office operates as an avoidance of the first. A coroner, becoming sheriff, vacates the former office. In Com. Dig., tit. Officer, K. 5, it is said that a man shall lose his office if he accept another office incompatible, and the first instance put is of an office not in a corporation: "as, if the one office be under the control of the other, as, if the remembrancer of the exchequer be made a baron of the exchequer." Under the same title, B. 6, it is laid down generally, that the grant of an office to one who has another office incompatible is not good; for the first office will thereby be void; as "if a forester by patent for life be made justice in eyre of the same forest pro hac vice, the office of forester will be void, for it is incompatible; being subject to correction by the justices in eyre;" or "if the steward, warder, or justice or the forest be made justice in eyre," and 4 Inst. 310, is cited; or, "if a justice of C. B. be made a justice of B. R. ;" and for this latter position the cases of justices Dyer and Croke are cited. (See also Vin. Abr. Officer and Offices (R.) and the instance there cited.) In the first of these, (Easter, 4 & 5 P. & M.) Dyer himself, *a justice of the Common Pleas, having been appointed a justice of the 13*] King's Bench, it was held that the letters-patent creating him a justice of K. B. vacated his former patent, (Dyer, 158, b.,) upon this, among other grounds, that a writ of error lay from C. B. to B. R., and, therefore, that a man might have to reverse his own judgment; and in Michaelmas 4 Car. 1, Cro. Car. 127, 128, Croke, a justice of the Common Pleas, being made a justice of the King's Bench, it was held by all the justices assembled at the Lord Keeper's house, that the office of justice of the Common Pleas became void on signing the patent of promotion, and that no patent of revocation was necessary. And in Dyer 159, a, it is said that Saunders, then Chief Justice of England, who was a justice of C. B. before, never surrendered his former patent, and that it was only determined by operation of law. Yet, even as to judicial offices, two may be held by the same person, if they are not incompatible. Thus Knivet was Chancellor and Chief Justice at the same time, in the reign of Edward III., 5 Rep. 8. a. So where Lord Hardwicke, Cas. temp. Hardw. 364, and Lord Loughborough, and Noel was Chief Justice of Chester as well as a judge of Westminster Hall, Dyer, 158, b. note 35, ed. 1794. So Sir Edward Littleton was Lord Keeper and Chief Justice of C. B. at the same time, Cro. Car. 600, and Sir Orlando Bridgman being Chief Justice of C. B. was made Lord Keeper, and still continued Chief Justice. 1 Sid. 338. These authorities abundantly shew that, as to offices not corporate, the acceptance of a second incompatible with the first, avoids it; and Sir Charles Howard's case, (Sir W. *14] Jones, 295), is a strong authority to the same effect. There "the Attorney-general desired that, for a general reason, his offices of keeper and bailiff of several walks, and of the game there, and of riding forester, might be seized, because all those were subordinate to the office of a verderer (which he held); and, therefore, by that his other offices were determined, and for that he cited Blage's case, (cited in Crocker and York v. Dormer, Poph. 28, and Colt v. Glover, 1 Roll. Rep. 452), who was remembrancer in the exchequer, and after that was made one of the barons there; and it was resolved, that his office of remembrancer was gone. Mr. Attorney said he had seen precedents, that divers offices had been seized because one man had so many, quod eis intendere nequit. It was objected by the counsel on the other side that a verderer was by election, and that may be against a man's will, and, therefore, should not determine other offices by letters-patents. To which Mr. Attorney answered, that he had particularly averred that Sir Charles had used the office of verderer, and so accepted the election, which he might have waived. The Judges agreed that all the other places here claimed by Sir C. Howard were inferior to his place of verderer, and so determined by acceptance thereof. Judgment was given upon the whole claim for all things against Sir Charles Howard." The ground of the decision, therefore, was, that the other offices held by Sir Charles Howard were actually determined by his acceptance of that of verderer. VOL. XXIV.-2

