case Harcourt against fox Indebitatus assumpsit lie by a clerk of the peace  appoint pursuant to will and mary c for fee and perquisite of office receive  by a person appoint to the office by a succeed custos rotulorum for the  appointment be Interrog  bene see to bear about be not void by the removal of  the custos SC ante SC post levins sergeant may it please your lordship Simon  Harcourt be plaintiff and John fox be defendant this be in a assumpsit for  forty shilling have and receive by the defendant for the plaintiff use upon  non assumpsit plead the jury find a special verdict first they find the  statute of Henry c and that statute do recite that the Lord chancellor before  then have have the nomination of the custos rotulorum and the custos have the  appointment of the clerk of the peace and then take notice that of late  several person have be make custodes and clerk of the peace for life whereby  great misdemeanour have be and for reformation of they it enact that none be  make custos but by a bill under the king hand and he shall remain custos till  the king by another bill under his hand appoint another person to be custos  and that every custos rotulorum do appoint the clerk of the peace who be to  hold the shower KB office so long as the other shall continue custos so as he  demean himself well in the office second they find the statute of the William  and mary c which appoint that the custos shall be make accord to the  appointment in the statute of Henry c which have be alter by a statute make in  the reign of Edward the six which I shall have occasion to open by and by and  it further enact that the custos rotulorum shall appoint a person to be clerk  of the peace to execute the same by himself or his sufficient deputy and to  take and receive the fee and profit for so long time only as he shall well  demean himself in his say office then the next clause be that if any clerk of  the peace do misdemean himself in the office upon complaint in write to the  justice at the quarter session they may remove or suspend he and then the  custos shall nominate another but if he neglect to nominate before the next  quarter session the justice of the peace at that quarter session shall appoint  one to hold the office and execute the same by himself or deputy and to  receive the fee and profit here indeed it be not say how long he shall hold it  but it be add by way of proviso that he shall be liable to all the penalty  forfeiture condition limitation and provision therein and thereby mention and  express and be remove or discharge by the justice in manner above specify then  there be another clause in the new statute which enact that the custos or any  other person to who it belong to appoint a clerk of the peace shall not sell  the place or take any bind or assurance to receive any reward money fee or  profit direct or indirect to he or any other for such appointment upon pain  that both the buyer and the seller shall be disable to bold their place and  shall forfeit the double value of the thing give or take then come the last  clause that every clerk of the peace before he enter upon the execution of the  office shall in open session swear that he have not nor will pay any money or  reward or give any bind or assurance to pay money fee or profit direct or  indirect to any person or person whosoever for such nomination or appointment  then the jury find further that on the that of July in the first year of  William and mary my Lord of Clare be make custos rotulorum for the county of  Middlesex and he appoint Mr Harcourt the plaintiff clerk of the peace and they  find the patent in haec word whereby he be appoint to be clerk of the peace  for so long time as he shall well demean himself in the office and shower KB  then they find that afterward in the three year of William and mary my Lord of  Clare be remove from the place of custos and my Lord of Bedford be make custos  and he make the defendant Mr fox clerk of the shower KB er p peace with a  limitation in the word of Henry c to continue clerk of the peace so long time  as my Lord of Bedford shall continue custos rotulorum be demean himself well  in the say office they find likewise that this clerk of the peace thus put in  by my Lord of Bedford have receive money as fee for the office for which the  clerk of the peace put in by my Lord of Clare have bring his action but which  of they be real clerk of the peace the jury be doubtful and submit it to the  judgement of the court and if the law be for the plaintiff they find for the  plaintiff if the law be for the defendant they find for the defendant my Lord  the cause upon this verdict be short but this the earl of Clare be put into  the office of custos rotulorum since the statute of will and mary c he put in  the plaintiff to be clerk of the peace in the word of that statute my Lord of  Clare be remove and my Lord of Bedford be make custos rotulorum and he put in  the defendant to be clerk of the peace in the word of the statute of Henry c  and the question in the case be whether of these two be clerk of the peace at  the time of the defendant receive the fee of the office and with submission I  conceive the plaintiff be then and still be clerk of the peace by virtue of  the constitution and appointment of my Lord of Clare but however the defendant  be not if the plaintiff shall not be for he be not put in accord to the  limitation in this last law my Lord there be a statute that come between these  two mention in this special verdict and which in short be the occasion of make  this last statute and that be Edward c which recite the statute of Henry c and  the inconvenience that arise thereupon for want of a custos many time because  they can not come immediate to get the king hand to the bill and therefore it  do appoint the custos shall be make by the chancellor or keeper as it be  before this statute of Henry c now this statute of William and mary do restore  the statute of Henry c as to the custos rotulorum to be appoint b the king by  bill to continue till the king appoint another by bill but shower KB my Lord  as to the clerk of the peace that statute of Edward c say nothing but appoint  only the manner of make the custos and the clerk of the peace as to his office  it stand as it be before now this last statute appoint that the custos shall  be make accord to the method prescribe in the statute of Henry c therefore I  do humble conceive the defendant will infer from hence that because the custos  rotulorum be to be make accord to the statute of Henry c the clerk of the  peace must be make accord to the statute too and thence I do imagine the  difference between the plaintiff and defendant do arise but with submission to  your lordship I conceive this inference can be draw neither from the word nor  from the meaning of the statute of the first of this king and queen for though  it do intend that the custos rotulorum shall be make and continue as he be  before the statute of Edward the six yet I think it be plain it do not intend  that the clerk of the peace shall continue as he be by the statute of Henry  the eight but I rather take it that this be a new law as to this office of  clerk of the peace to new mould the office and make it different from what it  be before this new Act my Lord I conceive that what they will have can be  infer from the word of the statute for the word be that the custos rotulorum  shall be make accord as be direct by the statute in the Henry c and if it have  go no further what have that be as to the clerk of the peace they may then  have have more ground to infer that the clerk of the peace shall continue as  he be before if this statute have say no more though perhaps it may have be  somewhat difficult to have make such a exposition since the statute have  restore the one officer but not mention the other true I can tell what  exposition may have be but here I be sure there can be none such for when it  come to declare the right of nomination of the clerk of the peace to be in the  custos it plain say the clerk shall be make in another manner than he be to be  make by Henry c for the word of the limitation be otherwise in this statute  than in that the statute of Henry c say he shall be clerk so long as the  custos shall continue in his office demean himself well but the word of this  statute be that the custos shall make the clerk of the peace to execute the  office so long as he shall demean himself well in the office it do not say as  long as he continue custos so as he demean himself well which be the word of  the old statute but simple and absolute so long as he well demean himself in  the office now shower KB my Lord this I take plain to be a estate for life for  if any judicial shower KB er p or ministerial office be grant to any man to  hold so long as he behave himself well in the office that be a estate for life  unless he lose it for misbehaviour so be sir John Waller case as to the office  of chief baron of the exchequer and so be justice archer case in the time of  king Charles the second he be make a judge of the common plea how day see bene  to bear about and though he be displace as far as they can yet he continue  judge of that court to the time of his death and his name be use in all the  fine and other record of the court and so it be in all case of grant from the  king or from any other person and then with your favour my Lord this statute  of William and mary appoint that the custos rotulorum shall be make accord to  the provision of Henry c but the clerk of the peace shall remain clerk as long  as he well demean himself in his office that be a quite different limitation  from that other statute of Henry c and the only qualification of his estate in  the office be by the word of this statute during good behaviour and that be a  estate for life unless his misbehaviour in his office and from thence I be  sure it can be collect as out of the word of the statute that he shall be  removable by the custos or by the removal of the custos or by any body else  but for misbehaviour my Lord I conceive they will find it as hard to make out  any such inference from the intention of this Act of parliament from the word  that he shall be removable any way but for misdemeanour I confess it will be  hard by a implead intention to think that when the statute say he shall  continue so long as he demean himself well which give he a estate for life any  collateral word shall take that estate out