CH. XXI. s. 5. London during a named week is not a lottery, as the competition is one the result of which does not depend entirely on chance (7). Illegal, &c., Contracts (Wagering). Unequal divisions by lot amongst shareholders. Wallingford v. Mutual Society. Sykes v. Bill of Kennedy v. Companies Acts, 1862 and 1867. Questions have been raised as to the extent to which unequal distributions by lot amongst the subscribers to a commercial undertaking infringe the Lottery Acts, and with what result. It has been decided by the House of Lords that a society constituted for the benefit of its members by (inter alia) a participation in particular benefits by the process of periodical drawings does not come within the Lottery Acts (); but it had been previously intimated by Jessel, M.R., in Sykes v. Beadon that a mode of distribution by dividing capital and profits among members by means of certificates convertible by annual drawings into preference dividend bonds bearing interest with a bonus was a lottery, and therefore illegal under the Acts (m), and the two cases seem to be distinguishable. (c) Dealing in Pretended Titles. The purchase of a pretended right in any land, unless the seller has taken the profits of the land for one year before, was prohibited by sect. 2 of the Bill of Bracery and Buying of Titles, 32 Hen. 8, c. 9, on pain of forfeiture to a common informer of half of the value of the land by both parties. But by the Real Property Act, 1845, 8 & 9 Vict. c. 106, a right of entry became saleable, while in order to make the forfeitures take effect against the buyer the onus was upon the plaintiff to show, not only that the title purchased was bad, but that the buyer knew it to be bad (n), and sect. 2 of 32 Hen. 8, c. 9, has been repealed by sect. 11 of the Land Transfer Act, 1897, 60 & 61 Vict. c. 65 (nn). (d) Illegal Companies or Associations. The formation of joint-stock companies, established after the 2nd November, 1862, for the purpose of carrying on the business of ordinary camphor and from it break off tiny pieces. Drop these upon the surface of some pure water contained in any kind of vessel, and they will immediately begin to rotate and move about, sometimes doing this for several hours. The water must be quite clean, for if a drop of oil or any grease is in it the experiment will not work. But, provided that nothing of this sort gets in, the little pieces of camphor will twirl about in a manner that is extremely tor who represented all other unsuccessful (1) Wallingford v. (m) Sykes v. Beadon (1879), 11 Ch. D. 170. (n) Kennedy v. Lyell (1885), 15 Q. B. D. of banking, or any other business which has for its object the acquisition of gain by the company, is regulated by the Companies Acts, 1862 and 1867, 25 & 26 Vict. c. 89, and 30 & 31 Vict. c. 131. And since those statutes, the power of such companies to allot shares, &c., depends on their being registered pursuant thereto (o). A contract relating to the purchase of shares in an illegal company or association, cannot be enforced (p), nor can relief be obtained by one of the members against a trustee for an alleged breach of trust (q). (e) Sales of Offices. CH. XXI. s. 5. legal, &c., Contracts (Megal Companies). c. 2. The curious 12 Ric. 2, c. 2, by which "none that pursueth by 12 Ric. 2, him or by other, privily or openly, to be in any office, shall be put in that office or in any other" (r), was repealed by the Promissory Oaths Act, 1871 (rr). c. 16. The Sale of Offices Act, 1551, 5 & 6 Edw. 6, c. 16, ss. 2, 3, 5 & 6 Edw. 6, avoids all agreements for the sale or deputation of any office, "which in any wise touches or concerns the administration or execution of justice, or the receipt, controlment, or payment of the King's treasure, money, rent, revenue, account, aulnage, auditorship, or surveying of the King's tenements, or customs, or any other administration or necessary attendance to be had, done, or executed in any of the King's custom-houses, or the keeping of any of the King's towns or fortresses, used or appointed for a place of strength and defence, or which concerns or touches. any clerkship, to be occupied in any Court of record wherein justice is to be ministered;" and the statute is extended to all offices in the gift of the Crown by the Sale of Offices Act, 1809, 49 Geo. 3, c. 126. In an old case (s), in which the statute of Edw. 6 came under consideration, the Court held, that where an office is within the statute, and the salary is certain, if the principal make a deputation, reserving