during the Time of the others continuing to be Custos. This (tho' not in the Negative) doth amount to it, viz. that he shall continue no longer: Especially when the Act recites the Mischief to be a Continuance during Life; it implies that the Clerkship of the Peace should be never granted, for a longer Interest, than the Custos had in his Office. The 3 & 4 E. 6. doth indeed repeal Part of the 37 H. 8. not by express Words, but by a very strong Implication, by giving the Chancellor a Power to nominate the Custos: But the Office of Clerk of the Peace is not toucht by that [160] of E. 6. and continues as settled by 37 H. 8. which is during the Continuance of the Custos.
Then 'tis the new Statute, which gives the Occasion of the present Dispute; and there's nothing in this Act, which can make such an Alteration in the Law, as was below contended for. The Words, So long only as he shall well demean himself, are not enlarging of his Estate, but Restrictive: And whensoever 'tis considered how to make a Grant for Life to be good, you must consider the Power and Capacity of the Grantor, and how the Thing is capable of being so granted: As in Case of Tenant in Tail, or Fee, and each makes a Lease for Life; in the latter Case, 'tis for the Life of the Lessee: And in the former, for the Life of the Tenant in Tail, because of the different Capacities of the Grantors: And so the Thing it self is considerable. Here's an express Statute, that saith it shall be only during the Continuance of the Custos; now that Provision is to be pursued. 'Tis said, that a Grant quam diu se bene gesserit, is for Life; but the Words themselves do not import any such Thing: 'Tis indeed a restrictive Condition which the Law imposes upon all Offices; for Misbehaviour in any Office, if in Fee, is a Forfeiture: But the chiefest Consideration is, if it be an Office that is capable of being granted for Life. If it be so, these Words may amount to a grant for Life, as expounded by Usage and the Nature or Capacity of the Office it self; but otherwise, if the Office be not grantable for Life, such Words will not give an Estate for Life: These Words seem only to be an expression of what the Law always implieth, tho' not particularly expressed. If it operate any Thing, it seems only to have Reference to the Power of the Grantor, as a Restriction on him; and not as an Enlargement of the Estate of the Grantee: Especially where by a Law in Being, there's an Incapacity upon the very Office not to be granted for Life.
Then it was urged that the Statute of 37 H. 8. was not repealed: The 3 & 4 E. 6. doth not alter this Matter at all; and where it did make any Alteration, the same is expresly repealed by this last Act in Question. It is a settled Rule, that if there be two Statutes, and both consistent and not contradictory, the latter can never be said to repeal the former; and so is Dr. Foster's Case 11 Rep. 5, 6. so it is in Wills, Hodgkinson and Wood, Cro. Car. 23. This last Act of W. & M. is consistent with the 37 H. 8. the one says, He shall continue during the Time that the Custos doth remain such, so as he demean himself well: The other says, He shall enjoy his Place, so long only as he demeans himself well in it. Now take the Office to be by the 37 H. 8. only grantable to hold during the Continuance of the Custos, then suppose in the same Act, it should be said to hold so long only as he demean himself well; where is the Inconsistency or Contradiction? And if none, then this last Act doth not Repeal the former as to this Matter. And Mr. Fox's Grant is pursuant to the Statute of H. 8, and Mr. Harcourt's hath no Relation to it.
[161] Then 'twas argued, That 'twas unreasonable that a Custos should have an Officer under him of another's Choice, when himself is responsible for the Records which such Officer is concerned with. The primary Intent of this last Act was only to settle the Doubts about the Keepers of the Great Seal: Not to alter the Estate of the Office of Clerk of the Peace. The Offices of the Judges in Westminster-hall determine with the King's Life who grants them, tho' they are granted to hold during good Behaviour. In this Act, the Reason of using these Words was for Caution, to advertise them that Misbehaviour should forfeit their Places. If an Alteration of the Law had been intended, they would have said for Life, so as he demean himself well, especially when (as was said before) he was removeable for Misbehaviour by the former Laws in Being. Wherefore upon the whole Matter it was prayed that Judgment might be reversed.
109
