letters patent, [71] 12th July, 1689, appointed the Earl of Winchelsea Custos Rotulorum of the county; and that the Earl the same day, by writing under his hand and seal, nominated and appointed Owen to be Clerk of the Peace of the said county, and to receive the fees and perquisites belonging to said office during the pleasure of the said Earl; and, that at the General Quarter Sessions held at Maidstone, 15th July, 1689, the said writing of nomination was shewed to the Justices of the Peace, and read; and a question arising between the Justices, touching the validity of the said writing, the Justices refused to admit Owen into said office by virtue thereof, though requested thereunto by Owen. And that at the same Quarter Sessions held by adjournment at the Castle of Canterbury, the 23d of said month of July, the said Earl, then Custos Rotulorum for the county, came into Court, and the said writing was by his order read in open Court, and the said Earl, then in open Quarter Sessions, (without reference to the said writing) viva voce, said and declared, I do nominate and appoint the said Philip Owen to be Clerk of the Peace, according to the act of parliament: and Owen was thereupon, by the Justices, accordingly admitted, and then, in open sessions, took the oath in the said act mentioned, and took upon him the execution of the office, and held and enjoyed the same, with the wages and fees thereunto belonging, until the 7th of October next following; and found further, that the Earl of Winchelsea died 25th August, 1689, and the 26th of September following, their Majesties, by their letters patent, appointed Henry Viscount Sidney, then Earl of Rumney, Custos Rotulorum of said county, who, by writing under his hand and seal, the 29th of September, aforesaid, appointed defendant to be Clerk of the Peace of the said county, who, at the next general quarter sessions of the peace held for the said county, the 7th of October following, took the oath in the act mentioned in open sessions, and was admitted Clerk of the Peace, and held the said office, with the wages and fees, from thence until the taking of the said assize, and kept Owen out of the said office, and received the wages and fees; but whether he disseized Owen of the said office or not the jury were ignorant, and prayed the direction of the justices of assize; and if Saunders disseized Owen, then they found the disseisin, and assessed damages to 275l. besides costs; and if he did not disseize Owen, then they found for the de- [72]-fendant: And the plaintiff stated to the Lords, that the only question intended by the special verdict was, whether the Custos Rotulorum, could appoint the clerk of the peace by word of mouth, or whether a deed was requisite to make the appointment upon the act of parliament; and after several arguments, and great debates in the Court of Common Pleas, whither the matter was adjourned, judgment was given, that a nomination by word of mouth was good; from which judgment Saunder's brought his writ of error in the King's Bench; and after many arguments, the Court, as the plaintiff alleged, agreed with the Court of Common Pleas, that a verbal nomination is good; but because the late Earl did not in his appointment name the county of Kent, but only said, I do nominate Mr. Owen to be clerk of the peace, not saying for what county; and because the said Earl did not expressly name any one act of parliament, but only said, that he nominated the plaintiff according to the Act of Parliament; and because in the nomination, the Earl did not say how to execute, nor how long; and also, because in the said Earl's nomination the word said was used, which is with relation to one named before, whereas the Earl had not beforenamed Philip Owen; therefore who he meant was said to be incertain; and thereupon, for these and no other reasons, the judgment given for Owen in the Common Pleas was reversed; but plaintiff insisted that the judgment given in the King's Bench ought to be reversed; for that the Earl could not possibly intend, or by any person be supposed to intend, any other county than Kent, he being then Custos Rotulorum of that and no other county, and where he was then present, and speak the words; neither could he intend any other act than the late act of parliament, which was the matter then in dispute, and what he purposely came about, neither could be intend any other person than Owen, on whose behalf he came, and on whose account he ordered the deed, wherein he was so often mentioned, to be read immediately before he, the Earl, declared Owen to be his Clerk of the Peace, by the words of nomination before mentioned. (Thomas Powys. Edward Northey.)
The defendant, in support of the judgment of the King's Bench, stated, that in
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