agreement in the declaration mentioned, and so taken and made by the plaintiff as therein mentioned, he, the plaintiff, did unlawfully, corruptly, and against the statute in that case made and provided, agree with the defendant to receive and have from him the defendant a certain sum of money, to wit, the money in the declaration mentioned, to the intent that he, the defendant, should have, exercise, and enjoy the said lastmentioned office, whereby the said supposed agreement was and is utterly void in law. Verification. Replication, that he the plaintiff did not by the said agreement in the said declaration mentioned agree with the defendant to receive or have from him the defendant the said sum of money in the said second plea mentioned, to the intent that he the defendant should have, exercise, or enjoy the said office in the said second plea mentioned, in manner and form &c. Special demurrer thereto, and joinder therein.

Hugh Hill, (Badeley with him), in support of the demurrer.-The agreement declared on is bad and void at law, being an agreement for the resignation, on the part of the plaintiff, of the offices of collector of assessed taxes and sub-distributor of stamps, and also being an agreement to procure the appointment of the defendant to both of such offices. Where any part of an agreement is contrary to the statute-law, the whole agreement is void; for which Lee v. Coleshill, (Cro. Eliz. 529, and 2 And. 55), cited and referred to in Tuyne's case, (3 Rep. 80), is an authority. And in Norton v. Simmes, (Hob. 14), the distinction between covenants void by the common law and by the statute law is pointed out. It is there said, that, "upon the stat. of 23 Hen. 6, if a sheriff will take a bond for a point against that law, and also for a due debt, the whole bond is void; for the letter of the statute is so, for a statute is a strict law, but the common law doth divide according to common reason; and having made that void that is against law, lets the rest stand." The stats. 5 & 6 Edw. 6, c. 16, and 49 Geo. 3, c. 126, relate to the sale of offices. The 3rd section of the former act makes void the bargains mentioned in the 2nd section of that act, which are bargains for offices touching or concerning, inter alia, the receipt of the revenue. The last act makes it a misdemeanor, which also, therefore, would make the contract void. There are many cases where the sales of offices, which are prohibited by the statute law, or are contrary to public policy, have been held void. (Sir Arthur Ingram's case, 3 Inst. 154; Huggins v. Bambridge, Willes, 241; Layng v. Payne, Id. 571; Parsons v. Thompson, 1 H. Black. 322; Garforth v. Fearon, Id. 327; and Blachford v. Preston, 8 T. R. 89). In the last of these cases, Lawrence, J., says, "With regard to offices under government, it has been decided that they cannot be sold, though they be not such offices as are mentioned in the stat. 5 & 6 Edw. 6." [Stachpole v. Earle (2 Wils. 133) was also referred to.] But it appears from the pleadings that these offices, to which the contract declared on relates, are offices mentioned in the stat. 5 & 6 Edw. 6. First, as to the office of sub-distributor of stamps. The stamps relate to the public revenue, and the office is mentioned by name in the stat. 3 & 4 Will. 4, c. 97, ss. 1, 3. The distributor of stamps is appointed by the commissioners under the stat. 55 Geo. 3, c. 184, s. 3, and the sub-distributor is appointed by such distributor; and as the stamps form the subject of revenue to the state, it is submitted that the office of sub-distributor is an office touching the receipt of such revenue. The Court will take notice that the land and assessed taxes also relate to the revenue; and in the stat. 3 Geo. 4, c. 88, and 5 & 6 Will. 4, c. 20, the office of collector of taxes is expressly mentioned. It is sufficient to avoid the contract, if only one of these offices is an office within the stat. 5 & 6 Edw. 6. The plea states that the office of sub-distributor of stamps is an office touching and concerning the receipt of her

Majesty's revenue; and this is not denied by the replication, the issue being taken only on the agreement to have a sum of money, to the intent that the defendant should have the office.

