case the king and queen against Owen by will mary c the custos rotulorum may  appoint the clerk of the peace for so long time only as he shall well demean  himself and therefore if a clerk of the peace be appoint during the pleasure  of the custos the court on his be deprive will not grant a mandamus to restore  for the appointment be void he can show a title to the office S c Mod S c comb  S c skin S c holt by the statute of will mary c the custos rotulorum be to  appoint and nominate the clerk of the peace when the place be void who have  power by the Act to execute it by himself or deputy for so long time only as  he shall demean himself well c modern er p a mandamus be bring by Mr Owen  direct to the justice of the peace of ken to restore he to the office of the  clerk of the peace of that county and upon the return thereof the case appear  to be thus the earl of Winchelsea who be custos rotulorum in the first year of  William mary appoint Mr Owen to be clerk of the peace durante bene plea c then  the Act of will mary c be return and that the say earl be dead and that  afterward the king constitute the Lord Sidney to be custos who appoint Mr  sander to be clerk of the peace pursuant to the aforesaid Act who thereupon  take upon himself the say office and displace Mr Owen who by this writ desire  to be restore the question be whether a grant of this office durante bene plea  which be only ail estate all will shall be so govern by the Act as to make it  a estate for life when once the person be admit to the office so that let the  custos make what appointment he will though not pursuant modern to the statute  it be the Act and not the custos which give ail interest and estate to the  person it be true before the statute of will mary c the clerk of the peace be  dependent upon the custos not only for his nomination but for his continuance  in the office but now the custos have no manner of interest in the office  itself he be only to nominate the person who shall have it and when such  nominee be admit he be not to be remove at the pleasure or by the death of the  custos for the intent of the Act be to have a person who shall behave himself  well in his place and that he shall not be dependent on any man for that may  be a mean to make he otherwise and because the justice of the peace and the  people have a interest in this office videlicet in enter record and draw tip  indictment and dispatch the business of the session therefore the Act fix he  in his office and give he a more last estate therein than he have before so as  not to be remove by the death or at the pleasure of the custos and this appear  more plain by the pen of the Act itself for after the custos have nominate the  person he must be admit by the justice in their quarter session and be to be  remove by they if he misbehave himself and upon such removal if the custos  shall not appoint another the justice have power to do it now the word in this  grant to Mr Owen videlicet that he shall have the office durante bene plea of  the earl of Winchelsea can make the nomination void ab beginning but the word  themselves be void and useless because they be contrary to the statute which  give no power to create this officer under that limitation but for so long  time only as he shall behave himself well neither shall the acceptance of the  grant alter the case because when once the person be admit to the office it be  the statute and not the grantor which give he a interest for life for by  nominate the person the grantor have execute his power and have no far  authority to modify what interest the grantee shall have in his office it be  like a person present to a live during the pleasure of the patron the  presentation be good but the limitation be void because by the usage and  custom of the kingdom a more durable estate be fix in the presentee so a  institution by the bishop during pleasure the first be good and not to be  defeat by the subsequent limitation modern the case seem to be parallel for  the estate of this officer be as well fix by this Act of parliament as the  estate of those be at the commonlaw and therefore the word habendum during  pleasure ought to be reject out of this grant as useless and insignificant it  be true in conveyance where the party may grant a great or lesser estate there  the habendum be of great use either to enlarge or limit the thing grant but it  can be useful where a Act of parliament fix a interest as in this case many  more instance may be give where the premise in a deed or grant may be good and  the condition void if a feoff be make in fee upon condition not to alien the  feoff be good but the condition be void so if a gift in tail be make upon  condition that the donee shall not suffer a common recovery the gift be good  but the Iatter clause be void and for these reason it be pray that the  mandamus may be grant e contra the statute of will mary c do not give the  clerk of the peace a estate for life it give the custos power to name he but  not to execute the office for his life but only for so long time as he behave  himself well now the nomination and the limitation of the estate of the  nominee shall not be take distinct and apart for it all make a entire  appointment and therefore must be take modern er p together and this be during  pleasure be void ab beginning and if so the Act have make no more of it than  the grantor himself have do judgement be afterward give in Hilary term that no  peremptory mandamus shall go for by the Act of will mary c the custos be to  nominate a clerk of the peace to execute that office for so long time as he  shall well demean himself c and if he appoint he in any other manner he be no  clerk of the peace therefore the defendant be appoint by the earl of  Winchelsea during pleasure it be not pursuant to the Act for he have not  execute the authority give to he by the Act and so the defendant have no title