So, one banker may give better advice respecting the laying out of money than another. And, in most cases of retiring from business, the seniors, who are the most skilful, are those who retire; but yet it has never been objected, that they practise fraud, by continuing their names in the firm. In the case of an attorney, there is even less reason, than in other cases, to apprehend mischief from his want of skill, because he is compelled to go through a regular clerkship, and to be admitted before the judges; and the statute, 2 Geo. I. c. 23. s. 6 and 8, prescribes also an examination. So far from one attorney's acting in the name of another being unlawful, the penalty only attaches upon the giving liberty of practising to one who is not admitted. To return to the ground of policy, Hutton v. Lewis* was a case upon the annuity act, where a schoolmaster sold his business, yet no objection was made to the contract, although the court would be very careful of the morals and education of children. That was an argument upon demurrer, and though the case was decided principally upon the annuity act, yet it might, even in error, have been argued and decided upon this general ground of policy, if the contract had been illegal. All the cases that have hitherto occurred bave turned either upon the 5th and 6th Edward VI., or upon the ground of the contract being an infringement of some private contract affecting the party. In Blachford v. Preston, there was a bye-law, and also a charter-party, by which the plaintiff had precluded himself from filling the office of captain. Other cases went upon the deceit practised on the crown. As where a mast-joiner in one of the dock yards, had procured himself to be superseded, when he was not in a situation to require it. There, two objections were made: first, if he was not supersedable, it was not a good consideration; and, if he was supersedable, there was no consideration moving from him; Parsons v. Thompson. If the possibility of abuse is * 5 Term. Rep. 639. + 8 Term. Rep. 89. ↑ 1 H. Bluck, 323. 1803. BUNN versus GUY. 1803. BUNN versus GUY. sufficient to vacate the contract, it would operate equally against the sale of advowsons, which is always allowed. For the plaintiff, in reply. If the argument were admitted in its full extent, that courts of justice should not decide merely upon grounds of public policy, because it is an interference with the province of the legislature, it would follow that the courts could not restrain any contracts whatsoever, upon grounds of public policy, except such as come under the special provisions of some act of parliament. But in Garforth v. Fearon,† which was the case of an agreement to appoint such a deputy as should be nominated by Garforth, the court held, that it was not only within the statutes, but was bad at common law. That case was upon assumpsit, and, here, the question stands precisely as if an action of assumpsit had been brought. Here the contract is in itself immoral, because Carpenter holds out to the world that he is to act in the firm and exercise his skill as an attorney, when he agrees with the firm not to act at all. In this there is something of fraud, with respect to third persons. In Harrington v. Du Chatel, Lord Rochford was desirous of making a provision for a person who was his tutor, and, for an annuity granted to him, recommended a person to be a page of the presence. Lord THURLOW, C. in giving judgment, expressed doubts, whether it might not have been made a defence to an action upon the bond at common law, and though he admitted that it was not within. the statute of Edward VI., yet he treated it as bad, upon grounds of public policy, and instanced the case of marriage brokage bonds. There, it was not pretended, that the person recommended was unfit to fill the office. In the case of a banker retiring, he is still liable for any pecuniary loss, and therefore there is no fraud: but here the confidence is placed upon the attorney for that skill which he does not exercise. He was proceeding to argue that recommendation itself had never been considered as a consideration, and was putting the case of a person recommended to service from a register-office, when the court interposed. LAWRENCE, J. "How does the question, of the want of consideration arise, when the contract is by deed?" LE BLANC, J. "It is open to you to raise the quèstion, upon a bad consideration, but not to say that there is no consideration." Lord ELLENBOROUGH, C. J. "Here is not only the consideration of recommending the parties to business, but also that of relinquishing himself the benefits to which they are to be recommended. Here is a bond for the payment of the money, and unless the consideration is bad by statute, the bond is good if any part of the consideration be good."