
    
      Ex Parte James W. Gray, Commissioner.
    A master or commissioner in equity is not a “judge” within the meaning of the 1st section, 3rd article, of the constitution; and he does not hold his office “ during good behaviour,” by virtue of its provisions, but his tenure is such only as is prescribed by the Legislature.
    The act of 3813, limiting the term of service of certain officers, is a general law applicable to all such officers as are therein specified, although their offices may have been established subsequently to that act.
    The commissioner in- equity for Charleston district first elected under the act of 1813, which provided that he should “ exercise all the powers, and authorities of, and perform ail the duties incident to ” the office of the master in equity, held nevertheless by the tenure prescribed by the act of 1812, and not by the tenure of the then master in equity, even if the latter were intitled to hold during good behaviour. Nor did the benefit of the act of 1816, releasing the operation of the act of 1812, as to incumbents in 1812, extend to him, although it applied to the master.
    Although an officer may be intitled to hold when the Legislature declares his office vacant, yet if he becomes a candidate for re-election, and is re-elected, his accepting and holding' the office, amounts to a surrender of his former title, and he holds by virtue of his last election only.
    Before De Saussure, Chancellor, at Charleston, January, 1830.
    This was a rule on Thomas Hunt, Esquire, late commissioner in equity for Charleston District, to shew cause why he has not turned over to James ”W. Gray, Esquire, his successor in the said office, the official papers in his hands.
    In answer to the rule, the respondent shewed for cause, that the said office was created by act of the Legislature, in December, 1813, Wrjjen ¿e respondent was duly elected to fill it, and received a com" mission “ to continue in force during the time fixed by law.” That in 1817, he was re-elected but did not take out a new commission. That in 1.821, Benjamin Elliott, Esquire, was elected to the said office, and held the same for four years; but that his right thereto was contested by the respondent, and decided in favor of Mr. Elliott,, by the old Court of Appeals in Equity That in 1825 the respondent was again elected 5 and in December, 1829, the said James W. Gray was elected to the said office. But the respondent insisted, that he was intitled to hold the said office, notwithstanding the said last mentioned election, for the following reasons :—
    1. That the said office is a judicial office, and that the tenure thereof, is established by the 1 st section, 3rd article, of the constitution, to be during good behaviour.
    2. That the act of 1813, creating the said office, does not purport to limit the tenure; nor does the act of 1812, limiting the term of service of certain officers, apply to this office : and if it did, yet the act of 1812 is repealed by the act of 1816, so far as it relates to the master in equity, whose tenure before was, and continued to be, during good behaviour. And the commissioner in equity for Charleston District, having been placed by the act of 1813, on the same footing with the master in equity, his tenure is also during good behaviour.
    3. That, both under the constitution, and the act of the Legislature, therefore, the respondent has afreehold in the said office, which he has neither resigned, nor lost ; nor has he been in any manner' lawfully deprived thereof.
    The Chancellor held the cause shewn to be insufficient: his Honor being of opinion, that a commissioner in equity is not a judge, within the meaning of the constitution; and that the tenure of his office is limited to four years, by virtue of the provisions of the act of 1812. He therefore ordered the official papers in the hands of the respondent tobs transferred to his successor.
    ■ From this order the rcs2)ondent appealed, and moved to reverse the same on the grounds relied on in his answer to the rule.
    J. L. Wilson, for the motion.
    The Aet of 1813, p. 44, for appointing an additional master in equity, in Charleston, under the title of commissioner, does not purport to limit the tenure of the new office : nor can the act of 1812, p. 35, apply, inasmuch as it is limited, by its terms, to offices then in existence; and is moreover re- „ pealed, as to the master in equity, by the act of 1816. See acts of 1816, p. 12. In the case of William Hazel Gibbes, 1 Desaus. 5S7,, it was decided, that the master in equity is a judicial officer, under the constitution of 1778, and that his terlure was consequently during good behaviour. And again in Fenwicke v. Gibbes, 2 Desaus. 629, it was decided, that he was not amenable for an error of judgment, on the ground, that he was a judicial officer. By the act of 1813, the commissioner for Charleston is put on the same footing with the master ; and it follows conclusively, that the tenure of the-commissioner is during good behaviour.
    The principle, that judicial officers hold under the constitution, and that acts of the Legislature limiting the tenure, are void, was settled in the case of the ordinary, by the decision of the Constitutional Court, in Hays v. Harley, 1 Mill, 267. That decision is strictly applicable to this case. In the case of Hunt v. Elliott, in which a contrary, and somewhat hasty decision was made, it was said, that a few judicial powers will not make a judge, within the meaning of the constitution: but an examination of the judicial functions conferred on the master in equity, will shew that they are neither few, nor trivial; and that they far exceed any ever-conferred on the ordinary.
    By the act of 1705, P. L. 98, the master is invested with power to tax costs. By the act of 1721, P. L. 110, to grant injunctions to stay waste. By the act of 1746, P. L. 212, to hear all motions of course, and make orders thereon. By the act of 1808, masters and commissioners are invested with all the powers óf ajudge at chambers, to grant orders for writs of ne exeat, and attachment, in all cases of practice. Acts of 1808, p. 33. And by the act of 1825, they are authorized to grant injunctions in all cases before answer. Acts of 1S25, p. 19.
    The Court of Equity of this State was organized on the model of the English Chancery, and was from its infancy invested with all the powers and incidents of that Court. See act of 1721, P.L. 110, 111. The Master of the Bolls in England is 'a judicial officer ; and yet his office is analogous to that of master in equity here. Indeed latter possesses, in regard to ne exeats and injunctions, a larger power than it appears the Master ofthe> Rolls is permitted to ex-orc'se- ^ Les. 590, 1 Ves. and Bea. 373. The authority of the Lord Chancellor himself, has grown up from that of a mere clerlt, to the most elevated judicial functions. Parke’s Hist. Ch. 16, 2-5, 27, 35, 42, 56, 58. So too of the masters in chancery, who are all now recognized to be judges. Id. 60, 4-26, 436.
    The powers of the master in equity here, which, by the act of 1721, were the same with the master in England, have been greatly increased by our own legislation. The power as to injunctions is a judicial power of the highest character. Eden on Injunctions, 1, 56. 1 M’C. Ch. 346. Termes déla Ley, 338. 1 Woodeson’s Lectures, 207. A report of a master is a judgment of the Court, Brown v. Barkham, i P. Wms. 652. There is no question of law, or fact, which a master may not be called upon to determine. Com. Dig. Chancery, (B. 5.)
    The Legislature’s not having considered the master a judge, does not affect his judicial character, under the constitution, since they have conferred upon him the powers of a judge. The same was done as to the ordinary, but the Constitutional Court decided that he-was a judge, and that his tenure was during good behaviour: and the same decision must be made as to the commissioner.
    Gkxmice, contra.
    
