viour is presumed by law (a), and of such good behaviour, it seems, Parliament only can judge (b). The Judges do not lose their situations even by the demise of the Crown (c). However, the Vice-Chancellor and the Judges may be, respectively, removed on the address of both Houses of Parliament (d). By the common law, the demise of the crown determined all patents created by royal authority; but by the statutes 7 and 8 Wm. 3. c. 27., and 1 Ann, c. 1., all patented officers are to continue six months after such demise, unless sooner removed by the new King.

Judicial offices cannot be granted to two or more persons, unless there be an immemorial custom to sanction such grant, (for antient offices must be granted as they immemorially have been granted;) though a new judicial office may be granted to more than one person, if there be no statute to the contrary; and it is clear that ministerial offices may be granted to two or more persons jointly (e).

As public offices are instituted, in legal contemplation, for the benefit of the State, and as it is highly important that the various duties attached to them should be properly performed, it has ever been a rule, that such persons only are eligible whose capacities and habits are adapted to the situation to which they are nominated. "If," says Lord Coke (f)," an office, either in the grant of the King or a 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 they, 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 of the same, to serve the King and his people."

(a) 1 Rol. Ab. 844. 1 Inst. 42, a.

1 Show. 426, 506.

(b) 1 Wooddn. 88, 121.

(c) 1 Geo. 3. c. 23. See Ld. Raym. 747. Com. Journ. 3 March 1761. (d) See 5 Bac. Ab. 201.

(e) See 4 Inst. 146. 11 Rep. 3, b. Carth. 213. 4 Mod. 16. 1 Show. R. G 2

289. 2 Salk. 465. 5 Bac. Ab. title Offices, K. See 1 Bla. Com. 40, 41, as to appointing more than four judges to act in K. B.

(f) Co. Lit 3, b. Godb. 391. Hardr. 130. Dyer, 175. Jenk. 121. 3 Cruise Dig. 152. 5 Bac. Ab. 203.

This

This doctrine holds peculiarly strong in the case of offices of a judicial nature, or other offices in which capacity and skill are requisite; and the insufficiency of an individual, to whom such an office is granted, incapacitates him, and avoids the grant, though it be to him "and his assigns," or the office is to be exercised by "a sufficient deputy (a)." The insufficiency may arise either from want of mental capacity, or from the party's not having been brought up to, or exercised in, the office to which he is appointed; and there are instances in our books, of persons having been refused admittance into offices in the courts of justice, which had been granted them by the King, on both those grounds of incapacity (b).

Ministerial offices may be granted to any persons, and even to women, if they are capable of performing them properly (c): but it seems, that even in the case of ministerial offices, an incapacity to execute them with propriety and effect, would form a legal ground of objection (d). In this case, however, the objection is obviated, if the grant authorize the exercise of the office by deputy; or contain any other provision by which the deficiency of the immediate grantee is supplied. Therefore, 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, to hold after the death of T. D. (who was the Registrar in possession) for his life, to be exercised by him "or his deputy," and afterwards T. D. died, J. S. being at the age of thirty; this was held a good grant at the time of making the office, being to be executed by him "or his deputy (e)."

The grant of an office should regularly be under the great seal (f). No investiture, or ceremony, is in general necessary to perfect the grantee's title to the office, which becomes vested in him merely by the grant (g); though such grant may be ren

(a) Hob. 158. Only ministerial offices can be exercised by deputy. Bac. Ab. Offices, L

(b) See Dyer, 150, b. Bro. Ab. title Office, 48. Cro. Car. 557, 565. 4 Mod. 30. See Bac. Ab. Offices, I.

(c) 4 Inst. 311. Cro. Jac. 17. See 3 Cruis. Dig. 153.

(d) See Co. Lit. 3, b. note 4.

(e) Cro. Car. 279, 556. 2 Rol. Ab.

153. Other cases cited, Bac. Ab., Offices, I. Co. Lit. 3, b. Hargr. note 4. (f) 3 Cruise Dig. 135; see post. ch. 16. s. 2.

(g) Mod. 123. 5 Bac. Ab. title Offices, E. page 188. It is said, Leon. 248. Mod. 123; but see Rol. Ab. 154; that investiture is necessary in order to make a person created an herald at arms, a complete officer,

dered

dered ineffectual by neglect of the party to take the various oaths before álluded to (a).

In creating a new office apt words must be used; therefore in this case the words erigimus, constituimus, or other expres-sions of a similar import are necessary; and the word concessimus, &c. will not suffice (b).

Offices may be lost; among other means, 1. By misconduct therein 2. By acceptance of another office incompatible with that the person holds: 3. By the determination of the thing to which the office was annexed (c).

