(H) of the Nature of Offices as to their Duration, &c. such places where he is chosen by a corporation, having by its charter the inheritance of the office, does not determine by the demise of the king. 7 Co. 30 b.-Nor the authority of a coroner or verderer. Dalis. 15; Dyer, 165; 2 Inst. 175; Lev. 120.Nor does any corporation officer, who by the charter is invested with judicial authority, lose it by such demise. 2 Hawk. P. Č. 3; and vide the statutes 7 & 8 W. 3, c. 27, and 1 Ann. c. 1, for continuing all patent officers for six months after such demise, tit. Courts, letter (C).—[And by stat. 1 G. 3, c. 23, the offices of the judges do not become vacant on the demise of the crown.] It hath been adjudged in Sir George Reynold's case, that the office of the King's Bench prison (a) could not be granted for years, for that being an office of great trust concerning the administration of justice, in keeping of prisoners till they pay their debts, if it should be granted for years, might be injurious to the public, in that it would go to the executors or administrators, or might be in suspense till probate of the will or administration taken out; and if the officer should die indebted, so that none would prove his will, or take out administration, then there would be no officer at all, and executors or administrators would be in by act of law, without allowance of the court. Also, it might be a question, if such office should not be forfeited by outlawry, or be assets in the executor's hands; and many other inconveniences would follow if such grant for years were allowed. For the same reasons it was held likewise, that the offices of custos brevium, chirographer, clerk of the pipe of the king's silver, or of the crown, remembrancer, or chamberlain of the Exchequer, prothonotaries, and other officers in the several courts of justice, could not be granted for years. 9 Co. 27; Roll. Abr. 847; 2 Roll. Abr. 153; Cro. Car. 587; Johns. 563; Hob. 153; 3 Mod. 145. (a) The power of appointing the Marshal of the King's Bench prison, revested in the crown, by 27 G. 2, c. 17, which vide. But such offices as do not concern the administration of justice, but only require skill and diligence, may be granted for years, because they may be executed by deputy, without any inconvenience to the public; therefore, where a grant for years was made of the office of garbler of spices in London, it was adjudged to be a good grant, or at least a good appointment for years, within the intent of the statute of 1 Jac. 1, c. 19. Hard. 46, 353, Jones v. Clerk. The office of registrar of policies of assurance in London, concerning merchants, was granted by the king for years, and adjudged to be a good grant, because it did not concern the administration of justice in any court, but required only the skill of writing after a copy. So, the office of making and sealing subpoenas was granted for years, and allowed to be good; and there, several precedents are cited of offices granted for years; as, first, offices in which the safety of the realm was concerned; as, the office of warden of a haven or port by H. 6; of gunpowder, 1 Car. 1, of making gunpowder by Car. 2. Also, offices concerning the trade of the realm have been granted for years; as, 1 H. 7, of the exchange money; 18 H. 8, of gauger; 17 R. 2, of aulnager though a seal belongs to it, with which the officer is intrusted; of the letter-office, 13 Car. 1. Also, offices in courts of justice have been granted for years; as, the office of surveyor of the green-wax; of the 6d. writs in Chancery and subpoenas; of comptroller and customer, and making out process in C. B. All these and several others have been granted for years; but no dispute having been made of the validity of them, how far some of them would hold at this day may be a question. Hard. 351, &c.; Hob. 146; Dyer, 303; 3 Keb. 80; 1 Vern. 11, 12. But, where one made a grant for years of the stewardship of a court-leet (H) Of the Nature of Offices as to their Duration, &c. and court-baron, this was held void as to the court-leet, being a judicial office, but good as to the court-baron, being only ministerial, and the suitors judges thereof: but the grant appearing afterwards to be for years, determinable on the death of the lessee, it was held good for both; because there was no danger of its coming to executors or administrators. 2 Lev. 245; 2 Jon. 126; 6 Mod. 57. The king may grant the office of sheriff* (a) durante bene placito; and although he may determine the office at his pleasure, yet he cannot determine it for part, as for a vill, &c., nor can he abridge the sheriff of any thing incident or appurtenant to his office. 