occupied in any trade or dealing; and it was therefore held a good defence to an action by a banking company on a bill of exchange, that one of the partners was a beneficed clergyman (b). The statute 1 Vict. c. 10, was however passed to render such partnerships legal.

No contract relating to the purchase of shares in an illegal association or company can be enforced. In assumpsit for work and labour, and for money expended in the purchase of shares in an undertaking, called "The Equitable Loan Bank Company," it appeared that the company professed to have a capital of 2,000,000l. in shares of 50l. each; that a deposit of 11. per share was required on the delivery of certificates for shares to the holders; that the shares were to be transferable without restriction; and that the holders were to be subject to such regulations as might be contained in any act of parliament passed for the government of the society, and, in the meantime, to such regulations as might be made by a committee of management. No evidence was given as to the particular objects or tendency of the company. The court held that upon this evidence the company was to be considered illegal, and within the operation of the 6 Geo. I. c. 18, as having transferable shares, and affecting to act as a body corporate, without authority by charter, or act of parliament; and that, consequently, the plaintiff could not maintain his action, which arose out of an illegal transaction (c).

VI. OF SALES OF OFFICES RENDERED ILLEGAL BY STATute. The statute 5 & 6 Edw. VI. c. 16, s. 2, 3 (d), avoids all agreements for the sale or deputation of any office which "in any wise touches or concerns the administration or execution of justice, or the receipt, controlment or payment of the king's treasure, money, rent, revenue (e), account, aulnage, auditorship, or surveying of the king's tenements or customs, or any other administration or necessary attendance to be had, done or executed in any of the king's custom houses, or the keeping of any of the king's towns or fortresses, used or appointed for a place of strength and de

(b) Hall v. Franklin, 3 M, & W. 259.

(c) Josephs v. Pebrer, 3 B. & C. 639; 5 D. & R. 542, S. C.; and per Abbott, C. J., such a transaction is void at common law, being a wager on the passing of an act of parliament,

which no man has a right to specu

late on.

(d) See Bac. Ab. Offices; 2 Bla. Com. 37, note, 38, Chitty's ed.

(e) What is such an office, Waldo v. Martin, 4 B. & C. 319; 6 D. & R. 364.

fence, or which concerns or touches any clerkship to be occupied in any court of record wherein justice is to be ministered."

The 4th section provides, that the act shall not extend to any office whereof any person is seised of any estate of inheritance; nor to any office of partnership, or of the keeping of any park, house, manor, garden, chase or forest.

The statute 49 Geo. III. c. 126, s. 1, provides, "that the statute of Edw. IV. shall extend to Scotland and Ireland, and to all offices in the gift of the crown, or of any office appointed by the crown; and all commissions, civil, naval or military; and to all places and employments, and to all deputations to any such offices, commissions, places or employments, in the respective departments or offices, or under the appointment, superintendence and control of the Lord High Treasurer, or Commissioners of the Treasury, the Secretary of State, the Lords Commissioners for executing the office of Lord High Admiral, the Master General and principal officers of the Ordnance, the Commander-inChief, the Secretary at War, the Paymaster General of the Forces, the Commissioners of the Affairs of India, the Commissioners of the Excise, the Treasurers of the Navy, the Commissioners of the Navy, the Commissioners for Victualling, the Commissioners for Transports, the Commissary-General, the Store-keeper General, and also the principal officers of any other public department, or office of government, in any part of the United Kingdom, or any of his Majesty's dominions (ƒ); and to all offices, commissions, places and employments, belonging to or under the appointment or control of the East India Company."

The 7th section excepts the sale and exchange of certain offices in the palace, and commissions in the army, according to regulations made in that behalf.

The 9th section excepts offices excepted by the statute of Edw. VI., and offices which were legally saleable before the act of the 49 Geo. III., and in the gift of any person by virtue of any office of which such person is possessed, under any patent or appointment, for his life.

The 10th and 11th sections except lawful deputations; and annual payments out of the fees, to any person formerly holding the office.

In an

old case (g) in which the statute of Edw. VI. came under

(f) This extends of course to the colonies; see Greville v. Atkins, 9 B.

& C. 462; 4 Man. & R. 372; post, 722. (g) Godolphin v. Tudor, 2 Salk,

consideration, the court held, that where an office is within the statute, and the salary is certain, if the principal make a deputation, reserving a lesser sum out of the salary, it is good. 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 good; for in these cases the deputy is not to pay unless the profits arise to so much, &c. 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 such contract is void by the statute.

It seems that a similar rule of construction is to be applied to the 49 Geo. III. In Greville v. Atkins (h), it appeared that a bond, after reciting that A. B. was colonial secretary of Tobago, and had appointed C. D. to be his deputy, to execute the office and receive the fees, in consideration of his paying thereout to A. B. the annual sum of 450l., by equal half-yearly payments, was conditioned for the punctual payment of that sum (without saying "out of fees"); and defendant pleaded that the bond was given in pursuance of an agreement to pay that sum at all events; upon which issue was taken, and found for the defendant. It was held, that even supposing the agreement to be inconsistent with the language of the bond, it was competent to the defendant to plead and prove it, in order to show that the bond was given upon an illegal consideration; and that the fact found by the jury showed that the bond was illegal, and void by virtue of the statute 49 Geo. III. c. 126.

