
    Goodloe ag’t Dudley &c
    
      Appeal from Caroline
    
    S. C. Jeff. 59.
   Bond from Undersherif and Securty to pay 1500 lbs. Tobo, and save harmless and indemnifie High Sherif See. Deft, pleads Stat 5. Se 6. E. 6 against buying and selling Offices and avers the 1500 lbs. Tob’o was for the Deputation of Deft. Pit. demurs

I believe this is the first Time the Office of Sherif has been thought to be within this Stat. For tho’ it may seem to come within the general words viz.. An Office that concerns the administration and Execution of Justice Yet if we consider the whole law it will appear it could never be intended of the Sherif’s Office. The Penalty is that the Party selling shall forfeit all his Right Interest and Estate in the Office and the Party buying be disabled in Law to hold the Office and the Promises and Bonds to be void

Now I would ask what Right Estate and Interest a Sherif has in his Office Every One knows it is an Office of Burthen and Charge Men are subject to Penalties if they refuse to execute it. The Words Right Estate and Interest plainly shew the Act intended only Offices of Profit for no man can be sayed to have an Estate and Interest in an Office of Burthen.

Then he is to forfeit the Office. It will be an easy Expedient (tho’ the Notion I believe is somewhat new) for a Sherif to get rid of his Office if it is within this Act He has nothing to do but to make a Bargain with an Undersherif for a sum of money [82] and he is discharged. If this could be done Men would not pay such great Fines as they do in London for not serving At this Rate there would hardly ever be a Sherif Every One would be shifting the Office off himself.

But there was no Occasion for this Act to extend to the Sherif There was one made 100 years before 23 H. 6. 10. prohibiting Sherifs to let their Counties to farm This is the Stat. Deft, should have taken advantage of And it is a plain mistake in his Lawyer No other Stat. was ever thought to extend to Sherifs as to this matter

There is an ancienter Stat than this of H. 6. viz. 4. H« 4. C. 5. in wch. there is no Penalty but there is in the 23. H. 6. viz. 40.

The 23 H. 6. is a private act of which the Judges can not take notice unless it be pleaded 4 Co. 76. b. Hob. 13. 1 Vent. 85. 2 Lev. 151.

But the Question now is Whether the Plea be good which clearly is not. The other Stat. is now out of the Question

It does not appear in the Condition that this tobacco was given for Farming the Office And it might be for another Cause The Demurrer only confesses it so far that it must not be denied on the Argument of this Plea But it is not such a Confession as is any Evidence of the Fact.

But if the 5. & 6. E. 6. does extend to Sherifs it has been adjudged not to be in Force in the Plantations 4. Mod. 222. Sal. 411. Blankard ag’t Galdy.

Farming of Offices is not so unlawful as may be imagined The Stat. only extends to Cases where a Sum in Gross is agreed for If the agreement is to pay so much out of the Fees and Profits and not at all events it is not within the Stat. 2 Sal. 466. Culliford a De Cardonel 468. and 6 Mod. 234. Godolphin a Tudor So if there be a Salary annexed and a lesser sum is reserved it is not within the Stat. Ibid.

The Stat. intended only to prevent Extortion in Offices which Men would be tempted to if they paid a large Sum for a Deputation at all Events But if they have a certain Profit or chance for a Profit out of the Fees they are not to be under the same Temptation.

I shall agree if this Bond is void as to paiment of Tob’o it is so for the Whole. There is a Difference where part of a Condition is void by the Common Law and where by Stat. In the first Case it may be void in Part and [83] stand good for other [sic] Part. But where Part of the condition is against the Stat. it is wholly void. The Reason is because the Stat. says the Bond shall be void and therefore it cannot be set up in Part Hob. 14. Norton & Sims 3 Co. 82. b. 83. a. 1 Vent. 237. 1 Mod. 37 Carter 229. Pearson a Humes 2 Danv. 21. 8.

Stat. compared to a tyrant Common Law to a nurse 1 Mod. 37.

1 Bac. Abri. 54.1.

I hope it will be considered how hard a Case it will be upon the Pit. if Plea adjudged good The Whole Bond will be void and he without any Remedy against his Undersherif tho’ guilty of ever so many Breaches It will be his utter Ruin and Destruction This Suit is chiefly brought to recover Quitrents for which Pit. himself is Sued.

No Honesty in the Plea Practice .usual and under some circumstances justifiable

Judgment for the Pit. that plea was not good per tot. cur.

B. In Brownlow Latine Red. 216.218. This Stat.is pleaded to a Bond for Paiment of money with a Averment that the Pit. sold the Deft, the Office of Undersherif For which money he gave the Bond There was an idle Rep’t and a Demurrer But the author observes that the Reason of such a Replication was because the Date of the Stat. was mistaken for otherwise the Plea was good Sed Qucere et Nota the Case of Blankard and Galdy was a Deputation of the Office of Provost Marshall of Jamaica (which is the same office as Sherif with us) and no Exception taken that it was not an Office within the Act.

Vi. Mo. 781. Stockwith & North fined in Star Chamber for that being Sherif of not he farmed his bailiwick ag’t the 4. H. 4 No Notice taken y’t it was ag’t 5. & 6. E. 6.

In the argument of this Case it was sayed that 23 H. C. had no Penalty and therefore 5. & 6. E. 6. was necessary to be extended to the Office of Sherifs But that is a mistake There is a penalty of 40.£ by the 23. H. 6.

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