Prentice, contra.-The allegation in the first part of the plea would not be sufficient by itself; there is nothing in it to shew that the office of sub-distributor of stamps, there mentioned, is the same office mentioned in the declaration; and, therefore, it must be taken together with what follows; and the whole is traversed by the replication. The declaration, it is submitted, discloses a good cause of action, and the plea is bad. The question is, whether a contract, which is not solely for the sale of an office, may not be good as to that part which does not relate to the office. The cases which have been quoted, nearly all, are the cases of bonds, and are, therefore, very different. In Doe v. Pitcher, (6 Taunt. 359), the Court considered that the whole of a deed would not be void, because part of it, which related to a limitation to a charitable use, was void by the act 9 Geo. 2, c. 36. [Kerrison v. Cole (8 East, 231) was also referred to.] The contract in this declaration is not entire, and there is a sufficient consideration, by the sale of the business of a law stationer, to support the promise to pay the 300l. The undertaking stated in the witnessing part of the agreement is to pay the 3007. for the purchase of the business of a law stationer only, and the agreement to endeavour to procure the introduction of the defendant to the offices is altogether a collateral agreement, the declaration being good without the averment of mutual promises. Besides, the agreement is not one within the statute, for the agreement is only that the plaintiff would not collect the taxes. It is nowhere stated that the plaintiff was, at the time of the contract, such collector; but it is consistent with what is stated in the declaration, that the plaintiff may formerly have been such collector, and had ceased before the making of the contract. Then, what is there illegal in a person who is not a collector agreeing not to collect the taxes? [Maule, J.-Is it requisite to be within the statute, that he should hold the offices at the time of the agreement?] Yes. Moreover, the words are only that the plaintiff would use his utmost endeavours, which must mean utmost legal endeavours; and the agreement is, therefore, not corrupt. (Bellamy v. Burrow, Ca. temp. Talb. 107). It does not necessarily follow, that the collector of taxes is the same office mentioned in the acts relating to the assessed taxes.

Badeley, in reply.-The agreement is entire, and the consideration for the purchase-money is evidently the sale of the offices as well as the sale of the business. It is not necessary that the plaintiff should be able to procure the appointment of the defendant; it is sufficient to make the contract void if he himself contracts not to accept such office, for it is against public policy to do so. (Law v. Law, 3 P. W. 391; Pearson v. Thomas, Carter, 229).

WILDE, C. J.-I am of opinion that the defendant is entitled to judgment, and that the declaration does not disclose any good cause of action. It becomes, therefore, unnecessary to notice the pleas and replication. The declaration sets out the agreement, and the first point is, whether it is an entire agreement as set out, subject to one entire consideration, although it is an agreement to do several things, and it seems to me that it does amount to one entire agreement, and which it may well be, although it be an agreement also to do several acts. The declaration recites, that the plaintiff had carried on the business of a law stationer, and also had been sub-distributor of stamps, collector of assessed taxes, and agent for the Birmingham Fire Office, and that the plaintiff had agreed for the sale to the defendant of the said business and his goodwill; and then states what the agreement was for the plaintiff to do in

the plaintiff is without blame and the defendant is guilty of negligence.

of the Vale of Neath Brewery Company, by the defendant Buckland who was one of the managing directors of the company, of which the other defend- But even in that case if the attorney be not solvent, ants, one of whom was named George Gordon, were we should relieve the defendant upon equitable terms shareholders. Several of the defendants, not including if he had a defence on the merits. If the attorney were Gordon, were regularly served with process in the ac- solvent it would not be unjust to leave the defendant tion; and afterwards Mr. George Leeds an attorney at to his remedy by summary application against him. Neath was instructed by some of the parties served to On the other hand, if the plaintiff, without serving appear and did appear for all the defendants, except a the defendant, accepts the appearance of an unauthorperson of the name of Clarke, for whom an appear-ised attorney for the defendant, he is not wholly free ance was duly entered by the plaintiffs according to the from the imputation of negligence. The law requires form of the statute. Leeds afterwards by like author- him to give notice to the defendant by serving the writ ity consented to a judge's order to stay proceedings on and he has not done so. The defendant there is wholly payment of debt and costs. This order not having free from blame, and the plaintiff not so; and upon been complied with judgment against all the defendants the same principle on which we before proceeded we was signed and execution sued out, under which the must set aside the judgment as irregular, with costs, goods of Gordon were seized by the sheriff. Gordon and leave the plaintiff to recover those costs and the never having been served with the writ and having expense to which he has been put from the delinquent given no authority direct or indirect to Leeds to appear attorney, by summary proceeding. The case of Hubfor him, obtained the present rule to have the judgment bart v. Phillips (13 Mee. & W. 702) is an authority set aside either as an irregular judgment, or if a regular for such an application. judgment then on an affidavit of merits and on payment of costs. It also appeared from the affidavits that Leeds the attorney by whom the appearance was entered was in solvent circumstances. The case was argued during the term before Pollock, C. B., Alderson, Rolfe, and Platt, BB., when

Martin shewed cause, and

The Attorney-General was heard in support of the rule.

