before them; fome of whom by prefcription grew to be officers in their courts. And by the statute Westm. 2. c. 30. it was declared that all juftices of the benches from thenceforth fhould have in their circuits clerks to inroll all pleas, by which this right was confirmed. And the justices of affize have ever fince appointed the clerk of affize, S 9. It has also been an ancient practice for the fheriffs of counties, to appoint the county clerk and gaoler. The cuftos rotulorum appoints the clerk of the peace. Curfitors are appointed by the lord chancellor; and exigenters and philazers by the chief justice of the common pleas, § 10. There are feveral ancient offices incident to bishopricks, fuch as chancellor, commissary, register, &c. which are judicial; and other offices fuch as steward, furveyor, park keeper, &c. which are only ministerial. And where a new bishopric has been created, the bifhop has appointed officers of a fimilar nature. Rep. 344 Jenk. 216. 4 Mod. 167. § 11. Offices held immediately from the crown, How granted, must be granted by letters patent. And each office must be granted with all its ancient rights and privileges, and every thing incident to it. For if any office incident to that which is granted, is referved, the reservation is void. And therefore a grant of the office of marshall of the king's bench prifon, to which the office of chamberlain is infeparably incident, with a refervation of the office of chamberlain, was held to be void. 2 Salk. 430. 2 Ld. Ray... 1038. Mitton's 5 12. Where an office is incident to another office, fuch incidental office cannot be granted by the crown; even though the principal office is vacant at the time. Mitton § 13. Queen Elizabeth by letters patent granted the office of clerk of the county court of Somersetshire to one Mitton with all fees, &c. and afterwards the queen conftituted Arthur Hopton, efq. fheriff of the fame county, who interrupted Mitton claiming that, which was mentioned to be granted by Mitton to be incident to his office of fheriff; and thereupon he appointed a clerk himself of the county court. complained to the lords of the council who referred the confideration of the validity of the grant of the faid office to the two chief juftices, Wray and Anderson, who held a conference with the other justices and it was refolved by all the justices, nullo contradicente, aut reluctante, that the said letters patent were void in law; because the office of fheriff was an ancient office of great truft, and authority; and that the king could not abridge the sheriff of any thing incident or appurtenant to his office, for the office was entire, and fo ought to continue. That the county court, and the entering all proceedings in it, were incident to the office of fheriff, and therefore could not by letters patent be divided from it. And although the grant was made to Mitton, when the office was vacant, yet it was void. And when the queen appointed a sheriff hẹ fhould avoid it. And fo it was adjudged in Scroggs case, in the beginning of the reign of queen Elizabeth, were queen Mary tempore vacationis, of the office of chief juftice of the common pleas, granted the office of of exigenter of London to Scroggs, and it was held § 14. As to grants of incidental offices by perfons holding fuperior offices, they must in general be by deed duly executed; though Lord Coke fays that a man 1 Inft. 61 b. may be retained as a fteward to keep a court baron, or a court leet, without deed; and it was held by the court of king's bench in a modern case, that an appointment of a clerk of the peace of a county by the cuftos rotulolum, by parol, was good; because it enured as an execution of a power. For whatever is to take effect out of a power or authority, or by way of арpointment, is good without deed; otherwife where it takes effect out of an interest. Saunders v. Owen, 2 Salk. 467. 1 Ld. Ray. 158. 12 Mod. 199. § 15. Lord Coke fays that if a house or land belong 1 Inst. 49 a, to an office, by the grant of the office by deed, the houfe or land paffeth, as belonging thereunto. $ 16. The restraints impofed upon bishops, and other ecclefiaftical perfons, refpecting alienation, have not been held to extend to grants of offices: fo that their rights in this respect still remain as they were at common law; from which it follows that bishops may grant judicial offices for the lives of the grantees, which will bind their fucceffors: Provided fuch grants are made and confirmed in the manner required before the difabling ftatutes were paffed. $ 17. It Biftops, &c, may grant Offices. 1 Inft. 44 4. 10 Rep. 61 a. Id. 62 a. Trelawney v. Ep. Winton, 1 Burr. 219. § 17. It was refolved in the bishop of Salisbury's cafe that if an office is ancient and neceffary, the grant thereof with the ancient fee is not any diminution of the revenue, nor impoverishing of the fucceffor; and therefore for neceffity fuch grants were by construction excepted out of the general restraint of the ftatute 1 Eliz. and if bifhops fhould not have power to grant offices of fervice or neceflity for the life of the grantees, but that their eftate fhould depend upon uncertainties, as upon the death, tranflation, &c. of the bishop, then the most able perfons would not serve them in fuch offices, or at leaft would not discharge their office with any alacrity. § 18. It was alfo refolved that in the cafe of a modern bishopric, a grant of offices of neceffity, with a reasonable fee (the reasonableness of which fhould be decided by the court of justice in which it should depend) should be good. § 19. With refpect to grants of honorary or mini fterial offices by bishops, it has been refolved in a modern cafe, that offices which existed before the stat, 1 Eliz. are not within the restraints of that statute; but that they may be granted as before. And that the utility or neceffity of the office is not more material fince, than it was before the statute. § 20. Sir John Trelawney brought an action of debt against the bishop of Winchester for five years falary of feveral offices, viz. great and chief steward of the bishopric, and of all its caftles, lordships, manors, &c. and conductor of the men and tenants of the bishop, I bishop, with a falary of £100 per annum; and master keeper or preserver of the wild beafts in all the forefts parks chafes and warrens belonging to the bifhop; and chief governor of all birds fish and beasts of warren, &c. (commonly called chief parker) with a falary of £20 per annum. Which offices and falaries were granted to the plaintiff by the late bishop of Winchester, by letters patent, with clause of distress if unpaid. The bishop pleaded the statute 1 Eliz. c. 19. which restrains all bifhops, &c. from making any gifts pr grants of any honors caftles manors lands tene ments or other hereditaments for any greater eftate than twenty-one years or three lives. And also that the offices aforefaid were not ancient offices of the bishopric, nor were ufually granted for life; and that the faid fees were not the ancient fees; and that the faid offices were useless, and merely nominal, and no duty or service to be done for or in respect of them, The jury found a special verdict that the offices of chief fteward and conductor of the men, &c. were ancient offices of the bishop, and had been anciently and usually granted for life, with an annuity, and that the annuity of £100 was the ancient fee. That the fame were granted to the plaintiff by Jonathan late bishop of Winchester, which grant was approved by the dean and chapter, and confirmed by them. They then found the statute 1 Eliz. and that these offices, at the time of making this act, and fince were merely nominal, and no duty attendance or fervice to be done for or in respect of them. And as to the office of master keeper of all the beasts in the parks, or chief parker, they found that it was not an ancient office. I The |