4 Co. 33 a. (a) Where a sheriff may grant to his under-sheriff to hold at will only, for he is his deputy, and according to the nature of a deputation must be removable, as an attorney is. Hob. 13; Noy, 55.-* See the stat. 24 G. 2, c. 48. The king may grant the office of chirographer of the Common Pleas quamdiu nobis placuerit, and it is good. Dyer, 176, pl. 28. The office of the king's Marshalsea (b) may be granted at will. 9 Co. 97; 3 Mod. 149. (b) See 24 G. 2, c. 17. If the king grants an office at will, and grants a rent to the patentee for his life, for the exercise of his office, this is no absolute estate for life; because the rent being granted on account of the office, and in discharge of the duty of the place, whenever his interest in the office ceases, the rent is determined; because it was first granted for the exercise of the office, which he is no further concerned in. Co. Lit. 42 a. A (c) judicial office cannot be granted in reversion; for though the grantee be never so fit at the time of the grant, he may become unfit when it takes effect. Co. Lit. 3 b. (c) So, an office partly ministerial and partly judicial, cannot be granted in reversion; as the office of Auditor of the Court of Wards. 11 Co. 4; 2 Roll. Abr. 152. The king may grant an estate in an office to commence in futuro, or upon a contingency, which estate shall arise out of the inheritance he hath in the office itself, for such he may have in point of interest, though not in execution. But for the difference between the king's grant of an office in reversion, and such a grant in reversion by a subject, see Dyer, 80, pl. 58, 259, pl. 18; 3 Leon. 31; Hob. 150; 2 Roll. Abr. 154; Cro. Car. 279; 11 Co. 4; 8 Co. 55 b; Carth. 350; 2 Salk. 465, pl. 2; 4 Mod. 275. It hath been adjudged, that the office of registrar being usually granted as well in reversion as possession, a grant to one of such office for life, when by the death or surrender of the present officer it shall become void, is good; for though there is no reversion of an office, unless it be an office of inheritance, yet it may well be granted in reversion, habend. after the death of the present officer; which is no more than a provision of a person to supply it when it becomes void; and if such provision has been usually made, the custom and usage (d) gives sanction to it. Cro. Car. 279, 555; Jon. 310; 2 Roll. Abr. 153; March, 38; 3 Leon. 31. (d) But unless there have been such usage, it is not grantable in reversion. 2 Vent. 188. By the statutes 22 Geo. 3, c. 75, and 54 Geo. 3, c. 61, (the former of which recites, that the practice of granting offices in the colonies and plan (T) Offices, by whom to be executed, and who are incapable thereof. tations to persons resident in Great Britain had been long complained of as a grievance to his majesty's subjects in those parts,) it is enacted, that no office in any colony or plantation, or foreign possession belonging to the crown of Great Britain, shall be granted for any longer term than during such time as the grantee thereof shall reside in such colony, &c., and execute such office in person and behave well therein. And by sect. 2, it is enacted, that in cases where the governor and council of any colony shall grant leave of absence to any person holding an office, the governor shall, within one week, report the same to one of his majesty's secretaries of state for confirmation; and if such leave is not confirmed within one month from the date of the report being received by the secretary of state, the officer shall return forthwith to the colony, or shall be deemed to have vacated his office. Sect. 3 imposes a penalty not exceeding 100l. on any governor neglecting to make such report; and Sect. 4 enacts, that returns shall be laid on the table of the House of Commons, every session, of all officers in the colonies who are not present in the execution of their duties. A temporary removal of a justice of the peace from his county, with intent to return in four months, does not vacate his office. Lyon v. The Commonwealth, 3 Bibb. 430. Offices held at the pleasure of the collector of the revenue cease with his death, removal, or resignation, unless otherwise provided by law. United States v. Wood, 2 Gallis. 