BUYING &c. OFFICES. Construction of Nor is a seat in the six clerks' office, that being a ministerial office only. Sparrow v. Reynold, P. 26 Car. 2, C. B. Nor are commissions in the army. Pre. Ch. 199. But the reason why the 5 & 6 Edw. 6, c. 16. sale of these commissions is allowed, is, that it takes place under the authority and with the consent of those who have the power of appointment. Garforth v. Fearon, 1 H. Bl. 327; 8 T. R. 94. Deputation of an office. Exceptions of statute. The disability of parties, and avoid ance of contracts by the statute. And 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 statute. 8 T. R. 94. But offices not within the statute may be sold, provided the sale takes place with the consent of those who have the power of appointment. 8 T. R. 94. As to what is an office relating to the revenue, see Waldo v. Martin, 4 B. & C. 319; 6 D. & R. 364, S. C. But the office of private secretary does not fall within the meaning of the statute 5 & 6 Edw. VI. Therefore an assignment of the profits of all offices which the defendant might acquire, is good as to all those which may be legally assigned. Harrington v. Kloprogge, 6 Moore, 38; 2 B. & B. 678, î. S. C.; 2 Chit. Rep. 475. Deputation of any Office]-One Colshill, being surveyor of the customs, agreed with Smyth that the latter should be his deputy, and that, in consideration thereof, Smyth should pay Colshill 6007., and 1007. annually: it was also agreed that Colshill should surrender his patent, and procure a new one in the joint names of himself and Smyth, and Smyth gave the other a bond for the performance of the whole agreement; it was decided, that the bond was void as being within the statute, for though that part of it which respected the procuring of a new patent might not be within the act, yet that the other part of the agreement was, and that vitiated the whole. 2 And. 55. Seised of any Estate of Inheritance]-The proviso in the statute, that the act shall not extend to any office of which any person is seised of any estate of inheritance, means only offices of which subjects are seised of estates of inheritance, and does not extend to those of which the King is so seised. Huggins v. Bambridge, Willes, 241. And therefore it was decided, that a contract with the warden of the Fleet (who held only for life under the crown), that for a sum of money he should surrender the office to the King, to the intent that he should procure from the King a grant of the office to the purchaser, was void by this statute; though that office has been and may be granted to a subject in fee; and that a bond given to secure the payment of such consideration could not be enforced in a Court of law. Ib. The bailiwick of the Savoy being an office of inheritance in the crown, granted for life or years, and demised to a sub-lessee, is not within the sta tute. Ellis v. Ruddle, 2 Lev. 151; Nelson's case, Freem. 428. Be adjudged disabled Persons]—In the construction of this statute, it has been holden, that a person who makes a contract for an office, contrary to the provision of the act, is so far disabled to hold the same, that he cannot at any time during his life be restored to a capacity of holding it by any grant or dispensation whatsoever. Hob. 75; Co. Lit. 234; Cre. Car. 61; Cro. Jac. 386. As the provisions of this statute do not extend to all cases within the mischief which it was intended to prevent, it has become necessary for Courts of equity, in many cases, to interpose; for though it be true that penal laws are not to be extended as to penalties and punishments, yet, if there be a public mischief, and a Court of equity see private contracts made to elude laws enacted for the public good, it ought to interpose, and that upon the public policy of the law. Upon this principle it was that the Court of Chancery interfered in the case of Morris v. M'Cullock, where a person, by means of a lady connected with one of the lords of the Admiralty, procured a commission in the marines for a livery servant for 2001. Amb. 432. So, in Law v. Law, where a bond was given to a person to influence a commissioner of the excise to appoint to an office under him. Cas. Temp. Talb. 140, and 3 P. Wms. 391. So, in Hancington v. Du Chatel, 1 Bro. 124, where Lord Rochford, groom of the stole to his Majesty, in consideration of two annuities, recommended a page of the presence. Nor is this relief confined to Courts of equity. When cases of a similar nature are brought before the Courts of law, they also refuse to give their assistance to enforce the contract, considering the transaction as contrary to public policy. In the case of Parsons v. Thompson, where the defendant, in consideration that the plaintiff, an officer in the dock-yard at Chatham, would procure himself to be superannuated and retire on the usual pension, agreed, (without the knowledge of the navy board, to whom the appointment belonged), that in case he, the defendant, should succeed the plaintiff, to allow him a certain share of the annual profits of the office, it was ruled that no action could be supported in a Court of law on such an agreement. 