of he and make he to hold his  office no long than the custos continue custos but my Lord I take it with  submission from the whole frame of this statute it be plain the parliament do  not intend to restore the statute of Henry c in all point but do intend to new  mould this office of the clerk of the peace in another and a very different  manner than as it stand by that statute for if they have intend the other  there have need be do no more than to have repeal the statute of Edward c and  then all have be as it be before but that they have not do for they have  indeed make the custos rotulorum to be as he be before by that statute but the  word concern the clerkship of the peace be quite otherwise than the word in  the statute this shower KB statute of William and mary differ in many thing  from both our former statute first in the word that have be mention how long  he shall remain in his office so long only as he shall demean himself well in  it that be simple and absolute without dependence upon the custos or upon his  removal out of his office second it differ in the manner of put he out that be  by complaint to the justice in session and that in write and that prove before  they and then they upon the proof may suspend or discharge now these  circumstance be not necessary before for if the clerk of the peace have commit  a misdemeanour have but a uncertain interest in his office he may be remove  without complaint in write the custos may have put he out by word of mouth as  the case be in dyer b which I take to be a far strong case than this the Lord  chief justice of the common plea by the opinion of the whole court discharge  Vaux a philizer for misdemeanour in his office and swear in another but there  be no record of this discharge make upon the roll nor Vaux call to answer  accord to law and there it be resolve a good discharge notwithstanding and  sure the justice of peace may much more easy discharge the clerk of the peace  if he have so uncertain a interest but now this law require that the complaint  must be in write and prove which argue that they think he have such a interest  in his office that he be not slight to be oust of it and then my Lord when he  be put out it differ in this too that the justice of the peace may now appoint  a clerk of the peace by this statute if the custos neglect to name one before  the next session it be true it be not say for how long he shall hold the place  who the justice put in that be not material to our case at present but I think  upon the whole face of the Act he shall have the same estate in his office as  he have who be put in by the custos because it be say he shall be liable and  subject to the same penalty and condition beforementioned and to be remove and  discharge in the same manner and if the custos have not name a clerk and the  justice have put in one the reason of the thing argue he must be in upon the  same term as if be be put in by the custos upon who neglect and default he be  put in by shower KB er p the justice another difference there be in this  statute from both the former and which indeed be a singular difference from  other office in the law and that be he must take a oath before he enter upon  the office that he neither have give or will give any thing for it this be  never incumbent upon the clerk of the peace shower KB before nor upon any  other officer of the law I know it be true the statute of Edward the six where  provision be make against buy and sell of office relate to administration of  justice put disability upon he that grant the place and upon the party that be  let in but this statute do not only do so but it give the forfeiture of double  what be give and receive which be beyond what any law have do in this kind  before from all which my Lord I conclude that it appear that the intention of  the parliament be by this Act to newmould the office and put it in other  circumstance than it be in before and therefore I take it my business be to  keep close to this statute and if I shall go about to inquire into the  original of the other office of custos rotulorum I shall to walk in darkness  that be I shall attempt to do a thing I shall be able to make very little of  he have be a very ancient officer and of considerable power in the country he  keep the record of the crown in the county and draw up indictment this court  have take notice of he as a know officer and I know this court have fine he  for fault in his office he be a officer know in the law and a minister of  common justice to the nation in the country and therefore I think with  submission the parliament meaning be to settle this office so that he shall  not come in by corruption and that he shall have encouragement to demean  himself well when he do come in the Act have not so careful provide for the  custos himself which they think honorary and titular and not so near interest  in the ministration of justice to the nation and therefore he may be in and  out at the king pleasure but they take care that the clerk of the peace who be  a minister of justice shall have a more fix estate in his office and have  establish particular qualification for he I can say how it be before the  statute of Henry c but I can say that it be grant for life before that statute  for the statute itself say so and set it forth for a grievance that sure must  be that it be grant to unskilful person for life or else the mere grant for  life be a strange kind of grievance and it be a grievance if it be one that  run through the whole commonlaw as to ministerial office for all the office in  this court in the chancery in the exchequer in the common plea and general all  over the kingdom relate to the administration of justice and even the judge  themselves be officer for life and why there shall be more of a grievance in  this case than in they shower KB do not see in general they be all for life  though some few particular one may be except indeed and my Lord though I can  say this place be ever grant ancient so for they will tell I there be a time  when there be no justice of the peace and this be their clerk there be a time  when there be no clerk of the peace yet I can tell that before there be  justice of the peace there be conservator of the peace and it be like they  have their clerk in their court to do their business for they and keep the  record and it be likely this officer be in imitation of that but I can direct  tell how thing may be for this matter be all in frown but I can say my Lord if  the clerkship of the peace be not grant for life before I think it have be  better it have be so and will be better now if it be so and not leave it as a  uncertain interest and I think I be justify in this opinion by the practice of  the whole law for sure the law will not admit that general the office of  justice shall be grant for life if it have not think that it be better they  shall be so and certain it be better they shall be so and that too in many  respect first it be better for the office for if the party be in for life he  will take more care to collect the best precedent for draw up indictment and  other record for the management of a office wherein he be to spend his whole  life and I conceive it be better for the officer for he will have the more  encouragement to do what belong to the duty of the office when he know he have  a fix estate in his office and that will make he look very careful to the  right of the office and I likewise conceive it be better for all the subject  that it shall be so for they may well expect to have justice better do by a  man who be bind to it upon the penalty of forfeit a place that he have for his  life if he behave himself well in it than by a man who may expect to be turn  out every day or for a slight occasion for it be all one to he whether he  shower KB er p behave himself well or ill in a place he can promise himself  any enjoyment of though he behave himself never so well and so there may be  more damage or injury from such a one than from one that have a fix estate in  his office with your lordship favour I say it be no hurt to any body that it  shall be a office for life for it have a annex condition to be forfeit upon  misdemeanour and this have be a condition and provision annex by the law to  all office they be trust and misdemeanour in the office be a breach of trust  and shower KB true I think it be worse for no body but for those that have the  place and displace at their pleasure because they can bind they to such  observance and obedience to they as if they have a power to turn they out if  they will not do what they may have a mind to have they do it be injurious in  no other respect whatsoever and I think that will not be think a public  mischief I conceive this may be some reason for the make this new Act for the  parliament may observe that some year before there have be great change of  office that usual be for life into office Interrog  to please this be very  well know in Westminster hall and I do know some of they myself particular the  judge of the court of commonlaw for I myself among other lose my judge place  by it and this may be the reason why the parliament put this oath upon the  clerk of the peace that neither direct or indirect he have give or will have  give any thing for the place it be possible they may take notice that the  usual way be to apply to the secretary in chancery for clerkship of the peace  and when the bargain be make that such a one shall be clerk of the peace give  such a gratuity then such a one be to be make custos as will make this man  clerk of the peace and so the custodes rotulorum be change many time and at  one time altogether when such application be make so that in effect the clerk  first make the custos and then the custos the clerk for the clerk give the  secretary a gratuity and then he be to be clerk and such a one make custos as  will make he clerk I apprehend this may be take notice of by the parliament it  be so much in use before and therefore be there so strict a oath impose upon  this office as never be before nor be now upon any other office my Lord if the  parliament have such think as these be which shall be the reason of new mould  this office as I conceive this Act do then I can apprehend that they will  intend to make he removable at will but give he so fix a estate in his office  as shall encourage he to behave himself well in it so that since neither the  word of this Act nor the intent