it the assignment of the presentation; and, my Lords, the Court of Common Pleas were of opinion that it did, and so they certified to the Court of Chancery. I observe in the proceedings in this case in the court below, the Court seems not to have been fully informed by the counsel at the bar; and I may take the liberty of saying so, because I see two Judges of that Court who now concur in the opinion that this was a good conveyance, and who then thought it was not a good one. The Court, my Lords, seem to me to have been not specifically informed as to what was the fact. We have heard it stated at the bar, that an injunction had been granted by the Lord Chancellor against the proceedings in the quare impedit; and that, after that opinion of the Court of Common Pleas was communicated to his Lordship, he did not continue the injunction. Now, my Lords, that circumstance is really of no weight. It was quite unnecessary *24] to continue the injunction, because the moment it was intimated that in *the opinion of the Court of Common Law, the contract was a good contract to be carried into execution, it was not necessary to take the trouble of asking for the injunction being continued, for the conveyance was immediately executed which carried the contract into execution; and that conveyance having been executed, it would be a good conveyance of the presentation, as well as of the advowson. The conveyance being a good conveyance of the presentation, being declared by the Court of Chancery to be a good equitable conveyance of the presentation, and the Lord Chancellor proceeding on the opinion of the Court of Common Pleas, there was an end of all question. Now, my Lords, regarding the effect of this decision on human transactions, seeing that in all proba bility many transactions have taken place upon the footing of it, it does appear to me, I confess, very undesirable that that decision should be shaken by the courts of law. I confess I had much rather see an act of parliament than see a further extension of that doctrine of which we have heard in the argument at the bar; and I am very happy to take the opportunity of stating to your Lordships that I most fully concur in the opinion which has been expressed by the learned Judges.

The LORD CHANCELLOR. Is it your Lordships' pleasure this judgment be reversed? Judgment reversed.

*25]

*IN THE HOUSE OF LORDS.

HARDING v. POLLOCK and Another.

The appointment to the office of clerk of the peace is in the custos rotulorum of each county, and King's county, in Ireland, is not an exception. Bayley, J., diss.

THIS was a writ of error from the judgment of the Court of Exchequer Chamber in Ireland, affirming the judgment of the Court of Common Pleas in Ireland in this cause.

Henry Harding (the plaintiff in error) claimed the office of clerk of the peace for the King's County, and had been several years in possession of it, under an appointment by the Custos Rotulorum of the county: John Pollock and Arthur Hill Cornwallis Pollock (the defendants in error) claimed the same office under letters patent from the crown; and the action, which was for money had and received to their use, was brought by them in the Court of Common Pleas in Ireland, to ascertain whether the right to make such appointment for that county was in the crown, or in the custos rotulorum.

The defendant below pleaded two pleas, first, the general issue; and, secondly, the statute of limitations, in both of which issue was joined; but as the plaintiffs below, desiring merely to establish their right, sought only nominal damages, no question arose on the second plea, the object of which merely was to cover the profits received more than six years before the commencement of the action. The case was tried before Lord Norbury, the Chief Justice of the Court, at the

