixth of January in  the fifteen year of Charles the second the charter grant to that city by Henry  the four be confirm by which it be appoint that one sheriff thereof shall be  choose by the mayor sheriff and alderman and the other sheriff by the mayor  and commonalty of the say city and that they shall be swear every year upon  the twentyninth day of September in the guildhall of the say city before the  mayor and two or more justice of the peace modern that the defendant on the  nine of July in the four year of William the three be by the mayor sheriff and  alderman c duly choose sheriff of the say city juxta form paper of Charles the  second and they aver he to be a person capable of the office and that he have  due notice that he be choose c and be require to take the oath of a sheriff on  the twentyninth of September follow but that he refuse so to do and to take  upon he the say office of sheriff to the great hindrance of the business both  of the king and his subject c the defendant plead the statute of car c common  call the corporation Act by which it be enact that no person shall be elect or  choose into any office of trust in city corporation or borough who shall not  within one year next before such election have take the sacrament of the lord  supper accord to the rite of the church of England and in default thereof such  election be declare void then he aver that for several year last pass he be a  protestant dissenter and do not take the sacrament within a year before he be  choose sheriff c so that the choice be void and of this he give the mayor c  notice he further set forth that on the nineteenth of July in the first year  of William and mary he do take the oath appoint by the statute of will mary c  entitle a Act for remove and prevent all dispute concern the sit of that  parliament and subscribe the declaration appoint by the statute of car c  entitle a Act for disable papist to sit in either house of parliament c they  reply that he as a member of the church of England ought to have take the  sacrament within a year before the election and that he ought not to be excuse  from take upon he the office by his own default c the defendant rejoin that he  ought not as a member of the church of England to have take the sacrament  every year accord to the rite of the church c for that by a Act make will mary  for exempt protestant dissenter from the church of England from the penalty of  certain law therein name it be enact that no law or statute of this realm make  against popish recusant except the statute of car c and car c for disable  papist c shall be construe to extend to dissenter from the church of England  who shall take the oath prescribe by the statute of will mary c and subscribe  the declaration enjoin by car c I which oath and declaration the justice of  peace in modern their quarter session be oblige to tender to the person by  which statute of will mary it be far enact that such person who shall take the  say oath and subscribe the say declaration shall not be liable to any penalty  c mention in the statute of Elizabeth c nor car c entitle a Act to prevent  seditious conventicle nor shall be prosecute in any court for nonconformity to  the church of England c then he aver that he be a protestant dissenter on the  nineteenth of July will mary and that at the quarter session of the modern er  p peace then hold at Norwich he take the say oath and subscribe the  declaration c the plaintiff demurrer general for the plaintiff the intent of  the statute of car c be not to keep man out of the church but to incapacitate  such who will not conform that they may not bold any office till they come  into the church for otherwise it will be to give a man opportunity by his  wilful default to avoid a office of burden when it be come upon he and so it  be adjudge in sir John read case Freem a who be excommunicate for not pay  alimony and because he will not take off the excommunication when he be  appoint sheriff of the county he be fine fifteen hundred pound it be true this  statute say that if the person elect shall not within a year before his  election receive the sacrament it shall be void but as to that the statute  must have a reasonable exposition videlicet it shall be void to claim any  benefit to the office to which he be elect but not so void that he shall not  be punish for not qualify of himself it be like the case of bishop dean and  chapter who lease if not pursuant to the statute will be adjudge void but it  have often be rule that they be not void to all intent but only to the lessors  themselves and against their successor for statute must have a reasonable  construction Plowd b   a a every man be enjoin by the ecclesiastical law to  take the sacrament once in a year and that be part of the law of the land but  to excuse himself the defendant say that there be another law make will mary  to exempt person from be punish for nonconformity which be a very unnecessary  excuse because a punishment be not now intend for any thing exempt by the  statute but for a offence at the commonlaw in not qualify himself modern to  take the office of a sheriff for the service of the government and which by  law he ought to take upon he then as to the plead this rejoinder be a  departure from the bar for he have plead the statute of car which as he allege  make his election void by not receive the sacrament within a year and in his  rejoinder he excuse himself from take the office by plead another statute  videlicet that he ought not to take the sacrament accord to the rite of the  church c as a member thereof c which be not pursuant to the same thing  Rotheram sergeant contra if the election be make by the statute of car c then  the defendant be never lawful choose sheriff and so can be punish and it will  be very inconvenient if he shall be compel to act without a legal election  because he will be uncapable of execute any process the statute intend only to  disable man who be not of the communion of the church of England to hold  public office and not to punish they if they do not qualify themselves it be  make in favour of the church and not to inflict punishment upon dissenter for  nonconformity for they be exclude unless they will qualify themselves the  profit of all the great and beneficial place throughout the kingdom must of  consequence be enjoy by churchman that this be the intent and design of that  law will more plain appear by compare the Bartholomew and Oxford act together  car c and car c b