Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 PACTUM ILLICITUM.
Subject_3 It is Pactum Illicitum if a person stipulate a benefit to himself, or to another, for obtaining to a third an office from Government.

Sarah Dalrymple and Husband
v.
Charles Shaw

Date: 1 February 1786

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[Fac. Coll. IX. 386; Dict. 9531.]

President. In Britain some offices are saleable. Commissions in the army, particularly, are saleable; but that is by the will of the sovereign. But there is no example of offices bought without the knowledge of the sovereign, or even of his ministers. Such private bargains cannot be the subject of an action: here there is an office of trust: it never could have been the purpose of the Crown to allow a traffic to be made of such offices.

Eskgrove. A man may agree to give a part of the emoluments of his office to whoever he pleases; but there is here an office, not in the gift of the party contracting, or of any great officer, but of the crown. I do not suppose that the crown knows any thing of sales and bargains. Besides, here there is no obligation granted by the officer, and this action is to compel him to ratify an obligation granted by his friends.

Swinton. The first question is, Whether does action lie on what is called a riding contract? the second to what extent? I think that a riding contract is not actionable; that it is contra bonos mores, and inconsistent with the law of the land. When an office is established, a salary is given by the public; but when that salary is transferred to another, the intention of the public is inverted: this is giving what one has no power to give.

Braxfield. In order to judge of this issue, we must first see how the facts stand. If any thing be stipulated, either for the person who procures the office, or for some one else, I would not give action; but here Sir Adam Ferguson, who procured the office, had no concern in the matter less or more: if an office is obtained from the crown, I can see no reason why he who obtains it should not be at liberty to distribute its emoluments amongst his friends and relations.

Monboddo. I wish that we had a law in this country like the old law of Richard II; (a very absurd law made to deceive the populace.) But the manners of the age will not admit of that. At the same time, I am of opinion that any bargain made for procuring an office is not the subject of action. But here I do not see that Mr Shaw, the defender, came under any obligation. He now agrees to communicate five-sixths of the profits to Mrs Sarah Dalrymple during her life.

Eskgrove. Were I to judge by my own feelings as a man, I could not fail to express my dissatisfaction at the conduct of Mr Shaw, who endeavours to keep an office which was not intended for him. But I think that no action lies against an officer who has been previously engaged, by the procurer of the office, to accept it under burdens or conditions. It is no matter whether the person benefited by the conditions, be, to appearance, connected with the procurer or not; for it is impossible to trace the connexion of parties, or the causes of such stipulations. But still it is lawful for a party, once in an office, to agree to dispose of his salary as he chooses, either in whole or in part; and this Mr Shaw agrees to do.

Henderland. I am not of opinion that the sale of offices is malum in se, or prohibited by express statute. Yet I should doubt of giving effect to a stipulation of this nature. This office is the creature of statute, introduced into the constitution for the benefit of the public: the emoluments are established as a salary: any bargain for communicating a share of the perquisites of office would be hurtful to the public. When a record is ill kept, the Court may interpose; but what should we answer to the plea of the clerk:—“The Court has taken five-sixths of the emoluments of the office from me, and I cannot keep the record properly on the remaining sixth” In the case of Mr Dalrymple there was a different species facti; for, after he had the office, he became bound to communicate the profits to a friend.

Gardenston. I differ as to the general point. It revolts against my feelings to say that, when a man agrees to give a share of the profits of an office to another, it is contra bonos mores to make him fulfil his obligation, but that it is not contra bonos mores to suffer a man to remain in possession contrary to his obligation.

On the 1st February 1786, “The Lords, having considered the whole circumstances of this case, found Charles Shaw liable for five-sixths of the profits to Sarah Dalrymyple, during her life, and while he holds the office; but assoilyied quoad ultra.”

Act. H. Erskine, Ilay Campbell. Alt. R. Corbett, R. Blair. Reporter, Henderland.