of it be sufficient ground for infer the clerk  be removable for any thing but misdemeanour I humble hope your lordship will  think he be not so my Lord as for the defendant Mr fox I conceive as I say  that he be not clerk of the peace for the statute of William and mary say he  shall execute the office and take the fee for so long time only as he shall  behave himself well in it but shower KB the defendant be make clerk accord to  the word of the statute of Henry the eight which be quite otherwise than those  of this statute and this be the last law be to take place so that I think he  be not make clerk of the peace at all and so not entitle to the fee of the  office but the plaintiff be clerk of the peace and have a right to the fee and  therefore I pray your judgement for he shower KB on this day Friday June the  court deliver their opinion in this cause seriatim eyres justice this be a  indebitatus assumpsit for forty shilling upon non assumpsit plead the jury  find a special verdict they find the Act of Henry c and several clause of it  concern the custos rotulorum and clerk of the peace and they also find that  the Act of the first of this king and queen about the commissioner for the  great seal and several clause of that Act relate also to those office of  custos rotulorum and clerk of the peace then they find that after the make  that last Act the earl of Clare be duly constitute custos rotulorum of the  county of Middlesex and afterward he do by write under his hand and seal which  the jury find in haec word appoint the plaintiff to be clerk of the peace for  the county to hold and execute that office by himself or his sufficient deputy  for so long time as the plaintiff shall well demean himself therein and they  likewise find that the plaintiff at the time when he be name to this office be  a person resident within the county and capable of the place and afterward  shower KB at a session hold for the county the plaintiff be duly admit to the  office and duly exercise the same they further find that on shower KB er p the  that of February in the three year of this king and queen the earl of Clare be  remove from be custom rotulorum and the earl of Bedford be duly constitute  custom and he by write under his hand and seal find likewise in haec word name  and constitute the defendant to be clerk of the peace to hold and exercise the  office during such time as he shall remain custos the defendant demean himself  well therein and that the defendant afterward at a quarter session for this  county be duly admit into the office and during the time that he have and  execute the office do receive fee belong to the office of clerk of the peace  to the value of five shilling and if upon the whole matter the court do  adjudge the defendant do assume upon himself to pay this money they find for  the plaintiff if otherwise they find for the defendant and upon this special  verdict I be of opinion judgement ought to be give for the plaintiff I shall  not ground myself in give this judgement upon that which be much insist upon  at the bar that it be plain within this special verdict that however it happen  as to the plaintiff the defendant can have no title to this office because his  appointment do not pursue the word of that last Act it be only for so long  time as the earl of Bedford remain custos for I take it the plaintiff must  recover by the strength of his own title and not by the weakness of the  defendant title but withal I be of opinion that notwithstanding that  limitation in the defendant grant if the plaintiff be not still clerk of the  peace the defendant will be clerk of the peace within this Act of parliament  for I take it the custos rotulorum have only a power to nominate and when once  the clerk be in his estate ill the office he be settle by the statute and not  by the limitation in the grant and it be like the case in dyer b the case of  the register of the admiralty which be grant to two and the long liver of they  whereas the custom allege be of a single person and there it be much insist  upon that this be ail ill limitation and that shall avoid the grant but it be  hold otherwise and that the interest be by the custom and not by the  limitation and so there it be plain though it be a ill limitation and  nomination that will not avoid the defendant title to the office he be in by  the statute and the custos have nothing but the nomination thereof that  objection I think have nothing in it but shower KB that which I find my  judgement upon be that the plaintiff do continue still clerk of the peace  notwithstanding that the earl of Clare be remove from be custos rotulorum we  be I must confess much in the dark as to the beginning of the office of clerk  of the peace and as to what estate and term he have in the office ancient that  no where appear further than what may be collect out of the preamble of the  statute of Henry c which do recite that till then of late the custos rotulorum  have the nomination of clerk of the peace as the chancellor or keeper have of  the custos and that several unlearned man have then for several late year get  grant of this office for their life which be recite there to be mischievous to  reform it it be enact that the custos shall be appoint by the king and then he  to appoint the clerk of the peace which clerk of the peace be by express  limitation of that Act to hold the office for so long time as the other remain  custos so as he demean himself honest in the office which office it provide  the clerk may execute by himself or his deputy so as that deputy be admit by  the custos and be sufficient to execute the office by this statute to remedy  the mischief complain of in the Act the clerk of the peace be put whole under  the power of the custom rotulorum have his creation from he and a power to  make a deputy by his approbation and his duration with he be to continue with  he in the office so long as the other continue custos behave himself well and  the word unless displace by the custos I take it be to be interpret for  misdemeanour which I take it by this Act the custos may do and the session of  the peace have no power to displace he of all for though they be the court  where he be a officer may suspend he for misdemeanour yet they can not deprive  he of his office but he may still continue in the office though suspend from  execution for the word so that the say clerk demean himself in the say office  just and honest in this Act be add to abridge the estate of the clerk of the  peace in his office and to enlarge the power of the custos rotulorum and to  give he that create he a power to displace he for misdemeanour and not to set  up a jurisdiction in other from all which part of this Act so pen I think it  must be obvious to every man understanding that this Act be but shower KB er p  declarative of what be the law before the make of the Act and the chief thing  design in it be that the office of the clerk of the shower KB peace shall be  fill and execute by a learned able honest person and the best mean to effect  this end the parliament think to be by put the clerk of the peace whole under  the power of the custos rotulorum in the several respect that have be mention  and matter so stand upon the statute of Henry c at the time of the make this  last Act which make the question before we in this case and the end design by  that statute of Henry c not be so well effect by the mean therein prescribe  the parliament by this Act intend the same thing videlicet to have the office  fill by a person every way fit to discharge the duty of it design to procure  the performance of this intention by quite different mean from those in the  former statute as by take the clerk of the peace whole out of the power of the  custos save only the nomination and subject he when name to another  jurisdiction that be to the session of the peace to which he be proper a  attendant and that this be the intention of the Act appear from the several  part of it as particular the custos rotulorums nomination be abridge to a  person reside within the county and care be take that he shall not be put in  for money and that such estate as he have in the office shall be only upon  good behaviour which behaviour shall be under the inspection of the court of  session to which he be a officer and that for the mean of obtain the end which  they design be by put he whole under the power of the court of session be  plain by their give the custos the bare nomination and give the session the  power of suspend and discharge and in give the clerk of the peace another  estate in his office than that depend upon the custoss estate in his office  which I think will not be deny be do whatsoever estate that prove to be in law  and by give he a power to make a deputy without the approbation of the custos  which he can not do before for as my Lord coke say in Lincoln college case c  the office of a good expositor of a Act of parliament be to make construction  upon all the part together and not of one part only by itself and from the  several part of this Act take together I think it will not be deny but this be  the intent of parliament and this the remedy provide they design to have the  clerk of the peace office well supply and it be one branch of this remedy  prescribe by the Act that be of take he out of the power of the custos to wit  the give he a distinct estate in the office from the office of the custos the  word of the Act herein be certain to be construe most favourable to answer the  intent of the law maker and they be to shower KB have the large construction  that they can bear in order to advance that intent and I do think that without  any strain construction both by the intent of the lawmaker and the word of the  Act there be plain give to the clerk of the peace a estate for life in his  office determinable upon his good behaviour for the express word of the Act be  to execute the same by himself or his sufficient deputy for so long time only  as he shall well demean himself in the office which word in land and tenement  as well as in office requisite circumstance and ceremony be perform as it be  say Inst be a estate for life determinable upon the good behaviour of the  party and true I take it the express limitation in this Act be a exclusion of  the former estate of the clerk of the peace in his office which be only so  long as the custos continue in his office accord to the rule in law expulsion  out One be