362. When a person holds an office during good behaviour, with a fixed salary, and certain fees annexed thereto, the tenure cannot be altered without impairing the obligation of a contract. Allen v. M'Keen, 1 Sumn. 277. The president of the United States may, by a proper act of office, remove an officer, when he has the power to remove him, without appointing another; such removal may be express or implied. Bowerbank v. Morris, Wallace's C. C. R. 118. An officer elected "for the year ensuing," in the absence of any restrictive provision, may continue to hold and exercise his office, after the expiration of the year, until he is superseded by the election of another person in his place. M'Call v. The Byram Manufacturing Company, 6 Conn. 428; Spencer v. Champion, 9 Conn. 436; Bethany v. Spencer, 10 Conn. 200. (I) Offices, by whom to be executed, and who are incapable thereof. IF an office, either of the grant of the king or subject, which concerns the administration, proceeding, or execution of justice, or the king's revenue, or the commonwealth, or the interest, benefit, or safety of the subject, or the like; if these or any of them be granted to a man that is unexpert, and hath no skill and science to exercise or execute the same, the grant is merely void, and the party disabled by law, and incapable to take the same. pro commodo regis et populi; for only men of skill, knowledge, and ability to exercise the same, are capable to serve the king and his people. An (a) infant therefore is not capable of an office of stewardship of the court of a manor, either in possession or reversion. Co. Lit. 3 b. (a) That an infant cannot be a steward, for he cannot by intendment (I) Offices, by whom to be executed, and who are incapable thereof. execute it; much less may he assign it over. Cro. Eliz. 636, 637, per Popham.-But a ministerial office may be granted to an infant, in possession or reversion, for he may exercise it by a deputy. 11 Co. 4 a.-As, where the office of registrar to the Bishop of Rochester was granted to J S, who was an infant of twelve years of age at the time of the grant, habend. after the death of J D, (who was the registrar in possession,) for his life, to be exercised by him or his deputy, and afterwards J D died, J S being of the age of thirty; this was held a good grant at the time of making of it, the office being to be exercised by him or his deputy. Cro. Car. 279; 2 Roll. Abr. 153; Young v. Stowel, Cro. Car. 355, 356; March, 38, S. P. adjudged; 4 Mod. 279; 2 Vent. 188; Pollexf. 136, S. P. cited, and adjudged to be law. Lord Broke gave the office of chief prothonotary to G, but he appearing unfit, he revoked it and granted it to W, and a precedent was shown, where the office of clerk of the crown was granted by the king to one Vintner, who exhibited his patent, and desired to be admitted; and the justices of the King's Bench refused to admit him, (a) because he never had exercised that office, nor ever was brought up in it; and recommended a fit person, whom the king ore tenus commanded to be admitted, and was sworn. Dyer, 150 b; Cro. Car. 567, S. C. cited; 2 And. 118, S. P. (a) If an office of learning be given to a man utterly insufficient, it is void; and though it be to him and his assigns, or to be exercised by a sufficient deputy, it mends not the case, but it must radically vest in the first grantee, before it can go in procuration or deputation to any other. Hob. 148.-If the king should grant an office in B. R., the judges may remove such an officer for insufficiency, because they are proper persons to judge of his abilities. 4 Mod. 30. The Bishop of Gloucester granted the office of chancellor of his diocese to one S, who, because he was unskilful in the civil and canon law, was adjudged incapable. Car. 95; Latch. 228; Noy, 91; Palm. 450; and in 4 Mod. 27, S. P. was argued, where the grant was to him or his deputy; in which case it was insisted, that insufficiency did not create an original incapacity so as to avoid the grant; because that he might appoint a deputy learned in those laws, and that if he appointed one who was unskilful, it would be a forfeiture of the office. If the king, by his letters patent, grants the office of custody of the castle of Dunnington to a woman, to be exercised by her, or her sufficient deputy, the grant is good, and it shall not be intended a castle of war rather than a private house. Cro. Ja. 17, Lady Russell's case. By the 3 Jac. 1, c. 5, it is enacted, "that no (b) popish recusant convict shall exercise any public office or charge in the commonwealth, but shall be utterly disabled to exercise the same by himself or his deputy. (b) How far dissenters from the church are rendered incapable or excused from serving any public office, vide 2 Mod. 299; 2 Vent. 247; 2 Lev. 151, 184, 242; 2 Jon. 81, 137; 4 Mod. 269; Salk. 167, pl. 1; Skin. 574; Carth. 