Изображения страниц
PDF
EPUB
[blocks in formation]

§ 49. The bishop of Landaff granted the office of chancellor or commiffary of his diocese to two perfons to hold the fame conjunctim et divifim, to them and the furvivor of them. It was agreed by the counsel on both fides, that this office had been antiently and ufually granted in this manner. And on a case stated out of Chancery, and referred to the Court of King's Bench, the only question was, whether this was fuch a judicial office as could be granted to two perfons. It was refolved that it was a good grant; and the principal reafon of the judgment was, because of the long and conftant usage. And it was faid, that the offices of most of the bishopricks in England were and had been constantly so granted.

§ 50. Salkeld reports, that in this cafe, the court faid, if an office be granted to two, and one dies, the office does not furvive, but determines. As, if there are two fheriffs, and one of them dies, the other cannot act otherwise, if granted to two, and the furvivor of them.

§ 51. Where an office is granted to a perfon and his heirs, or to a person and his affigns for his life, it` may in some cases be affigned. For Jenkins states that it was held by all the judges in the exchequer, that when the office of chamberlain of the exchequer was granted to A. and his affigns, A. might affign it, but could not make a deputy, without fpecial words to

enable him.

§ 52. There

S 52. There is, however, great obfcurity in the books refpecting the affignment of offices. In a cafe reported by Hardrefs, the queftion was, whether the office of teller of the exchequer, which had been granted to a man, habendum to him and his affigns, during his life, could be affigned. Serjeant Glynn contended, that the office was affignable by reason of the word affigns in the patent; but else it would not have been affignable, being an office of truft which concerns the king in his revenue. That fome offices were in their nature affignable without the word affigns, and fome not; as a parkership is an office affignable in its nature, being an office of profit. Others are not, viz. offices of public truft, as the office in queftion; fo offices granted to men, and their affigns, were affignable, and there was no inconvenience in fuch a cafe, for, if affigned to an unfit perfon, the court would refuse to admit him.

Dennis v.
Loving,
Hard. 424.

Sir Heneage Finch argued on the other fide, 1ft, That the office was not affignable without the word affigns, because it was an office of a great and public truft. 2d, That the habendum did not alter the case, it being in the king's cafe. For it would be inconvenient that the king fhould have an officer, in such a place, put upon him against his will; and habendum to the grantee and his affigns, was no other than if it had been to him and his heirs, which would have been void. In Hatton's cafe, the office of a garbler granted, with power to one to make a deputy, did not extend to an affignee: because it was an office of truft. There was no precedent of an affignment of fuch an

[blocks in formation]

Ante, 1. 42.

office. No judgment was given in this cafe, the king having stopped the proceedings by a writ de rege in confulto.

$ 53. In the cafe refpecting the office of Great Collins, 192. Chamberlain of England in 1626, Mr. Justice Dodridge was of opinion, that an office was not within the ftatute of uses.

Vide Rex v.
Lenthal,
3 Mod. 143.

Who may hold Offices. 1 Inft. 3 b. Jenk. 121.

Vintner's
Cafe,

Bro. Ab. Tit.
Office, 48.
Dyer, 150.

$ 54. Lord Coke fays, that," if an office, either in "the grant of the king, or of a subject which con66 cerns the administration, proceeding, or execution of justice, or the king's revenue, or the common "wealth, or the interest, benefit, or fafety of the fubject, or the like, be granted to a man that is ❝inexpert, and hath no skill and science to exercise or execute the fame, the grant is merely void, and the

[ocr errors]

66

party difabled by law, and incapable to take the "fame, pro commodo regis et populi. For only men of "skill, knowledge, and ability to exercise the fame, 66 are capable of the fame, to ferve the king and his "people."

$ 55. King Edw. 4. by letters patent, appointed Thomas Vintner to be clerk of the crown. The judges of the Court of King's Bench, with the affent of thẹ judges of the Court of Common Pleas, refused him; because he was not exercised in his office, nor any other in the court, as he ought by a long time, and fo declared to the king. Upon which the king, by advice of the juftices, appointed one John Weft clerk there, who was expert, and fent to the faid juftices his

letters

letters under his fignet, which after were inrolled in the fame court, that they rejected Vintner and admitted Weft.

§ 56. A clergyman was made chancellor to a bishop, and confirmed by the dean and chapter: but, because he was not learned in the canon and civil law, he was removed by the ecclefiaftical commiffioners. And though it was infifted that he had a freehold, and therefore had prayed a prohibition, yet it was denied,

But if in futuro, and
when the office is to

Sutton's Cafe,
Cro. Car. 65.
Walker v.
Lamb,
Cro.Car. 258.

§ 57. A grant of an office of skill to an infant, to Jenk. 121. be exercised in præfenti, is void. that he is of full age and expert, be exercised, the grant is good.

Stoel,

$ 58. Where in the grant of an office it is exprefsly Young v. faid, that it fhall be exerciseable by deputy, the grantee Cro.Car. 279. need not have fuch skill and knowledge, as is neceffary to the execution of the office.

$ 59. Offices merely ministerial, which do not require particular skill or knowledge, may be granted to any perfon, and even to women.

Thus, a woman may have the office of the cuftody of a castle; and Lord Coke mentions an inftance of a woman's having the office of forefter in fee-fimple. But he obferves, that she could not execute the office herself, but was obliged to appoint a deputy during eyre, who fhould be fworn,

the

Lady Ruffel's
Cafe,

Cro. Ja. 17.
4 Inft. 311.

§ 60. Mr.

Collins, 119.

How to be exercifed.

4 Inft. 291.

§ 60. Mr. Serjeant Dodridge, in his argument refpecting the barony of Bergavenny, mentions, that the office of high conftable of England defcended to the daughter of Humphrey De Bohun Earl of Hereford and Effex. The office of lord fteward defcended to Blanch daughter of Henry Earl of Lancaster, in whose right John of Gaunt enjoyed the fame. And the office of Earl Marshall defcended by an heir female to the house of Norfolk.

The office of Great Chamberlain of England is at this moment held by the two fifters and co-heirs of Robert late Duke of Ancafter.

§ 61. Offices which concern the administration of justice, fuch as the judges of the king's courts at Weftminster, &c. must be exercised in perfon, and not by deputy.

§ 62. There is, however, one exception to this rule; for a sheriff, though his office concerns the administration of justice, may notwithstanding appoint a deputy, by the name of under-fheriff.

§ 63. There are fome offices of the judicial kind, in the creation or grant of which is contained a power of appointing a deputy. Thus, the chief justices in eyre may appoint deputies, by the exprefs words of their patents, to exercise the office for them.

§ 64. A minifterial office which is to be performed by the grantee in perfon, cannot be exercifed by deputy.

« ПредыдущаяПродолжить »