the one enjoin that every parson c shall within a time limit  declare his assent to the book of common prayer or that his live shall be Self  facto void the other enact that if they have not declare their assent as  aforesaid and shall take upon they to preach that then they shall not come  within five mile of a corporation or the parish where he be parson upon  penalty of forty pound which show that the first Act make the live only void  but the other inflict the punishment therefore the defendant can be punish in  this case because the statute of car c make the election void but add no  punishment to the person unqualified as to the objection that the incapacity  arise from the default of the defendant himself that can be material for if he  remove from the corporation he shall not be punish for not execute the office  and yet he be thereby make incapable by his own act modern the neglect in not  receive the sacrament be not a offence at the commonlaw or against any statute  it be make so by the canon which enjoin the receive of it three time in a year  so that it do not fall within modern er p the cognizance of the temporal court  to punish the defendant but by that law against which the offence be commit  but if the court of king bench shall take notice of it he ought not to be make  a criminal upon a bare presumption for he may be hinder from the receive of it  by a incapacity of mind by sickness or otherwise neither can sir John read  case be any authority against the now defendant because he be lawful appoint  to be sheriff and his incapacity incur ex post facto which be different from  this case but if the neglect to receive the sacrament be a offence before the  statute of will mary c yet it be not punishable now for by that statute  protestant dissenter be exempt from the punishment inflict on they as such by  any former law and though they dissent from the lawful and establish church  yet if they be protestant and have take the oath and subscribe the declaration  they be not to be punish for nonconformity and the defendant have aver himself  in his plea to be qualify in these point and so not to be prosecute for  nonconformity afterward in Hilary term William and mary judgement be give for  the plaintiff videlicet that the corporation Act never design to exempt  dissenter from bear office in the government but to establish a succession of  person who be well affect to it for otherwise it will be a encouragement for  some man to persist in their nonconformity on purpose to avoid office of  burden and charge instead of bring they to conform which be chief intend by  that statute it be a fault in the defendant not to have receive the sacrament  at least once in a year because by the canon law which have be receive here  time out of mind he be oblige so to do and therefore it be very absurd to  allege as a excuse what be real a neglect of his duty if he have be disable by  a judgement in law he may have be excuse for though his fault or neglect be  the occasion of such judgement yet it be a mark set upon he by the government  modern but in case of a excommunication where he may remove the disability  there he shall not be excuse then as to the plead he do not say that he can  not receive the sacrament c for the sake of his conscience suppose then a man  before the Act of indulgence of will mary have neglect or omit to receive the  same within a year before his election to a office no man will say that it  shall have excuse he the defendant therefore shall at first have plead in bar  that he be a dissenter from the church c and then bring himself within the  compass of the Act of indulgence of which the court can take any notice  because it be a private Act it be now declare to be a public Act by Geo c a  for before it be make the law do not take any notice of protestant dissenter  but only of dissenter from the church in general beside it be a Act which do  not extend to all sort of protestant dissenter but only to such who shall  qualify themselves as therein be prescribe if therefore the toleration Act be  a private law then the corporation Act will not be a sufficient excuse for the  defendant to be exempt from this office because the Act never intend to excuse  he who be liable before it be not make in favour of dissenter it intend to  make person qualify themselves the better to serve the government in establish  faithful officer therein and ever since the make of that law when a freeman  who be a dissenter be choose a alderman of a corporation he never insist upon  the Act as a excuse but submit to a fine and so must the defendant but one  judge and the Lord keeper as it be say at bar be of a contrary opinion  videlicet that the defendant be sufficient punish by the corporation Act in be  disable to bold any office or employment of profit and now to punish he by a  information will be a double punishment for one offence which the law will not  allow therefore there be a capias against the defendant pro fine and he now  appear in court he be fine five mark and no more see the case of Harrison v  Evans burn e l Cowp in the corporation of London by a bylaw impose a fine of  six hundred pound upon every person who be elect shall refuse to serve the  office of sheriff the plaintiff levy debt in the sheriff court against the  defendant for this penalty the defendant plead the car aver that he be a  protestant dissenter within the toleration Act will mary c of scrupulous  conscience and therefore have not receive the sacrament the plaintiff reply  the Geo c which confirm member of corporation in their respective office  although they have not receive the sacrament accord to the direction of the  car to this replication the defendant demurrer and judgement be give upon it  in favour of the city the defendant appeal to the court of husting where the  judgement be affirm a special commission of error be sue out by the defendant  direct to will Parker foster Bathurst and Wilmot and after great argument and  deliberation the judgement of the sheriff court and the affirmance by the  court of husting be unanimous reverse the plaintiff bring a writ of error in  parliament and on the that February Lord Mansfield with five other judge  against Perrot be of opinion that upon the fact admit by the plead in this  cause the defendant Evans shall be allow to object to the validity of his  election to the office of sheriff in bar to the present action by reason that  he have not take the sacrament within the time limit b modern er p