[*26

sittings after Michaelmas term 1819, the venue being laid in the county of the city of Dublin. At that trial a special verdict was found, stating in substance as follows:-"That his late Majesty, King George the Third, by *letters patent under the great seal of Ireland, dated 30th July 1798, granted to the said John Pollock and Arthur Hill Cornwallis Pollock (the defendants in error) the office of clerk of the peace within and throughout the province of Leinster, in Ireland, and within every county thereof, except Kilkenny, to hold for their lives, and the life of the survivor of them; which letters patent were duly enrolled in the Rolls office, on the 4th of August 1798, and were duly accepted by the said John Pollock and Arthur Hill Cornwallis Pollock, and that they are fit and proper persons to hold the said office; and that, by virtue of said patent, they duly obtained possession of said office in the King's County, and exercised the duties thereof by them, and their sufficient deputies, until the year 1800.— That the King's County is in the province of Leinster, and is one of the counties thereof; and that by an act of parliament in Ireland, of the third and fourth of Philip and Mary, and in the year of our Lord 1556, it was enacted, that the king and queen, and her successors, should be entitled to the counties of Leix, Slievemarge, Irry, Glinmaliry, and Offally, and that for making them shire grounds, a certain portion of the said counties should from thenceforth be a shire or county, by the name of the King's County, and that the residue should be a county by the name of the Queen's County.-That from the said year 1556 (at which time it appears by said act of parliament the lands comprised within the said King's County were first made a shire by the name of the King's County) the kings and queens of Ireland have nominated and appointed, and been used and accustomed to nominate and appoint, fit persons to fill the said office of elerk of the peace for the King's County to the said year 1798; and that the custodes rotulorum of the said county have appointed persons to fill said office in the said county, from the year 1760 to the present time, who have held *and enjoyed the said office accordingly, and received the emoluments thereof, with the exception of Hugh and Andrew Carmichael appointed by the crown, and of one James Cowly, the deputy of the said John Pollock, who were severally in possession under the crown. The special verdict then stated, letters patent of his late Majesty, bearing date October 30th, 1766, and duly enrolled, by which the Earl of Drogheda was appointed custos rotulorum of said county during his Majesty's pleasure; and then set out a writing, under hand and seal, whereby the said Lord Drogheda, in 1772, appointed Edward Moore Dowden, clerk of the peace, and deputy custos rotulorum of the said county, during the pleasure of said Earl. It found, that said Dowden took upon himself the execution of the duties of the said office, and executed the duties, and received the emoluments thereof, until his death in 1789. And then set out an appointment of the said Henry Harding (the plaintiff in error) in said year to said office, by said Lord Drogheda, under hand and seal, during good behaviour. It then found that said Harding was and is a proper person to hold the said office, and did all things necessary to qualify him to hold the said office, and to make him a complete clerk of the peace, and was admitted to the said office, and took on him the duties thereof, and has continued from thence to the present time to execute the duties, and receive the emoluments thereof, without interruption by any person, and conducted himself properly therein; that said Lord Drogheda is still (at the time of finding said verdict) custos rotulorum of said county. And that within the last six years the defendant received fees and emoluments of the said office to the amount of one shilling."

[*27

On this special verdict, the Court of Common Pleas in Ireland, in Trinity term 1821, after a full argument, gave judgment unanimously in favour of the said John Pollock and Arthur Hill Cornwallis Pollock, the plaintiffs in said action.

[*28

From this judgment, Henry Harding, the defendant in said action, brought a writ of error, returnable into the Court of Exchequer Chamber in Ireland, where he has assigned the general error only.

The case was fully argued in that Court, which, in June 1823, affirmed the said judgment of the Court of Common Pleas, two of the Judges dissenting; whereupon the original defendant brought his writ of error returnable into parliament, where he again assigned the general error.

The case was argued in parliament by Campbell for the plaintiff in error, and the Solicitor-General for the defendants in error.

For the plaintiff in error it was submitted, that the judgment of the Court of Exchequer Chamber ought to be reversed in toto, and judgment given for the plaintiff in error.

First, because it did not appear that the defendants in error were ever admitted to the office in question: secondly, because by the law of the land the custos rotulorum had the right to appoint to the office of clerk of the peace and thirdly, because by the usage, as appearing on the special verdict, the plaintiff in error had obtained a legal right to retain the office under the appointment of the custos rotulorum.

It was further submitted, that this special verdict was so imperfect that no judgment for the defendants in error could be given upon it; but, that, in case judgment should not be given for the plaintiffs in error, a venire de novo must be awarded, first, because the question of the admission of the defendants in *29] error was doubtful; and, secondly, because there was sufficient *evidence of usage to entitle the plaintiff in error to a verdict, or which ought to have been left to a jury to determine.

For the defendants in error it was contended, that the county in question in this case having been made a county and brought within the pale of British law so late as the year 1556, prescription could not exist as to any of its offices or establishments; and that in the absence of prescription the appointment of all officers judicial, ministerial, or executive, concerned in the administration of public justice, belonged to the crown of common right, and was part of the prerogative.

Upon this argument the following questions were proposed for the opinions of the judges:

First, Whether the appointment to the office of the clerk of the peace within the shires of England did, by law, previously to the passing of the act of 37 Hen. 8, c. 1, belong of right to the crown or to the custos rotulorum of the shire by virtue of his said office, or to any and what other person or persons?

