BUT if an office has in fact been ufually granted to two or more for their lives, or has been granted in reverfion, such a grant will be good; and the grand criterion of the validity of the grant, is not the utility or neceffity of the office, but the usage previous to those statutes (a).

IN fome of the earlier cafes, however, the distinction between bishoprics of the old and new foundation, introduced, from inadvertence, the confideration of the neceffity of the office in the case of the latter, and the reasonableness of the fee attached to it. In the cafe of the bishop of Chester, it was refolved, fays Lord Coke (b), “that though the bifhopric was founded of late time, that is, in the time of Henry the eighth, yet a grant of offices of neceffity to one in poffeffion with a reasonable fee, the reasonableness of which shall be decided by the court of justice in which it fhall depend, is good, and exempted from the general restraint of the act of 1 El. c. rg."

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FROM an apprehenfion likewise, that offices were not within this ftatute, the validity of a grant of a new office with a fee was at first decided on from the fuppofed neceffity of the office and the reasonableness of the fee, even in the cafe of an old bishopric.-The bishop of Ely, on the 20th of April 1558, a few months only after the paffing of the ftatute i El. c. 19, made a grant of the office of keeping his house and garden, which was never granted before, with a fee or falary of three pounds a year. This came in judgment, as it is cited in fome of the books (c), in Hilary, the 10 El. and it was held good, because the office was thought to be a necessary office, and the fee reasonable, which, it was faid, was the proper measure, by which to judge, "whether it was an indirect alienation, under colour

(a) Per Lord Mansfeld. (b) 10 Co, 61 b.

I Bur. 223. (c) Ley 78.

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of a new grant." Though it was extraordinary, fays Lord Mansfield, to hold this office neceffary, or the fee reasonable; or indeed to imagine that any office could be necessary, which never existed before.

IN the cafe of the bishop of Chefter, before mentioned, it appeared, that the bishop, after the statute of the 1 El. granted to George Bolton, an annuity of five marks per annum for his life, pro confilio impenfo et impendendo, which was confirmed by the dean and chapter; that after the death of the bishop, Bolton brought a writ of annuity against the fucceffor, and in his declaration averred, that the predeceffors of the bishop had granted reasonable fees, but did not aver that this fee had been granted before; the opinion of the court was against him, and he never had judgment. But the reafon of the opinion was, “that this was a voluntary thing, and not an office” (a).

IN the 43d of Elizabeth, the true diftinction feems to have been taken: It appeared that the archbishop of Canterbury had granted the office of surveyorship, with the ancient fee, and more: it was held void on account of the new addition, that being an injury to the fucceffor (b).

THE next remarkable cafe on this fubject is that of the bishop of Salisbury, which was decided in Trinity 11 of James the first, as reported (c) in Coke's reports. It was a writ of second deliverance brought by Simon Stanton and Henry Knap against John Green, for taking 127 fheep at Blewbury in the county of Dorfet; the defendant avowed the taking, because John, bishop of Salifbury, being feifed in his demefne as of fee in right of his bishopric of the manor of Sherborne, in the county of Dorfet, of which the place where, &c. was parcel, granted,

(a) Ley 75, cited 10 Co. 61.

(b) Ley 75. (c) 10 Co. 58 a.

on

on the last day of September, in the 27th of Elizabeth, to Edward Green, and the faid John Green, and to each of them, the office of furveyor of all his manors in the county of Dorfet -and elsewhere in the kingdom of England, to be exercised by them and their deputies, for whom they fhould answer, to have and to hold to them, for the term of their lives; and further, that the faid bishop by the fame deed granted to them a rent of twenty nobles a year iffuing out of the faid manor of Sherborne, with a clause of distress; and that the grant was confirmed by the dean and chapter, on the 5th of September, in the 28 of El. in the life of the faid John, bishop of Salisbury; and he averred, that the faid office was an ancient office, and that the faid office, tdgether with the aforesaid fee of 6l. 135. 4d. had been granted by the faid John bishop of Salisbury, and his predeceffors, "to fuch perfon or perfons as they pleased." He then fhewed the death of Edward Green, alledged that he demanded the rent, and in default of payment, difftrained.In bar of this avowry the plaintiff pleaded the ftatute of 1 El. c. 19; and, "that neither the office. aforefaid, nor the annual rent aforefaid, before the grant aforefaid, were ever granted by the said bishop nor by any of his predeceffors for any longer time than for one life, by which the grant aforefaid, by the aforefaid John, late bishop of Salisbury, by force of the act aforefaid, was void." On which the avowant demurred,