The following authorities were referred to:-Anon., (1 Salk. 86, 88); Robson v. Eaton, (1 T. R. 62); Doe d. Davies v. Eyton, (3 B. & Adol. 785); Mudry v. Newman, (1 C., M., & R. 402); Stanhope v. Firmin, (3 Bing. N. C. 301); Williams v. Smith, (1 Dowl. 632) Barber v. Wilkins, (5 Dowl. 305); Hubbart v. Phillips, (13 Mee. & W. 702); Hambridge v. De la Crouée, (16 Law Journ., C. P., 85). Cur.adv. vult.

The judgment of the Court was now delivered by ROLFE, B.-We took time to consider this case in order that we might determine what rule it might be proper to lay down as a guide to similar cases in future. There is no dispute as to the facts.

The rule of law hitherto has generally been considered as stated in an anonymous case in Salk. 86, thus, that where an attorney takes upon him to appear the Court looks no further but proceeds as if the attorney had sufficient authority and leaves the party to his action against him-but they qualified it in Salk. 88, stating that the judgment was regular but that if the attorney be not responsible or suspicious they would set aside the judgment, for otherwise the defendant has no remedy and any one may be undone by that means. It must be admitted that the reasoning is not very clear by which the Court arrived at the conclusion that in so doing they did justice to the defendant, for the nonresponsibility or suspiciousness of the attorney is but a vague sort of criterion of safety to the defendant, and by the hypothesis the defendant is wholly without blame and may notwithstanding be ruined. It is true that the plaintiff is equally blameless, but then he still if the judgment be set aside has his remedy against the defendant as before, and suffers only the delay and possible loss of costs.

We are disposed to lay down a different rule, and to confine the liability of the defendant to cases in which the course of the proceedings has given him notice of the action being brought against him. When therefore a defendant has been served with process, and an attorney without authority appears for him, we think the Court must proceed as if the attorney really had authority. Because in that case the defendant, having knowledge of the suit commenced, is guilty of an omission in not appearing and making defence by his own attorney if he has any defence on the merits. There

Now applying those principles to the present case, it is clear that this judgment is irregular, and the rule must be made absolute for setting it aside.Rule absolute.

COURT OF ARCHES.

DYSART V. DYSART.-April 15.

In a Matrimonial Suit, an Interlocutory Decree was taken down pronouncing for the Separation, and an Appeal was immediately asserted, but no Inhibition had been served, when it was discovered that the Bond required by the 107th Canon had not been given. The Bond was then executed, and the Court moved to sign a definitive Sentence to the same Effect as the Interlocutory. The Motion was granted.

In this case, which is reported ante, p. 490, an appeal was immediately asserted, and it was afterwards discovered, that when the interlocutory decree was pronounced by the Court, the usual bond on the part of Lady Dysart, that she should not contract another marriage during her husband's lifetime, had not been given. In order to remove any doubts which might arise as to the validity of the decree, a motion was now made to the judge to sign a sentence in writing, the usual bond having been first given.

Sir J. Dodson, Q. A., in support of the motion.-This case is exactly in the same position as when the Court pronounced its opinion upon it; for although an appeal was then asserted, yet no steps have been taken to prosecute that appeal, and no inhibition has been served. The Court is, therefore, in entire possession of the case, and may sign the sentence carrying out the opinion which it has already expressed. But, admitting for argument's sake that what the Court is now asked to do could be considered a variation of its decree, there is abundance of authority to shew that the decree may be varied. In The Monarch, (1 W. Rob. 21), the present learned judge of the Admiralty had to consider whether he had the power to vary a decree not made by himself, but by his predecessor, Sir J. Nicholl, and he held that he had such discretionary power, and did vary the decres. So, courts of equity often alter, vary, and amend their decrees. In Galton v. Hancock, (2 Atk. 430), Lord Hardwicke in 1744 totally reversed a decree which he had made in 1742; and in courts of common law amendments may be made in the record, even after judgment and the issuing of a writ of error. (Scales v. Cheese, 12 Mee. & W. 685). In Richardson v. Mellish, (3 Bing. 335), a general verdict was given on a declaration, some of the counts of which were bad, and the Court amended the postea, by entering up judgment on a single count, after the cause had been removed by error into the King's Bench, and after argument in