We have already extracted from the various rules relating to offices, this important principle, that as they are constituted for the public weal it is expedient that they should be properly executed (d). On this principle a condition is tacitly and peremptorily engrafted by law on the grant of all offices, that they be executed by the grantee faithfully, properly, and diligently on breach of which condition the office is forfeited or liable to be seized (e). This principle has ever been admitted: the difficulty has arisen in the application of it. The most methodical and perspicuous mode of stating the cases on this part of the subject, will perhaps be adopted, by considering successively the three causes of forfeiture or seizure of offices, mentioned by Lord Coke, namely, 1st, abuses; 2dly, non-user; 3rdly, refusal (ƒ).

Abusing or misusing an office is, where the person filling it is guilty of any act contrary to his duty; as if a gaoler is guilty of a voluntary escape (g), or is repeatedly guilty of a negligent one (h). So, if an officer sell his office illegally (i), or if a forester or park-keeper cut down wood, kill deer without authority, or pull down any lodge or house within the park, they respectively forfeit their offices (k). And an officer in the courts of justice has been discharged for spoiling records, in violation

;

of his duty (a). But it seems, that misbehaviour, under an erroneous though conscientious impression, will not of itself create a forfeiture (b), if it do not evince, from being often repeated, a general incapacity to execute the office (c).

By non-user (d) must be understood, a general neglect of the proper officer to attend to his duty, at usual, proper, and convenient times and places. A few instances of omitting to attend, when no particular business was expected, and without any particular circumstances, and where the non-attendance was conscientious, do not, it seems, amount to a forfeiture (e). It must appear, that the officer took no manner of care of his office (f), though perhaps one instance, or certainly two instances, of a wilful, voluntary, and determined neglect to attend on a particular occasion, would cause a forfeiture (g), though no inconvenience ensue by such non-attendance (h). Lord Coke (i) takes this distinction, that when the office concerns the administration of public justice, non-user of itself, without any special damage, may occasion a forfeiture, aliter as to private offices.

As to refusal, that also forms a ground of removal, in cases where the officer refuses, on request, to exercise his office where he ought; as if the steward of a manor refuse to hold a court when requested by the lord (k). The refusal must, however, it should seem on principle, be of a wilful, voluntary, and culpable nature (1).

These conditions, in law, are as strong and binding as express conditions, and an office is lost for ever by the nonobservance of them (m). If the tenant in tail of an office commit a forfeiture, this shall bind the issue (n), and the act of the deputy may create a forfeiture of the inheritance (o). But the

commission

6

commission of acts amounting to a forfeiture, by an officer who holds for life or for years, does not affect the person entitled to the inheritance in remainder or reversion (a). And if a person having an office of inheritance lease it for life, and the lessee commit a forfeiture, this shall not forfeit the inheritance (b). Where an office is granted to two, and one of them is attainted, the other shall not forfeit (c).

The general rule is, that if an officer, who holds his officeby patent, commit an act incurring a forfeiture, he cannot be turned out without a scire facias, nor can he be said to be completely ousted or discharged, without a writ of discharge; for his right appearing of record, the same must be defeated by matter of as high a nature (d),

2. A person may also lose an office merely by the acceptance of another office incompatible with that he already holds. Offices are incompatible, and cannot be holden together, when, from the nature or extent of the different duties and businesses attached to them, they cannot be properly and effectually executed by the same person; or when they are subordinate to, or interfere with each other, which creates a legal presumption,' that they will not be executed with impartiality and honesty (e). 4 Thus, an admiral commanding on a station loses his right to officiate there, by accepting a command on another station to which he is appointed (ƒ). A Judge of the Court of Common Pleas loses his office by being appointed, and by becoming a Judge of the Court of King's Bench (g). A coroner ceases to be such by being a sheriff (h). Numerous other instances, founded on the principle that a person cannot hold at the same time two offices, one of which is subordinate to, and under the controul of the other, are to be met with (i). The doctrine holds, though the new office accepted by the party is inferior to that which he held before (k). And where the offices are incompatible, the office which the party first

(a) Ibid. 7 Rep. 34, b. Popham, 119. Bac. Ab. Goal and Goaler, D. 2. (b) Lev. 71. 3 Ibid. 288. (c) Plowd. 378; 180. 5 Bac. Ab. 212.

(d) See Dyer, 155, 98, 211. 9 Co. 98. Co. Lit. 233. Cro. Car. 60, 1. Sid. 81, 134. 8 Co. 44, b. Rol. Ab.

580. 3 Mod. 335. 3 Lev. 288.

(e) 4 Inst. 100. Bac. Ab. Offices, K. (f) 1 Hen. Bla. 268.

(g) Dyer, 159. Cro. Car. 12.

(h) Bac. Ab. Offices, K.

(i) See Ibid. Cases cited, 2 T. R. 85, &c.

(k) See 2 T. R. 81.

held