JOHN FOX Gent. Plaintiff; AND Simon Harcourt Esq; Defendant. In a Writ of Error brought by the Plaintiff upon a judgement given against him in the Court of King's Bench, in an Action of Indebitatus assumpsit, there brought by Mr. Harcourt against Mr. Fox, for trying the Right of the Place of Clerkship of the Peace for the County of Middlesex.  
July, 1689. THE Earl of clear being Custos Rotulorum of the County of Middlesex, in July 1689. appointed Mr. Harcourt to be Clerk of the Peace of the said County, who accordingly enjoyed that Place all the time the Earl of clear continued Custos Rotulorum there.  
Febr. 1691. The Earl of clear being removed from the Office of Custos Rotulorum, and the Earl of Bedford made Custos Rotulorum in his room, the Earl of Bedford constituted the Plaintiff, Mr. Fox, duly qualified, Clerk of the Peace there, who accordingly entred upon and executed the said Place: But Mr. Harcourt pretending that by virtue of the Grant of the Earl of clear, and of a late Statute, made in the first Year of their now Majesties Reign, he had an Estate for Life in the said Office, and not determinable upon the Removal of the Custos Rotulorum, by whom he was appointed, brought the said Action against Mr. Fox.  
Mr. Fox being advised by his Counsel that the Right of making and appointing the Clerk of the Peace had been ever in the Custos Rotulorum for the time being: And that the same is by the Statute 37 Hen. 8. cap 1. declared to have always been so; and that it is by the said Statute enacted, That such Clerk of the Peace shall hold and enjoy the said Place during the time that the Custos Rotulorum shall occupy and exercise the Office of Custos Rotulorum. By which Act it seems apparent, that the Clerk of the Peace could not continue longer in that Employ than the Custos Rotulorum did who put him in, and whose Servant he was.  
And being further advised, that there was very little Reason to think that the Parliament by the said Act of 1o K. William and Q. Mary, had the least Intent to take away from the Custos Rotulorum the Right and Power of putting in whom they thought fit to serve them in that Employment of Clerk of the Peace, 〈…〉 of another's putting in, how unfit soever he may be for that Employment, and how much soever displeasing to the Custos Rotulorum, should yet in despite of him be his Servant in that Place.  
And it being humbly conceived to be clear and plain that the Statute o●●0 K. William and Q. Mary hath not taken away that Right from the Custos Rotulorum which is so expressly declared and settled 〈◇〉 ●he Custos for the time being by the Statute of H. 8. the Words of the Statute 1o K. William and Q. Mary, upon which the Defendant lays all his Stress, being, That the Clerk of the Peace shall take and receive the Fees, Profits and Perquisites thereof, for so long time only as he shall well demean himself in his said Office. And though it be not added, as it is in the 37 Hen. 8. During the time that the Custos Rotulorum continues Custos; yet that is conceived to be necessary implied, and so strongly, that it is believed it was not thought any ways necessary to put them in.  
Mr. Fox for these Reasons resolved to stand the said Trial, not only for the maintaining his own Right and Interest, but also of his Lord's the Earl of Bedford, and of the Right of every Custos Rotulorum. And upon the Trial thereof the Jury found, in a special Verdict the two recited Statutes upon the right Construction, whereof depends the Plaintiff's and Defendant's Title to the said Place, upon which the Court of King's Bench have been pleased not only to pronounce a judgement for Mr. Harcourt, but also to grant a Mandamus for the restoring Mr. Harcourt to the Place, which Mandamus was brought to the Justices the Sessions following, viz. in July 1693.( after this Writ of Error was brought and allowed, and Bail given) upon which the Justices of the Peace, at the said Sessions, did turn out Mr. Fox, and admitted Mr. Harcourt, who is now in Possession of the Clerk of the Peace's Place, whether the Earl of Bedford will or no, and must remain so, how just Reasons soever his Lordship may have to except against him, unless the judgement should be reversed in the House of Lords, which Mr. Fox humbly hopes will be done upon their Lordships hearing of the Matter: for the Law has made the Records inseparable from the Custos, and the Custos his Commission enjoins him to have the Records before the Justices at every Sessions, and who shall carry them? it is not fit the Custos himself, being generally of the principal Nobility, should do it: Why then his Clerk of the Peace must do it; and if the Custos cannot trust him, which he must do( if he will not do it himself) there will be a manifest Failure of Justice; besides the Custos must incur the Danger that will follow in case any Records are razed or imbezell'd, for by the Law the Custos is only responsible for the Records, there being no Provision in the Act 1o K. William and Q. Mary to save him harmless in that Particular.  
And besides the Danger the Custos is in if he may not have the appointing of his own Clerk of the Peace, the Custos is made useless and needless, unless the Clerk of the Peace death when he is Custos.  
It seems reasonable that such a Construction should be put upon the Words of the Statute of 1o K. William and Q. Mary, as may prevent such Inconveniencies, and may not destroy the Interest of the Custos, and create an Estate to the Clerk paramount to that of the Custos, who formerly was Master to the Clerk of the Peace.