Owen v Saunders
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1792 |
| Date | 01 January 1792 |
| Court | High Court |
English Reports Citation: 91 E.R. 1002
COURTS OF KING'S BENCH AND COMMON PLEAS
[158] owen vers. saunders. The death of the custos rotulorum doth not vacate the clerkship of the peace. See 4 Mod. 167. Assise de libero tenemento in Kent. The plaintiff made plaint for the office of clerk of the peace, whereof he was seised, until the defendant disseised him. Th& defendant pleads in person, that the plaintiff was never seised of an estate whereof he could be disseised, and if he was, then uul tort nul disseisin. The reeognitors of the assize find a special verdict; they find the statute 1 Will. & Mar. sess. 1, cap. 21, s. 5, which enacts, that the custos rotulorum of the county shall nominate and appoint a fit person to be clerk of the peace quamdiu se bene gesserit, who by himself or his sufficient deputy should execute the said office, which Act appoints an oath to he taken by him before he enter upon his office, that he hath not given, &e. any thing for the said office; they find that the Earl of Winchelsea was custos rotulorum of the county of Kent in 1689, 1 Will. & Mar. and that he then by writing under his hand and seal nominated and appointed the plaintiff Owen to be clerk of the peace durante bene placito; that this was brought into the sessions of the justices of peace, and that upon. 1LD.SAYB.U9. HIL. TERM, 8 AND 9 WILL. 3 1003 the reading thereof a dispute arose concerning the validity of it, and upon which the Earl of Winchelaea at the next General Sessions held 25 June, 1690, came into the Court, and without auy reference to the writing said in the hearing of all present, I do nominate and appoint the said Philip Owen (viz. the plaintiff) to be clerk of the peace according to the Act of Parliament, that Mr. Owen was admitted, and took the oath according to the Act, and executed the aaid office until September following; that the Lord Winchelsea died, and the Lord Sidney (now Earl of Komney) was made custos rotulorura of the county of Kent; and that he nominated and appointed the defendant Saunders to be clerk of the peace by deed, quamdiu se bene geaserit; that he was qualified, and was admitted ; that the defendant disturbed the plaintiff Owen in the execution of the said office, &c. This case was several times argued at the Bar by Serjeant Darnall and Serjeant Birch, &c. for the plaintiff, and by Gould and Wright King's Serjeants for the defendant; and now this term it was solemnly argued on the Bench. And Powell Justice for the defendant said, that he would consider four things. 1. The nature of this office. 2. If an office be grantable by parol. 3. If this grant durante bene placito be good. And, [159] 4. If the nomination of Owen by the Earl of Winchelsea was good by parol. 1. And as to the first point he said, that it had been objected, that this clerk of the peace was originally but a deputy to the custos rotulorum, and therefore not properly an officer. But he was of opinion, that he is, and was originally an officer, and not merely a deputy to the custos rotulorum. The statute 12 Ric. 2, cap. 10, appoints wages for him, and there he is called the clerk of the justices of peace; and he ia in nature of an Attorney General to the King. In 2 Hen. 7, 2, he is called the clerk of the peace. And though it was objected, that the Statute of 1 Will. & Mar. enacts, that the custos rotulorum shall appoint the clerk of the peace with power to make a deputy; yet that (he said) was needless, for the clerk of the peace might make a deputy by the 37 Hen. 8, cap. 1, s. 3, and he does not derive his power from the custos rotulorum, but from the Act. So that it seemed very clear to him that it is an office. 2. As to the second point he said, that the 21 Hen. 7, 37, is an express- authority, that an office cannot be granted without deed, especially if it be an office for life. A steward of a Court for life is not retainable without d'eed, but a steward may be retained for years by parol; but such a one is not properly a steward, for he cannot take surrenders out of Court, but he may hold a Court, or take surrenders in Court. 1 Leon. 227. Godb. 142. Dier 248 a. pi. 79. Objection. The King by parol nominated West to be Clerk of the Crown. 2 Anders. 119. Dyer 150 b. pi. 1. Answer. The question there was, whether the person was capable, and not whether the King could grant without deed. And it is probable, that the party obtained letters patent afterwards. But if the case there be looked upon as an authority, that the King can grant an office for life by parol, it is an extraordinary case ; for that the King cannot grant an office without deed is very manifest. And the admission there cannot make the party an officer, for that is only to admit him to the exercise of it; so that it must be supposed, that he had letters patent, or otherwise the case there cannot be law. 3. As to the third point he said, that...
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