Collins's Infra, § 66. When exercis deputy. 59. The office of high constable was held by the daughter of Humphrey De Bohun, Earl of Hereford and Essex. The office of steward of England was held by Blanch, daughter of Henry Earl of Lancaster, in whose right John of Gaunt enjoyed the same. The office of Earl Marshal was held by a female, through whom it passed to the house of Norfolk. And the office of great chamberlain of England is at this moment held by the two sisters and co-heirs of Robert, late Duke of Ancaster. 60. Offices which concern the administration of jusable in person, tice, such as those of judges of the King's Courts at Westminster, &c. must be exercised in person, and not by deputy. There is, however, one exception to this rule; for sheriffs, though their office concerns the administration of justice, may notwithstanding appoint deputies, by the name of undersheriffs. There are also some offices of the judicial kind, in the creation or grant of which is contained a power of appointing a deputy. Thus the Chief Justices in Eyre may appoint deputies, by the express words of their patents, to exercise the office for them. 7 b. pl. 10. 61. A ministerial office, which is to be exercised by the grantee in person, cannot be done by deputy. Thus it is said in Dyer, that the office of carver, being an Shrewsbury's office of trust, cannot be exercised by deputy. But case; 9 Rep. 46. ministerial offices, which are not of trust, and do not require any particular skill, may in general be exercised by deputy. And all offices which And all offices which may be assigned may be exercised by deputy. Idem 48 a. 62. Lord Coke says, there is a great difference between a deputy and an assignee of an office. For an assignee is a person who has an estate or interest in the office itself, and does all in his own name, for whom his grantor shall not answer, unless it be in special cases. Whereas a deputy has no estate or interest in the office, but is the officer's shadow: he does all things in the name of the officer, and nothing in his own name; and for whom his grantor shall answer. 63. A deputy cannot in general make a deputy; for a deputy being only authorized himself, cannot dele 1 Ld. Raym. gate his authority to another. But it has been held, Parker v. Kett, that a steward of a manor, who is authorized to exer- 658. cise the office by himself, or his sufficient deputy, may. enable another person to take a surrender of a copyhold out of Court. 64. Offices of inheritance may be exercised by de- 1 Inst. 107 6. puty, in case the persons entitled for the time being are incapable of exercising them in person; as where such offices descend to infants or women, or to a per son under the rank of a knight: thus the office of high Keilw. 171 a. constable has been exercised by deputy. case, Dyer 285 b. 1 Inst. 165 a. 65. Humphrey de Bohun, Earl of Hereford, held Buckingham's the manors of Harlefield, &c. of the King, by the service of being constable of England; and had issue two daughters. Upon a question how the daughters, before marriage, could exercise the office; it was resolved that they might make their sufficient deputy to do it for them; and after marriage the husband of the eldest might do it alone. Ca. 146. 66. In the case respecting the office of great cham- 2 Bro. Parl. berlain of England, which was heard in the House of Lords in 1782, Lady Willoughby de Eresby (the wife. of Mr. Burrell, since created Lord Gwydyr,) who was the eldest of the two sisters and coheirs of Robert Duke Ante, § 23. of Ancaster, claimed the office. It was contended on her part, that if there was any ground to say that the office had descended to both the sisters, still the right to exercise the office belonged to Mr. Burrell, as the husband of the eldest, it being an hereditary office in gross, held in grand serjeanty; and in the case of coheirs, when the eldest happened to be a feme covert, was to be executed by her husband. That this was perfectly agreeable to, and warranted by, the usage in all such great offices as had in the course of time de Lord's Journ. Vol. XXXVI. 302, Godolphin v. Tudor, 6 Mod. 234. 1 Bro. Parl. Ca. 135. Infra. scended to heirs general. The office of steward of England had descended in two instances to the eldest daughter. The office of constable of England had come to Humphrey de Bohun, by his marriage with the eldest daughter of Milo Fitzwalter. The office of earl marshal of England came to Roger Bigot, Earl of Norfolk, in right of his mother Maud, who was the eldest daughter of William Marshall, Earl of Pembroke. The following question was put to the judges:— "The late Duke of Ancaster having died seised of the office of great chamberlain of England, leaving Lady Willoughby de Eresby and Lady Charlotte Bertie his sisters and coheiresses; does the said office belong to the eldest alone, or to both or in either case is the husband of the eldest entitled to execute the said office, or may both sisters execute it by deputy; and how must such deputy be appointed? Or does it devolve upon the King to name a proper person to execute the office, during the incapacity of the heir?” The judges delivered their unanimous opinion,— "That the office belonged to both sisters; that the husband of the eldest was not of right entitled to execute the said office. That both sisters might execute it by deputy, to be appointed by them; such deputy not being of a degree inferior to a knight, and to be approved of by his Majesty."