1 H. Bla. 322. So, in Garforth v. Fearon, 1 H. Bla. 327, where the defendant, by the interest and on the application of the plaintiff, was appointed customer of Carlisle, having previously signed an agreement, declaring, that his name was only used in the application in trust for the plaintiff, that he would appoint such deputies as the plaintiff should nominate, and would empower the plaintiff to receive the profits of the office to his own use, it was decided, not only that the agreement was void by the stat. 12 Ric. II., but also that the common law would not support an assumpsit on such an agreement. Again, in the case of Blackford v. Preston, it was holden, that a sale (by the owner) of the command of a ship employed in the East India company's service, without the knowledge of the company, was illegal; and that the contract of sale could not be the foundation of an action at law. 8 T. R. 89. At common law, although the bargain respecting an office may not be within the statute, it will be void if it be a fraud on a third person, or contrary to the general policy of the law. Thus, if a covenant is entered into, that if the plaintiff will procure the defendant to be appointed to an office, he will pay the plaintiff a share of the emoluments, and this be without the knowledge of the person who has the right of appointing to the office, it is such a fraud on him as will avoid the covenant, whether the office is one lawfully saleable or not. Waldo v. Martin, 6 D. & R. 364; 4 B. & C. 319, S. C.; 2 C. & P.1; Blatchford v. Preston, 8 T. R. 89; Card v. Hope, 4 D. & R. 164; 2 B. & C. 661, S. C. By stat. 49 Geo. III. c. 126, s. 1, reciting stat. 5 & 6 Edw. VI. c. 16, it is declared and enacted, "That the said act and all the provisions therein contained shall extend and be construed to 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 or superintendance 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 his Majesty's ordnance, the commander in chief, the secretary at war, the paymaster general of his Majesty's forces, the commissioners for the affairs of India, the commissioners of the excise, the treasurer of the navy, the commissioners of the navy, the commissioners for victualling, the commissioners of transports, the commissary general, the storekeeper general, and also the principal officers of any other public department or office of his Majesty's government, in any part of the BUYING &c. OFFICES. Construction of 5&6 Edw. 6, c. 16. Provisions of 5 & 6 Edw. 6, c. 16, extende extended to other BUYING, &c. OFFICES. 49 Geo. c. 126. When right of appointment forfeit united kingdom, or in any of his Majesty's dominions, colonies, or plantations which now belong or may hereafter belong to his Majesty, and also to all offices, commissions, places, and employments belonging to or under the appointment or control of the united company of merchants of England trading to the East Indies, in as full and ample a manner as if the provisions of the said act were repeated as to all such offices, commissions, places, and employments, and made part of this act; and the said act, and this act, and all the clauses and provisions therein respectively contained, shall be construed as one act, as if the same had been herein repeated and re-enacted" (a). Sect. 2 provides, "That where the right, estate, or interest of any pered, offices vested in son or persons shall be forfeited under any of the provisions of the said act or this act, the right of such appointment shall immediately vest in and belong to his Majesty, his heirs, and successors." his Majesty. Persons buying or selling offices, or receiving or paying money or rewards for offices, guilty of a misde meanor. Persons receiving or paying money for soliciting or obtaining offices, and any negotiations, or pretended negotiations relating thereto, guilty of a misdemeanor. Sect. 3." If any person or persons shall sell or bargain for the sale of, or receive, have, or take any money, fee, gratuity, loan of money, reward or profit, directly or indirectly, or any promise, agreement, covenant, contract, bond, or assurance, or shall by any way, device, or means, contract or agree to receive or have any money, fee, gratuity, loan of money, reward, or profit, directly or indirectly; and also if any person or persons shall purchase or bargain for the purchase of, or give or pay any money, fee, gratuity, loan of money, reward, or profit, or make or enter into any promise, agreement, covenant, contract, bond, or assurance to give or pay any money, fee, gratuity, loan of money, reward, or profit, or shall by any way, means, or device, contract or agree to give or pay any money, fee, gratuity, loan of money, reward, or profit, directly or indirectly, for any office, comn.on, place, or employment specified or described in the said recited act or this act, or within the true intent or meaning of the said act or this act, or for any deputation thereto, or for any part, parcel, or participation of the profits thereof, or for any appointment or nomination thereto or resignation thereof, or for the consent or consents, or voice or voices of any person or persons to any such appointment, nomination, or resignation, then, and in every such case, every such person, and also every person who shall wilfully and knowingly aid, abet, or assist such person therein, shall be deemed and adjudged guilty of a misdemeanor." Sect. 4. If any person or persons shall receive, have, or take any money, fee, reward, or profit, directly or indirectly, or take any promise, agreement, covenant, contract, bond, or assurance, or by any way, means, or device, contract or agree to receive or have any money, fee, gratuity, loan of