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verses on the indictment were coming on to be tried at the assizes in Stafford, whereupon it was unlawfully and corruptly agreed, between Rudge the prosecutor, the plaintiff
, and the five persons indicted, that the plaintiff should give Rudge his notes for 3501., payable one month after date, for not appearing to give evidence at the trial, and the obligors should execute a bond to the plaintiff, of the same date with the note, as an indemnity to the plaintiff for giving such note. The plea then stated the carrying this agreement into effect, on the 6th of April, 1765, and concluded with an averment, that the bond was given for the said consideration, and no other, and that the obligors were not indebted to the plaintiff in any sum of money, and therefore the bond was void in law. On demurrer, the court gave judgment for the defendant on these grounds : 1st, That the whole transaction was to be considered as one entire agreement; for the bond and note were both dated
the same day, for payment of the same sum of
money on the same day; that it was an agreement to stifle a prosecution for wilful and corrupt perjury, a crime most detrimental to the commonwealth : that the promissory note was certainly void, and consequently the plaintiff was not entitled to recover upon the bond which was given to indemnify him from such note: they were both bady, the consideration for giving them being wicked and unlawful. 2ndly, That the bond
was void, because it was given for the purpose of tempting a man to transgress the law. 3dly, That the special matter might be pleaded, although it was objected, that the law would not endure a fact in pais dehors a specialty to be averred against it, and that a deed could not be defeated by any thing less than a deed; for the condition, in this case, was for the payment of a sum of money; but, that payment to be made, was grounded upon a vicious consideration, which was not inconsistent with the condition (15), but struck at the contract itself, in such a manner as shewed that
q S. P. admitted per Cur. in Cuthbert v. Haley, 8 T. R. 390.
(15) “The general rule, that matters dehors the deed cannot be pleaded, does not apply to this case ; the true meaning of that rule is, that matter inconsistent with or contrary to the deed, cannot be alleged *, but matter consistent with the deed may; the bond in the present case is for the payment of money : the plea admits this, and the averment alleges upon what consideration that money was to be paid, and therefore is not inconsistent with or contradictory to, the condition of the bond; this rule of pleading applied to the cases of the bond never had any legal entity, and if it never had any being at all, then the maxim, that a deed must be defeated by a deed of equal strength, did not apply to this case. The averment pleaded in this case was not contradictory to, but explanatory of, the condition: as to the argument, that if there was not any consideration for the bond it was a gift; that was to be repelled by shewing it was given upon a bad consideration : this destroyed the presumption of donation. 4thly, That the plea was properly concluded, “and so the said bond is void,' or at least this conclusion was well enough upon general demurrer.
* Buckler v. Millerd, 2 Ventr. 107. Mease v. Mease, Cowp. 47.
In debt on bond, conditioned for the payment of a sum of money in case the defendant did not procure I. S. then impressed, to appear and deliver himself to the plaintiff when called upon?: the defendant pleaded that I. S. having been unlawfully impressed, the plaintiff was unwilling to discharge him, unless he would agree to pay a certain sum of money, and would procure the defendant to become bound, and thereupon it was unlawfully agreed, that the plaintiff should discharge I. S. on the defendant becoming bound for that sum, and, therefore, the bond was void. To this plea there was a general demurrer, which was endeavoured to be supported, on the ground that the defendant could not aver matter inconsistent with the condition of the bond ; that it appeared by the condition, that the party was impressed, which meant legally ex vi termini. But the court overruled the demurrer, and held the plea to be good. So where the condition of the bond stated, that the defendants had taken up, borrowed, and received of the plaintiffs a sum of money, which was to run at respondentia interests, on the security of certain goods shipped from Calcutta to Ostend. The defendants pleaded, that the bond was given to cover the price of goods sold by the plaintiffs to the defendants, for the purpose of an illegal traffic from the East Indies, and that the plaintiffs knowingly assisted in preparing the goods for carriage upon such illegal voyage. On demurrer to this plea, it was urged, in r Pole v. Harrobin, E. 22 G. 3. B. R. s Paxlon v. Popham, 9 East, 408.
9 East, 416. n.
simony, duress, coverture, infancy, &c.” Argument for defendant, S. C. 2 Wils. 347. “ Since the case of Pole v. Harrobin, E. 22 G. 3. B. R. it has been generally understood, that an obligor is not restrained from pleading any matter which shews that the bond was given upon an illegal consideration, whether consistent or not with the condition of the bond.” Per Lord Ellenborough, C. J. in Paxton v. Popham, 9 East, 421, 2.
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 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.
t Norton v. Syms, Moor, 856.
x Mazzinghi v. Stephenson, 1 Campb.
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 statutey, 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?, Ist. 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 Walesb; so, as it seems, is the office of under-sheriffc. Where an office is within the statute, and the salary is certain, if the prin
y Hornby v. Cornford, Fitzgib. 45.
Layng v. Paine, Willes, 571. S. P.
b Godolphin v. Tudor, Salk. 468.
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, f Adjudged in Godolphin v. Tudor, Salk. 468.
Salk. 468. e Godolphin v. Tudor, Salk. 468. and g Layng v. Payne, Willes, 571.
Gulliford v. De Cardonell, Salk. 466.