« EelmineJätka »
support of the demurrer, that the matter in the plea being directly inconsistent with the matter stated in the condition, it ought to have been averred in the plea, that the statement in the condition was merely colourable; but the court overruled the objection, and held the plea to be good: Lord Ellenborough, C. J. observing, that upon the adjustment of the account, after the goods were sold, the parties might have calculated upon the debt as upon a loan to that amount, and therefore there was not any necessary inconsistency between the two statements; even taking the case upon the strict rule of law, as it had been generally considered before the case of Collins v. Blantern, but since that case there could not be any doubt upon it. And Le Blanc, J. observed, that after the cases, breaking in upon the old rule, had determined, that though the bond state nothing illegal upon the face of it, the obligor may shew by his plea, that it was given for an illegal consideration, they had, in effect, decided, that he may shew an illegal consideration different from the consideration stated in the condition. And when the plea states, that the bond was given to cover the price of goods illegally contracted to be sold and shipped, it does in effect deny that it was given for money borrowed; and it shews that the statement in the condition was made colourably in order to cover the illegal agreement.
2. By Statute.-Where the consideration on which the bond is given is illegal by statute, the defendant may take advantage of it by pleading. And if the bond contain several conditions, although one of the conditions only be void by a statute, yet the whole bond is voidt.
Gaming.-By stat. 9 Ann, c. 14. s. 1. " All bonds executed by any person, where the whole or any part of the consideration is for money, or other valuable thing, won by gaming or playing at cards, dice, tables, tennis, bowls, or other game; or by betting on the sides or hands of such as game at any of the said games; or for repaying any money knowingly lent or advanced for such gaming or betting; or lent and advanced at the time and place of such play, to any person so gaming or betting, or that shall during such play so game or bet, shall be void." In a plea upon this statute, it must be shewn at what play or game the money was lost; because that is matter of law and not merely evidence"; and the particular game specified must be proved. The stat. 5 and 6 W. 4. c. 41. repeals the foregoing stat. of Ann, as far
t Norton v. Syms, Moor, 856.
u Colborne v. Stockdale, 1 Str. 493.
x Mazzinghi v. Stephenson, 1 Campb.
as respects the rendering void of bills, notes, or mortgages, given for money won by gaming, &c. and enacts, that it shall have the same effect as if it had provided that such note, bill, or mortgage, should be deemed to have been made for an illegal consideration; but bonds are not mentioned.
Sale of Office.-By stat. 5 and 6 Edw. 6. c. 16, s. 2 and 3, "If any person take any bond to receive any money, fee, reward, or other profit, directly or indirectly, for any office or offices, or any part of them, or to the intent that any person should enjoy any office, or to the deputation of any office, or any part thereof, which office, or any part, shall in any wise touch the administration or execution of justice; or the receipt, controlment, or payment of any of the king's money, revenue, account, aulnage, auditorship, or surveying any of the king's lands, tenements, or hereditaments; or any of the king's customs, or any other administration or necessary attendance in any of the king's custom-houses, or the keep of any of the king's towns, castles, or fortresses, being used or appointed for a place of strength and defence; or which shall touch any clerkship to be occupied in any manner of court of record, wherein justice is to be ministered, every such bond shall be void against the person making it." The 4th section provides against the extension of this act to any office, whereof any person is seised of any estate of inheritance, and any office of parkership, or of the keeping of any park, house, manor, garden, chase, or forest.
If defendant is desirous of taking advantage of the preceding statute, he must plead it specially, in order that the plaintiff may have an opportunity of shewing that he is within the exceptions of the statute. There were two principal reasons for making this statute, 1st. that offices might be exercised by persons of skill and integrity; 2ndly, that they might take only the legal fees; for, those who buy their offices will be apt to take more than their legal fees, according to what is said in 3 Inst. 148, "they that buy will sell." The office of registry of an archdeaconry is an office within this statute, because it is an office concerning the administration of justice. So is the office of auditor of Wales; so, as it seems, is the office of under-sheriffe. Where an office is within the statute, and the salary is certain, if the prin
y Hornby v. Cornford, Fitzgib. 45.
b Godolphin v. Tudor, Salk. 468. c Browning v. Halford, Freem. 19.
cipal makes a deputation, reserving a lesser sum out of the salary, and take a bond conditioned for the payment of such lesser sum, such bond is not within the statuted. So if the profits be uncertain, arising from fees, if the principal make a deputation, reserving a sum certain out of the fees and profits of the office, it is goode; for in these cases the deputy is not to pay, unless the profits amount to so much; and though a deputy, by his constitution is in place of his principal, yet he has not any right to the fees, which still continue to be the principal's; so that, as to him, it is only reserving a part of his own, and giving away the rest to anotherf; but where the reservation or agreement is not to pay out of the profits, but to pay generally a certain sum, it must be paid at all events, and a bond conditioned for the payment of such sum is void by the statute. So where, by the condition of the bond it appeared, that A. had granted to B. and C.8 (the son of A.) the office of register of an archdeaconry for their lives, and the terms of the condition were, 1st. that B. should permit C. to receive all the profits of the office; and, 2ndly, that B. should surrender the office and profits whenever C. should require it; it was holden, that this condition was within the provision of the statute, and made the bond void; first, because an agreement to have all the profits was an agreement to receive some profit, which was contrary to the words of the statute; secondly, because either B. must execute the office for nothing, or he must take more than his legal fees; that a person of skill, and of integrity, would not execute such an office for nothing; and if he had any thing for it, it must be by extortion, and by taking illegal fees, and thereby the principal end of the statute would be eluded. As to the second branch of the condition, viz. that B. should surrender the office at the request of C.; the court said that it was unnecessary to decide upon that, inasmuch as it had been holden, in Norton v. Syms, Moore, 856, and Lee v. Colshill, Cro. Eliz. 529, that if any of the conditions are void by statute, the whole bond is void. They intimated, however, a clear opinion that this branch of the condition was void also: for the donor thereby reserved to himself an absolute power over his officer, which he ought not to do. Besides, if this were allowed, there would be a plain method chalked out to evade the statute; for any one by this means might sell an office for the full value. For let such a condition be put in, let the
d Per Cur. in Godolphin v. Tudor, Salk. 468.