    There are three classes of officers in the English Chancery. The Lord Chancellor, the Master of the Rolls, and the masters in chancery; and of these the two former only are regarded as judges. 1 Harr. Ch. 57, 58. Jac. Law Die. Chancery. Com. Dig. Chancery, (B. 4.) The. powers of the commissioner are analogous to those of the masters in chancery; and not to those of the Master of the Rolls. The latter, it is true, is one of the masters in chancery ; but he has been invested with higher functions, and is in that very respect distinguished from the commissioner in equity. It is said, that he has not equal power with the commissioner as to ne exeats, and injunctions; but this is a mistake. See as to injunctions, 3 Atk. 694. i Bro. C. C. 451. 2 Id. 64, 81, 89. 4 Id. 495. 1 Dickens, 314. And as to ne exeats, see Prec. in Ch. 171. 5 Ves.-91. 3 P. Wms. 313. 1 Dickens, 380.
    Gibbes’ case, 1 Desaus. 587, so far from availing the respondent^ is conclusive against him, on the constitutional ground. Gibbes was elected in 1784, under the constitution ot 1778, by the 27th article of which it was provided, that “judicial officers” should be commissioned “during good behaviour.” But by the constitution of 1790, this provision was confined to “ the judges.” The Court, however, 'held, that as Gibbes was elected under the constitution of 1778, he was intitled to hold by contract; a ground on which the Court would not have put their decision, if they had supposed the master to be a “judge,” within the meaning of the constitution of 1790.
    What is the test of an officer being a “judge,” within the 1st section, 3d article, of the constitution of. 1790 1 The answer to this question will establish the distinction between the case of the ordinary, and that of the commissioner in equity; and shew that the decision in Hays v.. Harley, 1 Mill, 267, cannot apply to this case.
    It is not a test, that he cannot delegate his office, for that is not peculiar to ajudge. 4 T. R. 716. 5 Id. 511. 4 Johns. Ch. R. 368.
    Nor that he is not liable to suit for error of judgment; for such exemption extends to all officers who are to act on their discretion : to Justices of the Peace ; 2 Bay, 1; Commissioners of Roads; 2N. &M. 537; Inspectors of beef; 2 Caines, 312. See also 1 East, 555. 2 Yern. 90. And this is an answer to the case of Fenwicke v. Gibbs, 2 Desaus. 629, the decision in which case is unexceptionable : although the reasoning of the Court is not authority.
    Even the possession of judicial powers is not a sufficient test; for every officer of every Court has some judicial power, necessarily incident to the discharge of his duties. But these, it has been decided, do not make him ajudge under the constitution. 1 Mill, 45. Ib. 55. This indeed is the precise distinction between the provisions of the constitutions of 1778, and 1790; a distinction plainly recognized by the Court in the case in 1 Desaus. 587.
    Nor does the making of interlocutory orders, or preparing business for the Court, render the officer a judge. Clerks of Courts grant orders for judgment, and for bail. The register, as well as the commissioner, may grant a nc exeat, which is nothing more than an order for bail in equity. A great deal has been said of the power to grant injunctions ; but orders for injunctions are merely interlocutory in their nature. It is a mistake too, to say-that injunctions restrain Courts. They do not. They act only upon the parties; and in that respect differ from prohibitions, which do restrain Courts. Eden on Injunctions, 1. The commissioner can in no case make a final order; and in this his power is inferior to that of the clerk, who may give an order for judgment final in debt on bond: and yet it has never been pretended, that the clerk is a judge under the constitution.
    That an officer is elected by joint ballot of the Legislature ; that he is removable by impeachment; or that his tenure is during good behaviour; are none of them tests of the office of a- judge. For they are not peculiar to judges; nor have they any intrinsic connexion with the judicial character.
    The true tests of a judge according to the constitution, are: .1. That he is the Judge of the Court; and invested with the whole body of the jurisdiction : that he is, in fact, the Court itself. 2. That he hears, and finally determines, to the whole extent of the jurisdiction of the Court.
    Tried by these tests, it is obvious, that the commissioner is not a judge. The judge is invested with the whole jurisdiction, simply by being made a judge; whilst the commissioner has only so much of the jurisdiction of his own Court, as the statutes have from time to time conferred upon him. Again, a judge, even of an inferior jurisdiction, determines finally, although his judgment may be appealed from y but the report or judgment of a commissioner is of no. avail until confirmed by the Court.
    The commissioner, if he be a judge, must be either a judge of an inferior Court, or an inferior judge of a supreme Court
    There are two tests of an inferior Court. 1. Its judgments are subject to appeal, but are final if not apjiealed from. 2. It is subject to writs from superior Courts; such as mandamus, prohibition, &c. Apply either of these tests, and it is clear that the commissioner is not a judge of an inferior Court.
    It is equally clear, that he is not an inferior judge of a supreme-C'ourt. For a judge, whether inferior or chief, cannot be attached for contempt; but a master or commissioner may. 4 Johns. 317. 9 Id. 395.
    The subject might be further illustrated, but it can scarcely be necessary. The application of any and every test, by which a judge-is distinguished from other officers, will, in every instance, shew elearly, that the commissioner in equity is not a judge within the-meaning of die constitution.
    
