way for the appointment. But from thence no valuable consideration can arise. Had the transaction passed with the knowledge of the admiralty, judging of the case, and applying at their discretion the allowance they are bound to make, possibly it might have stood fair with the public: I say possibly only; to be sure the ground of deceit on the public would be done away. But this case rests on a private unauthenticated agreement between the officers themselves, which cannot admit of any consideration sufficient to maintain an action. If it could be proved that it was to be measured by money, so as to form a valuable consideration, it must be in respect to the time when it was made, when the plaintiff was prevailed upon to retire in favour of the defendant. In this view it certainly would approach very near to brocage; it would differ very little, in effect, from selling the interest itself, though there would be a difference in the conduct of the party who in one case would be passive, in the other active. But his passive merit, if I may use the expression, would not avail him, where his active exertion would be a demerit. The case cited from 1 Vern. 98. I think may be supported. It was the purchase of a commission in the army, which the Duke of Ormond refused to ratify, on the ground, that the plaintiff had bought without the other party having leave to sell, who had not bought. I should rather suspect, from the usual inaccuracy of the cases in Vernon, that the plaintiff got the commission by succession, and set up this defence against the payment of the bond. There is something very like it in the reasoning of the court, who held there was no relief against the bond. The question of the consideration did not occur to them; and they seem to have holden that where commissions were generally saleable, there was nothing unfair in such a transaction. The next case in 2 Vern. 338. if true, is a decision undoubtedly contrary to what we now decide, and I think contrary to an evident principle of law. On the state of the report the bonds are directly and plainly given for brocage of an office of trust and profit, which is not an object of sale. I have therefore no difficulty to say, that I hold that case to be extremely ill-determined, if the note of it be at all correct. The case of Ive v. Ash, Prec. Chanc. 199. I think rightly determined; there was a purchase of a commission allowed to be sold, the commission was given up, and the purchaser wanted to get rid of the bargain, and be free from the agreement. He objected that a commission in the marines could not be sold; but it turned out upon examination, that the sale of such commissions was permitted, not being looked as within the statute. I therefore hold that case to be well adjudged: for the question whether an office is saleable or not, is a matter of public regulation, and not a question for a court. If by public regulation, right or wrong, certain offices are saleable, the Court cannot set aside the transaction for their sale, the Court is not to

make the regulation. Whether by the general police of the country an individual office is saleable or not, is not a matter of law. But in the present case there is no ground to say, that the defendant's office was sold under any regulation, or that the transaction between the parties was carried on under any authority, or with the consent of their superiors. This agreement resting on private contract and honour, may, perhaps, be fit to be executed by the parties, but can only be enforced by considerations which apply to their feelings, and is not the subject of an action. The law encourages no man to be unfaithful to his promise, but legal obligations are from their nature more circumscribed than moral duties.

So, a sale of the command of a ship, employed in the East India Company's service, by the owner thereof, without the knowledge of the company, is illegal; and the contract of sale cannot be the foundation of an action. (f)

So, if A., being a clerk, promises B., in consideration that B. will procure him to be rector of a donative church, with cure of souls, to pay 10. to B., this is no good consideration to maintain an action, for this is simony, and an offence against the laws of God and man. (g) So, a promise to pay a per centage to procure for another a purchaser of his place in the customs is void. Thus, in the case of Stackpole v. Earle, (h) which was an action of assumpsit, wherein the plaintiff declared, that whereas the defendant before and at the time of making the promise aforementioned, and afterwards, was surveyor of the baggage of the port of London, and was greatly desirous of selling and disposing of his said place, and being so desirous to sell and dispose of the same, on the 1st of January, 1758, at Westminster, in the county of Middlesex, in consideration that the plaintiff, at the defendant's request, would use his endeavour to procure, and would procure a proper person to purchase the said place of the defendant, he undertook and promised to pay the plaintiff 21. for every 100%. that such person should give for the purchase of the said place; and the plaintiff avers that confiding in the said defendant's promise and undertaking, afterwards on the same day and year at Westminster aforesaid, he, at the defendant's request, used his endeavours to procure, and by means thereof on the 1st of March, 1758, at Westminster, procured one John Gunston, being a proper person, to purchase of the defendant the said place for 1200l., and that the said Gunston did give to the defendant 12007. for the purchase of the said place, whereby the defendant became liable to pay to the plaintiff 247. for the purchase of the said place. There were also general counts for work and labour done, &c. Upon the debating this case at the bar, it

89.

(f) Blachford v. Preston, 8 Term Rep.

(g) Rol. Abr. 18. pl. 13. Cro. Car. 537. 355.361. Sir W. Jones's Rep. 341. (h) 2 Wils. 133.

was urged by the counsel for the plaintiff, that he was neither a buyer or seller of the place or office, and that what he had done was at the defendant's request, and was neither malum in se, nor malum prohibitum, and therefore he ought to be satisfied for his labour and trouble; but the whole Court were of opinion, that it was malum prohibitum, and within the statute of 5 & 6 Ed. 6. cap. 16. sec. 2. And though the plaintiff himself was neither buyer or seller, yet this appears to be a promise to pay him money, to the intent that a person should have an office belonging to the customs, which is within the very words of the statute; but Mr. Justice Clive said, he thought the selling of offices was malum in se at common law, and that if the statute had never been made, he thought the procuring a person to buy the office of the defendant was not a good consideration in law to raise an assumpsit, (which was not denied by any of the judges,) because it was illegal; as if a gaoler permits a prisoner to go at large upon his promising to satisfy the debt for which he is imprisoned, he escapes by the consent of the gaoler, and does not pay the debt according to his promise, the gaoler brings an assumpsit, but shall not recover, because the consideration was illegal; for it is a most certain principle, that every consideration to ground an assumpsit upon must be lawful.