In Austin v. Gwinnell (i) it was decided that the office of clerk to the deputy registrar in the Prerogative Court of Canterbury is not an office connected with the administration of justice, within the meaning of the statute 5 & 6 Edw. VI. c. 16, so as to prevent its being aliened or charged; and that an alienation of or charge on the profits of the office was not contrary to the policy of the law, restricting the alienation of the income of a public officer. The Lord Chief Baron said, " Is it then objected to the part of the prayer respecting the profits of the office, that the contract is void by the statute of 5 & 6 Edw. VI.? I am not

468, affirmed in Dom. Proc. 1 Br. P. C. 135; Culliford v. De Cardenell, 2 Salk. 466. A condition to assign "all offices" is a valid condition; for it shall be construed to apply only to such offices as are by law assignable;

Harrington v. Kloprogge, 4 Doug. 5; S. C. cited 2 Chitty's R. 475; Palmer v. Bate, 2 B. & B. 678, note; ante, 80. (h) 9 B. &C. 462; 4 Man. & R. 372. (i) 3 Y. & J. 136, in the Excheq. Ch. in equity.

able to perceive the bearing of this act upon the present question. The object of that law was, to prohibit corrupt contracts by which a right to an office, or a right to exercise any of its duties, might be obtained, with a view that persons worthy of such trusts might be advanced to them. This contract seems to me to have no relation to that subject. Forgetting for the moment that there is a mere clerkship held during the pleasure of the chief officer, I cannot avoid recollecting that the appointment, or any influence used or to be used for the purpose of obtaining it, is quite remote from this transaction. I cannot, therefore, apply any argument drawn from that statute to the point now under consideration. Another class of cases has been, with more plausibility, applied to this controversy. I allude to that class which is founded on principles of state policy, and which protects the servants of the public from their own improvidence, and secures to them, in defiance of their own acts, the possession of those resources derived from the public, and intended to enable them to perform their public functions. The pay of naval and military officers, and their incapacity to assign it either at law or in equity, after some hesitation, at last established, affords the most distinct and intelligible view of the application of this rule. The office, or rather the profits of the office, of the clerk of the peace, seems another instance of the same character. But I am not able to apply that principle to the situation of the defendant Askew. His situation is called an office, but its nature is not very distinctly explained. This, however, is represented, that he is a mere clerk, assisting the deputy registrars, receiving emoluments for business done at the pleasure of his superiors. It does not appear to me that he can be considered an officer of the court."

We have seen, that although the sale of a public office, or the deputation thereof, may not fall within the enactments of these statutes, it may be void at common law, if it be injurious to the public interest, and contrary to public policy (k).

And the general rule, even at common law, is, that no action lies upon a contract for procuring the appointment to, or for the sale or relinquishment of a public office, if the contract be concealed from the party having a right of appointment (1). But there are some offices which may be the object of sale, if the sale

take place under the authority, and with the consent of those who have the power of appointment (m). And it has been held, that a promise by one of two candidates for the office of under-sheriff, in consideration of his opponent desisting from his endeavour to obtain the situation, is binding (n).

Whenever the sale of an office is illegal, a bond, &c. for the price (o); or a promise to pay a commission or per-centage in consideration of the promisee procuring a purchaser of the office, is not binding (p).

VIII. OF CONTRACTS MADE on Sundays.

It is enacted by the statute 29 Car. II. c. 7, s. 1 (q), that no tradesman, artificer, workman, labourer or other person whatsoever, shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord's day, or any part thereof (works of necessity and charity only excepted (r)); and that every person of the age of fourteen years offending in the premises shall forfeit five shillings.

The using a horse and sending it about the country, for the purpose of covering mares, is not the exercising a trade or ordinary calling on the part of a farmer within this statute, so as to render a contract entered into on a Sunday for the covering a mare illegal (s).

Nor is an attorney a tradesman or person falling within the prohibition of the statute; and, even if he were so, an agreement entered into by him on a Sunday to become personally responsible for the debt of his client, would not be an exercise of his ordinary calling (t).

(9) The statute 3 Car. 1, c. 1, prohibits carriers with horses from travelling upon Sundays. This extends to the driver of a van travelling between two towns; Ex parte Middleton, 3 B. & C. 164; 4 D. & R. 824, S. C. A contract on a Sunday to take a place in a stage coach is good; Sandiman v. Breach, 7 B. & C. 96; and drivers of hackney carriages may ply, and are compellable to drive on a Sunday; 1

& 2 Will. 4, c. 22, s. 37; Chit, & Hulme's Stats. tit. Hackney Carriages.

(r) Baking provisions for customers on Sundays is within this exception; Rex v. Cor, 2 Burr. 787; Rex v. Younger, 5 T. R. 449; and see section 3 of the act. Baking rolls on Sunday within the act; Crepps v. Durden, Cowp. 641. See 34 Geo. 3, c. 61, as to bakers; and 11 & 12 Will. 3, c. 24, s. 13, as to watermen. Mackerel may be sold, except during divine service; 10 & 11 Will. 3, c. 24, s. 14. (s) Scarfe v. Morgan, 4 M. & W.

270.

(t) Peate v. Dicken, 1 C., M. & R. 427; 5 Tyr. 116; 3 Dowl. 171, S. C.