      The other ground relied upon by the respondent is equally un-. tenable. The act of 1812 was passed to limit the term of office of various officers; ‘and “registers, masters, and commissioners of the Court of Equity,” are expressly mentioned,and limited to four years. It makes no difference that the office of commissioner in equity, for Charleston District, -was not created until afterwards, by the act of 1813. The name, and the duties, of the office, attach to it all the laws relating to similar offices; and, moreover, the act of 1813, expressly puts the office of commissioner'on the same footing with the office of master in equity. The act of 1816 did not repeal the act of 1812, in relation to the office of master in equity. It did no more than release the operation of the act as to incumbents, who having been elected during good behaviour, were intitled by con.tract, to hold by their .original tenure; and the act of 1812 is left to regulate the office, generally, in relation to all the successors of 'the then incumbents. The present respondent has no claim on the ground of contract. ITe was not elected until after the act of 1812 was in force, and he took his office with its tenure regulated by it. The case of the State v. Jeter, 1 M’C. 233, is conclusive on this point.
    But be the tenure of the office what it may, the respondent is concluded by the fact, that he was a candidate for re-election in 1829, as he was in 1817, 1821, and 1825. ■ This was an admission ■on his part, that the office was vacant, and amounts to a resignation, ■■or surrender. A resignation need not be formal; but any -act ■amounts -to -a -surrender, which is incompatible with retaining the office or estate; and such is the act of the respondent in becoming a -candidate for re-election. -Jac. Law Die. Surrender. Fitzgib. 195, 16 Johns. 28.
    J. L. "Wilson, in reply.
    The decisions of the commissioner are as final as those of the judge himself. They may be appealed from by exceptions; but if not appealed from, they are final and conclu-sive. No decisions are absolutely final but those of the Court of Appeals.
    The ground of the respondent is not that any particular function •of his office renders him a judge; but that the aggregate of his powers are such as can. appertain to no officer but a judge.
    The -cases cited of injunctions granted by .the Master of the Rolls, ar0 cageg jn which that officer sat for the Lord Chancellor. In his ' . . own character he has no jurisdiction in injunction cases; and yet it is conceded that he is a judge. The commissioner has a direct power in himself to grant injunctions, and indeed the judicial powers exercised by him are such as could not be committed to any merely ministerial officer.
    The case of the State v. Jeter is based on principles conclusive of the respondent’s right to hold by the same tenure as Mr. Gibbes. He asks nothing more than the benefit of that case. The argument as to surrender does not require an answer. The respondent never yielded his right. He did not take out a new commission in 1817 ; and the Legislature’s ballotting for him cannot affect his title to the office. He has never committed any act, which, in any way, amounts to a surrender, or resignation; and his deprivation, in 1822, against a strenuous opposition on his part, cannot surely be seriously urged against him.
    