But a promise by one of two candidates for the office of under-sheriff, in consideration that the other will desist, is good. Thus, in the case of Parker v. Brown, (2) which was an action of assumpsit, whereas the plaintiff was suitor to the sheriff of Middlesex, to obtain the office of undersheriff for such a year, and to be made under-sheriff for the same year, and was very likely to obtain the said place; for which the defendant also, at the same time, was a suitor; that the defendant, in consideration the plaintiff would desist his suit, promised to the plaintiff if he obtained the said office, and was made under-sheriff, to pay to the plaintiff 201. for such a gelding, which the plaintiff had delivered to him: and allegeth in facto, that he delivered to the defendant the said gelding; and that the defendant was made under-sheriff, and executed the office for the said year; and that he had not paid, &c. Upon non assumpsit pleaded, and verdict found for the plaintiff, judgment was given in the Common Pleas for the plaintiff; but a writ of error was brought in the King's Bench: and the error insisted upon was, that this is no lawful nor valuable consideration. But all the Court held, "That the consideration was good and valuable; for by this means the plaintiff desisted from his suit, and the defendant obtained the said office." Wherefore the judgment was affirmed.

(i) Cro. Jac. 612.

CHAPTER XII.

OF

1.

CONTRACTS TO MARRY,

OR IN RESTRAINT OF MAR

RIAGE AND OF AGREEMENTS TO PAY MONEY IN CONSIDERATION OF MARRIAGE: AND OF THE STATUTE OF FRAUDS RELATING THERETO.

OF

If a man and woman being un

F CONTRACTS TO MARRY.] married mutually promise to marry each other, but afterwards the man marries another woman, an action of assumpsit will lie, in which the woman shall recover damages for breach of such a contract; for though matrimonial causes are regularly cognisable in the spiritual court, yet the contract in such case being executory, and revoked by the subsequent marriage, could not be enforced in that court as a contract in præsenti may; and marriage being an advantage, and the loss of it a temporal loss, it is fit that there should be a remedy in the temporal courts, otherwise there would be a failure of justice. (a) And therefore, in the case of Rutter v. Hebden, (b) which was an action of assumpsit in consideration that the plaintiff would marry the defendant, he promised to marry her: after verdict for the plaintiff, it was moved that this was a matter ecclesiastical upon which no action at law would lie. But the Court would not permit it to be argued, and gave judgment for the plaintiff.

So, in the case of Harrison v. Cage and wife, (c) which was also an action of assumpsit on a special promise of the woman before marriage, "that in consideration that the plaintiff being a bachelor had on such a day and place promised to take her (whilst sole) to wife, she, whilst she was sole, &c., promised the plaintiff to take him for her husband:" then he averred in fact, that he had tendered himself to marry her, and had requested her to marry him, but that she refused, and afterwards married the defendant. The cause was tried, and a verdict was found for the plaintiff, damages 400l., the woman being worth 3000l. when the plaintiff courted her, and afterwards by the death of her brother worth double (c) Carth. 467. 1 Ld. Raym. 386. S.C.

(a) Bac. Abr. tit. Assumpsit, A. (b) 1 Lev. 147. 1 Sid. 180. S. C.

that sum. It was moved in arrest of judgment, that this action would not lie upon the promise of marriage made by the woman; for the law doth not intend that the man is advanced by marriage; and therefore such a promise of marriage to him is of no consideration in law, and by consequence, no action can be founded thereon. But it is otherwise where a man promiseth to marry a woman, because in the eye of the law marriage is an advancement to the woman. It was also contended that this promise was void for uncertainty, for there was no certain time agreed on when the marriage should take effect. To which it was answered, and so resolved, per curiam, "That here were reciprocal promises; and therefore as her promise to him was a good consideration to make his promise obligatory, so by the same reason his promise to her was a sufficient consideration to make her promise binding in this case as well as in any other mutual agreements." And the Court did not allow that distinction between the advancement of a man and of a woman in marriage; and that this was a good promise, though the certain time of marriage was not agreed on, especially since the plaintiff averred, that he had offered to marry her, and that she refused, which in this case was necessary to be done, to entitle the plaintiff to this action. So, in the case of Hutton v. Mansell, (d) an action of assumpsit was brought, laying mutual promises of marriage between the plaintiff and the defendant, and a refusal on the part of the man, who was the defendant. And upon evidence an express promise was proved to have been made by the man, but none by the woman. And per Holt Ch. J." If there be an express promise by the man, and it appear the woman countenanced it, and by her actions at the time behaved herself so as if she agreed to the matter, though there be no actual promise, yet that shall be sufficient evidence of a promise of her side. And he said, he remembered a case in which he had been counsel, in Lord Chief Baron Montague's time, where it had been so ruled upon evidence against his client; and being then dissatisfied therewith, he put the case to eminent men of those times, who all concurred in opinion with the Chief Baron."

So, if an infant and a person of full age mutually promise to intermarry, the infant, although not bound by her promise, may, notwithstanding, maintain an action for breach of promise by the adult. Thus, in case of Holt v. Ward, (e) the declaration stated, that it was mutually agreed between the plaintiff and defendant, that they should marry at a future day, which is past; and that in consideration of each other's promises, each engaged to the other: notwithstanding which the defendant did not marry the plaintiff, but had married another, which she laid to her damage of 4000l. The defendant pleaded non assumpsit, and that the plaintiff, at the time of the promise, was an infant of fifteen years of

(d) 6 Mod. 172. 3 Salk. 16. S.C.

(e) 2 Stra. 937. Fitzg. 275.