exclusion of one another and this clause in the Act be a  substantial enact clause no way relate to the statute of Henry the eight and  as to the clerk of the peace his estate thereby limit seem to be as it be  introductive of a new law and though the word be pen in the affirmative yet  they do imply a negative that he shall have this estate in his office and no  other whether a subsequent statute affirmative be a repeal of a former statute  make concern the same matter be a large field to walk in and no way pertinent  to this case for all those statute depend upon the pen and the intent of the  maker must be collect out of the word how far they mean to repeal or confirm  and therefore leave that consideration I shall rather betake myself to that  which be more pertinent to our purpose which be that statute introductive of a  new law pen in the affirmative do always repeal former statute concern the  same matter as c   and shower KB er p imply a negative and if this be a new  estate in this office create by this Act of parliament as plain it be it be  different from that which be the former estate by the statute of Henry the  eight I take it this statute introduce a new law be in the affirmative do  plain imply a negative now that affirmative statute introductive of a new law  do imply a negative I rely upon the case of Wethwen v Baldwin side and Plowd  Com b townsend case where you may see a great deal of this learning plain lie  down to this purpose and shower KB if this be not so construe you may as well  say this very clause that the custos shall name one reside in the county do  not imply a negative that he shall not name a foreigner as the clause which  create the clerk estate in the office do not imply a negative that he shall  have no other but that beside I think it will not be deny but that the clerk  of the peace that be name by the justice upon default of the custos nominate  shall have a estate for life in his office for then it be introductive  unquestionable of a new law for the justice have no such power before and in  that case if the word have be that he shall execute the office for so long a  time only as he shall demean himself well in it who will deny that to have be  a estate for life but though the word be not so yet I take it the statute have  do the same thing for when he give the justice power to nominate in default of  a nomination by the custos and say one so nominate shall have the office under  the same limitation and proviso as be before mention in this Act it be plain  there be no limitation in the Act but only that he shall hold it for so long  time as he demean himself well in it then the proviso be add to the other  clause it be as much as if the limitation have be in that clause now if the  parliament do intend that the clerk put in by the justice shall have a estate  for life in his office then sure they do not intend the clerk that be put in  by the custos shall have a less or a great or other estate than the clerk put  in by the justice therefore upon this Act be thus pen and thus construe as I  take it it ought to be for the reason that I have mention I do conceive that  the plaintiff continue clerk of the peace notwithstanding the removal of my  Lord of Clare from be custos rotulorum and that he be well entitle to receive  this five shilling receive by the defendant out of the fee of the office and  therefore I think judgement ought to be give for the plaintiff Gregory justice  this be a action on the case wherein the jury find a special verdict which I  shall not need to repeat my brother eyres have open it at large the sole  question upon it be whether shower KB the plaintiff be make clerk of the peace  of this county by the earl of Clare when he be custos rotulorum do still  continue clerk of the peace notwithstanding the earl of Clare be remove and  the earl of Bedford make custos rotulorum who have name the defendant to be  clerk of the peace and the doubt be which of these two have the better title  to this office the matter come in question upon the construction and compare  together of two statute that of the Henry c concern the name of the custos and  clerk of the peace and the statute of the first year of this king and queen  about enable the lord commissioner of the great seal to act as Lord chancellor  or Lord keeper I be not in court the last term when this case be argue the  second time therefore I shall not take upon I to answer the objection that be  make on either side but I shall only apply myself to consider what  construction be to be make upon the Act of the first of this king and queen  and how far it either consist with or be repugnant to the former statute and  indeed I do agree with my brother that the plaintiff have a good title to the  office and ought to recover the fee first I do consider what alteration this  statute have make from the former statute and there I find first it do in a  sort repeal the statute of Edward c which have take the nomination of the  custos rotulorum out of the king as it be settle by Henry c and place it in  the Lord chancellor or Lord keeper for this Act do appoint that the custos  rotulorum shall be name as be ordain by the statute of Henry c and so the  nomination come to the king again second I take it this Act do abridge the  power of the custos as to the name of the clerk of the peace in that  particular which be not in the other statute that whereas before the custos  may have name any man let he live where he will to be clerk of the peace and  the common practice be that neither before nor after the nomination shower KB  er p the party name be resident in the county but the county business be all  transact by a deputy now it be enact that the custos rotulorum shall appoint  one resident in the county and can name a foreigner resident in another county  three shower KB it do abridge the power of the custos as to the determination  of the clerk of the peace office for whereas before he be removable for  misdemeanour by the custos now that power be transfer to the justice of the  peace at their quarter session nay if after he be remove by the session the  custos do not at the next session nominate one to be clerk of the peace it  take for that turn the power from he of name a clerk and transfer it to the  quarter session who have power to make one for he so that although the custos  be to be name accord as be appoint in the statute of Henry c yet he be not to  exercise the same power which that statute give he for the great question now  be what alteration this latter statute have make in relation to the clerk of  the peace and his office and in that point whether the statute of Henry c and  this of the first of this king and queen be consistent together and I take it  they be not for the statute of Henry c do give the clerk of the peace but a  estate at will in this office I do not mean at the will of the custos but at  the king will and pleasure for that statute say express he shall continue  clerk as long as the custos continue custos so that though he be not removable  by the custos rotulorum at his will yet if the king name a new custos  rotulorum the clerk of the peace be determine and the addition of those word  if he shall so long well demean himself in the office signify nothing because  they be annex to a estate that be original but at will but now I take the  statute of the first of this king and queen to be a new law as to this  particular and that it relate not to the former Act for I conceive that by  this Act the clerk of the peace have his office for his life by these word to  have and enjoy so long as he shall well demean himself in the office if these  word have be annex to a grant of any other office in Westminster hall without  all question the grantee have be a officer for life d and I do not see but  that the clerk of the peace be a officer relate to the execution of the law  his office must be govern by those rule that govern other officer of like  nature in the yearbook Henry pl he be call not only clergyman peace but  attornatus domini king and that be a proper office for he for he draw the  issue upon traverse and so be as attorney in that court for the king when once  the custos have name he he have no further power by this Act over he but he be  in by virtue of the statute and shower KB I take it he be not removable by the  death or removal of the custos rotulorum any more than any other officer here  in Westminster hall be upon the death or removal of the judge that place he in  for be once in his office the law settle he there and for this word only  videlicet that he shall hold the office so long only as he well demean himself  in the office I can think that in that place it signify any thing more proper  than to be determine of what estate the clerk shall have in his office that he  shall be removable upon no other cause the word only in another office will  not have make any alteration as to the law and I can conceive why it shall in  this if the meaning of the law maker have be otherwise they will have refer  this clerk of the peace to the order appoint by the statute of Henry c as the  other be but this be a distinct enact clause have no relation to it at all and  that this shall be the meaning of it seem to I to appear by those subsequent  clause that my brother have observe for in the next follow clause which  empower the session to remove the clerk for misdemeanour and to name another  in default of the custos his nomination the Act say that he who be nominate by  the justice shall hold and enjoy the office speak indefinite and that I take  it will make a estate for life but the next ensue clause make it more clear  that though there be no express limitation in the forgo clause yet it say he  shall be subject to the same limitation forfeiture and condition as be before  in the Act mention and express now there be no limitation of his estate in his  office but that of good behaviour therefore I say upon the whole matter I take  it that the plaintiff be name clerk of the peace by the earl of Clare when d    light roll Abr show p c Mod Bac Abr shower KB er p he be custos rotulorum have  by that a estate for life in his office and I take it he be well entitle to  the fee of the office and that therefore in this case the plaintiff ought to  have his judgement dolben justice and I be of the same opinion that the  plaintiff ought to have his judgement I do agree that which my brother eyres  offer at first that