Secondly, Whether the appointment to the office of the clerk of the peace within the shires of Ireland, did, by law, in and previously to the year 1800, belong of right to the crown or to the custos rotulorum of the said shire by virtue of his said office, or to any and what other person or persons?

Thirdly, Whether the right to appoint to the office of the clerk of the peace within the King's County in Ireland, did, by law, in and previously to the year 1800, belong to the crown or to the custos rotulorum of the said shire by his said office, or to any and what other person or persons?

The authorities on either side are so fully considered in the opinions of four of the learned judges, that it has been deemed improper to print the argument of

counsel.

*30]

*BAYLEY, J. My lords, I regret extremely that I cannot bring myself to concur in the opinion the other judges have formed in this case. The first question proposed by your lordships to our consideration is this, Whether the appointment to the office of clerk of the peace within the shires of England did, by law, previously to the passing of the act of 37 H. 8, c. 1, belong to the crown or to the custos rotulorum of the shire by virtue of his said office, or to any, and what other person or persons? I consider it to have belonged to the crown if the crown reserved it to itself: that it belonged to any other person or persons (at least if named in the commissions of the peace) upon whom the crown chose to confer it, if the crown thought fit to give it away: or that if the crown did not think fit to reserve or confer it, it belonged of right to the justices at large in quarter sessions assembled. Your lordships' question appears to me

to propose, as a mere point of law, to whom by law the right belonged, and my answer is framed upon that view of the question. I do not say, therefore, that the crown did not in fact confer this right upon the custos rotulorum; all I say is, that, unless it did so confer it, the custos has it not.

The courts of sessions of the peace originated, I apprehend, in the reign of Ed, 3, and were founded upon commissions issued in pursuance either of 18 Ed. 3, s. 2, c. 1, or of 34 Ed. 3, c. 1. The former of those statutes provides that two or three of the best reputation in the counties shall be assigned keepers of the peace by the king's commission; and, at what time need shall be, the same, with other wise and learned in the law, shall be assigned by the king's commission to hear and determine felonies and trespasses done against the peace in the same counties. The 34 Ed. 3, c. 1, directs, that in every county in England shall be assigned for *keeping of the peace, one lord (un seigneur), and with him three or four of the most worthy in the county, with some learned in the law, [*31

with power to hear and determine, at the king's suit, all manner of trespasses done in the same county. Both these statutes are silent as to the offices and the constitution of the court; then, as it seems to me, a question of law arises, What could legally be done? and, secondly, a question of fact, What was done? Where the crown erects a court of justice of its own authority, it may, I apprehend, fix and nominate what officers it shall have, and how their successors shall be appointed; and, I take it, it has the same power where it creates a court of justice under the direction of parliament, unless there be something in the act of parliament from which a contrary intention in the legislature may be collected the legal presumption appears to me to be that the legislature will break in as little as possible with the prerogative of the crown, and that what it does not by express words or by necessary implication, take away, it leaves in the crown. Upon the establishment of this court, therefore, the crown might, if it thought fit, appoint one of the justices to be custos rotulorum, or it might omit it; it might name a clerk of the peace, or reserve to itself the future right of nominating the successors; or it might omit to name him, and be silent as to the office; and then the sessions would have had the right, as incident to their being a court, to decide upon having such an office: and the right to appoint him would be either in the sessions, if the crown made no other provision as to the appointment of officers, or in such other person or persons on whom the crown had conferred the right. And whatever the crown might do in the first instance, would either be variable upon future occasions or not: in the former case the crown might resume to itself the right when it thought fit; in the latter, the nomination *and appointment could not have belonged to the custos rotulorum, unless he had [*32 been appointed ab initio.

Lambard, in his Eirenarchia, intimates that there was extant in his time one of the commissions granted in the 35 Ed. 3; and if we could discover the commissions granted at that time, and could be satisfied the commissions for the different counties were uniform and all of the same tenor, they might throw great light upon the question as a question of fact, though they could not be admitted in argument upon the question of law. Suppose those commissions to have been silent as to the custos, and to have reserved to the crown the right of appointing a clerk to the justices; can there be a doubt but that such right would have been well reserved? Suppose the commissions to have nominated a custos, and to have given him the power pro hâc vice to have nominated the clerk of the peace, would not that have been a valid gift? and would it have been valid for more than that term? Would it not equally have been valid had the nomination been given to the justices at large, though it had appointed one in particular to be custos rotulorum? Suppose it to have nominated no custos, and to have been silent as to the clerk of the peace, would not the justices in sessions, that is the court, have had the power to nominate such clerk? Such power, according to Rolle's Abr. 526, is incident to every court. Suppose the commissions for different counties to have varied, or suppose them to have varied at different times, what would then have been the case? That they did vary a

