and Party in Civil Matters: He and his Under-Clerks do inroll all Declarations, Pleadings, &c. in Civil Causes, especially where the Proceedings are by Bill. This Clerk files in his Office all Bills, Declarations, &c. and all the Writs of this Court in Civil Matters, are made by him and his Under-Clerks, and tested by the Chief Justice. And he hath the Custody of all Returns of Elegits, Executions, Scire Facias's, and the filing of all Bills; every of which are, in the Eye and Judgment of the Law, in the Hands of the Chief Justice, whose Clerk this Officer is.
The Custos Brevium.—The third is the Custos Brevium, who keeps all the Rolls and Records of Judgments in this Court; which are also said to be in the Custody of the Chief Justice: And this Office, when void, is in his Gift and Disposal.
[114] It was further shewn on the Behalf of the Defendants, That in the Statute of E. 6. against the Sale of Offices, there is a Salvo to the two Chief Justices and Judges of Assize, to dispose of the Offices in their Disposition, as they used formerly. And ever since that Statute, these two Offices of chief Clerk to inroll the Pleas, &c. and the Custos Brevium, have without Controul been disposed by the Chief Justice of the Court of King's Bench. And it is also observed, That in the Grant of this Office to Mr. Bridgman the Plaintiff, it is recited that Henley and Wightwick were debito modo admitted to this Office, and yet they never had any Grant from the Crown, nor any other Grant, except that from the Chief Justice before mentioned.
Then to prove the Defendant's Title to the Office, the Grant of the now Chief Justice to them for their Lives, was produced, and read, and proved, and that they were admitted and sworn.
Evidence below for Plaintiff in Error.—To answer all this Evidence, there was produced the Copy of an Act of Parliament which was made in 15 E. 3. to this Effect: It is consented, that if any of the Offices aforesaid (which are other great Offices mentioned in the Act) or the Controller or chief Clerk in the Common Bench or King's Bench, by Death or other Case be ousted of their Office, the King, with the Consent of the great Men, &c. shall put another fit Person in such Office. From whence the Plaintiff's Counsel would have inferred, That the King had a Right to grant this Office; and that this Act was declaratory of such his Right; and that all the Grants from the Chief Justices ever since that Act, were but Usurpations on the Crown; and that no Usage of granting it by the Chief Justices could prevail against the King's Right.
Reply below for Defendant in Error.—To this it was replied, That the Act was repealed, as did appear by the Record it self, as well as by their own Copy produced. And for a further Answer, 'twas said, That the Office in Question was not the Office mentioned in that Act; for that Act mentions the chief Clerk of the King's Bench, which is the Clerk of the Crown; and so called in the 2 H. 4. the Statute against Extortion. And he is in Reality the chief Clerk in that Court, and hath Precedency of this Officer both in Court and elsewhere. And that this Officer is not called chief Clerk in the King's Bench, altho' he is the Chief for inrolling of Pleas Civil in that Court. And the constant Usage explains the Meaning of that Act. And that the Officer called the chief Clerk was meant to be the Clerk of the Crown; for that that Office hath been always granted by Letters Patent. according to that Act: And the Office in Question was never enjoyed one Day by Virtue of a Grant from the Crown.
The Defendants did further insist, That it was a Scandalous Imputation upon all those Chief Justices, who were Persons of Probity and Virtue, and had clear Reputations, to surmise that they imposed and usurped upon the Crown, as they must all have done, if the Right of granting this Place be in the King: And [115] Sir Robert Heath, that was the King's Attorney, took a Grant of the Office in Question from the Chief Justice; and upon his Admittance, the Right of the Chief Justice to grant it is affirmed upon Record.
Then all this Evidence on both Sides being given, and the same being strong on the Defendant's Behalf; the Court proposed to the Plaintiff's Counsel to be Nonsuit: Which they would not; but prayed the Court to direct the Jury, some of them saying that they would take another Course. And then the Court did briefly sum up the same, and particularly the Evidence of the Act 15 E. 3. and what was urged from it by the Plaintiff, and the Answers made thereto, and left the Matter
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