by the Justices. Care is taken, that nothing is to be given for the Office, and now he may make a Deputy without the Approbation of the Custos. Here's plainly a different Jurisdiction over him, and a different Estate vested in him: This express Limitation of the Interest to him is an Exclusion of the former Estate, as dependant upon that of the Custos. And besides, this is a Substantive distinct enacting Clause of it self, and no ways relating to the Statute of H. 8. Why was this Limitation penned differently from that, unless to give another Sort of Interest? As to the Cases of new Laws which [163] repeal former, 'twas said, That the Rule was certain, that whatsoever Statute is introductive of a new Law, tho' penned in the Affirmative, is a Repeal of the former, as implying a Negative; i.e. the latter ought to be observed, if it concerns the same Matter. The Statute of E. 6. controlled the Statute of H. 8. One directed the Keeper to name, the other the King, and both are in the Affirmative; yet the latter must be observed. And if this be a new Estate (as it hath been adjudged below) then the Party ought to enjoy it. And for this was cited 1 Sid. 55. Plowd. 113. and other Books.
Then 'twas said, That the Clerk of the Peace, named by the Justices, in Default of the Custos, would have an Estate for Life; and by the same Reason it ought to be so here: Tho' the Custos be to be named according to the Statute of H. 8. yet he is not to execute his Power of Custos according to that Act; but is tied to a Resident, hath not the Approbation of a Deputy, and cannot remove. By the Statute of H. 8. the Clerk had but an Estate at the Will of the King, the Custos having no other; this is so long as he doth well in his Office. These are different; and when the Custos hath named him, he is in by the Statute. If what they on the other Side contend for had been intended, there was no need of these Words of Limitation at all; and the Words, in like manner as by the former Act, had fulfilled the Intention, if such had been.
As to the Word only, that would make no Alteration in the Case of any other Office. Suppose an Office granted to a Man quamdiu tantum, or solummodo, se bene gesserit, would that give less than an Estate for Life? The Word only was added, not to Abridge the Estate of the Clerk; but rather to restrain the Power of the Custos, that he should have Authority only to limit it during good Behaviour, and not for a less Interest or Estate: The Custos is confined, that he shall not grant it for Years, or at Pleasure. Besides, only is but just so long, and no longer, or so long as; and 'tis the same Thing with the Word, as without it. Dummodo sola vixerit, is during all her Widowhood. Suppose a Power to make Leases to hold only for and during the Term of 21 Years, the same would be good for the whole Term. Then 'tis no Objection, That the Estate of the Clerk is greater than his is who names him, for that may be by Custom, as in the Offices in Westminster-hall, Hobart 153. and the Clerks of Assise, where Usage fixes the Estate. And the like in Case of Power to make Leases upon Family Settlements to Uses, where Tenant for Life grants larger Interests than his own: 'Tis true, the Powers and Estates raised by them issue out of the Inheritance; but the Tenant for Life only names them: As the Custos doth here, tho' the Statute gives the Interest.
Judgment.—As to the Inconvenience, That dependent Offices should continue against the Will of their Superiours, that can be no Objection; since there are few great Officers in the Realm, but have many Substitutes and Inferiors under them, which were named [164] by their Predecessors, and are not removable. Almost every Bishop in England is under these Circumstances, with respect to the Register of his own Court, who notes and records his Acts, &c. This is an Exception to all Grants for Lives. But Credit ought to be given to the Honour, Wisdom, and Judgment of former, as well as present Officers, in respect of such Nominations, 'till some Misbehaviour shews the Choice to have been ill; and when that appears, the Persons are removable, and then the Inconvenience is likewise removed. Here the Jury have found the Plaintiff in the Action below to be able and sufficient, and well qualified for the Office, and to have done his Duty in the Office, while he had it. Wherefore it was prayed that the Judgment might be affirmed; and it was affirmed.
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