6 Denny v. Lincoln, 5 Mass. 385; Fanshor v. Stout, 1 South. 319.
7 Clark v. Foxcroft, 6 Greenl. 296.
8 Bac. Abr. Assumpsit, E.; Winch, 48; Hutt. 55; 2 Johns. Cas. 56.
§ 706. So, also, a promise to indemnify an officer for the execution of an act apparently legal, is good.3 As if a bond of indemnity be given to a sheriff for attaching or distraining disputed property. But a promise to indemnify him for doing an act manifestly in violation of his duty, or for omitting to do an act which is plainly his duty, will be void.4
§ 707. An agreement under seal, however, to indemnify an officer for an illegal act, already done, is valid,5 for the same reason as that which obtains in bonds given in consideration of past cohabitation; namely, that the seal imports a consideration, and that the act being done, no injury can result to the public from a contract to indemnify the party, it being no consideration for the act itself. A parol agreement to the same effect, however, would not be binding, because the consideration is executed.6
§ 708. Again, all secret agreements, which are founded upon violations of public trust or confidence, are void.7 Where,
1 Coventry v. Barton, 17 Johns. 142; Avery v. Halsey, 14 Pick. 174.
2 Stone v. Hooker, 9 Cow. 154. See also Allaire v. Ouland, 2'Johns. Cas. 52; Avery v. Halsey, 14 Pick. 174.
3 Arundel v. Gardiner, Cro. Jac. 652; Blackett v. Crissop, 1 Ld. Raym. 279; Griffiths v. Hardenbergh, 41 ST. Y. 464 (1869). And see Kneeland v. Rogers, 2 Hall, 579; Stone v. Hooker, 9 Cow. 154; Doty v. Wilson, 14 Johns. 379.
4 Wright v. Lord Verney, 3 Doug. 240; Chitty on Cont. 678; Mitchell v. Vance, 5 Monr. 529; Featherston v. Hutchinson, Cro. Eliz. 199. A promise by a justice of the peace, who has carelessly entered a judgment on his docket for the wrong party, that, if he will move in the county court to set aside the judgment and the execution, he will pay all the damages caused by his own mistake, if the execution is not set aside, is not against public policy; and an action will lie thereon. Christopher v. Van Liew, 57 Barb. 18 (1869).
5 Bac. Abr. Assumpsit, E.; Hutt. 55; s. c. Winch, 48; Hall v. Huntoon, 17 Vt. 244.
6 Coventry v. Barton, 17 Johns. 142; Avery v. Halsey, 14 Pick. 174.
7 Fuller v. Dame, 18 Pick. 472; Pingry v. Washburn, 1 Aik. 264; Lord therefore, a person occupying a public office, agrees, for a reward, to exercise his official influence in questions affecting both public and private rights, so as to bring about the private advantage of persons interested, the contract would be void. For every public officer is bound to be disinterested in the consideration of all public questions, and any contract which interferes with the free and unbiassed exercise of his judgment in relation to a question of trust or confidence reposed in him, is against public policy and good morals. Thus, where an agreement was made to remunerate commissioners appointed to take testimony, and bound by the nature of their appointment to secrecy, provided they would disclose the testimony so taken, it was held to be void.1 So, also, if a contract should be entered into between a member of Parliament and third persons, by which the former should agree to withdraw all opposition to a certain bill incorporating a railway company, in consideration of £5000, it would be held to be void.2 And the same rule would apply to an agreement by an insolvent to pay a creditor for withdrawing all opposition to his discharge.8 Any such promise to one creditor to induce him to enter into a compromise, securing him better terms than other creditors, is void.4 So, also, where A., being a member of the legislature, entered into an agreement with B. to use his influence in the legislature to procure an act of incorporation for a proposed company, on a certain pecuniary consideration, the agreement was held to be void.5 It would seem, however, that whenever
Howden v. Simpson, 10 Ad. & El. 821; Vauxhall Bridge Co. v. Earl Spencer, 2 Madd. 356; s. c. Jacob, 64.
1 Cooth v. Jackson, 6 Ves. 12, 31, 32, 35.
2 Lord Howden v. Simpson, 10 Ad. & El. 821.
3 Hall v. Dyson, 17 Q. B. 785; 10 Eng. Law & Eq. 424; Gould ». Williams, 4 Dowl. P. C. 91; Murray v. Reeves, 8 B. & C. 421; Humphreys v. Welling, 1H.&C.7 (1862).
4 Geere v. Mare, 2 H. & C. 339 (1863); Fisher v. Bridges, 3 El. & B. 642. Not only is a note or promise, secretly given to one creditor to induce him to sign a composition deed with other creditors, void, but if money be paid for the same purpose, the debtor may recover it back. If both parties are in delicto, they are not in pari delicto, because the one has power to dictate, the other no alternative but to submit. Atkinson v. Denby, 6 H. & N. 778, affirmed in the Ex. Ch. 7H.&N. 934. See Higgins v. Pitt, 4 Exch. 312. 5 Fuller v. Dame, 18 Pick. 473.
a member of Parliament or of the legislature has a personal interest in the subject-matter of a question before such parliament or legislature, he may agree to withdraw all opposition thereto growing out of his private and not his public interest, upon a consideration, provided that his agreement be not secret, and do not operate as a fraud or surprise on such body, but be wholly open.1 Thus it is not illegal for the promoters of a railway to agree with a land-owner, though a member of Parliament, to pay him for withdrawing his opposition to their bill, and give it his countenance and support.2 But a contract to procure or endeavor to procure the passage of an act in the legislature by sinister means, or even by using personal influence with the members, is void, as being contrary to public policy and the integrity of political institutions.3 And a contract to pay a person for his services in obtaining a contract from the government to purchase its supplies of the promisor, is against public policy and void.4
§ 709. Again, contracts for the sale of public offices come under this class of contracts in violation of public duty, and are void. And this rule obtains upon the ground that they tend to destroy the responsibilities of the office, and to betray the interests of the public.1 But it would seem that a contract for a private office, of which the other party is cognizant, and to which he does not refuse his assent, would be good, if it were not manifestly productive of injurious results.2 Nor is the employment of agents to procure contracts with the government illegal.3 So, also, the profits and emoluments of a public office of trust are not a good subject of sale. Thus, it has been held, that the prize-money of a sailor, or the full pay or half pay of an officer, is not assignable at law,4 nor in equity,6 upon the ground that any salary, paid for the performance of a public duty, ought not to be perverted to other uses than those for which it was intended. The same is true of a promise on consideration of aiding in the election of a person to office, though it be not secretly made.6 So, of an agreement to resign an office and , use the party's influence to secure the appointment of another.7