a lesser sum out of the salary, it is good. So, if the profits be uncertain, arising from fees, if the principal make a deputation, reserving a sum certain out of the fees and profits of the office, it is good. But an agreement not to pay out of the profits, but to pay generally a certain sum, which must be paid at all events, is void by the statute; and the same rule is to be applied to cases within the Act of 1809, 49 Geo. 3, c. 126 (t). (0) See ante, p. 261. (p) Josephs v. Pebrer (1825), 3 B. & C. 639. (q) Sykes v. Beadon (1879), 11 Ch. D. 170. (r) See Chit. Stat., 5th ed., vol. viii., tit. "Offices" and Preface thereto. (r) 34 & 35 Vict. c. 48; Chit. Stat., 5th ed., vol. viii., tit. "Oaths." (s) Godolphin v. Tudor (1705), 2 Salk. 468; affirmed in H. L., 1 Bro. P. C. 135; Culliford v. De Cardenell, 2 Salk. 466. (t) See Greville v. Atkins (1829), 9 B. & C. 462; Palmer v. Bate (1821), 2 B. & B. 673; Hopkins v. Prescott (1847), 4 C. B. 578. What con tracts are CH. XXI. s. 5. Megal, &c., Contracts (Sales of Offices). Commission. When sale of office legal. Partnership Sterry v. 13 Eliz. c. 20, What trans actions are void under this statute. Wherever the sale of an office is illegal, a bond for the price (u), or a promise to pay a commission for procuring a purchaser for the office, is not binding (x). A distinction has been taken between offices which cannot be legally sold and those which may be the subjects of sale, if such sale take place, with the consent of those who have the power of appointment (y); and it has been held, that a promise by one of two candidates for the office of under-sheriff, that, in consideration of his opponent desisting from his endeavour to obtain such office, he would pay him a sum of money, is binding (z). A partnership in the emoluments of an office may be good; it having been held in Sterry v. Clifton (a) that a partnership agreement between two attorneys that the emoluments of certain offices. held by one of them, being those of clerk of the peace for a liberty, clerk to the magistrates, clerk to commissioners of taxes, clerk to the commissioners of sewers, clerk to the deputy lieutenants, steward of certain manors, and coroner for the liberty, should be considered partnership property and be distributable accordingly, was not void for any contravention of the above statutes. (f) Illegal Charges on Benefices. It is enacted by the statute 13 Eliz. c. 20-which was repealed by 43 Geo. 3, c. 84, but revived, as regards this provision, by 57 Geo. 3, c. 99 (b)—“ that all chargings of benefices with cure, thereafter, with any pension or with any profit out of the same to be yielded or taken, other than rents to be reserved upon leases thereafter to be made, according to the meaning of that Act (c), should be utterly void: " and the intention of this statute was that the rents reserved on permitted leases, should be enjoyed by the incumbents themselves, and not by corrupt and indirect means, be transferred to other uses (d). Accordingly a composition with a clergyman, in consideration that his future income may be received by a trustee, and, after providing for a curate, applied in liquidation of his debts, is void under this statute (e), and so is a demise of his benefice by a parson, expressly to secure an annuity (ƒ). (u) Lee v. Coleshill (1597), Cro. El. 529. (x) Stackpoole v. Earle (1761), 2 Wils. 133. (y) Per Lawrence, J., Blachford v. Preston (1799), 8 T. R. 89. (z) Parker v. Brown (1621), Cro. Jac. 612 (a) Sterry v. Clifton (1850), 9 C. B. 110; and see Collins v. Jackson (1863), 31 Beav. 645. (b) Per Parke, J., Doe v. Gully (1829), 9 B. & C. 344; Shaw v. Pritchard (1829), 10 B. & C. 241. (c) As to the power of incumbents of benefices to make farming leases, see 5 & 6 Vict. sess. 2, c. 27. (d) Per Cur., Walthew v. Crafts (1851), 6 Exch. 1, 22. (e) Alchin v. Hopkins (1834), 1 Bing., N. C. 99. (f) Shaw v. Pritchard (1829), 10 B. & C. 241; Walthew v. Crafts (1851), 6 Ex. 1. And so, if a warrant of attorney shows, on the face of it, that it was given to secure an annuity which was to be charged on the benefice, it will be void (g). But where, in such a case, a warrant of attorney, with a defeasance in the common form, is given as an additional security, so that the instrument, upon the face of it, is free from objection, the Court will not set it aside (h). Nor will the Court look beyond the warrant of attorney, for evidence of the intention of the parties, or read affidavits in proof of such intention (i). CH. XXI. s. 5. Contracts