tenant agrees that the property-tax charged upon the premises shall be borne and paid by him, and that the landlord shall be exempt, shall be void. The covenant under consideration provides for an increase of the rent in the event of a property or income tax being paid by the landlord. Upon consideration, we do not think that it is a contract in violation of the statute. Every landlord is entitled to get as much rent as he can for his house; and if he does not stipulate that his tenant shall be charged with the payment of a tax which the law intended to impose upon the landlord, but merely provides for an increase of his rent as such in the event of a certain tax coming *upon him, he is doing something for which the Act of Parlia ment has not provided. There is direct authority for this view, [*189 and that of the highest character, in a case which arose upon Lord Stanley's Act, the Irish Tithe Commutation Act, 2 & 3 W. 4, c. 119, which contains as stringent a provision as that of the Act now in question, viz., that, "in all cases where any land shall be let or set or demised in Ireland, the lessee or tenant thereof shall hold such land free from the payment of tithes or composition for tithes; and all contracts, covenants, and agreements to the contrary hereof, howsoever made, shall be utterly null and void :" s. 13. But Lord St.. Leonards, before whom this very point arose, and by whom it was. considered, was of opinion that a suggestion of the tenant, assented to by the landlord, that an increased rent should be paid for the land in consideration of the burthen of the tithe rent-charge imposed upon. the landlord, did not constitute an illegal bargain within that statute.. It is clear from the reasoning of that learned Judge that in his opinion it would be a valid contract. I refer to the case of Davies v. Fitton, 2 Drury & Warren 225, where the Lord Chancellor, in giving judgment, says: The single question which now remains to be considered is this, whether, upon the true construction of these articles of agreement, the tenant was bound to the payment of the tithe rent-charge. No doubt, independently of the statute, he was bound to pay the tithe, which is part of the produce which he takes from the land, and is a natural burthen on the tenant. But the effect of the statute was, to place the matter on a different footing: it provided that no tenant, except under the peculiar circumstances mentioned in the Act, should be liable to pay this demand, and transferred the liability to the landlord or the person who is seised of an estate of inheritance as defined in the statute; on the other hand, however, the Act does not [*190 prevent the landlord saying 'I must have a greater rent than I formerly received, in consequence of the new obligation imposed on me by this statute.' Every man may take the largest rent people will give him. He may, notwithstanding the statute, by contract, get a rent equivalent both to the old rent and the tithe." Again, at a subsequent part of the judgment, he says: "If a lease be granted subject to a gross rent, with a collateral covenant by the tenant to pay the tithe rent-charge, that agreement would be void under the statute. But, suppose an agreement of this nature,—the tenant offers to pay 1007. a year rent, and, in consideration of the tithe rent-charge, an additional sum of 5l. a year, and this offer is accepted by the landlord. If this Court were called upon to carry into execution such an agreement, could it refuse to do so? I certainly can see nothing to C. B. N. S., VOL. XII.-9

prevent its doing so. I apprehend that the Court would have no difficulty in so modelling the contract as to make the tenant liable to an entire rent of 105. There is nothing illegal in such a contract, and by so executing it the Court would act according to the spirit of the contract." There, Lord St. Leonards was dealing with a case where the landlord was stipulating for an increased rent in consideration of the additional burthen cast upon him by the statute, just in the same way as the burthen is imposed here. Both upon authority and upon the reason of the thing, therefore, we are of opinion that the plaintiffs are entitled to judgment. Judgment for the plaintiffs.

*191]

*EYRE v. FORBES. May 2.

A contract for the payment of money in consideration of the resignation of a majority in the service of the East India Company, is illegal by the 49 G. 3, c. 126.

