case Harcourt against fox S c show p c by Henry c the custos rotulorum be  authorize to appoint a fit and able person to hold the office of clerk of the  peace during the time that the say custos rotulorum shall occupy the say  office of custos so as the say clerk of the peace demean himself just and  honest by the will mary c S the custos be authorize to nominate a clerk of the  peace for so long time only as such clerk of the peace shall well demean  himself in his say office a appointment make by a custos under these statute  be as to he a appointment for life and therefore the clerk of the peace so  appoint can be remove from his office by the same or any succeed custos but by  the same statute will mary c if he do not well demean himself in his office  the session of the county on application and proof make as the Act require may  remove he S c show S c comb S c Mod S c holt S c ld ray S c show p c by the  statute Henry c it be enact that no person shall be nominate and appoint to  the office of custos rotulorum but such as shall have a bill sign by the king  hand for the same which bill shall be a sufficient warrant to the Lord  chancellor or Lord keeper to make from time to time commission or commission  assign and authorize the same person to be custos rotulorum until the king  have by another bill sign with his own hand appoint and ordain one other  person to have occupy and exercise the office and the person so appoint custos  rotulorum shall and may occupy excercise and enjoy the say office by himself  or by his sufficient deputy and every custos rotulorum shall nominate elect  appoint and assign the clerk of the peace and shall give and grant the say  office of clerk of the peace to a able person to hold and enjoy the same  during the time that the say custos rotulorum shall occupy and exercise the  say office of custos rotulorum so that the say clerk demean he in the say  office just and honest and the say clerk of the peace may execute the office  by a deputy to be appoint by the custos by the statute Edward c it be enact  that the chancellor or Lord keeper for the time be shall from time to time  without any bill or bill to be assign with the king hand name elect assign and  appoint such person to be custos rotulorum within every shire as by his  discretion shall be think able and meet to have and exercise the same and that  the say person so appoint elect name or assign by the chancellor or Lord  keeper shall and may occupy exercise and enjoy the same office of custos  rotulorum by himself or by his sufficient deputy or deputy in as ample and  large manner and form as if the say Act Henry c have never be make by the  statute will mary saint c S it be enact that the nominate and appoint of the  custos rotulorum throughout all the shire and county of this realm shall be as  be direct by Henry c any law usage or statute to the contrary notwithstanding  by statute will mary c S it be further enact that the custos rotulorum or  other person to who of right it do or shall belong to nominate and appoint the  clerk of the peace shall when the office of clerk of the peace shall be void  nominate and appoint one able and sufficient person reside in the say county  for which he be appoint to execute the same by himself or his sufficient  deputy for so long time only as such clerk of the peace shall well demean  himself in his say office and by say statute will mary c S modern if such  clerk shall misdemean himself in the execution of his say office and thereupon  a complaint and charge in write of such misdemeanour shall be exhibit against  he to the justice of peace in their general quarter session it shall be lawful  for the say justice or the major part of they from time to time upon  examination and due proof thereof open in their say general quarter session to  suspend or discharge he from the say office and the custos in such case may  appoint another reside within the county modern er p and if the custos neglect  or refuse so to do before the next session after such refusal then the justice  may at their session appoint one also by the say statute will mary c S the  custos shall not sell the office of clerk of the peace upon penalty of both be  disable to bold their respective office and forfeit double the value of the  money so give and take to be recover by he who will sue for the same by action  of debt c to his own use and the clerk of the peace before he enter upon his  office be to make oath in open session that he have nor will not pay any money  or reward for the same the forgo paragraph be the substance of the several  statute relate to the follow case a indebitatus assumpsit be bring against the  defendant for receive forty shilling fee belong to the office of the clerk of  the peace of Middlesex upon non assumpsit plead the jury find a special  verdict in which the aforesaid statute Henry and will mary be find then they  find that the earl of Clare be in the first year of William and mary  constitute by the king and queen to be custos rotulorum for that county and  that the office of clerk of the peace be void the say earl do by a write under  his hand and seal appoint the plaintiff Mr Harcourt to be clerk for so long as  lie shall demean himself well c and that he be duly qualify c they find that  in the three year of William and mary the say custos be remove from his office  and that William earl of Bedford by letter patent c be make custos in his room  who by write under his hand and seal do constitute the defendant John fox to  be clerk of the peace of the say county during the time the earl shall enjoy  the office of custos and so as he well demean himself c that he be likewise  duly qualify and that he take upon he the execution of the say office and  receive the fee c the question upon this special verdict be whether the  plaintiff be clerk of the peace by John earl of Clare have a modern good title  to bold that office during life or whether it be dependent upon the custos and  determine by his removal and as to that it be consider how this office stand  at the commonlaw before the make of those statute of Henry the eight and  Edward the six and how it stand at this time upon the new Act of this king at  the commonlaw all officer of justice have estate in their respective office  during life and can not be remove but for misdemeanour