      
       See a report of the proceedings on that occasion at the end of this case,
      
    
   Coloock, J.

delivered the opinion of the Court.

This case has been very elaborately and ably argued by the counsel on both sides; but although it has been attempted to shew, that there is some difference between the case now made, and that formerly decided, yet it is certain, that no new principle has been applied to it. I have read again and again the opinions which have been delivered on former arguments, and they most undoubtedly cover all the grounds, and expressly decide on all the principles of law, on which the present argument has been raised. But as it seems tobe considered a question of. some difficulty, and is no doubt one of some importance to the parties. It is our duty to express our own views of the subject, although in doing so, I shall be compelled to travel a much beaten track.

As the case is now presented the first question is, whether the respondent is not protected in his office by the constitution of the State; and in order to establish the affirmative of this pi oposition, it is contended that he is a judge. There are some views of this part of the case, which I deem it proper to suggest, which have not been taken in the argument. I am not prepared to say, that every judge, eo nomine, which the Legislature might be pleased to appoint, would be protected in his office by the constitution of the State. The Legislature may appoint one to do certain duties, in which the public may be much concerned, and call him a judge ; and yet it might be the duty of this Couit to say that he not a judge within the provisions of the constitution of this State. . . . . . The constitution is a declaration, by the people, of certain fundamental piinciples of government, by which they intended to be regulated ; and for this purpose they divided all the power, which is necessary to the regulation of civil society, into certain parts, or portions, assigning to certain tribunals, or individuals, by an official name, their respective portions of this power. The whole power is divided into the legislative, the executive, and the judicial: and in regard to the latter, the constitution provides, that it “ shall be vested in such superior and inferior Courts of law and equity, as the Legislature shall fromtime to time direct and establish. The judges of each shall hold their commissions during good behaviour, and the judges of the superior Courts, shall, at stated times, receive a compensation for their services, which shall neither be increased or diminished during their continuance in office ; but they shall receive no fees or perquisites -of office, nor hold any other office of profit, or trust, under this State, the United States, or any other power.” 1st section, 3rd article. The judicial power here spoken of, is to be vested in a Court, the judge of which shall hold his office' during good behaviour: and to bring an officer within this provision of the constitution, it is necessary that he should be appointed a judge of some Court, either one already established, or one newly created, over which he would preside ; and further, if he were appointed judge of a superior Court, it would be necessary to give him a salary. Now in the case before us, the officer not only does not eome within the description, but he has never been called a judge by the Legislature ; nor has he ever been so considered by any one. It is true, that in the case of Fenwicke v. Gibbes, in the year 1808, William H. Gibbes, the late master in equity, an officer performing the same duties which are now required to be performed by the commissioner in equity, is indirectly called a judge. -The language of the Court is, “ he is frequently a judicial officer. The determinations of this Court, the acts of Assembly of 1721, P, L. 110, and of 1746, P. L, 212, plainly evince him to be so. ■ In this capacity, he is a judge, and exercises his mind in forming decisions concerning the rights and interests of others.” 2 Desaus. 635. But it was nota question before that Court, whether he was a judge in the sense, in which it is now contended, that (¡he commissioner is one; and therefore it is not an authoiity for us: and with the utmost deference to the Court, and to the judge who delivered the opinion, I am constrained to dissent from it altogether.