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AFTER ftating several objections to the pleadings, the reporter goes at full length into the merits of the question, the fubftance of which having been given on several former occafions, it is not intended to repeat here; the chief purpose for which the cafe is here introduced, is merely to fhew that the queftion of the neceffity of the office, or of the reasonableness of the fee, was not before the court, although M 4

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in the course of the argument much matter is introduced concerning both.-By the fifth resolution (a), in this case, it was declared, "that the grant of an ancient office to one with the ancient fee, by a bishop, fhall not bind his fucceffor, unless it be confirmed by the dean and chapter, for that such grants are not reftrained by the ftatute of the firft of Elizabeth, and therefore remaining at common law, ought to be confirmed by the dean and chapter."

As this was a grant for more than one life, contrary to the ufage ftated in the bar to the avowry, judgment was given for the plaintiffs.

THE bishop of Chichefter was feifed in fee of a park in right of his bishopric, and had the office of park-keeper, which he granted by deed in the 44th of Elizabeth, to one Freedland for life, and also granted him, for the execution of the office, an annual rent of 31. 6s. 8d. together with a livery of 13s. 4d. by the year, with pafturage for two horfes in the park yearly, and the windfalls in the park, with a clause of distress for the rent of 31. 6s. 8d. and the livery of 13s. 4d. and this grant was confirmed by the dean and chapter: for non-payment of the rent of 3l. 6s. 8d. Freeland took a diftrefs, and in avowry averred, that the office and fee of 31. 6s. 8d. were ancient, but made no averment for the refidue. The plaintiff, the fucceeding bishop, in bar of the avowry, confeffed the grant, but pleaded the ftatute of 1 El. c. 19, and averred that the pafturage was never granted before, and entitled himself as fucceffor to the grantor-to which the defendant demurred -and it seemed to be agreed by all the judges, that if the new additional fees had been in another claufe diftinct from the grant of the office and the fee 31. 6s. 8d. or had been granted for another confideration; or if the bishop

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had granted the office and 31. 6s. 8d. for him and his fucceffors, and had granted the pafturage and other additional fees during his own life only; the grant, in either of these cafes, would have been good for the ancient office and fee, but not for the additional fees: they agreed too, that if the grant of the office had been with a fee of 51. where the ancient fee was but five merks; there the grant being intire would have been void in the whole against the succeffor. But the court was divided on the point whether these clauses were two diftinct grants or only made one intire grant; two judges held that they were feveral and diftinct, and two that they were intire and depending on each other, and therefore void in the whole against the fucceffor (a).

IN replevin, the defendant avowed on a grant made to him by a dean and chapter of the office of catership of the church for life, with an annuity of 61. per annum, for exercifing the office, and a clause of diftrefs; and averred that it was an ancient office pertaining to the dean and chapter, but did not aver that the annuity was an ancient annuity: the plaintiff in bar of the the avowry pleaded the 13 El. c. 10, and fhewed the death of the dean grantor, and the election of another; and on demurrer the grant was adjudged to be void (b).

In an action on the cafe for difturbing the plaintiff in the exercise of the office of register to the bishop of Rochester, it was alledged that the office was an ancient office, and grantable as well in reverfion as in poffeffion; and that in the year 1622 it was granted to the plaintiff by the then bishop of Chefter, to be held after the death or furrender of J. S. who held it for life, to be exercised by

(a) Gee Bishop of Chichester v. Freedland, Cro. Car. 47. (b) Humphrey v. Parfel, Brownl. 182.

himself