THE first count of the declaration stated that the plaintiff, before and at the time of the committing of the grievances thereinafter mentioned, was an officer in the service of the Honourable East India Company, holding the rank of major in the 3d regiment of light cavalry of the said Company; yet that the defendant falsely and maliciously wrote and published of the plaintiff, and of and concerning him as such major and officer as aforesaid, a letter in the words and figures following, that is to say, "Captain Forbes, commanding 3d regiment Light Cavalry, Bombay, Camp, Asseer. December 27th, 1857. To the adjutant-general of the army,-Sir, it is with extreme reluctance that I (meaning the defendant) feel it my duty to request that the following circumstance may be laid before his excellency the commander in chief: but no other alternative is open to me. In August, 1851, Major Walter retired from the regiment (meaning the 1st regiment) now under my command, for the sum of Rs. 47,000: of this sum Major Eyre's share was Rs. 5200; and, in common with the other officers of the regiment (meaning the aforesaid regiment), he (meaning the plaintiff) signed a bond for the amount advanced by the Agra Bank, as a loan advanced on the occasion in question. Three years was the period named in the bond for the gradual liquidation of the debt by instalments. Upwards of six have elapsed, and Major Eyre (meaning the plaintiff), although repeatedly addressed on the subject, has not paid a single rupee of his share. The 5200 Rs., his original share, now amounts to upwards of 10,000 rupees, from the accumulation of interest at 10 per cent. per annum: and is of course *daily increasing, from the same cause. In the event of Major *192] Eyre's death, or at any period the Agra Bank may choose, the officers of this regiment may be sued at law by the bank on account of their joint liability in the bond, as Major Eyre's co-securities; and, as the period originally fixed by the bank for the repayment of the loan has long since expired, such a course may be expected at any

moment.

"The original letters addressed to Major Eyre (meaning the plaintiff) by the officers of the regiment, to urge his paying his share without

further delay, are now at Rajkote: and I am unable, therefore, to forward copies for his excellency's information; but, in justification of the course I am now compelled to adopt, I beg to forward copies of a correspondence that ensued a year ago between the late Col. Malet, of this regiment, and Major Eyre (meaning the plaintiff) on the debt in question, and also a letter from the secretary of the Agra Bank to the address of Captain Wren, of the regiment under my command. These letters will, I trust, make the facts of the case sufficiently obvious, without any further explanation from myself, beyond the remark that a year has since elapsed and the debt has of course proportionately increased. I have the honor to be, &c. (signed), J. FORBES, Captain Commandant 3d Regiment Light Cavalry." Averment, that, by means of the premises, the plaintiff's character and reputation as an officer aforesaid in the said service was greatly injured, insomuch that the plaintiff was compelled to retire from and leave the said service of the said Company upon other and less advantageous terms than he otherwise would have done, and lost thereby the command of his said regiment, and all the pay and advantage thereof which he otherwise but for the premises would have of right derived and obtained, and the benefit of a *contract between him and the officers of the said [*193 regiment whereby the said officers were to pay and the plaintiff was to receive the sum of 47,000 rupees from the said officers as the price of his voluntary retirement from the said service of the said Company; and that the plaintiff was otherwise greatly damnified.

The second count stated, that, therefore and whilst the plaintiff was such officer in the aforesaid regiment and in the said service of the said Company, whereby he derived great gains and profits, it was agreed between the plaintiff and the defendant, that, in consideration that the plaintiff would retire from the said service of the said Company, he the defendant would pay or cause to be paid to the plaintiff a certain sum then agreed upon, to wit, 40,000 rupees: Averment, that the plaintiff had in all things performed the said agreement on his part, and all things had been done, and all times elapsed, necessary to entitle him to the payment of the said sum of 40,000 rupees; yet no part thereof had been paid.

The plaintiff demurred to the second count, the ground stated in the margin being, "that the alleged agreement is illegal and void.” Joinder.