[*15

It is undoubtedly true, that in many of the cases in which it has been held that a man loses an office when he accepts one that is incompatible, the two offices were corporate, as, in Milward v. Thatcher, 2 T. R., 81, those of jurat and *town clerk, and in Rex v. Blissel, Doug. 398, note, that of chamberlain and alderman; but the reasons given for those decisions were not that the two offices were corporate, but that they were incompatible. In Rex v. Tizzard, 9 B. & C. 418, it was alleged in the replication that the offices of town clerk and alderman were incompatible, and that the defendant by accepting the office of town clerk vacated that of alderman; and on demurrer to the replication, the only question argued was, whether the two offices were inconsistent, it being conceded that if they were, the acceptance of the office of town clerk vacated that of alderman. In Verrior v. The Mayor of Sandwich, Sid. 305, there was a mandamus to restore Verrior to the place of town clerk; the return was, that he being town clerk was elected mayor, and that he accepted the office. The question was, whether the same person could be mayor and town clerk. The Court seemed to think he could not, but delivered no opinion; but the argument was not that the two offices were corporate, but that they were incompatible; (see also Rex v. Jones, 1 B. & Ad. 677); because the mayor was judge of a court of record, which it was the duty of the town clerk to attend ministerially, and he might be fined for his default, and it was not likely that he would impose a fine upon himself. Upon the same ground, it was there said in argument, and affirmed by the Court, that the Chief Justice of C. B. cannot be prothonotary or clerk of the papers in the same court; and it was also said in argument, and affirmed by the Court there, that a bishop could not hold a parsonage by commendam in his own diocese, for he could not visit himself; and these dicta are adopted, Com. Dig. Officer, (B) 6.

:

[*16

*The authorities, therefore, establish that a party hold ing an office (whether it be corporate or not), by accepting another incompatible with it avoids his first office and it follows that the defendant in this case, by accepting the office of county treasurer, vacated his offices of alderman and justice of the peace.

Coleridge contra. The issue tendered by the rejoinder was material, because, by 12 G. 2, c. 29, s. 6, the giving of security by the party nominated county treasurer is a condition precedent to the office becoming vested in him. Until security is given, the high constables are not to pay money into the treasurer's hands, nor does the latter become accountable to the justices, nor can they order him to pay any money. Incompatibility is a legal conclusion, the result of facts one or many; and the liability of one officer to account to another is a fact from which incompatibility of offices may result. The replication alleges a fact (the having given security), from which the accountability of the treasurer arises. That is a material fact. The defendant was not bound to admit it, as he must have done if he had not traversed it. It is an established rule in pleading, if there be two or more material facts, a traverse of one is good, Com. Dig., Pleader, G. 10. The allegation of acceptance, and entering on the duties, of the office makes no difference; because the defendant has entered on no offices or duties incompatible until he has given the security.

Then, as to the replication, it alleged the incompatibility of the offices, and that by reason thereof, the office of alderman became ipso facto void. It is not disputed that the two offices are incompatible, but it is denied that the appointment of a person holding a *corporate office, to an incompatible office not corporate, and his acceptance thereof, will of itself vacate the first. A [*17 corporate office has been held to be avoided by acceptance of an incompatible corporate office, on the principal that from the acceptance of the second the law implies a surrender of the first by the officer, and an acceptance of that surrender by the power which appointed him. Where the same power appoints to both offices, the act of appointment to the second implies an assent to the sur