so be the clerk of the  crown in the court of king bench and in chancery so be the clerk in the  exchequer and the filazers of the common plea and in this respect the wisdom  and policy of the law be very great because when man hold their office for  life it be a encouragement to the faithful execution of their duty it be then  also they endeavour to acquire knowledge and experience in their employment  have a durable and fix estate therein and not liable to be displace at the  pleasure of those who put they in show Bac Abr a now though it can be say that  the clerk of the peace be a officer at the commonlaw yet he shall have a  estate for life in his office because of the uniformity between he and officer  of superior court for his be nominate by the custos do not make he dependent  on that officer any more than the clerk of assize who be appoint by a judge  but have a estate for life and no dependence upon that judge who make he  neither be the clerk of the peace a clerk to the custos but to the justice in  their session he have his fee and wage allot out of the fine and amerciament  arise in their court Richard c b he be incorporate by a statute for in a  robbery the hundred shall be sue in his name Elizabeth c c in the yearbook  Henry pi d he be call attornatus domini king he join issue upon traverse join  in demurrer case in cro law e and in many other instance he be in the court of  session as the clerk of the crown be in the court of king bench thus it stand  before the make of the statute of Henry c the custos at that time be entire at  the nomination of the Lord chancellor but by that law he be restrain sub modus  that be he shall still make a custos but not without a bill sign by the king  appoint the person and by this statute the clerk of the peace be make  dependent on the custos who can grant that office but only to continue during  the time he be custos so that when he be modern er p remove the other be  determine but it be find by experience to be very inconvenient that upon every  death or removal of a custos the king shall be trouble by petition to sign a  bill c therefore modern by the statute of Edward c the custos be restore to  his former right videlicet to be appoint by the Lord chancellor as if that Act  have never be make but it do not mention the clerk of the peace so that he  remain as before but then by the statute of will mary c he be likewise restore  to his former right for now the statute of Edward c be repeal and the custos  be to be as direct by the statute of Henry c and so far it be a reviver of  that law but then it settle in what manner he shall appoint a clerk of the  peace videlicet not for so long time as he shall continue custos but for so  long time only as the clerk by he name shall behave himself well in the office  and so far it be introductive of a new law or rather restore the clerk of the  peace to that ancient right which he have to this office during his iife  before the make of any of these statute now it seem that the parliament intend  he all estate for life for the word so long as he shall behave himself well do  natural import as much beside it be make unlawful to buy or sell this office  and a oath enjoin this officer before he enter upon the execution of it the  meaning of which must be that when he be in he have a estate for life for what  need be there of so much care if he be to be remove at pleasure or have any  dependence upon the custos and as to that it be plain that by the frame and  pen of this Act he have no relation to or dependence upon the custos when once  he be in his office for his misbehaviour be not to be punish by the custos but  by the justice who may suspend or discharge he which they can not do before  this Act for it be their whole in the power of the custos he be now to be  resident in the county which be not enjoin before he may make a deputy without  the approbation of the custos which he can not by the statute of Henry c so  that now there be another sort of power and jurisdiction over he which be not  before and as there be another jurisdiction over he so he have another  interest vest in he by this due law which he have not by that statute for as  to the appointment to this office both these act be pen alike videlicet it  shall be by the custos but then the Act of Henry c limit his estate only  during the continuance of the custos in his office and this new Act leaves out  that clause and limit it for so long time only as be shall demean himself well  so that both these law be in the affirmative and because they both concern the  same office and the Iatter be introductive of a modern new law therefore that  must be observe and it be as absolute a repeal of the former as if there have  be negative word for that purpose last to show that the clerk of the peace  have no manner of dependence upon the custos this new statute provide that  upon the neglect or refusal of the custos the great part of the justice in  their session shall appoint one and if that be do as it may their no mail will  say that such clerk can depend upon the custos and if his office shall  continue during life as it certain will what reason can be show why one  appoint by the custos shall not enjoy it in like manner e contra whatever the  commonlaw be in relation to office and officer it can be nothing to this  purpose for this case depend only as the law now stand upon the pen of these  several statute justice of peace be make by the statute of Edward c but that  office be not mention there neither be there any such officer in the succeed  reign of Richard the second it be very probable that the custos himself be  their the clerk to the justice and afterward when the office of custos come to  be honorary a more inferior person be appoint to be their clerk and from that  time this officer be call clerk of the peace but still he be but as a deputy  or servant to the custos and removable at his pleasure as the custos himself  be at the pleasure of the chancellor afterward some chancellor enlarge their  power by undertake to make a custos during life and he likewise enlarge his  authority by appoint a clerk of the peace to hold that office during life  complaint be make of this matter to the parliament of Henry the eight and then  in the thirtyseventh year of his reign this law be make which give the clerk  of