procure a permanent office of trust or service under government, it is a contract of turpitude; it is acting against the constitution, by which the government ought to be served by fit and able persons, recommended by the proper officers of the Crown, for their abilities, and with purity." 90. Lord Rochfort being Groom of the Stole to Hancington v. Du Chatel, His Majesty, and having the right of recommending 1 Bro. R.124. pages of the presence, treated with the plaintiff's testator, to recommend him upon a vacancy, on condition that he should grant two annuities to particular persons. An action being brought on the bonds securing these annuities by the defendant's testator, for the arrears of the annuity, the plaintiffs filed their bill for an injunction. The defendants had demurred, and the demurrer had been over-ruled. Upon a motion to continue the injunction, upon the merits, the answer being put in, it was argued on the part of the plaintiffs, that the bonds were pro turpi causa that Lord Rochfort having a confidence placed in him by the King, had abused that confidence by selling his recommendation; and that upon the public policy of the law, such an agreement ought not to stand. On the other hand it was argued, that it was allowed this was not an office within the statute of Edw. VI. that it was merely an office respecting the King's private, not his public character; and if it was turpis contractus, that might have been pleaded at law. Lord Thurlow expressed his doubts whether it might not have been brought upon the record at law, by a plea, and made a defence there to the action: but thought that not a sufficient reason to prevent his ́ interposition; the courts of law never having determined that it could be so brought there as a defence: admitting that it was not within the statute of Edw. VI., but treating it as a matter of public policy, and similar to marriage brocage bonds; where, though the. parties are private persons, the practice is publicly detrimental. He ordered the injunction to be continued till the hearing; afterwards, upon the hearing, he ordered it to be perpetual. 91. Offices may be lost by forfeiture; by acceptance of another office incompatible with that which the persons holds; and by the destruction of the principal office; or the determination of the thing to which the office was annexed. 92. It is a general rule, that if a person does any act which is contrary to the nature and duty of his office; or refuses to perform the services annexed to it, the office is forfeited; for in the grant of every office, there is a condition implied, that the grantee shall execute it faithfully and diligently. 93. It was said in Lord Shrewsbury's case, that "there are three causes of forfeiture or seisure of offices; for matter of fact: as for abusing, not using, or refusing. Abusing or misusing; as if the marshal or other gaoler suffer voluntary escapes, it is a forfeiture of their offices: so if a forester or park-keeper fell and cut down wood, unless for necessary brush, it is a forfeiture of their offices; for destruction of vert is destruction of venison. As to non-user, there is a difference: when the office concerns the administration of justice, or the commonwealth, and the officer ex officio, or of necessity, ought to attend without any demand or request; there the non-user or nonattendance in court is a forfeiture. As the office of chamberlain in the Exchequer, prothonotary, &c.-in the Common Pleas, &c.; for the attendance of these and the like officers is of necessity, for the administration of justice. So the attendance of the Clerk of the Market is of necessity for the common wealth: so of holding the sheriff's tourn. But when the officer ought not to attend or exercise his office, but on demand or request to be made by him to whom he is officer; there, non-user or non-attendance is no cause of forfeiture, without demand or request made. But when the office concerns any man's private property, and the officer ought, ex officio, to attend his office without request; there the non-user or non-attendance is no cause of forfeiture, unless the non-user or non-attendance is cause of prejudice or damage to him whose officer he is, in something which concerns his charge. As if a parker, or custos parci, does not attend one or two days, and within these days no prejudice or damage happens, it is no forfeiture: but if, by reason of his absence, persons unknown kill any deer, it is a forfeiture of his office. As to refusal, it is to be known, that in all cases when an officer is bound, upon request, to exercise his office, if he do it upon request, it is a forfeiture. As if the steward of a manor is requested by the lord to hold a court, which he does not, it is a forfeiture." Dyer, 114 b. 94. A filazer of the Court of Common Pleas was Vaux v. absent from his office during two years; and farmed Jefferen, it from year to year, without leave of the Court, for which he was discharged; and no record of the discharge was entered on the roll. Upon his bringing an assise, this was held a good discharge. 95. If a tenant in tail of an office commits a for- 7 Rep. 34 b. feiture, it shall bind the issue by force of the condi tion tacitè, annexed by law to such estate. But if Bro. Ab. Tit. 2 Lev. 71. 3 288. Bro. Ab.Tit. Office, pl. 51. Neville's an officer for life commits a forfeiture, this shall not affect the person entitled to the inheritance. 96. If the deputy of an office in fee does any act by which the office is forfeited, the inheritance of the office is thereby lost. But if a person having an office of inheritance, leases it for life, and the lessee commits a forfeiture, this shall not operate as a forfeiture of the inheritance. 97. It has been held in some cases, that where there are two joint officers, the forfeiture of one is a forfeiture of the other; for both are one and the same officer, and the office is entire. It has, however, been determined, that where an office is granted to two, and one of them is attainted of treason, the other shall not forfeit. 98. Sir E. Nevill, and Henry Nevill his son, were Plowd. 378. keepers of Alyngton Park, with a certain fee, during their lives, and the life of the longest liver of them. Sir E. Nevill was attainted of treason. The question was, whether the King should have the office by the attainder. Resolved, that being only an office of skill and confidence, the same was not forfeited to the King; but that the survivor should hold the same during his life. Woodward 99. Where an ecclesiastical office is forfeited, the benefit of it goes to the King, as supreme ordinary. And where a principal officer is authorized to appoint inferior officers under him, if such inferior officers commit a forfeiture, the superior officer shall take advantage thereof. Acceptance 100. A person may lose an office by the acceptof an incom- ance of another office, incompatible with that which patibleOffice. he already holds. And all offices are incompatible and inconsistent, where they interfere with each other; for that circumstance creates a presump tion that they cannot be both executed with impartiality. 101. Thus where a forester by patent for life, 4 Inst. 310. having been made justice in eyre of the same forest, hac vice, the forestership was held to become void; for these offices were incompatible, because. the forester was under the correction of the justice in eyre, and he could not correct himself. Milward 102. Upon a mandamus to restore a person to the Rex v. Peroffice of town clerk, it was returned, that he was gam, Sid.305. elected mayor, and sworn, therefore they chose ano- v. Thatcher, ther town clerk. The Court was strongly of opinion 81. that the offices were incompatible, because of the subordination. 2 Term R. 103. An incidental office may be lost by the Destruction destruction of the principal office, or the determi- of the Prinnation of the thing to which the office was annexed. 104. King James, by his letters patent under the great seal, granted officium custodis of a park to Sir Charles Howard, habendum to him for life. All the justices and barons agreed, that the park being dissolved, the office was determined; for the office being only an accessary, must follow the fate of the principal. It was also said, that if a person grants the office of steward of a manor, with all profits of courts, &c., and the manor is afterwards destroyed, the office of steward, together with the casual profits annexed to it, is determined. 105. In the above case, an annual fee of 401. had been given to the parker, issuing out of the king's manors in the county of Surry; and a question arose, whether that was determined by the destruction of the park. Walter, Ch. B. held that it was; but all the other justices and barons dissented from him, be cipal. Howard's Case, Cro. |