render of the first, as the act of acceptance of the second office implies the surrender by the officer of the first. The authorities prove not that the acceptance of the second office of itself vacates the first, but, merely, that two incompatible offices cannot be held together; which is conceded. Thus, the acceptance of the office of sheriff does not ipso facto vacate the office of coroner, though (Com. Dig. Officer, G. 4), it is a ground of discharge by writ. The coroner is elected by the freeholders in pursuance of a writ from the crown, and he may be discharged of his office by the king's writ sent unto him, and thereupon another writ issues to the sheriff to choose a new coroner; and that writ recites the cause for which the king had removed the other coroner from his office, Fitzh. N. B. 163, 164. One of the causes cited in the writ given in Fitzherbert is, "that the coroner has been chosen into the office of the sheriff;" from which it appears, that at the time when those writs were framed on which Fitzherbert comments, the sheriff was elected by the freeholders. He continued to be so till the statute of Lincoln, 9 E. 2, stat. 2. As to the incompatible offices of judges of different courts; in the times of Dyer and Croke judges were appointed *18] durante bene placito, and the king *determined his will as to the first office, by appointing the same party to another incompatible office. This is quite consistent with the opinion delivered by the judges, when Croke, who was a justice of C. P., was appointed to the office of Chief Justice of K. B., that a patent of revocation of the first office was unnecessary, because, by making him Chief Justice of K. B., his former patent was in law determined. But where Chief Baron Walter was appointed Chief Baron quam diu se bene gesserit, though he was in the king's displeasure, and commanded to forbear to execute the office, he continued Chief Baron until the day of his death. Cro. Car. 203. The king, if he could have deprived him of his office by appointing him to an incompatible office, undoubtedly would. Then, although it appears from the older authorities, not indeed that the acceptance of the second office vacates the first, but that two incompatible offices cannot be held together, the question may still arise, which office becomes vacant? In Rex v. Blissel, Doug, 398, note 22, the question was, whether one Pike had been duly elected alderman? he, at the time of the election, having been chamberlain of the corporation, and being therefore objected to as ineligible (the aldermen being auditors of the chamberlain's account): but the Court held that he had vacated the office of chamberlain by accepting that of alderman, not on the ground that acceptance of a second incompatible office avoided the first, but that the acceptance of the higher of the two ipso facto vacated the other. The same principle is laid down in Dyer's case, Dyer, 159 a. It was in Rex v. Trelawney, 3 Burr. 1615, where both the offices were corporate, that the doctrine afterwards *adopted by *19] this Court in Milward v. Thatcher, 2 T. R. 81, was first stated in argument; viz. that if the two were incompatible, it would be the former office that was vacated by acceptance of the latter. In Sir Charles Howard's case, Sir W. Jones, 293, the question was not whether the offices were void, but whether they should be seised into the king's hands; the reason of the decision there was, that all the other offices claimed by him were inferior to that of verderer; and, therefore, there was good ground for seizure. As to the dictum that a bishop cannot hold a living by commendam in his own diocese, because the same person cannot be visitor and visited; Gibson in his Codex, 913, states that to be a questionable position, because the bishop is under the correction of the metropolitan; and that seems to have been the opinion of Dodderidge, J., in Colt v. Glover, Moore, 899. As to the cases of forester, steward and justice in eyre of the forest, in 4 Inst. 310, Lord Coke speaks only of a forester by patent, and Manwood, p. 163, says, he is made by letters-patent under the great seal, and that some have their offices in fee, some for life, and some only durante bene placito. The steward and justice in eyre are appointed by the king. The dictum as to these offices is, therefore, consistent with the principle that incompatibllity, per se, only vacates the first office, where both are granted by the same

power. In Com. Dig. tit. Officer, K. 5, and B. 6, not a single instance of avoidance is mentioned where the grant of the second office is not from the same authority which granted the first, except the case of the bishop holding a parsonage by commendam in his own diocese. According to Gibson, it may be doubted whether that be *law; and even if it be, that stands upon its

own footing; it is the ecclesiastical law which is positive upon this sub- [* 20 ject, and where the crown pro hac vice is patron of the living, it seems hardly an exception. The ordinary avoidance of a first benefice by taking a second, is by stat. 21 H. 8, c. 13, which applies only to a living of the yearly value of 87. Below that value, the first living is voidable only at the patron's pleasure, unless the bishop by sentence make it void, Gibson's Codex, 906. Then if no case be found which contradicts the principle, can any analogies be found to support it? The principle is, that the party granting and the grantee must concur to make the avoidance. If the grantor confer a second office, which his grantee of the first declines to accept, the first office is not void; so that the grantee's assent is necessary; Boston's case, cited in Awdley's case, Noy's Rep. 78. There Boston was elected to be alderman on purpose to oust him of the office of town-clerk, because they were incompatible offices in one person, and in the King's Bench he had restitution to the first office. If the acceptance of a second office avoided the first simply on account of incompatibility, because thereby the duty of the first could not properly be discharged, one would expect a motion to be necessary, as in all similar cases, such as non-residence, insolvency, &c. In Rex v. Heaven, 2 T. R. 772, the defendant was an alderman of Bedford, but thirteen years before had removed from Bedford, and of late had been appointed to an office which, by act of parliament, required him to reside elsewhere, and it was contended that the office of alderman was thereby vacated, but the Court refused a rule for a quo *warranto until a sentence of amotion by the corporation. In Rex v. Pateman, 2 T. R. 779, the defendant having accepted an office in the same corporation incompatible with his former one, Lord Kenyon said the appointment was an act of the corporation, and equivalent to an amotion. Here the defendant has lawfully been elected for life, or until amotion for a reasonable cause, and the corporation have neither expressly nor by implication amoved him. By the charter he might have been elected alderman without having been a candidate, and against his will. He was liable to a penalty if he refused to serve when elected, or withdrew himself from the duties of the office without permission or a reasonable cause. Was he then at liberty, without permission of those who elected him, to vacate the office by acceptance of a second conferred by a different authority? And what reason is there for saying, that if two offices be incompatible, the first should become vacant by appointment to the second, rather than the appointment to the first should make the person ineligible to the second?