But I proceed to meet the argument as it has been presented to us. I do not understand the counsel for the respondent to contend, that the investment of any, and every power, in which there is that ■exercise -of the mind which may be ealledjudgment, will make the officer a judge; for by that course of reasoning we may have more judges than even they desire -: but I understand them as contending, that the granting of such power as is usually exercised by judges, or such judicial power as is exercised in the Courts of law, or equity, may constitute one a judge. Even in this limited sense, however, the position cannot be maintained. Great powers are given to the ipommissioner; powers which may be called judicial; powers, which it is clear, were once exercised by the judges alone; powers, greater than the master in equity exercised at the time a commissioner was first appointed: but is he invested with all the powers of a judge 1 Nullum simile est idem applies to the artificial, as well-as to the natural man. There may be many points of resemblance, and yet a most essential difference between two offices; and it is so strikingly obvious between these two -officers, the judge and the commissioner, that it is impossible that they can be mistaken for each other. The commissioner does possess some of the judicial powers; but he does not possess the essential characteristic of hearing and determining In all matters within the jurisdiction of the Court. It is said, that in some cases his decisions are final. This might be so, and yet it would not be enough. But he does not possess final power in any one instance; and the parallel, which has been drawn by the counsel for the applicant, between the powers of the commissioner, and those possessed by other officers of other Courts, is in most respects complete. The clerks of the Court of Common Pleas, for instance, possess equal powers in their departments, subject, also, to the final determination of the judges of their Courts.

I do not conceive it necessary to follow the counsel through the wide range of cases by which to test the powers which are exercised by the commissioner. As to one criterion, it 'cannot be denied, that there are some very inferior judicial powers which can not be delegated; and it is, therefore, I admit, notan infallible criterion, by which to decide, that a power is not judicial, in its most unlimited and constitutional sense, to say that it cannot be delegated : but yet this is relied on as a test of judicial power by no less a person than Lord Coke. 4 Inst. 59, 88, 126, 128. Neither can I think it necessary to the correct decision of this case, to go back to the origin of the Court of Chancery, here or in England ; for none can doubt, but that the Legislative power of both countries can regulate the constitution of their Courts. In our Court of Equity, the master was not considered a judge, and he has never exercised the powers of one ; and although we find that in England one of the masters was made a judge, yet we find that eleven of them are still mere masters. The one who has become a judge has been so constituted. He was not made a judge by implication. He is commissioned ;. has a salary ; and he “hears and determines,” and his determination is only to be reversed by an appeal to a higher tribunal. The case of Hays v. Harley has been referred to, but it can afford no support to the respondent’s claim; for there the officer was a judge, always known as such, called a judge, presiding in w Court, and exercising the power of a judge, although in a limited jurisdiction. The Court was in existence before, and at, the adoption of the constitution; and therefore the judges of it were embraced in its provisions, as clearly as any judges of any Court in the State;