contract matrimony with other person. And for the better observation of this last clause, the said sentence of divorce shall not be pronounced until the party or parties requiring the same have given good and sufficient caution and security unto the Court, that they Haggard, on the same side.-There are two ways in will not break or transgress the said restraint or prowhich a cause may be determined: by interlocutory de- hibition." And then comes the 108th: "And if any cree, or by a sentence in writing; but these are not con- judge giving sentence of divorce or separation shall not trary or repugnant the one to the other; and where an fully keep and observe the premises, he shall be by interlocutory decree has been pronounced, it may be of the archbishop of the province, or by the bishop of the advantage to the party in possession of that decree to diocese, suspended from the exercise of his office for have a sentence in writing, which is the ancient and the space of a whole year, and the sentence of separasolemn form. This case at present stands in an incom- tion, so given contrary to the form aforesaid, shall be plete shape, depending on the accuracy of the Registrar, held void, to all intents and purposes of the law, as if who enters the minute without being overlooked by the it had not at all been given or pronounced." So, the Court. In the Prerogative Court there was the case of decree already made is null, and, if so, it cannot now Sowter v. Sowter last term, where an interlocutory sen- be cured; but if the decree can, notwithstanding the tence was given; but some defect of form being after-canons, be sustained, then there is no necessity for the wards found to exist, the prayer was repeated, and a sentence in writing, unless we are to have two sensecond sentence embodying the omitted form was then tences, one interlocutory, the other in writing. given.

13, as suspending the whole force of the sentence and devolving the cause. So again, Ayl. Par. 78, and 79, where it is said, "Though by admitting an appeal the judge a quo abdicates and foregoes his jurisdiction, yet in the imperial chamber an inhibition is granted on the party's motion;" the practice of the imperial chamber being to grant this inhibition if it is applied for, although it would seem the judge a quo was stopped from proceeding without that step being taken. [Sir H. Jenner Fust.-What do you understand by the words admitting an appeal?] According to the ancient practice the judge was in this difficulty; if he admitted a frivolous appeal, he was to be punished in twenty pounds of silver, and if he refused to admit an appeal, he might be punished for what was considered and called his rashness and contempt of the law. In Middleton v. Middleton, (2 Hagg., Suppl. 141), Lord Stowell says, "The Court is not, I think, legally obliged to defer to an appeal till an inhibition is served;" but he continues, "generally the Court will

be inclined to defer unless circumstances afford a reason against it." There were strong circumstances he held in that case, and he allowed the case to go on, but the words I have read are an authority for the position I wish to establish, that it is the appeal and not the inhibition which binds the judge a quo. Ought., tit. 367, is to the same purport, and Decretal. 15, c. 7, in sexto. But if the Court is not inclined to think it is estopped, there are still three objections against the motion now made. First, what will be the state of the process when the cause comes before the court of appeal? There will be two sentences; then, if two, why not one for the appellant and one for the respondent? There can be neither analogy nor authority for two sentences or decrees in one and the same cause. Secondly, how are we to prosecute our appeal? From which sentence, or from both? If we appeal from the first, then at the hearing we may be turned round and told we should have appealed from the last. Lastly, this is a case primæ impressionis, and therefore some special ground should be made for asking the Court to interfere; but the only reason assigned is that something has been omitted, the effect of the negligence of the other side in not having the bond executed at the right time. As the case stands at present the decree is a nullity, and that is one of the grounds of appeal, and it is a defect which this Court cannot amend.

nounced, and we are entitled to it, because no appeal
has yet been duly lodged according to the practice of
this Court. The authorities cited are foreign, nor can
it be supposed, that the judges in this Court, who
looked to the inhibition as that which alone tied their
hands, have been ignorant of those authorities; they
held that they were not applicable. In Chichester v.
Donegal, (1 Add. 21), the hands of this Court were said
not to be tied up till the service of the inhibition.
Sir H. JENNER FUST.-I am prepared to sign this
sentence in conformity with the decree already made.
I do not consider that I am in any way varying the
sentence or amending it, but doing merely that which
I might have been called upon to do in the first in-
stance, namely, sign a formal sentence.