* Cur, adv. cult. And afterwards, in Michaelmas term, the Court returned the following certificate to the Lord Chancellor. This case has been argued before us by counsel. We have considered it, and are of opinion, that the contract or agreement of the 6th of December, 1797, stated in the case, is good in law, so that the said C. Carpenter could recover the money therein mentioned, in an action against the said J. Bunn and J. Guy. Nov. 7, 1803. ELLENBOROUGH. N. GROSE. S. LAWRENCE. S. LE BLANC. * Willes's Rep. 574; Lee v. Coleshill; Cro. Eliz. 529; Norton . Syms. A distinction is there taken between covenants, or conditions, void by the common law, and those which are void by statute. It is said, when some covenants in an indenture are void by the common law, and the others good, a bond for the performance of all the covenants may be good, as far as respects the covenants that are good; but otherwise, if any of the covenants be void by the statute, there the bond is void in toto. See also 1 Mod. 35, 36; Roc v. Galliers, per Buller, J.; 2 Term Rep. 129. 1803. BUNN versus Gur. 1803. Practice. GRANT versus TAGAN. GRANT versus FAGAN.-Same day. TIME refused to be enlarged, for the bail to surrender the prin-. cipal, where he is detained in a foreign country by order of the government there. JEKYLL moved, on behalf of bail, that they might be allowed further time to surrender the defendant, or that an exoneratur might be entered upon the bailpiece, on the ground that the defendant went to France during the last peace, that he was preparing to return home and surrender in discharge of his bail, when he was detained as a prisoner of war by the French government, and thereby the bail were prevented from complying with the conditions of the bail-bond. He endeavoured to shew a resemblance between this case and the cases of bail being exonerated, upon the surrendering of the principal becoming impossible, by the defendant being made a peer, or being ordered to be sent out of the kingdom under the acts of parliament relating to aliens. BUT BY THE COURT. Those were cases arising upon acts done by our own government; but this is entirely owing to an act of a foreign government. The defendant has had the benefit of his enlargement ever since the first arrest, and the bail might have kept him from going out of the kingdom. Indulgence is never given to bail, even in case of the sickness of the defendant, which is at least equally hard upon both the defendant and the bail. There was a case formerly moved by Mr. Mingay, where the defendant lay sick at Chelsea, and had fallen ill on the very day of making the motion, yet the court would not interfere. PARK, amicus curia, mentioned also the case of Wynn v. Petty, in last term, and the Master also referred to some others. RULE NISI REFUSED. 4 East's Rep. 102. NUNN versus POWELL.-November 28, 1803. WHERE money is deposited with the sheriff in lieu of bail, under Money paid out to bail. the statute 43 Geo. III. c. 46. s. 2., the court will, upon bail being put in and perfected, order it to be repaid to the bail, or any other person by whom it was actually deposited, instead of the defendant. A RULE was obtained on the behalf of one Tompkins calling upon the sheriff of the county of Lancaster, to shew cause why the sums of 1771. and 151., deposited in his hands, under the statute 43 Geo. III. c. 46. s. 2, in lieu of bail, for the appearance of the defendant, should not be paid over to him, the defendant having put in and perfected special bail, and having surrendered in discharge of his bail. By the affidavits, it appeared that it was the money of Tompkins which had been deposited for the above purpose. But it also appeared, from the affidavit of Powell, that he was arrested as drawer of a bill of exchange on, and accepted by Tompkins and one Schrader, his partner, for goods purchased by Powell for their use, and delivered to them. He therefore insisted upon an equitable claim to this money. Tompkins, the plaintiff, and the defendant appeared each by their respective counsel, ERSKINE, GARROW, and ANDREWS, to support their claims. And it was urged, on behalf of the defendant, that, by the words of the act, 66 upon perfecting bail, the money so deposited shall, by order of the court, upon motion made, be repaid to such defendant;" and therefore the court could look only to him as the party interested in it. BUT BY THE COURT. The act means, that it should, bonà fide, be repaid to the person who has actually deposited it; to him whose property it really is. As to the other claims upon the money, we cannot enter into them upon the present application. RULE ABSOLUTE. NUNN versus POWELL. |