the peace no long title to his office but at will it be to depend on the  custos who likewise be to continue in his office but till the king shall  appoint another it be not the ignorance or incapacity of the clerk of which  the complaint be in those day but only the duration of his be a officer the  complaint be that he have a estate modern er p for life which be to pervert  the old institution and therefore he be make to depend mere on the custos in  the reign of Edward the six part of the statute of Henry c be repeal but that  parliament do not meddle with the clerk of modern the peace he still remain as  before so that what alteration be make relate to he must be by this new law or  none at all it have be say that this law of will mary c vest he with a new and  more durable estate than he have before videlicet by enlarge it to continue  for so long time only as he shall demean himself well but these word can be  construe to enlarge his estate they be rather restrictive and be only to  express what be imply before for it be a condition which the law annex to all  officer that they shall behave themselves well in their respective office or  otherwise it be a forfeiture the custos be still to be remove at pleasure now  it will be very absurd to say that the person appoint by he to be clerk of the  peace shall have a more fix and continue estate than he himself so that by  reason of the incapacity of the grantor he can have a estate for life for in  construction of grant there be always a great regard to he have to the estate  and power of the grantor as if a tenant in tail make a lease for life it shall  be intend for the life of tenant in tail but if a tenant in fee make a lease  for life it shall be for the life of a lessee and the reason be because of the  different capacity of those two person for the one can make a lease for no  long than his own life and the other may make a lease for a long term if there  have be any seem contradiction between these two act then certain the last  will have repeal the other but here be no such thing for by the statute of  Henry c the clerk of the peace be to bold his office no long than the custos  continue to be so and by this new law he be to enjoy it for so long time only  as he shall demean himself well now there be no contradiction in the  limitation of the estate by both these law for suppose it have be put all  together in the same Act videlicet for so long time as the custos shall  continue and so long only as he demean himself well this will have be very  consistent curian as to the beginning of this officer we be much in the dark  for we can only make some probable conjecture about it and as to his  continuance in his office it be not to be collect out of any of the law book  before the statute of Henry c it be plait that it be not a office time  immemorial because the commission of the peace be not so in the first year of  the reign of Edward the three justice of the peace be make who at the  commonlaw be call conservator and the first beginning modern of a custos be in  the thirtyfourth year of that king and the reason why he be then appoint and  not before be because the justice can not then agree among themselves who  shall keep the record and upon application make to the king concern this  matter he to prevent all dispute appoint a fit person to keep they and give he  the custody of the record in every county so that though legal they may be say  to be in the custody of the justice of peace because all write of error and  certiorar be direct to they yet they be actual in the possession of the custom  afterward it become incident to the office of the Lord keeper to nominate the  custos rotulorum and then because of the necessity of one to make entry and  join issue the custos appoint a clerk for that purpose who be now call clerk  of the peace and this seem very agreeable to the statute of Westminster the  second Cas see Inst Bac Abr a by which it appear that such officer and clerk  who be to enter and enrol plead be always appoint by the judge or chief  minister of the same court then as to the case in question videlicet by the  statute of will mary c the custos have power to appoint a person to execute  this office by himself or deputy for so long time only as he shall demean  himself well c which word do plain import a estate for life and the case will  have be the same if the word only have be leave out for if power be give to a  tenant for life to make a lease for twentyone year only this will signify for  so many year absolute if this clause have not a construction to give he a  estate for life it signify nothing for if the case be take to be no otherwise  than as it stand upon the statute of Henry c then this clause be of no use but  it be plain that the word in that Act relate to this matter be omit in this  new law videlicet that modern er p he shall continue so long as the other be  custos and a better and more fix estate be give videlicet Interrog  see bene  to bear about c the statute of will mary c revive that of Henry c as to the  nomination of a custos but make several alteration from it when it mention the  clerk of the peace as have be well observe at the bar so that the design of  this late Act be to abridge the power of the custos and enlarge the estate of  the clerk and so to settle he therein that he may go on cheerful in his  business for when place depend upon contingency it occasion embezzle record  and neglect in office and for this reason my Lord modern Hobart hob b be of  opinion that the chief justice can grant the office which be in his gift for  less time than for life therefore the clerk of the peace be in this office by  virtue of this Act for so long time as he shall demean himself well those word  shall be construe most favourable to answer the intent of the lawmaker who  design be to have the office well supply by a man able and well skill in the  law which will be effect when the officer have a estate for life and for these  reason judgement be give in Trinity term follow for the plaintiff and  afterward affirm in parliament easter term the five of William and mary in the  king and queen bench sir John holt Knt chief justice sir William dolben Knt  sir William Gregory Knt sir Giles eyres Knt justice sir George Treby Knt  attorney general sir John summer Knt solicitor general