the plaintiff must make himself a title or he can have no  judgement he be not to depend upon the weakness of the defendant title shower  KB and I think the plaintiff have a good title to this office and that  notwithstanding the removal of the earl of Clare from the office of custos  rotulorum he yet continue still clerk of the peace of this county the truth be  in this case it can be expect that much shall be say all that be possible to  be say I think my brother have speak already for it stand upon these two act  of parliament and if you will take these two act of parliament into  consideration upon read of they and weigh the several part and clause in they  I can but think any man will agree with I that this be a plain case and true I  do not find any difficulty at all in it I do indeed expect the counsel for the  defendant in their argument of this case will have lie some stress upon the  word only for if any office be grant to a man to enjoy so long as he shall  behave himself well in it no one will doubt but the grantee have a estate for  life in the office now whether the word only do make any difference in the  case be the question and true I must say I can see none whatsoever the meaning  of put in that word be I can tell nor have hear any thing satisfactory speak  to it for if alley one have a office grant to he to hold Interrog  so much see  bene to bear about will that make it not to be a estate for life but the read  of this statute to I give I full satisfaction that the law maker intend that  the change or death of the custos rotulorum shall not avoid the office of  clerk of the peace that it do so by the statute of Henry c be plain for there  the word be he shall be clerk of the peace so long as the other continue  custos then the question be whether there be any alteration make by this last  statute and that the statute of Henry c be alter as to the custos by that of  Edward c can be dispute for it be the declare end of that statute but I think  it as plain that it be not alter as to the clerk of the peace for there be  nothing of alteration appear all that it do be whereas before the king by bill  do appoint the custos rotulorum the statute of Edward c have restore it to the  great seal but now this statute of William and mary do not only make a  alteration in return the appointment of the custos into the former channel but  I take it be introductive of a new law as to the clerk of the peace for I pray  mind the word of it how it be pen say shower KB the statute of Henry c when  the custos rotulorum shall have name the clerk of the peace he shall enjoy the  same office and execute it by himself or deputy during such time as the custos  continue custos so as he behave himself well in it and by that it be plain he  have no other title but what depend upon the continuance of the custos but now  this latter statute say that whenever the custos shall find the place void he  shall have power to nominate and appoint a fit person to be clerk of the peace  to execute the same by himself or his sufficient deputy and to take the fee  for so long time only as he shall well demean himself call any man believe  that which be the only thing in the question for they have nothing else to say  these word make no alteration of the clerk estate in his office from what it  be by the statute of Henry c and they must say so or the law be clear for the  plaintiff but when one statute say he shall have the office during the time  that the custos continue custos upon his good behaviour and the other say so  long only as he shall well demean himself in the office that must needs make a  alteration and true it seem to I that those word be not to be slight when he  find the place to be void then he shall nominate so and so there be no need of  that by the statute of Henry c for there it be always void upon the removal of  the custos but here it be limit as to his nomination whensoever it be void  which show that the parliament mean not that it shall be void upon every  change of a custos I think true that there be another thing that be very  considerable and it have be observe already by both my brother and that be the  great many alteration that be make in this last law concern the office of  clerk of the peace which be not in the other of Henry c for the custos now can  name any person shower KB er p but one resident in the county the justice of  the peace have dow a power if they find he do not demean himself well in his  office to suspend or discharge he which they have not before and I take it to  be very clear that if the custos do not before the next session after such  discharge nominate another they may put in one and who they put in shall hold  the office not during the pleasure of the custos but so long time as he shall  well demean himself in the office my brother have so full speak to this case  and it be only upon the construction of short word in a Act of parliament I  think there needs little to be say and all that can he have be say and  therefore I take it to be clear that the plaintiff ought to have his judgement  shower KB holt chief justice I will short put the case and it be no more than  this the earl of Clare be make custos rotulorum of Middlesex accord to the  statute of Henry c which be revive by the statute of the first of this king  and queen he be so custos rotulorum do by his deed bear date the that of July  in the first year of the king and queen constitute the plaintiff Mr Harcourt  to be clerk of the peace of that county to have and execute that office by  himself or sufficient deputy so long as he do well behave himself in it after  this my Lord of Clare be remove from the place of custos and my Lord of  Bedford be duly make custos rotulorum and he be so make do by his deed appoint  the defendant Mr fox to be clerk of the peace for so long time as he shall  continue custos rotulorum if the say Mr fox the defendant do well behave  himself in the office and the question be whether or no by the amotion of my  Lord of Clare from the office of custos rotulorum Mr Harcourt the plaintiff do  cease to be clerk of the peace for then the law be for the defendant otherwise  it be for the plaintiff and I do concur in opinion with my brother that  judgement ought to be give for the plaintiff and that he be still clerk of the  peace notwithstanding that he who make he so be not still custos rotulorum and  this case indeed do depend altogether upon the statute in the first year of  this king and queen but however it may not be improper before I give the  particular reason that I rely upon for the ground of my opinion a little to  consider how it come to pass that there be such a office as custos rotulorum  and how that custos come to have the right to nominate and appoint the clerk  of the peace that the custos be not a officer time immemorial be most plain  because the commission of the peace to which that office relate be not so but  do commence in time of memory but that he be a ancient officer do appear  whether he be before the first and fourteenth of Edward the second I think be  not certain but that he be a ancient officer may be see in lambard eirenarcha  foe now you know the commission of the peace do commence in time of memory and  that the justice be not appoint by the crown before the first of Edward the  three and then they be make in lieu of the conservator of the peace who be as  ancient shower KB officer as the law know so say the statute of I Edward c for  the better keep and maintenance of the peace the king will that good man in  every county be assign to keep the peace in what manner they be to keep the  peace and how they be to execute the authority that be give they by this Act  of parliament do not appear but no question they be to take such method for  the keep of the peace as the old conservator be but that not appear I take not  upon I to determine what method they be to take for keep of the peace or  whether they be more than high constable but the statute that make they  complete judge be that of Edward c about what sort of person shall be justice  of the peace and what authority they have they be to have a commission they  have authority to hold a court and thereby they be judge of a court of record  this do give occasion to the commencement of the office of custos rotulorum  for they be judge of record the record of that court must be in their custody  all indictment and all proceed upon they plead conviction acquittal and  judgement must be enter upon record and in legal construction all the justice  have they in their custody and have they to this day for all certioraries be  direct to the justice in general but in regard it may be inconvenient that the  record shall be disperse among they promiscuous and not keep together in one  hand I look upon it that it be in the power of the king to appoint some  particular person to have the custody and charge of the record and that he  shall be a person responsible to the subject for shower KB er p the safe keep  of they and to who he may have resort upon all occasion when he have any use  of they this be think convenient for the word at the end of the commission of  the peace be we appoint you such a one to be keeper of the record and roll of  the county so that though legal as I say the record be in the possession of  all the justice of the peace all certiorar and all writ of error be direct to  they yet direct they be in the custody of the custos rotulorum and if by  negligence or misdemeanour they happen to be lose or miscarry he be  responsible to the king and to the subject for such loss or miscarriage this  seem to I to be the commencement of this office of custos rotulorum for no one  be more in commission than another it be in the power of the king by his  prerogative to appoint one to keep the record but therefore it do necessary  shower KB follow that no person whatsoever can be custos that be not a justice  of peace in commission the king can not name one that be not in commission for  it will be a errant contradiction to make judge of record to who proper the  custody of those record belong and by any Act to take from they that custody  and put in another that be none of the court to keep the record when writ be  to be direct to the judge of the court to certify those record when there be  occasion to remove they and therefore by Henry c if a recognizance for keep of  the peace be return to the session and the party make default it be to be  