e Godolphin v. Tudor, Salk. 468. and Gulliford v. De Cardonell, Salk. 466.
f Adjudged in Godolphin v. Tudor, Salk. 468.
g Layng v. Payne, Willes, 571.
bond be given for the full value of the office, and let it be agreed between them, that the officer shall refuse to surrender upon request, and then the grantor will recover on the bond, and so have the full value of the office.
A. by the interest which he had with the commissioners of excise, procured for B., his brother, a supervisor's place in that office, and, in consideration thereof, B. gave a bond for the payment of 107. per annum to A., by half-yearly payments, as long as B. should continue in the office. B. died, having for some years omitted the payment of this annual sum of 101. whereupon A. brought an action on the bond against the widow and executrix of B., who pleaded a sham plea of payment, and brought a bill in equity to be relieved against the bond. For the defendant it was objected, that the bond was admitted to be good at law, by the plaintiff's not having been advised to plead the statute of 5 and 6 Edw. 6. against the sale of offices; neither truly in this case could the stat. have been pleaded, being made long before the excise became a branch of the revenue; that the law being with the defendant, it would be hard to take the benefit thereof from him, especially when he was not plaintiff in equity, did not pray any aid of that court, and had not been guilty of any fraud. But by Lord Talbot, Ch. Bonds of this nature are highly to be discouraged; merit, industry, and fidelity, ought to recommend persons to these places, and not interest with the commissioners, who, it is to be presumed, had they known from what motive the plaintiff at law applied to them on behalf of his brother, would have rejected him. The officers giving money to a friend of the commissioners, for his interest, is altogether as bad as giving money, or a bond for money, to the commissioners themselves, which undoubtedly would have been relieved against. It is a fraud on the public, and would open a door for the sale of offices relating to the revenue. The taking away from the officer, what the commissioners and the treasury think to be but a reasonable reward for his care and trouble, and an encouragement to his fidelity, must needs be of the most pernicious consequence, and induce him to make it up by some unlawful means, such as corruption and extortion; and though the excise was no part of the revenue at the time of making the statute of 5 and 6 Edw. 6., yet there may be good ground to construe it within the (16) reason and mischief of the law, which is rather remedial than penal.
h Law v. Law, 3 P. Wms. 391, and Ca. Temp. Talb. 140.
(16) It is no new thing, but usual, that an interest raised by a
Simony.-Simony is the corrupt presentation of a person to an ecclesiastical benefice for money, &c. Every contract made for or about any matter or thing, which is prohibited and made unlawful by any statute, is a void contract, although the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender; because a penalty implies a prohibition, though there are not any prohibitory words in the statute. Hence, in the case of simony, although the statute (31 Eliz. c. 6.) only inflicts a penalty by way of forfeiture, and does not mention any avoiding of the simoniacal contract, yet it has been always holden, that such contracts, being against law, are void.
For the better understanding the nature of simoniacal contracts, it will be proper to set forth the legislative provisions against simony. By stat. 31 Eliz. c. 6, for the avoiding simony and corruption in presentations, collations, and donations, of and to benefices, dignities, prebends, and other livings and promotions ecclesiastical, and in admissions, institutions, and inductions to the same, it is enacted, that "if
i 31 Eliz. c. 6. 12 Ann. stat. 2. c. 12. Per Holt, C. J. in Bartlett v. Vinor, Carth. 252.
subsequent statute, should be under the same remedy and advantage as an interest existing before. Thus, at common law, no acceptance of a collateral recompense could bar a wife of her dower; but the stat. of 27 H. 8. made a jointure to be a bar, which at that time extended only to a jointure made by act executed in the husband's life-time. Afterwards the 32 of H. 8, enabled a man to devise his lands, when it was holden, that if a man were to devise lands to his wife in satisfaction of her dower, and she should accept them, this would be a bar within stat. 27 H. 8. 4 Rep. 4. a. b. because it is within the same equity and reason, and the diversity is in the manner only, not in the thing. So exchequer bills, though created and made valuable by a statute subsequent to that of 12 Car. 2. c. 30, for erecting the post-office, yet are portable within the intent of the said act of 12 Car. 2. and on a letter in which such bills were inclosed being lost out of the office, the postmasters, were holden chargeable. From the Lord C. Justice Holt's argument in the case of Lane v. Cotton and Frankland, in the reporter's (P. Wms.) MSS. See also Salk. 17. And it is observable, that though the other three judges of B. R. differing in opinion with the Chief Justice, judgment was given in that case for the defendants; yet on a writ of error being brought in the Exchequer Chamber, the defendants are said to have made satisfaction to the plaintiff, which put an end to all further proceedings.