of the nature of the transaction upon the faith of which he advanced his money, and no proof was offered as to it; the ruling rendering it unnecessary.

We are all satisfied that the direction given to the jury was wrong, and that a new trial in this case must be granted. It is true that the numerous cases upon this subject found in the English reports turn, in general, upon the statute 5 & 6 Edw. VI., c. 16, secs. 2, 3, avoiding all agreements for the sale or deputation of certain offices, concerning, in the main, the administration of justice and of the king's revenue, and the keeping of his places of strength, and upon the 49 Geo. III., c, 126, extending the provisions of the statute of Edward, with certain specified exceptions, to all offices in the gift of the crown; to all commissions, civil, naval, and military; to all offices and deputations to office in the departments, or under the appointment or control of the high officers of state, and other officers, civil and military, named in the statute, as well as in the control of any other public department or office of government, in any part of the united kingdom, or any of his majesty's dominions; and lastly, to all offices, commissions, places, and employments belonging to or under the appointment or control of the East India Company. It is also true that we have no similar statute in this state; yet we have no doubt but that all contracts based upon the sale of or traffic in offices of any description, at this day and in this country, are void at common law, as against public policy.

By the theory of our government, all offices, whether civil or military, whether general or, as in this case, professional, are trusts held solely for the public good, and in which no man can have a property to sell, or can acquire one by purchase. Appointments to them are presumed to be made solely upon the principle of detur digniori; and the office is to be borne by the appointee for the public good, as long as his services are required in it; and any practice whereby the base consideration of money is brought to bear in any form upon such appointment to or resignation of office conflicts with and degrades this great principle and policy. The services performed under such appointments are paid for by salary or fees, presumed to be adjusted by law to the precise point of adequate remuneration for them. Any premium paid to obtain office, other than that which the law establishes or regulates, interferes with this adjustment, and tempts to peculation, overcharges, and frauds in the effort to restore the balance thus disturbed. In short, without dwelling

longer upon so obvious a policy as that involved in such transactions, the moral sense of every person educated in a free country anticipates all reasonings upon such a subject, and, as it were, instinctively condemns all agreements impugning this policy, as at war with the whole theory of our government. At the trial I felt this; but recollecting that I sat to administer an established system, and not merely to follow out my own notions of policy, and knowing that the decisions upon this subject had turned principally upon statutes, and not remembering that any had gone quite so far as to avoid a contract stipulating for a bare resignation, ordinarily deemed the exercise of a right of the officer, and which involved no further expensein the way of a retiring allowance-to the public, nor required nor implied any recommendation or influence to be used for the sake of reward in procuring an appointment to be made to the vacancy thus created, I felt bound to rule as I did, until an opportunity could be given to consider the authorities, in view of what seemed to me to be the special equities of the case. That opportunity has now been had, and we have examined nearly all the cases, from Ellis v. Ruddle, 2 Lev. 151, to Graeme v. Wroughton, 32 Eng. L. & Eq. 561, decided last year by the court of exchequer in England; besides the cases at law in New Hampshire: Meredith v. Ladd, 2 N. H. 547; Carleton v. Whitcher, 5 Id. 196, 200; and Kentucky: Outon v. Rodes, 3 A. K. Marsh. 433 [13 Am. Dec. 193]; and the cases at law and in equity in New York: Tappan v. Brown, 9 Wend. 175; Gray v. Hook, 4 N. Y. 449; Becker v. Ten Eyck, 6 Paige, 68.

We do not find any case which comes up quite to the case at bar. In Harrington v. Du Chatel, 1 Bro. C. C. 124, Lord Thurlow, after hearing, perpetually enjoined a suit upon an annuity bond, granted by the plaintiff's testator to the defendant's testator, who had been the traveling tutor of Lord Rochford, then the king's groom of the stole, it appearing that the bond in question had been, with another for the benefit of another person, stipulated for by his lordship as the price of a recommendation to the office of one of the pages of the presence, the recommendation to vacancies in which fell to his lordship in virtue of his groomship of the stole. Lord Thurlow doubted, at first, whether he should give relief, on the notion that the ground of relief constituted a good defense at law, but concluded to interpose, because a court of law at that time had never determined it to be a defense to a bond. He admitted that the office in question was not within the purview of the statute of