money, reward, or profit, directly or indirectly, for any interest, solicitation, petition, request, recommendation, or negotiation whatever, made or to be made, or pretended to be made, or under any pretence of making or causing or procuring to be made, any interest, &c., in or about, or in any wise touching, concerning, or relating to any nomination, appointment or deputation to or resignation of any such office, &c., as aforesaid, or under any pretence for using or having used any interest, &c., in or about any such nomination, &c., or for the obtaining or having obtained the consent or consents, or voice or voices of any person or persons as aforesaid to such nomination, &c.; and also if any person or persons shall give or pay, or cause or procure to be given or paid, any money, fee, gratuity, loan of money, reward or profit, or make or cause or procure to be made any promise, agreement, covenant, contract, bond, or assurance, or by any way, means, or device, contract or agree, or give or pay, or cause or procure to be given or paid any money, &c., for any solicitation, &c., whatever, made or to be made, that shall in anywise touch, concern, or relate to any nomination, &c., of any such office, &c., as aforesaid, or for the obtaining or having obtained, directly or indirectly, the consent or consents, or voice or voices of any person or persons as aforesaid to any such nomination, &c., and also if any person or persons shall, for or in expectation of gain, fee, &c., solicit, re (a) As to an office in the Colonies, &c. see 9 B. & C. 462. BUYING &c. OFFICES. commend, or negotiate in any manner for any person or persons in any matter that shall in anywise touch, concern, or relate to any such nomination, &c., aforesaid, or for the obtaining, directly or indirectly, the con- 49 Geo. 3, c. 126. sent or consents, or voice or voices of any person or persons to any such nomination, &c., aforesaid, then, and in every such case, every such person, and also every person who shall wilfully and knowingly aid, abet, or assist such person therein, shall be deemed and adjudged guilty of a misdemea nor. Sect. 5. Whereas, on the pretence of negotiating or soliciting the sale, transfer, or appointment of any office or offices, which, under the exception of this act or otherwise, it may be lawful to sell, offices for negotiating the same and advertisements may be published, by means and under the cclour of which illegal transactions intended to be prohibited by this act may be carried on;' it is further enacted, That" if any person or persons shall open or keep any house, room, office, or place for the soliciting, transacting, or negotiating in any manner whatever any business relating to vacancies in, or the sale or purchase of, or appointment, nomination, or deputation to, or resignation, transfer, or exchange of any offices, commissions, places, or employments whatever in or under any public department, then, and in every such case, every such person, and also every person who shall wilfully and knowingly aid, abet, or assist therein, shall be deemed and adjudged guilty of a misdemeanor.” Sect. 6. If any person or persons shall advertise or publish, or cause or procure to be advertised, or in any manner published, any house, room, of fice, or place to have been or to be opened, set up, or kept for any of the purposes aforesaid, or advertise or publish, or cause or procure to be advertised or published, the name or names of any person or persons as per or brokers, agent or agents, solicitor or solicitors for any of the purposes aforesaid, or print, or cause or procure or permit or suffer to be printed or advertised, any advertisement or advertisements, proposal or proposals, for any of the purposes aforesaid, then, and in such case, such person or persons shall forfeit, for every such offence, the sum of 50l., to be sued for, levied, or recovered in any of his Majesty's Courts of record at Westminster, as to all offences committed in England, or at Dublin as to offences committed in Ireland, or in his Majesty's Courts in Scotland as to offences committed in Scotland respectively; and the whole of every such penalty shall go to the person who shall sue for the same, with full costs of suit." Sect. 7. "That nothing in this act contained shall extend or be construed to extend to any purchases, sales, or exchanges of any commissions or appointments in the honourable band of gentlemen pensioners, or in his Majesty's yeoman guard, or in the Marshalsea, and the Court of the King of the Palace of the King at Westminster, or to extend to any purchases, sales, or exchanges of any commissions in his Majesty's forces for such prices as shall be regulated and fixed by any regulation made or to be made by his Majesty in that behalf, or to any act or thing done in relation thereto by any agents, provided that such agents shall be agents of regiments authorized by the commander in chief of his Majesty's forces, or by the colonels or commandants of regiments or corps, and shall act therein under such regulations only as are or shall from time to time be established by his Majesty, and shall not cause or procure, or knowingly permit or suffer to be printed or advertised, any advertisement or advertisements, proposal or proposals for any purchase or sale or exchange of any commission, or any negotiation relating thereto, and shall not receive or take any money, fee, gratuity, or reward, or any promise, agreement, covenant, contract, bond, or assurance, or by any way, means, or device, contract or agree to receive or have any money, fee, gratuity, or reward, for acting in such behalf." Sect. 8. "That every officer in his Majesty's forces, who shall take, accept, or receive, or pay, or agree to pay, any larger sum of money, directly or indirectly, than what is allowed by any regulations made by his Majesty in relation to the purchase, sale, or exchange of commissions in his Majesty's forces, or who shall pay, or cause to be paid, any sum of money, to any QQQ VOL. III. BUYING &c. OFFICES. 