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*offices, or for any part of any of them, any such persons or persons shall so make any bargain or sale, or take or receive any sum of money, fee, reward, or profit, or any promise, covenant, or assurance to have or receive any fee, reward, money, or profit; but also that all and every such person or persons that shall give or pay any sum of money, reward, or fee, or shall make any promise, agreement, bond, or assurance for any of the said offices, or for the deputation or deputations of any of the said office or offices, or any part of any of them, shall, immediately by and upon the same fee, money, or reward given or paid, or upon any such promise, covenant, bond, or agreement had or made for any fee, sum of money, or reward to be paid as is aforesaid, be adjudged a disabled person in law, to all intents and purposes, to have, occupy, or enjoy the said office or offices, deputation or deputations, or any part of any of them, for the which such person or persons shall so give or pay any sum of money, fee, or reward, or make any promise, covenant, bond, or other assurance to give or pay any sum of money, fee, or reward." The 1st section of the 49 G. 3, c. 126, extends the provisions of the former act 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, or commissions, places, or employments in the respective departments or offices, or under the appointment or 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 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 [*120 for victualling, the commissioners of transports, the commissarygeneral, 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 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 employ ments belonging to, or under the appointment or control of the united company of merchants of England trading to the East Indies." And the 3d section enacts, "that, 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, commission, 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 per*121] son, 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." The articles of partnership in this case recite that Sterry carried on the business of an attorney, and held many offices, clerkships, and stewardships of manors, and that it had been agreed between him and Clifton that the latter should enter into partnership with him in the said business, and in the emoluments of the said offices, clerkships, and stewardships; and the case enumerates the offices and stewardships to which the agreement has reference. If any one of the offices so enumerated be within the statutes, the agreement is one which cannot be carried into effect. Now, the office of clerk of the peace, of clerk to the commissioners of land and assessed-taxes, of clerk to the commissioners of sewers, and of clerk to the magistrates, are all offices. which touch or concern the administration or execution of justice.” In Hopkins v. Prescott, 4 M. Gr. & S. 578 (E. C. L. R. vol. 56), an agreement whereby,-after reciting that A. had carried on the business. of a law-stationer at G., and also had been sub-distributor of stamps, collector of assessed-tares, &c., there, and that he had agreed with B. for the sale of the said business, and of all his goodwill and interest therein, to him, for the sum of 3001.,-A., in consideration of the said sum of 3007., agreed to sell, and B. agreed to purchase, the said business of a law-stationer at G., and whereby it was further agreed that A. should not at any time after the 1st of March then next, carry on the business of a law-stationer at G., or within ten miles thereof, or collect any of the assessed-taxes, &c., but would use his utmost endeavours to introduce B. to the said business and offices;-was held to be illegal and *122] void, as being a contract for the sale of an office, within the 5 & 6 Ed. 6, c. 16, and also within the 49 G. 3, c. 126. WILDE, C. J., there says: "The subject-matter of the agreement, in addition to the sale of the business of a law-stationer, is, that the plaintiff will, for certain reward, resign the offices of collector of assessed-taxes and subdistributor of stamps, and use his best endeavours to procure the defendant to be appointed to those offices. The question is, whether