certify into the chancery or this court or the exchequer by that justice who  be custos rotulorum but then since I have say that it be in the king power to  appoint a particular person one in the commission of the peace to have the  custody of the roll and record of the county how come it to pass as the  statute of Henry c say that the Lord chancellor do use to nominate and appoint  the custos rotulorum I say he name he army duty it belong to he to grant out  all commission of the peace under the great seal and that he do without a  particular warrant legal notwithstanding that statute and yet he be name by  the king in construction of law for the commission be in the king name but  actual the chancellor name he for that be incident to his office on the behalf  and in the name and style of the king so you see it be always do ever since  that statute of Edward c before the statute of Henry c be revive by the  statute of will mary always the custos rotulorum be appoint in the name of the  king but the chancellor or keeper do always grant the commission army duty and  never have any warrant for these thing but it be the duty of he who have the  custody of the great seal to take care for the ordinary and common  administration of the government now justice of the peace be though in a  subordinate nature part of that ordinary administration and therefore though  they now have a judicature by Edward c yet it belong to the same office to  issue out those commission of the peace as well as those of oyer and terminer  which be of course make out with particular warrant for so do but then this  statute of Henry c acknowledge that the power of nominate the custos rotulorum  be in the Lord chancellor for the time be it do look upon it that the take of  it out of the power of the Lord chancellor to do it army shower KB duty  without warrant be a better course and therefore the statute do not repeal  that encroachment but appoint a middle way that the custos shall be  nomininated by bill sign with the king own hand that be my Lord chancellor  shall appoint he by commission under the great seal but this must be upon a  bill sign with the king hand as his warrant this be afterward think very  inconvenient at every turn to apply to the king for a bill and therefore the  statute of Edward c repeal the statute of Henry c as to this matter and  restore the Lord chancellor to his ancient power of nominate the custos  rotulorum so that it be plain that this power which the Lord chancellor have  be incident to this office and for this you have the judgement of the  parliament in both these statute but then in the next place it be to be  consider how the custos rotulorum come to make the clerk of the peace for as  my brother Gregory observe the clerk of the peace do act for the king as his  attorney and at the session do join issue for the king the custos name he for  this reason because the roll and record of the session be by the commission  put into the custody of the custos rotulorum the clerk be the person that must  be trust with the roll to make entry upon to draw judgement to record plead to  join issue and enter judgement then of common right by the shower KB er p  commonlaw of the land it belong to he that have the keep of the record to  nominate this clerk and not to any one else and it will be the most  unreasonable thing in the world that the custos rotulorum be entrust with the  custody of the record by his commission any other shall be make clerk of the  peace for the actual possession of those record than such a one as he shall  appoint when upon any loss or miscarriage he be answerable for it himself to  the king and the subject I appeal to any one whether that be reasonable my  Lord coke Inst in his comment upon the statute of Westminster the second have  a large discourse upon this point about the judge of this court and the common  plea appoint their clerk to enrol plead before they in their circuit and he  say this be accord to the rule of the commonlaw that it belong to they who be  judge of record to make their own clerk and that upon two reason shower KB  first they be most concern their act be to be record the mistake of which be a  dishonour to the justice and a prejudice to the party and second the law  intrust in these matter those that best understand who be most fit and proper  to perform the duty of the place and therefore for the benefit of the subject  and the honour and safety of the person trust he ought to have the nomination  of that person who be thus to be entrust under he and that be the reason of  the judgement in Mittons case   about the office of county clerk as it be  likewise that which be complain of in the statute of Henry c that several be  make clerk of the peace by grant for life that be insufficient but in Mittons  case the question be whether the king grant of the office of county clerk be  good and it be hold it be not good for it be hold to be inseparable incident  to the office of the sheriff and can not by any law or contrivance be take  away from he so that have as well as I can give a account of the nature of the  office of custos rotulorum and the reasonableness of his not have the  nomination of the clerk of the peace I shall now give the particular reason  upon which I ground my judgement in this case the word of the statute that  make the question have be read to you and therefore I shall not trouble you  with the repetition of they but the reason I go upon be these first the word  themselves in their natural and proper extent do signify all estate for life  the clerk behave himself well as those be the word for so long time only as he  shall behave himself well in the office e true though the counsel at the bar  do not so much insist upon the word only as I expect yet I declare it be the  only scruple I have and shall not have doubt the thing at all upon read the  word and I believe few will have doubt if the word have be for so long time as  he shall behave himself well without the word only then it have be so  indefinite a limitation that no man I think will have doubt for my part I  shall not have make the least question but that it be a estate for life then  let we see whether there be any difference by the put in this word only be not  that as long a estate as the other be it less for that word sure no if so be  then for so shower KB long time as he shall behave himself well and for so  long time only as he shall behave himself well be of equal extent then he have  a estate for life in the one case as well as in the other second my next  reason be this here be certain some power give to the custos rotulorum now  take it to be a power give by the statute then the statute intend something  and it be a power to nominate the clerk of the peace the word that follow must  intend a limitation of his estate in his office for he have a power to  nominate before and here be a power give he anew by this statute let we take  then the case of a power give to a man without respect to a interest suppose a  tenant for life by way of use and a power be give to he to make lease for year  only be not this as much as for twentyone year absolute and he do make a lease  for twentyone year and then die be not this a good lease tenant for life can  have make a lease for year before determinable upon his death and so can the  custos rotulorum have make a clerk of the peace determinable upon his death or  removal before this statute but then when he have such a power give he by e  Mod Bac Abr   light show case in parliament Bac Abr shower KB er p a  particular statute not in respect of this interest but only of his present  possession certain this nomination be a execution of his power when he have do  that he have do with the business he have no more to do with this office the  clerk of the peace then be under that constitution which have limit how the  clerk so nominate shall be estate in his office three if this clause have not  this construction it be put into no manner of purpose at all and I think we  shall be very bold man when we be entrust with the execution of the law and  the interpretation of act of parliament to reject any word that be sensible in  a Act and if we shall look upon this office to be no otherwise order by this  Act than it be upon Henry c we do reject these word that be thus put into the  Act now to what purpose do the maker of this statute put those word in for the  Act of Henry c say he shall be clerk so long as the custos remain in his  office if he behave himself well but these word in this Act say he shall hold  the office for so long time only as he shall behave himself well in it without  say if so be the custos remain custos therefore that be indefinite and  absolute why shower KB do the maker of this Act omit these word so long as the  custos remain custos and put in only these word so long time as he shall  behave himself well sure there be a reason to omit some word and put in other  then if the Act have omit the word during such time as the custos remain in  his office and have mention these word so long as he behave himself well it be  natural and proper to conclude their meaning be that he shall have the office  without more ado upon good behaviour and we be sure to consider this as a new  limitation and that it be make for some purpose or other fourthly the next  thing be this it be plain as to the clerk of the peace the maker of this Act  do design the office shall not go accord as it be appoint by the Henry c for  first consider when it come to the appointment of the custos it mention the  very title of the Act of Henry c a bill for custos rotulorum and clerkship of  the peace which concern both office and take notice of both but then as to the  custos in express term it revive the statute of Henry c and say the nomination  shall be as be there direct now if they have intend the same for the clerk  there have need to have be add but a few word more I e to have say that this  nomination shall be likewise as in that statute but not do this it be plain  there intent be that the clerk of the peace shall not be appoint in that  manner but the custos shall and second it be plain they do design and intend a  alteration and to have quite another method observe for otherwise why do they  make this new provision about it that they have do if they intend it shall be  as it be they will either have be silent and leave it untouched or they will  have put it in such word as will have declare such