49 Geo. 3, c. 126. cashiered; their commissions be sold; half of the produce (not exceeding 500, to the informer, &c. Exception as to offices excepted in former act, and able, &c. agent or broker, or other person, for negotiating the purchase or sale or exchange of any such commission, shall, on being convicted thereof by a general court martial, forfeit his commission, and be cashiered; and as an encouragement for the detection of such practices, such commission so forfeited shall be sold, and half the regulated value (not exceeding 5004.) shall be paid to the informer, and the other half, or the remainder, if more than 500l., shall go and be applied as his Majesty shall order and direct, by any regulations from time to time made in that behalf: provided also, that every person who shall sell his commission in his Majesty's forces, and not continue to hold any commission in his Majesty's forces, and shall, upon or in relation to such sale, take, accept, or receive, directly or indirectly, any money, fee, gratuity, loan of money, reward, or profit, or any promise, agreement, covenant, contract, bond, or assurance, or shall by any device or means contract or agree to receive or have any money, fee, gratuity, loan of money, reward, or profit, beyond the regulated price or value of the commission sold, and also every person who shall wilfully or knowingly aid, abet, or assist such person therein, shall be deemed and adjudged guilty of a misdemeanor within the provisions of this act." Sect. 9. "That nothing in this act contained shall extend or be construed to extend to any office excepted from the provisions of the said act passed offices legally sale in the sixth year of the reign of king Edward the Sixth, against buying and selling of offices, or to any office which was legally saleable before the passing of this act, and in the gift of any person by virtue of any office of which such person is or shall be possessed under any patent or appointment for his life; or to render invalid, or in any manner to affect any promise, agreement, covenant, contract, bond, assurance, or trust, entered into or declared before the passing of this act, and which, before the passing thereof, was a valid promise, agreement, covenant, contract, bond, assurance, or trust, in law or equity, or to any money paid, or to any act, matter, or thing done in pursuance of any such promise, agreement, covenant, contract, bond, or Saving of lawful deputations and payments out of the fees. Exception as to annual payments out of the fees, to any person for office. assurance." Sect. 10. "That nothing in this act contained shall extend, or be construed to extend, to prevent or make void any deputation to any office, in any case in which it is lawful to appoint a deputy, or any agreement, contract, bond, or assurance, lawfully made in respect of any allowance, salary, or payment, made, or agreed to be made, by or to such principal or deputy respectively, out of the fees or profits of such office." Sect. 11. "That nothing in the said act, or in this act, contained, shall extend to any annual reservation, charge, or payment made or required to be made out of the fees, perquisites, or profits of any office, to any person inerly holding the who shall have held such office, in any commission or appointment of any person succeeding to such office, or to any agreement, contract, bond, or other assurance made for securing such reservation, charge, or payment: provided always, that the amount of such reservation, charge, or payment, and the circumstances and reasons under which the same shall have been permitted, shall be stated in the commission, patent, warrant, or instrument of appointment of the person so succeeding to and holding such office, and paying or securing such money as aforesaid. Offences committed abroad shall he tried in King's Bench. Sect. 12, relates to certain offices in Ireland. And sect. 13, to the manner of punishing offenders in Scotland. Sect. 14. "That all offences committed against the provisions of the said recited act, and this act, by any governor, lieutenant governors, or person having the chief command, civil or military, in any of his Majesty's dominions, colonies, or plantations, or his or their secretary or secretaries, may and shall be prosecuted and enquired of, and heard and determined in his Majesty's Court of King's Bench at Westminster, in like manner as any crime, offence, or misdemeanor committed by any person holding a public employment abroad may be prosecuted and enquired of under the provisions of an act passed in the forty-second year of the reign of his present Majesty, intituled "An Act for the trying and punishing in Great Britain persons holding public employments for offences committed abroad; and for extending the |