COURT OF REVIEW.

Ex parte MORRISON, in re THE LONDON And Birming-
HAM EXTENSION AND NORTHAMpton, Daventry, Lea-
MINGTON, AND WARWICK RAILWAY COMPANY.-June
30.

Practice-Service of Petition-Railway.

On a Petition by some of the Directors of a Railway Company, dissolved pursuant to the Stat. 9 & 10 Vict. c. 28, to annul a Fiat,-Held, that the Petition ought to be served on some of the other Directors who took a different View from that entertained by the Petitioners, and not only on the Petitioning Creditor and Official Assignee. This was the petition of Mr. Peter Morrison and Mr. Frederick Foveaux Weiss, two of the directors or members of the committee of management of the Company, alleging that the Company was not a trading company liable to be made bankrupt, within the meaning of the statutes relating to bankruptcy; that no act of bankruptcy had been committed, and that there was no sufficient petitioning creditor's debt to sustain the fiat.

Bacon and Glasse, for the petitioners, stated that the Company was projected in June, 1845, and was duly registered. An application was made to parliament for a bill, but this was unsuccessful, the promoters having failed to satisfy the Legislature that the projectors had duly complied with the standing orders. In consequence of differences between the members of the Company, relating, among other things, to the accounts, a meeting was convened on the 4th September, 1846, Sir J. Dodson, Q. A., in reply.-By the words of and, in consequence of the absence of a sufficient numthe canon, the decree is null and void, as if it never had ber of shareholders, was adjourned until the 10th Sepbeen pronounced; but in point of fact, the Court has tember, when it was "Resolved, that the Company made no decree, it has only declared its opinion upon should be dissolved, but that such dissolution should not the merits of the case, the appeal asserted is at present be an act of bankruptcy." A change of solicitors apa mere nullity, and we are in a condition to ask the peared to have taken place, and subsequently a meeting Court to sign a sentence. The whole case will come of the committee of management took place at the new clearly before the court of appeal, and as the sentence solicitor's office in Cheapside, where a resolution was recites the interlocutory, there will be no confusion in passed, according to the form given by the 7 & 8 Vict. having two sentences. With regard to the bond, it is c. 111, "That the Company was unable to meet its ennow a mere matter of form; when security was engagements." This resolution was filed with the Secrejoined to be given by the canon, that parties divorced tary of Bankrupts, and the fiat was issued on the next by the Ecclesiastical Court should not marry again day, the 4th June last, and the commissioner had forduring the lifetime of either of them, in case of their so mally adjudged the Company bankrupt. offending, they were excepted by 1 Jac. 1, c. 11, from Russell and Hawkes appeared for the petitioning cre the penalty of felony. That statute is now repealed by ditors and the official assignee, and objected that the 9 Geo. 4, c. 31, by sect. 22 of which, all persons marry-petition had not been served upon any parties repreing again during the lifetime of the former husband and wife are declared guilty of felony, except those who are divorced from the bonds of the first marriage. This statute is a virtual repeal of the canon, the penalty being a much greater security against the offence than the bond of 1007. Middleton v. Middleton, cited on the other side, is an authority that the Court is not stopped

without an inhibition.

Haggard. The grounds on which this application rests are not shaken by anything which has been said on the other side. No legal sentence has yet been pro

senting the Company. It had been served upon the petitioning creditors and the official assigne; but they in reality represented the creditors. He the directors, twelve in number, represented the halkrupt, but there were many individual members of the Company. [The Chief Judge inquired whether at the date of the fiat, there was any person who might answer the description of "chief clerk, secretary, or registrar of the Company," as mentioned in the 7 & 8 Vict. c. 28.]

Bacon stated that there was not any such person; the Company was entirely dissolved at the date of the