a intent and therefore have  put in these clause it be plain a alteration be intend and that the clerk of  the peace shall be altogether accord to a new model five their intent that he  shall not depend upon the custos do seem plain too which be another reason I  go upon the design of the maker of this Act be to take off much of that  dependence which the clerk before have upon the custos and to make he more  dependent on the justice of the peace for shower KB before this Act the  justice of the peace can not remove he for misdemeanour but the custos be to  do it because he put he in it be true the justice have a interest in he as  their servant in court but he that put he in can only turn he out but now it  be quite otherwise I do not say the custos can do it but the justice may which  they can not before and the statute have make three alteration in this clause  first before the Act the custos may appoint any person that live alley where  else to be clerk of the peace now it must be only one resident within the  county that be a inhabitant where his work lie so that the power of the custos  be abridge in that second before this statute when the custos have appoint the  clerk that clerk can make no deputy whatsoever but such as the custos approve  of but here the clerk may make what deputy he will so as he be fit for it  shower KB er p three there be another sort of limitation of this estate in the  office than be in Henry so that it seem to design that the parliament will  abridge the power of the custos both in the qualification of the party to be  appoint clerk and in enable the clerk to make what deputy he will and to  execute the office otherwise than he do before and in make he a person that  shall subsist upon other limitation in the next place six it seem to I upon  the whole frame of the Act to be the intent of the parliament to make such  provision that the session and justice of the peace shall always be furnish  with a able clerk of the peace and to encourage he in the faithful execution  of the office they settle the estate so as to put he out of fear of lose it  for any thing but his own misbehaviour in it if he be a man of approve  sufficiency he be not so easy to be part with or upon such a accidental thing  as the amotion or death of the custos and it seem the public good be design  for it be a great mischief to have the office so easy vacable seven in the  last place as to this word only which be the only word that make I doubt I  think the design of it be not to limit or lessen the interest of the clerk in  his office but rather to lessen the power of the custos and restrain he that  it shall be only in the power of the custos to nominate for so long shower KB  time as the clerk behave himself well in the office and that he himself shall  not make a grant of it for a less interest or estate than upon good behaviour  he be so confine up by this Act that he shall not make he during pleasure or  for year but when he have nominate he that be all he have to do and then he be  in by the Act that give he estate and this seem to I to be the sense of the  whole Act I compare it to the case which my Lord chief justice Hobart put of  himself in his book folio in the case of colt v glover say he I can grant the  office of my gift as chief justice for less time than for life and he put the  case there of a man assign a rend for dower out of the land dowable that it  must be for no less estate than life for the estate be by custom and it can be  grant for a lesser estate than what the custom appoint and in that case of the  chief justice in grant office in his gift all that he have to do be to point  out the person that shall have the office the custom settle his estate in it  so here all that the custos have to do in reference to this office of clerk of  the peace be to point out the person that shall have it and as the other be in  by custom so here he be in by Act of parliament the custos when he have name  he he have execute his authority and can qualify the interest which passes by  the Act I be the more incline to be of this opinion because I know the temper  and inclination of the parliament at the time when this Act be make their  design be that man shall have place not to bold precarious or determinable  upon will and pleasure but have a certain durable estate that they may act in  they without fear of lose they we all know it and our place as judge be so  settle only determinable upon misbehaviour Contemporaria exhibition law be  optima a contemporary exposition of a law if there be any question about it as  our book tell we be always the best because the temper of the law maker be  then best know therefore upon the whole matter I take it the clerk of the  peace before the statute of Henry be removable at the pleasure of the custos  rotulorum because he be his clerk but then by that statute he be transform  into a officer and have a durable estate in his office as long as the custos  continue custos and he behave himself well in the office he have by that  statute fee and a power to make a shower KB deputy such as the custos shall  approve of so that if he behave himself well the custos can not turn he out  but now I think since the make of this last statute in the first of this king  and queen he have absolute a estate for life in his office independent upon  the custos and determinable only upon misbehaviour and for these reason I do  concur with my brother that judgement ought to be give for the plaintiff a  writ of error in parliament be bring upon this judgement and it be argue for  the plaintiff in the writ of error that this judgement ought to be reverse and  first it be say that whatsoever the commonlaw be as to ancient office can be  no rule in this matter many and most of those be for life but my Lord coke say  that the office of chancellor of England can not be grant to any one for life  because it be never so grant the like of treasurer so that custom and nothing  else can govern in those office but here can be no pretence of shower KB er p  its be a commonlaw office for the commonlaw know no such thing as justice of  the peace to who they say he be a clerk the first statute which make justice  have no mention of clerk but it be mere a incident some person of necessity be  to officiate in that kind and where he be call the justice clerk it can only  be that he be one appoint by they to make and write their record for they and  it be probable that in ancient time he that be their clerk be custos rotulorum  and entrust with the keep of the record then it come to be a honorary thing to  be custos he that be the most eminent for quality among they be appoint to  that trust and then be appoint his clerk under he for there be no ancient  statute or law that empower the chancellor to make a custos but he make out  the commission of the peace may very well name one of they to be keeper of the  record and to have the first place among they and such person may very well  appoint his deputy or servant who in time come to be clerk of the peace we  have no certain but this be the most probable account of the thing then the  statute of Henry c recite that the chancellor have much pervert the  institution by assume to make custoss for life and so the clerk of the peace  be for life likewise the end of that Act be not only to remove ignorant person  for the commonlaw itself will turn any such out of office if he be not able to  perform the duty of it but the grant for life be the great grievance and  therefore to remedy that mischief the custos must be appoint by bill sign with  the king own hand and at his pleasure removable and the clerk of the peace to  be appoint by the custos and to continue only during the time of the other  continue to be custos this though not in the negative do amount to it  videlicet that he shall continue no long especial when the Act recite the  mischief to be a continuance during life it imply that the clerkship of the  peace shall be never grant for a long interest than the custos have in his  office the Edward do indeed repeal part of the Henry not by express word but  by a very strong implication by give the chancellor a power to nominate the  custos but the office of clerk of the peace be not touch by that of Edward and  continue as settle by Henry which be during the continuance of the custos then  it be the new statute which give the occasion of the present dispute and there  be nothing in this Act which can make such a alteration in the law as be below  contend for the word so long only as he shall well demean himself be not  enlarge of his estate but restrictive and whensoever it be consider how to  make a grant for life to be good you must consider the power and capacity of  the grantor and how the thing be capable of be so grant as in case of tenant  in tail or fee and each make a lease for life in the latter case it be for the  life of the lessee and in the former for the life of the tenant in tail  because of the different capacity of the grantors and so the thing itself be  considerable here be a express statute that say it shall be only during the  continuance of the custos now that provision be to be pursue it be say that a  grant Interrog  see bene to bear about be for life but the word themselves do  not import any such thing it be indeed a restrictive condition which the law  impose upon all office for misbehaviour in any office if in fee be a  forfeiture but the chief consideration be if it be a office that be capable of  be grant for life if it be so these word may amount to a grant for life as  expound by usage and the nature or capacity of the office itself but otherwise  if the office be not grantable for life such word will not give a estate for  life these word seem only to be a expression of what the law always imply  though not particular express if it operate anything it seem only to have  reference to the power of the grantor as a restriction on he and not as a  enlargement of the estate of the grantee especial where by a law in be there  be a incapacity upon the very office not to be grant for life then it be urge  that the statute of Henry be not repeal the and Edward do not alter this  matter at all and where it do make any alteration the same be express repeal  by this last Act in question it be a settle rule that if there be two statute  and both consistent and not contradictory the latter can never be say to  repeal the former and so be dr forster case Rep so