Bovill, Q. C. (with whom was Mathew), in support of the demurrer.(a) The contract declared on in the second count is clearly a contract within the 5 & 6 *Ed. 6, c. 16, and the 49 G. 3, c. 126. The first section of the former Act prohibits the sale

[*194

(a) The points marked for argument on the part of the defendant were as follows:"1. That the alleged contract is a contract to pay money to the plaintiff for the resignation of an office, commission, place, or employment, within the language and meaning of the 49 G. 3, c. 126, s. 3:

"2. That the plaintiff alleges himself to have been an officer in the service of the East India Company, and his retirement from such service to be the consideration for the defendant's promise; and the statute applies to all offices, commissions, &c., belonging to or under the appointment or control of the East India Company:

"3. That, in extending by statute 49 G. 3, c. 126, the Act of 5 & 6 Ed. 6, c. 16, to the East India Company's service, the obvious intention of the legislature was, to apply both Acts as extensively to the service of the East India Company as to the service of the Crown, subject to the exception as to the sale of commissions in his Majesty's forces contained in the 7th section."

of a great number of offices therein enumerated; and the latter Act extends the prohibition (by s. 1) to all offices in the gift of the Crown, 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 3d section enacts, that, from and after the passing of this Act, 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, 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 depu*195] tation 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 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." And the 4th section enacts, that, "from and after the passing of this Act, 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, solicitation, petition, request, recommendation, or negotiation, in or about or in any wise touching, concerning, or relating to any nomination, appointment, or deputation to or resignation of any such office, commission, place, or employment as aforesaid, or under any pretence for using or having used any interest, solicitation, petition, request, recommendation, or negotiation in or about any such nomination, appointment, deputation, or resignation, 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, appointment, deputation, or resignation; and also if any person or persons shall give or pay or cause or procure to be given or paid any money, fee, *196] 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 to give or pay or cause or procure to be given or paid any money, fee, gratuity, loan of money, reward, or profit, for any solicitation, petition, request, recommendation, or negotiation whatever, made or to be made, that shall in any wise touch, concern, or relate to any nomination, appointment, or deputation to or resignation of any such office, commission, place, or employment 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, appointment, deputation, or resignation; and also if any person or persons shall, for or in expectation of gain, fee, gratuity, loan of money, reward, or profit, solicit, recommend, or negotiate, in any manner for any person or persons in any matter that shall in any wise touch, concern, or relate to any such nomination, appointment, deputation, or resignation aforesaid, or for the obtaining, directly or indirectly, the consent or consents or voice or voices of any person or persons to any such nomination, appointment, or deputation or resignation 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 misdemeanour." In Græme v. Wroughton, 11 Exch. 146,† it was expressly decided that the resignation for a pecuniary_consideration of the position of major in a regiment in the East India Company's service, is illegal by the 49 G. 3, c. 126, s. 4, and that a security for the payment of the money is void. It is impossible to distinguish that case from the present.

*Garth, contrà.(a)—In Græme v. Wroughton, the facts show[*197 ing the illegality were all brought out on admissions or in evidence. Here, the record is a blank. If, therefore, any state of facts can be assumed in which the contract declared upon in the second count could be lawful, the Court will assume them. There is nothing to show that the resignation which was the consideration for the defendant's promise to pay the money was not allowed by the rules of the service, or that a *majority is not legally saleable. [ERLE, C. J.-A majority is a commission within the meaning (a) The points marked for argument on the part of the plaintiff were as follows:"1. That the contract disclosed by the second count is neither contrary to the statute nor against public policy, and that it is founded on a sufficient consideration:

[*198

"2. That it nowhere appears that the contract was a corrupt bargain or a contract for relinquishing or obtaining office or employment, or that the plaintiff undertook to do anything contrary to the rules or prejudicial to the service of the East India Company, or that the plaintiff or defendant were British subjects at the time:

"3. That the Court will not presume illegality, and there is nothing on the record to satisfy the Court in any way that the contract was illegal, or that it wanted consideration:

"4. That there was ample consideration for the defendant's promise in the plaintiff's retirement from the service at the defendant's request:

"5. That it is consistent with all that appears that the plaintiff's retirement, though optional, was in strict accordance with the rules of the East India Company's service, and that it was in fact procured by that company:

"6. That there could be no illegality in the plaintiff's retiring from such service even for a pecuniary consideration, in accordance with the company's regulations, or at the instigation of the company:

"7. That the general averment that everything existed and was done to entitle the plaintiff to the money sued for (which stands admitted on the record), excludes illegality and want of consideration:

"8. That no intendment, therefore, can be made against the count, and that every intendment must be made in its support."