Edward, but treated the traffic concerning it as against the public policy of the law, "and similar to marriage-brocage bonds, where, though the parties are private persons, the practice is publically detrimental." This decision of Lord Thurlow's, and upon the principle of public policy laid down by him, was approved by Mr. Justice Coltman in the case of Hopkins v. Prescott, 4 Man. G. & S. 578, S. C., 56 Eng. Com. L. 578, 596, the learned judge declaring that if the contract in question "were not made void by the statute in question, 5 & 6 Edw. I., c. 16, I still think it would be void at common law." Still more recently, in the case of Graeme v. Wroughton, 32 Eng. L. & Eq. 569, Lord Thurlow's decision and Mr. Justice Coltman's remark were quoted, as if approved, by Chief Barron Pollock, in delivering his opinion in that case, which was a suit at law upon a bond given in consideration of the resignation of a majority in a regiment in the East India Company's service, and was deemed to fall within the purview of the 49 Geo. III., c. 126. The cases from New Hampshire and Kentucky, before cited, there being no statute forbidding the sale of offices in either of those states, were decided solely upon grounds of public policy; and the like doctrine was acted upon in New York, in a case not deemed to fall within the statute of that state in relation to this subject: Gray v. Hook, 4 N. Y. 449.

These were either cases, however, of the direct sale of offices, or in which, in addition to the agreement to resign, there was a stipulation, for lucre, to recommend a successor; or where the resignation procured in this way, brought upon the government or upon the East India Company, sooner than otherwise, the payment of a retiring allowance. This latter feature is found, too, in the leading case of Parsons v. Thompson, 1 H. Black. 322, which was a suit brought by a late master-joiner of the dock-yard at Chatham against his successor in regular order, previously foreman of the joiners, on an agreement in consideration of the retiring of the former as superannuated, to allow him, during life, extra pay from the dock-yard books, in addition to his superannuation money. The case is valuable, however, because it does not seem to have turned upon any statute, but to have been discussed and decided in reference to the public policy of the law. The reasoning of Lord Loughborough, who delivered the opinion of the court, as remarked by the counsel for the defendant, is to some extent applicable to the case at bar; for his lordship argues that if the plaintiff resigned because he was no longer fit for the place, there is no consideration for

AM. DEC. VOL. LXVII-35

the promise of the defendant, the case being, like this, a case of simple contract; or if he resigned at the request and upon the promise of an allowance from the plaintiff, still being fit, then the promise is void because "the public is deceived, the pension misapplied, and the service injured."

The case at bar is certainly not as strong as the case of Parsons v. Thompson, 1 H. Black. 322, or the case of Graeme v. Wroughton, 32 Eng. L. & Eq. 561; for Dr. Hathaway, by resigning under the inducement of a pecuniary offer, has imposed upon the government improperly no pension or allowance to himself-such rewards of civil service being unknown under our government. At the same time, he has either resigned because he was obliged to do so in order to fulfill his design of removing to California, in which case there would be no consideration for the defendant's promise, or he has resigned because of it, and because of the money offered to him, and so the promise is void on the ground that the government is deprived of the services of an officer it had appointed, by his being seduced from an office under it by private and unworthy motives. Whilst such a contract as this works this evil, in legal theory at least, on the one band, it conflicts with the policy of the law in another way on the other. The defendant, the successor of Dr. Hathaway, by virtue of the contract is deprived of the fees allowed to him by the government as but a just reward for his professional skill in a most interesting department of the public service (and this order is, upon its face, an attempt to anticipate them); and besides the direct ill consequences of this, he is thus, in an office of trust, involving the purchase of medicines at the expense of the hospital fund, and the admission and discharge of sailors, home and foreign, entitled to be healed out of the hospital fund, tempted to acts of peculation, overcharge, and fraud, in order to make up the recompense which the contract takes from him. It is true that in this case there are special circumstances which give to this transaction the color of a partial restoration to Dr. Hathaway of what was wrongfully exacted of him by the defendant for procuring his appointment; and as the case now appears to us, special equities in his favor, and in favor of the plaintiff, who, for the purposes of this motion, stands in his place, which it seems hard not to allow him the benefit of. At law, at least, in such transactions the stern, unvarying rule is portior est conditio defendentis; and, as it seems to us, this rule equally applies, whether we connect or disconnect the two acts of traffic in which the principal par

ties were engaged, in relation to an office under the federal government.

For these reasons, a new trial in this case is granted, the costs of this motion to abide the event of the suit,

CONTRACT FOR SALE OF OFFICE: See Outon v. Rodes, 13 Am. Dec. 193; Salling v. McKinney, 19 Id. 722; Groton v. Waldoborough, 26 Id. 530, and notes.

CONTRACT TO PROCURE APPOINTMENT TO OFFICE: See Faurie-v. Morin, 6 Am. Dec. 701; Filson v. Himes, 47 Id. 422.

THE PRINCIPAL CASE IS CITED, as to contracts void as against public policy generally, in Trist v. Child, 21 Wall. 449; Hannah v, Fife, 27 Mich. 182.