Qualifica tions re quired. Crawford v. Powell, 2 Burr. R. 1013. execute it by deputy, to be appointed by them; such deputy not being of a degree inferior to a knight, and to be approved of by His Majesty."-The Lords certified accordingly; and Mr. Burrell, being created a knight, was appointed deputy. 71. With respect to the oaths required to be taken, and the ceremonies to be performed, as qualifications for holding offices; it is enacted by the stat. 13 Cha. II. c. 1. § 12., that no person shall be chosen to any office of magistracy, place of trust, or other employment, relating to the government of any city, corporation, borough, cinque port, or other port town, who shall not have received the sacrament according to the rites of the church of England within one year next before such election; and that every person so placed or elected shall take the oaths of allegiance and supremacy. 72. By the stat. 25 Cha. II. c. 2. commonly called the test act, it is enacted, that every person who shall bear any office civil or military, by reason of any patent or grant from His Majesty, must take the oaths of allegiance and supremacy and test; and receive the sacrament within three months: in case of neglect, he shall be disabled to hold the said offices, &c. and forfeit 5001. An act is passed regularly every year to indemnify persons holding offices, who have neglected to qualify themselves according to the provisions of this statute. 73. By the stat. 5 Geo. I. c. 6., it is enacted, that all persons in the actual possession of any office, that are required by the test act to take the sacrament, &c., shall be confirmed in their respective offices, and none of their acts be questioned, notwithstanding their omission to take the sacrament; nor shall they be removed, or otherwise prosecuted, for or by reason of such omission, unless such person be`so removed, or such prosecution commenced, within six months after the election. 74. The intention of the test act was to exclude persons who were not of the church of England from all offices which concern the government; and is to be considered as prohibitory on the electors, quoad such persons. A dissenter being therefore ineligible to such offices, cannot be fined for refusing to accept of them. v. Evans, Bro. Parl. Ca. 465. Wilmot, 130. 75. The corporation of the city of London, by a Harrison bye law, imposed a fine of 6007. upon every person 3 who, being elected, should refuse to serve the office of sheriff. The chamberlain of London levied debt on a person named Evans, for the penalty of his refusal to serve the office of sheriff; who pleaded the statute 13 Cha. II., averring that he was a protestant dissenter, within the toleration act, of scrupulous conscience, and therefore had not received the sacrament. The plaintiff replied the 5 Geo. I. which con- ante, § 73. firms members of corporations in their respective offices, though they have not received the sacrament. To this the defendant demurred, and judgement was given in favour of the city; but reversed by a special commission; and the reversal affirmed by the House of Lords. against sel 76. It is enacted by the stat. 5 & 6 Edw. VI. c. 16. Statute that all persons who shall sell any offices, shall lose ling or buyand forfeit all their right, interest, and estate in such ing Offices. offices, and in the gift and nomination thereof; that all persons who shall purchase such offices, shall be disabled from occupying or enjoying the same; and that all such bargains shall be void; with a proviso, that all acts of persons offending against this statute, 3 Inst. 148. done before they are removed from their offices, shali be good and valid. 77. This statute extends to ecclesiastical, as well as to temporal offices, which concern the administration and execution of justice. Thus it was resolved, in the case of Doctor Trevor, chancellor of a bishop in Wales, that both the office of chancellor, and that of register, of a bishop, were within the statute; because they concerned the administration of justice. Croke in his report of that case says, it was held that Cro. Ja. 269. although such offices concerned matters principally pro salute animarum, yet they also concerned matters about matrimony, and legitimacy, which touched the inheritance of the subjects. Trevor's Woodward v. Fox, 3 Lev. 289. 78. The office of archdeacon's register is within the statute; and though the persons to whom the sale2 Vent. 187. and grant was made die, yet the archdeacon selling such office, is disabled by this statute from making any other grant thereof; and the king shall have the nomination. Willes R. 571. Ingrani's 1 Inst. 234 a. Cro. Ja. 386. 