6

these are offices within the statute 5 & 6 Ed. 6, c. 16. It is said that the court cannot take notice of the office of collector of assessedtaxes.' He is, however, an officer appointed, under certain acts of parliament, of which we must take notice, to an office connected with the receipt of the revenue. The office of sub-distributor of stamps, likewise, is an office of the same description. Both are within the 5 & 6 Ed. 6, c. 16, the 3d section of which avoids all contracts for the sale or purchase of the several offices mentioned in the 2d section. We need not, therefore, look beyond the provisions of that statute, to see that the contract declared on in this case cannot be made the foundation of an action. The 49 G. 3, c. 126, s. 3, however, carries the matter still further, by making the transactions prohibited by the statute of Edward, misdemeanors. The effect of both statutes, is, that this agreement is utterly void." [WILLIAMS, J.-The statute 5 & 6 Ed. 6, c. 16, contemplates that the person who pays the money is to enjoy the office, or part of it.] Dr. Trevor's case, 12 Co. Rep. 78 (a), shows that a large and liberal construction is to be given to the statute, to suppress the mischief which it was designed to remedy. In Palmer v. Bate, 2 B. & B. 673 (E. C. L. R. vol. 6), 6 J. B. Moore, 28 (E. C. L. R. vol. 17), the office of clerk of the peace was held to *be within the statute 5 & 6 Ed. 6, c. 16. The office of clerk to the commissioners of sewers,-who are a court of record, (a)— [*123 is equally within the statute. So also is that of clerk to the magistrates it is clearly an office connected with the administration of justice; its nature is discussed in Ex parte Sandys, 4 B. & Ad. 863 (E. C. L. R. vol. 24); and it is an office that is recognised in the statutes 26 G. 3, c. 14, 6 G. 4, c. 50, s. 10, and 9 G. 4, c. 61, s. 15. The office of coroner is within the provisions of the statute 5 & 6 Ed. 6, c. 15.(6) So also is that of clerk to the land and assessed-tax commissioners, the duties of whose office are regulated by the 43 G. 3, c. 99, s. 9, and 3 G. 4, c. 88, s. 6. And Hopkins v. Prescott shows that it is immaterial that the office was unknown at the time of the passing of the statute of 5 & 6 Ed. 6, c. 16. The office of clerk to the deputy-lieutenants of the sub-division of Ilford, is probably a military, rather than a judicial office, and may not be within the statute of Edward; though it might still be within the 49 G. 3, c. 126. [MAULE, J.-It is not necessary to give effect to all the words in the deed: some of the offices that are mentioned clearly are not within the statute; stewardships of manors, for instance.] The agreement evidently contemplates the assignment of the profits of all the offices mentioned in the case; and, if any one of them cannot legally be assigned, the contract is altogether void. It is difficult to say that the stewardship of a manor,—which is

(a) See Fitz. Nat. Brev. 113; Com. Dig. Justices (G 3); Callis on Sewers, 163-167; Wentw. Pl. 191; Rainsey v. Nornabel, 11 Ad. & E. 383 (E. C. L. R. vol. 39). (b) See Hawk. P. C. ch. 9, § 1.

an office partly ministerial and partly judicial, (a)—is not within the statute. [MAULE, J.-Have you any express authority for that?] In Williamson v. Barnsley, 1 Brownl. & G. 70, the *office of steward *124] of a court-leet or court-baron was held to be within the statute. In Godolphin v. Tudor, 6 Mod. 234, 2 Salk. 468, Willes, 375 (ƒ),(b) it was held, that, if a person hold an auditor's office for life, and depute another to exercise the said office during his good behaviour, a bond given by such deputy to pay his principal yearly, during the said deputation, 2007., and that, in consideration thereof, the deputy shall have all the rents and profits of the said office to his own use, is void by the statute 5 & 6 Ed. 6, c. 16, for it is a bond to pay a certain sum at all events. This is not a mere case of giving a portion of the profits of an office to a deputy. [CRESSWELL, J.-Do you contend that this would have been a void bargain within the statute of Edward, independently of the 49 G. 3, c. 126?] It is submitted that it does come within the statute of Edward: but, at all events, it is within the 3d section of the 49 G. 8, c. 126. The cases of Flarty v. Odlum, 3 T. R. 681, and Wells v. Porter, 8 M. & W. 149,†(c) show the extreme jealousy of the common law upon the subject of assignments of offices or profits of offices and the statute 5 & 6 Ed. 6, c. 16, must be taken to enact what was the common law before, with an additional penalty. It may be said that there is nothing in these articles of partnership to entitle Clifton to a portion of the profits of any offices held by Sterry, the sale of which would be illegal. But general words are used, which, if found in a will, would suffice to pass all the party had. Would one or two offices satisfy the words "many offices?"