306; 5 Mod. 431; Comb. 315; 10 Mod. 101, 179; 11 Mod. 132, pl. 11; 12 Mod. 67; 2 Stra. 1193; Ld. Raym. 29, et supra (E); and see the provisions of 9 G. 4, c. 17, and ante, p. 293; and for the recent act for the relief of Roman Catholics, see post, tit. Papists, &c. ||By 22 Geo. 2, c. 46, § 14, it is enacted, that no clerk of the peace or his deputy, nor any under-sheriff or his deputy, shall act as solicitor, attorney or agent, to sue out any process at any general or quarter sessions of the peace to be held for such county, riding, &c., where he shall execute the office of clerk of the peace, &c.; but if any clerk of the peace or his deputy, or under-sheriff or his deputy, shall presume to act as solicitor, attorney, or agent as aforesaid, such clerk of the peace &c., shall be subject to a penalty of 501. See Hughes v. Statham, 4 Barn. & C. 187; 6 Dow. & Ry. 219.|| (K) of the Manner of executing them: And herein of Offices that are incompatible, and where an Office may be executed by two or more Persons. 81. Of the Manner of executing Offices. SWORN officers are presumed to do their official duty correctly,(a) and every reasonable intendment must be made in favour of the acts of public officers; (b) therefore, what the officers of the state have done, the law presumes in point of regularity to be correct. (c) (a) Henderson's lessee v. Robertson, Cooke, 210; Blount v. Ramsay, Cooke, 489; Rogers v. Jennings' lessee, 3 Yerg. 308; 1 Tenn. R. 348; 2 Tenn. R. 421. (b) Cooke, 489. (c) Polk's lessee v. Wendell, 2 Tenn. 154; Williamson's heirs v. Buchannon, 2 Tenn. 284; Downing v. Rugar, 21 Wend. 178. When officers of justice stand justified in law for their acts, it is not competent to inquire into the motive which induced them to act Taylor v. Alexander, 6 Ohio, 146. When process is delivered to an officer, he acts at his peril; he is required to act in conformity to the exigency of the writ, and if he proceed to execute it, he is obliged to complete its execution. He is justified if the magistrate or court issuing it had jurisdiction. Lattin v. Smith, 1 Breese, 285. See 6 Ohio, 146; Hinman v. Border, 10 Wend. 367. Public officers must exercise their duty with fidelity, or they will, in general, be responsible to the party grieved. Work v. Hoofnagle, 1 Yeates, 506. If a person having in his store the goods of a third person, refuses to permit an officer to enter the store for the purpose of attaching the goods on a writ in favour of a creditor of the owner of the goods, the officer is justified in breaking open the door for that purpose. Platt v. Brown, 16 Pick. 553. 2. Of incompatible Offices. Offices are said to be incompatible and inconsistent, so as to be executed by the same person, when from the multiplicity of business in them they cannot be executed with care and ability: or when their being subordinate and interfering with each other, it induces a presumption they cannot be executed with impartiality and honesty. And this my Lord Coke says is of that importance, that if all offices, civil, ecclesiastical, &c., were only executed each by a different person, it would be for the good of the commonwealth, advancement of justice, and preferment of deserving men. 4 Inst. 100. There are offices which are incompatible with each other by constitutional provision; the Vice-President of the United States cannot act as such when filling the office of President; Const. art. 1, s. 3, n. 5; and by the same instrument, art. 1, s. 6, n. 2, it is directed that "no senator or representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States, which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either house, during his continuance in office." Provisions rendering offices incompatible are to be found in most of the constitutions of the states and in some of their laws. In Pennsylvania, the acts of the 12th of February, 1802, 3 Smith's Laws of Pa. 485; and 6th of March, 1812, 5 Sm. L. Pa. 309, contain various provisions making certain offices incompatible with each other. And hence it is, that the king himself, though he may grant an office, yet cannot execute it himself; (d) nor can the Chief Justice of B. R. be prothonotary or clerk of the papers, though he may dispose of those places. Inst. 100. (d) Sid. 305; Commonwealth v. Douglass, 1 Binn. 77, acc. 2 D |