I will now proceed to consider the case in reference to the acts of Assembly. It is said first, that the act of 1812 did not limit the term of office of the master in equity ; but this is said in direct opposition to the- very words of the act, which are, “ the following officers shall be hereafter elected by joint ballot of both branches; of the Legislature, for the terms of time hereinafter mentioned;” and among those enumerated are " Registers, Masters and Commissioners of the Courts of Equity, for four years.” Now whether the Legislature could limit the term of office of the officer then acting as master, it being' conceded that he was in for life, which may be conceded without affecting this case, or whether they intended to do so, may admit of doubt; but it cannot therefore be doubted, that they had the power of limiting the term of office of any future master or commissioner. In 1813 they for the first time PP°in(:ed a commissioner for Charleston District, and it is true did not limit his term of office, but that was for the best reason possible; to wit, that they had already done so by a previous general law on that subject, which embraced him, or any other, who should be thereafter appointed. Let it be admitted that the commissioner was clothed with all the powers of the master, still he, was a newly created officer, and his term of office did not depend on the tenure by which the master held. The act of 1812, as far as it regarded the person who then held the office of master, was repealed in 1,816, and it was also repealed as to other officers ; and by a very forced construction it is contended, that it was repealed as to the present respondent. That it can not refer to him, is put beyond all doubt by the words, “who were in office on the seventeenth day of December, one thousand eight hundred and twelve,” which follow the ' enumeration of officers, to which it 'was intended to apply. ° Masters and commissioners” were in office before, and at, the time of passing the act of 1812; and how then can it apply to the respondent, who was not’in office either before, or at, the time. It is asked, and much reliance seems to be placed on this, why the word masters was put in the act, if it did not intend to embrace the commissioner in equity, in Charleston District % for there was but one master in the State, and the word being in the plural, it must have been intended to embrace him. But for the qualification above referred to, perhaps this construction might have been contended for. But is clear, that it applies to both masters, and commissioners, by all the rules of common sense, as ■ well as those of grammatical construction ; and therefore could not comprehend him, either as a master, or a commissioner, for he did not hold office as either the one or the other in 1812. But I do not entertain a doubt, that the Legislature had a right to limit the term of office of the master in equity, and thatit'would have affected the then incumbent; that is, that there was no constitutional restriction on them which would prevent them from doing so, if they thought the good of the country required it. They did so in a case equally strong; in the case of a solicitor. It is true they thought themselves bound in honor to continue some persons who considered themselves as holding for life, or good behaviour, in office ; and in this I certainly concur with them; indeed I have had cause most seriously to regret, that I ever did concur in limiting the term of any of the officers of the Courts ; for the records of the country are going fast to destruction throughout the State, where the system prevails, and the duties of other departments are performed in a most unsatisfactory manner. I do therefore wish that there had been an appointment to this office during good behaviour. But I am to declare what the law is, and it is too. plainly-written to be mistaken or misconstrued.

But if we could support the respondent in his construction of the acts, and believed that it was the intention of the Legislature, in the first establishment of his office,' to put him in all respects on a a footing of equality with the then master in equity, and that they considered him, consequently, as holding during good behaviour ; yet in this case I am of opinion, that the respondent, by having become a candidate for the office, under the terms prescribed by the act, had voluntarily resigned all right to the first tenure, and could not now claim the office. As to the right to surrender an estate, or office, I take it no authority is necessary; but whether the act of taking a lesser interest in a thing from the grantor, is an abandonment of a greater interest previously .possessed, may require some authority. I should say, however, that where it was clearly expressed by the grantor, that such was his intention, and the grantee remained in possession, he held by the last tenure; and for the reason, which is given by the writers on this subject, that the two titles are incompatible. Considering the case then on the ground of contract, the Legislature had said by a public act that the tenure of the office should be limited to four years-;' and they then declared the office vacant. Candidates presented themselves, and one is elected. Suppose the choice falls on him who before held, is not this a new contract? I cannot doubt it. It is said that the doubts of the respondent were stated, aid some objections presented at the first election; but he nevertheless entered the lists, and was voted for as a candidate for the office, -under the limitation fixed by law, and actually held the office. In Jacob’s Law Dictionary, Title Surrender, the law which I think applicable to this case, is collected. “ The surrender at commonlaw” it is said, “is the usual surrender, and is of two sorts: viz. a surrender in deed, or by express words in writing, where the words of the lessee to the lessor prove a sufficient assent to give him his estate bac-k again; and a surrender in law, being that which is wrought by the operation of law, and not actual, as if a lessee for life, or years, take a new lease of the same land, during the term, this will be a surrender inlaw of the first lease.” “And this surrender in law, by taking a.new lease, holds good, though the second lease is for a less term than the first; and it is said that the second lease is a voidable lease. 5 Rep. 14, 6 Rep. 69, 10 Rep. 67, 1 Inst. 218, Cro. Eliz. 873.” “ A surrender may be made of letters patent to the king, to the end that he may grant the estate to whom he pleases; and a second patent for years to the same person, for the same thing, is a surrender in law of the first patent. 10 Rep. 66.” “ If an officer for life accepts of another grant of the same office, it is in law a surrender of the first grant; but if such an officer takes another grant of the same office to himSelf and another, it may be otherwise. 1 Ventr. 297, Cro. Jac. 198, Dyer, 167, 198, Godb. 415.”

On every ground, therefore, the motion must be dismissed.'

Appeal dismissed.  