[ *21

Cur. adv. vult.

PARKE, J., in the course of this term, delivered the judgment of the Court (having first stated the pleadings) as follows:-Two questions arose on these pleadings, and were argued at the bar. The first, whether the rejoinder was sufficient? The second, whether the appointment to and acceptance of the office of treasurer of the county of the city did or did not vacate the offices of alderman and justice of the peace, or either of them?

The first question depends upon the materiality of the averment in each replication, "that the defendant gave such security as therein is [*22 before mentioned, to the mayor, recorder, steward and alderman, being justices of the peace," the same replication containing also an averment, that "he accepted and took upon himself the office of treasurer, and entered upon the discharge of the duties of his office." If the giving security be a condition precedent to becoming treasurer, or being responsible and accountable as such, the averment is material and traversable. If it be not, it is immaterial, and we are

of opinion that by the form of the appointment, stated in the replications, it is not made a condition precedent, if it be not so by the statute 12 G. 2, c. 29, s. 6, in pursuance of which statute the appointment took place; and, by the statute, we think it is not made a condition precedent, either to the enjoyment of the office, or to the liability to account for the moneys received by virtue of the office. The statute appears to us in this respect to be directory only; and if so, the appointment of the defendant was complete, though such security was not given, and the rejoinders are all bad in law, as tendering issue on an immaterial allegation.

The second question is one of more difficulty and importance. It was admitted on the argument, that the offices of treasurer and of justice of the peace are incompatible it is also admitted on the pleadings that the defendant was appointed to and accepted the office of county treasurer. The question is, what is the effect of that appointment and acceptance? Without acceptance by the person appointed, it is clear that the first office would not be avoided, Noy's Rep.

78; Dyer's Rep. 332 b. in not. After acceptance, is the first office be*23] come absolutely void, so that the party may be ousted by a proceeding in quo warranto? If we were to hold that the office of justice of the peace is absolutely void in this case, it would be difficult not to come to the same conclusion in every case in which a justice of the peace accepted an office within his district accountable before justices or at sessions; that, for instance, of overseer of the poor, or churchwarden, or surveyor of highways, and it would be of mischievous consequence to the interests of the public, if it were to be decided that a magistrate could not discharge the important duties of those subordinate. situations without losing entirely and forever his superior office.

This very question, how far the office of justice of the peace and the office of overseer were compatible, came before the Court in Rex v. Gayer, 1 Burr. 245; the Court gave no judicial opinion on it; but from the form of the proceeding, which was an application to quash an order of sessions discharging an order of two justices appointing the defendant, who was an acting justice of the peace for the county, to be an overseer of the poor, it seems to have been considered both by the bar and by the bench, that if the two offices were incompatible the consequence would be, that the party should be discharged from that of overseer as having been disqualified or exempted, and not from that of justice of the peace as being vacated by the appointment to be overseer.

Again, it would be an anomaly in the law, if a public officer who could not directly resign, or be amoved without the concurrence or privity of a superior authority, should be able to accomplish the same object indirectly by an acceptance of an incompatible office. A *sheriff, for instance, who is indicta*24] ble for not accepting and exercising his office, might relieve himself without the concurrence of the crown by being elected to the office of coroner; and other instances of the same kind might be put.

and

These considerations lead us to doubt whether the general proposition can be supported, that under all circumstances, the acceptance of an incompatible office, by whomsoever the appointment to it is made, absolutely avoids a former office; upon reference to the authorities, we think that this proposition is not made out; but that it must be limited and qualified; and that such acceptance (though it may be ground of amotion) does not operate as an absolute avoidance in those cases where a person cannot divest himself of an office by his own mere act, but requires the concurrence of another authority to his resignation or amotion, unless that authority is privy and consenting to the second appointment. In the earlier text books and authorities, the ground upen which the acceptance of an incompatible office avoids another is not distinctly explained. In the cases, however, of Gage v. Peacock, Noy. 12, and Verrior v. The Mayor of Sandwich, 2 Keb. 92, it appears to have been argued on the ground of an implied surrender; and in some more modern cases, where the first office is clearly avoided, the reason expressly stated is, that it operates as an implied surrender of