it be in will Hodgkinson  and wood cro car this last Act of will and mary be consistent with the Henry  the one say he shall continue during the time that shower KB er p the custos  do remain such so as he demean himself well the other say he shall enjoy his  place so long only as he demean himself well in it now take the office to be  by the Henry only grantable to hold during the continuance of the custos then  suppose in the same Act it shall be say to hold so long only as he demean  himself well where be the inconsistency or contradiction and if none then this  last Act do not repeal the former as to this matter and Mr fox grant be  pursuant to the statute of Henry and Mr harcourt have no relation to it then  it be argue that it be unreasonable that a custos shall have a officer under  he of another choice when himself be responsible for the record which such  officer be concern with the primary intent of this last Act be only to settle  the doubt about the keeper of the great seal not to alter the estate of the  office of clerk of the peace the office of the judge in westminsterhall  determine with the king life who grant they though they be grant to hold  during good behaviour in this Act the reason of use these word be for caution  to advertise they that misbehaviour shall forfeit their place if a alteration  of the law have be intend they will have say for life so as he demean himself  well especial when as be say before he be removable for misbehaviour by the  former law in be wherefore upon the whole matter it be pray that the judgement  may be reverse on the other side it be argue with the judgement that it be  clear and apparent that this Act of W m be make not only to satisfy doubt and  prevent question about the office for the custody of the great seal but to  settle the manner of name the custos and clerk of the peace and that it be in  part introductive of a new law and in part a reviver of the old but the  general end be that that office of clerk shall be fill and execute b a learned  able honest person because it concern the administration of justice he be the  king attorney in many respect he not only write the sense of the justice in  their order but draw indictment and upon traverse he join issue as one who pro  lord ring in she part sequitur and pray judgement for the king in many case  join in demurrer when occasion require and be in the session the same as the  clerk of the crown be in the king bench now to accomplish this end of have a  person well qualify and to encourage and oblige he to his good behaviour it  require a residence in the county it enjoin that the person name be able it  subject he to the jurisdiction of the justice who have a daily observance of  his demeanour it give they a power to remove he upon a just complaint which  they can not before it free he from the usual temptation to fraud and  corruption by introduce he gratis et without price and to provoke his care and  diligence it give he a more durable estate in his office than he have before  when he buy it videlicet freehold a estate for his life that it shall be so be  convenient because then he will be encourage to endeavour the increase of his  knowledge in that employment which he may enjoy during life whereas precarious  dependent interest in place tempt man to the contrary that this be a estate  for life appear from the word of the Act they do direct how long he shall  enjoy his office so long only as he shall behave himself well if the word only  have be omit there can be no colour for a doubt by   light it be a estate for  life determinable upon misbehaviour for during good behaviour be during life  it be so long as he do behave himself well I e if he behave himself well in it  so long as he life he be to have it so long as he life during life and during  good demeanour be therefore synonymous phrase the same thing when use with  relation to office the condition annex if observe continue it during life the  contrary determine it this be the rule and law in case of office in general  and must hold in this for this be a office Henry he be call alt domini king it  be capable of be enjoy for life and consequent of be grant so especial when a  Act of parliament declare it shall be so there be nothing in the nature of the  employment that binder it and there can be no doubt but that a statute may  empower a custos in possession who have only a estate at will to name a clerk  to hold during life or good behaviour the justice be at pleasure suppose then  the Act have say that they shall name he in this manner he must have continue  though they have die or have be remove the case be the same here he be as much  entrust with the act of the justice as with the record belong shower KB er p  to the keep of the custos then there be nothing in the Act that savour of a  intention to make he dependent on the custoss office the custos be to name he  but the justice have the control over he he be a officer to the session and  the justice only can remove he the limitation of the interest of the custos in  his office and that of the clerk be different and that show that the duration  of the one be not to depend on the other beside the custos be to name not when  he shall be make custos as it will have be word if the intention advance on  the other side have be true but whensoever it shall be void it do not say  every new custos shall or that every custos shall name but general when it be  void he shall c then as to the objection that this new Act be consistent with  the Henry and therefore that be still in force it be answer that by the former  Act he be entire place under the custos who have power to displace he upon  miscarriage the session then can not do it though a court and a court of  record they may suspend he but can not deprive he of his office even for ill  demeanour this be that Act now the present law abridge the power of the custos  he must name a resident before he may appoint any able person the person be  then removable by the custos now only by the justice care be take that nothing  be to be give for the office and now he may make a deputy without the  approbation of the custos here be plain a different jurisdiction over he and a  different estate vest in he this express limitation of the interest to he be a  exclusion of the former estate as dependent upon that of the custos and beside  this be a substantive distinct enact clause of itself and no way relate to the  statute of Henry S why be this limitation pen different from that unless to  give another sort of interest as to the case of now law which repeal former it  be say that the rule be certain that whatsoever statute be introductive of a  new law though pen in the affirmative be a repeal of the former as imply a  negative I e the latter ought to be observe if it concern the same matter the  statute of Edward control the statute of Henry one direct the keeper to name  the other the king and both be in the affirmative yet the latter must be  observe and if this be a new estate as it have be adjudge below then the party  ought to enjoy it and for this be cite side Plowd and other book then it be  say that the clerk of the peace name by the justice in default of the custos  will have a estate for life and by the same reason it ought to be so here  though the custos he to be name accord to the statute of Henry yet he be not  to execute his power of custos accord to that Act but be tie to a resident  have not the approbation of a deputy and can remove by the statute of Henry  the clerk have but a estate at the will of the king the custos have no other  this be so long as he do well in his office these be different and when the  custos have name he he be in by the statute if what they on the other side  contend for have be intend there be no need of these word of limitation at all  and the word in like manner as by the former Act have fulfil the intention if  such have be as to the word only that will make no alteration in the case of  any other office suppose a office grant to a man Interrog  so much or only see  bene to bear about will that give less than a estate for life the word only be  add not to abridge the estate of the clerk but rather to restrain the power of  the custos that he shall have authority only to limit it during good behaviour  and not for a less interest or estate the custos be confine that he shall not  grant it for year or at pleasure beside only be but just so long and no long  or so long as and it be the same thing with the word as without it provided  sola to live be during all her widowhood suppose a power to make lease to hold  only for and during the term of year the same will be good for the whole term  then it be no objection that the estate of the clerk be great than his be who  name he for that may be by custom as in the office in Westminster hall Hobart  and the clerk of assize where usage fix the estate and the like in case of  power to make lease upon family settlement to use where tenant for life grant  large interest than his own it be true the power and estate raise by they  issue out of the inheritance but the tenant for life only name they as the  custos do here though the statute give the interest as to the inconvenience  that dependent office shall continue against the will of shower KB er p their  superior that can be no objection since there be few great officer in the  realm but have many substitute and inferior under they which be name by their  predecessor and be not removable almost every bishop in England be under these  circumstance with respect to the register of his own court who note and record  his act c this be a exception to all grant for life but credit ought to be  give to the honour wisdom and judgement of former as well as present officer  in respect of such nomination until some misbehaviour show the choice to have  be ill and when that appear the person be removable and then the inconvenience  be likewise remove here the jury have find the plaintiff in the action below  to be able and sufficient and well qualify for the office and to have do his  duty in the office while he have it wherefore it be pray that the judgement  may be affirm and it be affirm shower KB michaelmas term the four of James the  second in the king bench the six of November sir Robert wright Knt chief  justice sir John Powell Knt sir Robert Baldock Knt stringer Knt justice sir  Thomas powis Knt attorney general sir William William Knt solicitor general