Warrant of attorney. covenant. The personal covenant by a clergyman to pay a rent-charge may Personal be good, although the deed, so far as it purports to create a charge upon his benefice, is void under the statute (k). An assignment of the salary of the chaplain to a workhouse and Workhouse workhouse infirmary is not void as being against public policy (1), salary. chaplain's or within the statutes above referred to. (g) Miscellaneous Cases of Contracts Statutably Void. We have already seen that, in addition to the contracts specified in the present section of this chapter, the following contracts are statutably illegal, or void, or form no ground of action : Sunday contracts (ante, p. 362). Sales by illegal weights and measures (ante, p. 362). Bills of sale in non-statutory form (ante, p. 524). In addition the following may be enumerated: Sunday. Bill of sale. The Property Tax Act, 1842, 5 & 6 Vict. c. 35, enacts by sect. 103 Property tax. that all contracts, covenants, and agreements to be made or entered into for payment of any interest, rent, or other annual payment in full without allowing deduction for property-tax shall be void (m); and sect. 73, as to contracts between landlords and tenants, is to the same effect. The Ground Game Act, 1880, 43 & 44 Vict. c. 47, gives the Ground game. occupier of land a right inseparable from his occupation to kill ground game thereon, and sect. 3 provides that "every agreement, (g) See Saltmarshe v. Hewett (1834), 1 A. & E. 812; Flight v. Salter (1831), 1 B. & Ad. 673; Newland v. Watkin (1832), 1 L. J., N. S. 177. (h) Britten v. Wait (1832), 3 B. & Ad. 915; and see Johnson v. Brazier (1834), 1 A. & E. 624; Gibbons v. Hooper (1831), 2 B. & Ad. 734; Moore v. Ramsden (1838), 7 A. & E. 898. (i) Bendry, v. Price (1839), 7 Dowl. 753; Bishop v. Hatch (1839), id. 763; Cases of Con CH. XXI. 8. 5. condition, or arrangement which purports to divert or alienate the Miscellaneous right of the occupier as declared, given, or reserved to him by tracts roid. this Act, or which gives to such occupier any advantage in consideration of his forbearing to exercise such right, or imposes upon him any disadvantage in consequence of his exercising such right, shall be void." Contract by occupier to pay tithe. Conveyancing Settled Land Agricultural Allotments Railway contracts. The Tithe Act, 1891, 54 & 55 Vict. c. 8, by sect. 1 (1) provides that any contract after that Act between an occupier and owner of lands for the payment of tithe rent-charge by the occupier shall be void, and by these words includes any contract by the occupier to reimburse the owner such sums as shall be paid by him for tithe rent-charge (n). The Conveyancing Act, 1881, 44 & 45 Vict. c. 41, by sect. 14 gives power to relieve against the forfeiture of a lease, and sub-sect. 9 provides that that section "shall have effect notwithstanding any stipulation to the contrary." The Settled Land Act, 1882, 45 & 46 Vict. c. 38, gives tenants for life of settled estates various powers of selling or letting the estates in such manner as to bind remaindermen. By sect. 50, a contract by a tenant for life not to exercise any of his powers under this Act is void. The Agricultural Holdings Act, 1883, 46 & 47 Vict. c. 61, gives the tenants of agricultural or pastoral holdings or market gardens the right to claim from their landlords, on quitting the holdings at the determination of their tenancies, compensation for boning and other manurial improvements executed during the tenancy. By sect. 55 "any contract, agreement, or covenant made by a tenant by virtue of which he is deprived of his right to claim compensation under this Act in respect of any improvement mentioned in the first schedule hereto (except as in providing such compensation as is by this Act permitted to be substituted for compensation under this Act) shall, so far as it deprives him of such right, be void both at law and in equity." The Allotments Compensation Act, 1887, 50 & 51 Vict. c. 26, gives tenants of allotments and cottage gardens similar rights enforceable by a distinct procedure, and by sect. 5 of the Act, it takes effect "notwithstanding any agreement to the contrary." (h) Contracts which may be Set Aside for Unreasonableness. In addition to the cases already referred to, contracts with a railway or canal company by which the freighter agrees that the (n) Ludlow (Lord) v. Pike, [1904] 1 K. B. 531, per Channell, J. For the Tithe Act, 1891, and other Tithe Acts, see Chitty's Statutes, tit. "Tithe Rent-Charge." |