to the county palatine of Lancaster, is clear from the exception in 1 W. & M. s. 1, c. 21, and from the modern practice; and that they varied as to other places, may be collected from the exception in 37 Hen. 8, c. 1, s. 5. In Durham, at present, the bishop is his own custos: the provisions in 37 Hen. 8, and also in

3 & 4 Edw. 6, c. 1, s. 5, show he may make *another person so; but he

*33] appoints the clerk of the peace for the county without noticing his own

character as custos rotulorum, and his grant of the office is confirmed by the Dean and Chapter of Durham. In Lancashire, Lord Derby is appointed custos rotulorum by the king under the seals of the duchy and county palatine of Lancaster, and Lord Clarendon is appointed clerk of the peace under the same seals; and, so far from any expression that he is to be deputy to the custos rotulorum, the custos rotulorum is distinctly enjoined to permit him to exercise his office without impediment, hindrance, molestation, interruption, or denial. And let me press upon your Lordships' consideration, the argument which arises from the practice in Lancashire and other privileged places. The statute 34 Ed. 3, applies to every county of England, Lancaster therefore is included, and what is the case in the other counties in England must be the case there. If the custos had ex officio, as matter of law, the right in every other county in England, before 37 Hen. 8, he must have had it there. If the king were precluded from nominating in ordinary counties, he must have been precluded there if it would have been illegal elsewhere, it would have been equally so there. According to 4 Inst. 204, it was not till 50 Ed. 3, that he erected the county of Lancaster into a county palatine in parliament; the practice, therefore, even if it be confined to Lancashire alone, seems to establish the point that this is a question of fact, not matter of law. And what would your Lordships say, if the early commissions passed immediately after 34 Ed. 3 were before your eyes, and you were to find that many of them sanctioned the same practice as has prevailed in Lancashire would this have no influence upon your judgment? Would it not, on the contrary, be the foundation on which you would act?

*34] My Lords, the argument that we are at liberty to decide as matter of law, upon the right of the custos rotulorum to nominate, is founded on the recital in 37 Hen. 8, c. 1, on Lord Coke's Comment on the Statute of Westminster, 2, 2 Inst. 425; and on the opinion of Lord Chief Justice Holt in Harcourt v. Fox, 1 Show. 426, 506, 516; 4 Mod. 167; 12 Mod. 42; Show. Parl. Cas. 158. The recital in 37 Hen. 8, is, "that where before this time the Lord Chancellor hath, by reason of his office, the nomination and appointment of the custos rotulorum, and in like manner the custos rotulorum hath had until now of late the nomination and appointment of the clerk of the peace within the shire where he was custos rotulorum, and where now of late sundry persons not learned, nor meet, nor able for lack of knowledge to occupy the said offices of custos rotulorum and clerk of the peace, have gotten grants by the king's letters patent of the clerkship of the peace;" and it thereupon enacts that every custos shall nominate the clerk of the peace within his shire, and the custos and clerk of the peace shall execute the said offices by themselves and able deputy. This recital that the custos till of late hath had the nomination, may, as it seems to me, refer to the practice as matter of fact, without referring to the right as matter of law the recital does not state, that of right he hath had, but states the fact only, that he has had; and the statute does not declare and enact, but enacts only; and it does not from beginning to end insinuate that the patents of the clerks of the peace were illegal or the grants void. On the contrary, it confirms the persons then in office in their respective offices; and if it were referring to the right as matter of law, it would, as it seems to me, go too far and mistake the right, as the right, unless there were something to show the contrary, would *35] be in the sessions, not in the custos. I admit Lord Holt's *opinion in Harcourt v. Fox is very strong, that the right of nominating the clerk of the peace belongs to the custos rotulorum of common right, by the common law of the land but that was not the point in judgment; it was incidental only to the case under consideration; none of the other Judges concur with him; aud VOL XIX.-4

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