Page:The English Reports v1 1900.pdf/485

virtue of his Majesty's letters patent, dated the 7th of October, 16 Car. 2. and, before making the bond and articles, the same 1st of January, 20 Car. 2. made a deputation of that office to the defendant's testator, to hold quam diu se bene gesserit. And, that the deputation was made, upon the agreement between them, that the deputy, from the making of the said deputation, should yearly, so long as he continued deputy in that office, par the auditor the full and clear annual sum of £200 for the deputation; and, that for the security of the payment of the said sum, for the said deputation so made, and, in prosecution of that agreement, the articles and bond were made; by reason whereof, the articles and bond, by virtue of that statute, became void.

The plaintiffs replied, that King Charles II. granted their testator a patent of that office, to be executed by himself, or his deputy for his life; and granted to him the yearly fee of £20 payable at the receipt of the Exchequer, with all other fees, wages, diets, and rewards, belonging to the said office; and, that being so seised, he made the deputation in the defendant's plea. And the plaintiffs averred, that, at the making of the deputation, and during all such time as Tudor was a deputy, the just and legal yearly wages and fees, to the said office of right belonging, did amount to £399 10s. per ann.; and that the deputy received so much yearly, during his deputation, from the Exchequer for the same; and they assigned a breach, that £800 for the yearly payment in the articles expressed, was due for four years, ending at Michaelmas 1686.

The defendant rejoined, that the wages and fees did not amount to above £100 in any year after the deputation, during the life of the deputy; and that the deputy did not receive in any one year £339 10s. or any other sum, an the plaintiffs had replied, more than the sum of £100 for fees and wages belonging to that office.

To this rejoinder the plaintiffs demurred, and the defendant joined in demurrer; and the case having been several times argu-[137]-ed in the Court of Queen's Bench, the Judges, at length, unanimously gave judgment for the defendant; that this deputation and agreement were void by the statute.

But, to reverse this judgment, the plaintiffs brought a writ of error in Parliament; insisting (C. Bonython), that the certain fees and allowances to this office (as appeared by a schedule annexed to their case) amounted annually to £402 10s. besides contingent fees and profits, and other considerable advantages; and there fore, the reserving only £200 out of all these, could not be thought any hard usage of the deputy, and much less amounted to a sale of the office. That the agreement was fair, and thereby a very liberal provision allowed the deputy; that no advantage was taken of this agreement during the life of the parties, whereby the public might receive the benefit intended by the act of Parliament, if the office was forfeited; and that no other use could be now made of a rigorous construction of that statute, but to excuse the deputy from accounting to his principal, under the screen of his own tortious act.

On the other side it was contended (S. Harcourt, J. Chesshyre), that the deputation was void by the statute; because the £300 was not reserved, payable out of the profits of the office, if they should amount to so much, but for the deputation. That therefore the deputy must, at all events, pay £200 per ann. and bear the expence and burthen of executing the office, although the fees and perquisites should not amount to half so much; and, consequently, he bought the deputation, and was manifestly under a temptation to oppress and exact in his office to save himself; which was the chief inconvenience the statute intended to provide against.

And, after hearing counsel on this writ of error, it was ordered and adjudged, that the judgment given in the Court of Queen's Bench should be affirmed; and that the record should be remitted, to the end execution might be had thereupon, as if no such writ of error had been brought. (Jour. vol. 17. p. 638.)