79. The office of cofferer of the king's household is within this statute; so that if a person purchases this office, he becomes thereby disabled from enjoying it. 80. Sir R. Vernon being cofferer of the king's house, sold the same, for a certain sum of money, to Sir A. Ingram, and agreed to surrender it to the king, to the intent that a grant might be made of it to Sir A. Ingram. The surrender was accordingly made, and Sir A. I. was admitted. It was resolved by Lord Chancellor Egerton, the Chief Justice, and others, to whom the king referred the same, that this sale was void by the statute; that Sir Arthur was disabled to hold the office; and that the king could not, by a non obstante, dispense with this act, so as to enable Sir Arthur to enjoy the office at any time; even by a new grant upon a subsequent vacancy. Willes, 241. 81. It was resolved, in a modern case, that a con- Huggins v. tract with the warden of the Fleet prison, 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 the statute 5 & 6 Edw. VI., though that office had been, and might be granted to a subject in fee; and that a bond given to secure the payment of such consideration money, could not be enforced in a court of law. 82. In another case it was held, that a bond given Layng v. Forrest, 140: Culliford v. Paine, by any of the officers mentioned in the statute 5 & Willes, 571. 6 Edw. VI., for securing all the profits of an office to the person appointing, was void by that statute. Law v. Law, So was a bond given by such an officer, to surrender the office whenever the person appointing chose. 83. An agreement by a deputy, to pay his principal half the profits of the office, is not within the statute, because it is not to pay him a sum in gross, Godolphin but only a part of the profits; which must be sued for in the principal's name, for they all belong to him; though a share is to be allowed out of them to the deputy for his trouble. But where an auditor of De Cardonel, 2 Salk. 466. v. Tudor, Id. 1 Bro. Parl. Ca. 135. Thompson, Wales appointed a deputy; and it was agreed between Parsons v. them that the deputy should receive all the fees, &c. 1 H. Black. pay the principal a certain sum of 2001. per and annum, this was held void. 322. 84. By the fourth section of this statute it is pro- What Offices vided, that it shall not extend to any offices whereof are not any person shall be seised of any estate of inheri- within the tance, nor to any office of parkership, or of the Willes R. keeping of any park, house, manor, garden, chase, or Statute. 241. Godbolt's 4 Leon. 33. Prec. in Cha. 199. Symonds v. 2 Vern. 308. 1 H. Black. forest. By the seventh section it is provided, that the act shall not be prejudicial to the Chief Justices of the King's Bench and Common Pleas, or to any of the Justices of assise, touching or concerning any offices to be given or granted by them. 85. The offices of the sixty clerks in Chancery are not within this statute, nor the office of bailiff of a hundred; for it is not an office of trust, nor does it concern the administration of justice. 86. This statute does not extend to commissions in the army. And it was formerly held, that the office of purser of a ship of war was not within it. But Lord Mansfield has said, that if the Lords of the Admiralty 5 Burr. 2698. were to take money for their warrant to appoint a person to be a purser, it would be criminal in the corrupter and corrupted. 326. Vide stat. 19 Geo. III. c. 12. Where Equity will interpose. 87. By the statute 49 Geo. III. c. 12. it is enacted, that all the provisions of the stat 5 & 6 Edw. VI. shall be extended to Scotland and Ireland. And that when the interest of any person shall be forfeited under that act, or this act, the right of such appointment shall immediately vest in and belong to the Crown. 88. As the provisions of the statute 5 & 6 Edw. VI. do not extend to all the cases within the mischief which it was intended to prevent, courts of equity have frequently interposed; for though penal laws Treat. of Eq. are not to be extended, as to penalties and punishments, yet, if there be a public mischief, and a court sees private contracts made to elude laws enacted for the public good, it ought to interpose. B. 1. c. 4. $ 4. Morris v. 89. A person gave a sum of money to another for M'Cullock, procuring him a commission in the marines. Lord Henley decreed the bargain void; and said" I lay down this rule, that if a man sells his interest, to Amb. 432. |