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Die Sabbati, 20 Februarii, 1702. After hearing council on this appeal, it was adjudged that the same should be dismissed, and the decree and dismission complained of affirmed. Lords Journ. vol. xvii. p. 299.

The appellant stated that be, about April, 1696, was designedly introduced to respondent, who was then a captain of a company in a marine regiment commanded by the Marquis of Carmarthen, and was, through surpise, prevailed on to sign articles, that respondent should, on or before Midsummer-day then next, procure for appellant a commission to be captain of the respondent's company, and appellant to pay respondent 600l. consideration; and gave a bond of 1200l. penalty for performance, and a warrant of attorney to confess judgment thereon, and that both were deposited in the hands of a Mr. Milburne, deceased, as escrows, not to be delivered until such commission procured: And that appellant staid in town until after Midsummer-day, and the commission not being then procured, retired into the country; but that about Michaelmas following he received a letter from respondent, acquainting him that he had procured the commission; whereupon appellant some time after came to town, and found that the commission had been disposed of to another person; and that respondent had notwithstanding procured the warrant of attorney from Milburne, and had judgment entered up against appellant for 1200l. and threatened to sue execution against him; and that appellant was advised that the agreement was not only void, for fraud and surprise, but was absolutely repugnant to several ancient and modern statutes, and particularly to a statute made in the 5th and 6th years of King Edward the Sixth, and another made 6th and 7th King William the Third, against buying and selling of offices in the army; which obliged the person coming in to make oath that he neither, directly or indirectly, paid, or caused to be paid, or promised to pay any sum of money or gratuity whatsoever, for the commission; and that thereby appellant could not pursue the agreement, or accept, or act, under the commission, without being guilty of wilful perjury, which respondent knew at the time of the agreement; though appellant, who was then a stranger to the constitu-[268]-tion of the army did not: And that appellant, in Michaelmas, 1698, exhibited his bill in Chancery against respondent to have the articles set aside, and the bond and warrant of attorney delivered up, and the judgment discharged: And that the cause came to be heard 16th June last; and it not fully appearing, as alleged, whether marine regiments were included, or to be construed within the words of the statute of William, the Lord Keeper declared he could not relieve appellant, and dismissed his bill as to any relief, save only against the penalty of the judgment: Which decree appellant insisted ought to be reversed; because it was utterly impossible by the laws then, and yet in force, for appellant to have the benefit of the agreement on his part; and that he declined taking out the commission to avoid wilful perjury; and that as he neither had, nor could have the benefit of the agreement on his part, there was no reason respondent should have so great a sum from him for nothing; and that it might be of dangerous consequences to the nation, and a fatal discouragement to the officers of the army, to countenance the buying of military commissions, and thereby prevent gradual advancement. (John Squibb.)

The respondent on the other hand stated, that he had been many years before 1696 a captain in the first regiment of marines, and growing aged, and very infirm, had thoughts of quitting the service, and that appellant knew this, and frequently, by himself and his agents, solicited respondent to procure him to be a captain in that regiment; and that thereupon the agreement and bond, stated by appellant, were entered into; and that the bond and warrant were, by mutual consent, deposited in the hands of Milburne; and that respondent signed a writing to appellant declaring the purpose: And that respondent accordingly procured a