2. Upon the other question,-whether the agreement in this case comes within the 22 G. 2, c. 46, s. 11,-the court will have to elect *125] between the opinions of *Lord ELDON and Sir JOHN LEACH in Candler v. Candler, Jacob, 225, 6 Madd. 141, and that of Lord TENTERDEN, in Jackson, in re, 1 B. & C. 270 (E. C. L. R. vol. 8). In the former case, however, it is to be observed, there was no ultimate judgment; the matter appears to have been compromised. In Jackson, in re, an attorney had engaged a certificated conveyancer to conduct his business, and agreed to allow him a moiety of the profits, instead of a salary and ABBOTT, C. J., said: "I am clearly of opinion that this is a case both within the spirit and the words of the statute. The enacting part must be construed with reference to the mischief recited. in the preamble. That mischief was, that persons not admitted as attorneys, did, by the connivance of attorneys, intrude themselves into, and act and practise in, the office and business of attorneys. Now,

(a) See 1 Scriven on Copyholds, 4th edit. p. 116; The Queen v. The Lord of the Manor of Old Hall, 10 Ad. & E. 248 (E. C. L. R. vol. 37).

(b) Affirmed in the House of Lords, 1 Bro. P. C. 101, (135).

(c) And see Barwick v. Read, 1 H. Bla. 627, Gibson v. The East India Company, 5 N. C. 262, 7 Scott, 74.

here, Wood, who is not an admitted attorney, was enabled, by the connivance of Jackson, to intrude himself into, and act and practise in, the office and business of an attorney. This is a case clearly, therefore, within the mischief which it was the object of the statute to remedy. The statute then proceeds to enact, that, if any sworn attorney shall act as agent for any person not duly qualified to act as an attorney, or permit his name to be in any wise made use of, for the account or profit of any unqualified person, or send any process to such unqualified person, thereby to enable him to appear, act, or practise in any respect as an attorney, the attorney so offending shall be struck off the roll, and for ever after disabled from practice.' Now, here, Jackson permitted his name to be made use of upon the account and for the profit of Wood. It is, therefore, a case within the words of the enacting part of the clause. It has been urged, that, to bring the case within the act, it must have been done for the purpose of enabling an [*126 unqualified person to act as an attorney. I am of opinion the word thereby applies merely to the sending of process to the unqualified person, and not to the whole of the preceding sentence." [WILLIAMS, J.-The decision there proceeded upon the ground that the case fell within the mischief recited in the preamble to the 11th section.] Where the enacting part of a statute is clear, it is not to be controlled by the words of the preamble. This is clearly laid down by POLLOCK, C. B., in delivering the judgment of the court of Exchequer, in Salkeld v. Johnson, 2 Exch. 282, 283:† "Although," he says, "the title has occasionally been referred to as aiding in the construction of an act (particularly by Sir JOHN NICHOLL, in Brett v. Brett, 3 Addams, 210), it is certainly no part of the law, and, in strictness, ought not to be taken into consideration at all: Lord COKE, Powlter's case, 11 Co. Rep. 33; Lord HOLT, Wells and Wilkins, 6 Mod. 62; Lord MANSFIELD, Rex v. Williams, 1 W. Bla. 95; and Lord HARDWICKE, The Attorney-General v. Lord Weymouth, Ambler, 22. But the preamble is undoubtedly a part of the act, and may be used to explain it, and is, as Lord COKE says,(a) a key to open the meaning of the makers of the act, and the mischiefs it was intended to remedy;' but, on the other hand, although it may explain, it cannot control the enacting part, which may, and often does, go beyond the preamble." [WILLIAMS, J.-The clear words of the enacting part certainly are not to be controlled by the language of the preamble.]

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Peacock, in reply.-This is not a contract for the sale of an office, or of part of an office, within the meaning of the statutes. [MAULE, J.— I doubt whether *the case ought not to have stated, as a fact, that the parties contracted with reference to all the offices referred to, or some of them. Upon the case as it stands, the question 1s, whether there is evidence from which we can infer that they did in(a) 4 Inst. 330.