-The Lords certified ac cordingly; and Mr. Burrell, being created a knight, was appointed deputy. 67. A deputy is accountable to his principal for the fees and emoluments of the office. And in a case in 3. Ann. it was said by the Court of King's Bench, that if one reserve a sum certain, upon a deputation out of the profits or fees of an office, he only reserves part of that which was wholly his before; for though by making a deputy, the whole power of the principal is in the deputy, yet the fees or profits do not pass, and the deputy has no right to them. Then if he makes a deBlack. R. 327. puty, reserving a sum certain, part of the profits, and Garforth v. Fearon, 1 H. 2 the rest to the deputy, he may well do it, for it is but reserving part of what was wholly his. required. 68. With respect to the oaths required to be taken, What oaths, &c. and the ceremonies to be performed, as qualifications for holding offices; it is enacted by the stat. 13 Cha. 2. c. 1. s. 12., that no person shall be chosen to any office of magistracy, place of trust, or other employment, relating to the government of any city, corporation, borough, cinque port, or other port town, who shall not have received the sacrament according to the rites of the church of England within one year next before such election; and that every person so placed or elected shall take the oaths of allegiance and supremacy. 69. By the stat. 25 Cha. 9. c. 2. commonly called the test act, it is enacted, that every person who shall bear any office civil or military, by reason of any patent or grant from his Majesty, must take the oaths of allegiance and supremacy and test; and receive the sacrament within three months: in case of neglect, he shall be disabled to hold the said offices, &c. and forfeit 5001. An act is passed regularly every year to indemnify persons holding offices, who have neglected to qualify themselves according to the provisions of this statute. Powell, 2 Burr, 70. By the stat. 5 Geo. 1. c. 6., it is enacted, that all persons in the actual possession of any office, that are required by the test act to take the sacrament, &c., shall Crawford r. be confirmed in their respective offices, and none of R.1013. their acts be questioned, notwithstanding their omission to take the sacrament; nor shall they be removed, or otherwise prosecuted, for or by reason of such omission, unless such person be removed, or such prosecution commenced, within six months after the election. 71 The intention of the test act was to exclude persons who were not of the church of England from all offices which concern the government; and is to be considered as prohibitory on the electors, quoad such persons. A dissenter being therefore ineligible Harrison v. Wilmot 130. to such offices, cannot be fined for refusing to accept of them. 72. The corporation of the city of London, by a Parl. Ca. 465. bye law, imposed a fine of 600l. upon every person who, being elected, should refuse to serve the office of sheriff. The chamberlain of London levied debt on a person named Evans, for the penalty of his refusal to serve the office of sheriff; who pleaded the statute 13 Cha. 2., averring that he was a Protestant Dissenter, within the toleration act, of scrupulous conscience, and therefore had not received the sacrament. The plaintiff replied the 5 Geo. 1. which confirms members of corporations in their respective offices, though they have not received the sacrament. To this the defendant demurred: and judgment was given in favour of the city; but reversed by a special commission; and the reversal affirmed by the House of Lords. Ante, § 70. Statutes or buying offices. 73. It is enacted by the stat, 5 & 6 Edw. 6. c. 16. against selling that all persons who shall sell any offices, shall lose and forfeit all their right, interest, and estate, in such offices, and in the gift and nomination thereof. And that all persons who shall purchase such offices shall be disabled from occupying or enjoying the same; and that all such bargains shall be void, with a proviso that all acts of persons offending against this statute, done before they are removed from their offices, shall be good and valid. 3 Inst. 148. 74. This statute extends to ecclesiastical, as well as to temporal offices, which concern the administration and execution of justice. Thus it was resolved, in the case of Doctor Trevor, chancellor of a bishop in Wales, that both the office of chancellor, and that of register, of a bishop, were within the statute; because they concerned the administration of justice. Trevor's case, Croke in his report of that case says, it was held that although such offices concerned matters principally pro salute animarum, yet they also concerned matters about Cro. Jac. 269. |