carrier void; it was decided that the defendant could not raise the objection without proving the non-entry of the goods (1).

And where an agreement is entered into for the performance of an act which may be effected either by lawful or unlawful means, the law will presume in favour of the contract that the contracting parties contemplated the former. Thus where A. having commenced an action against B. to recover a sum of money, agreed with C. D. to discontinue the proceedings on payment of a specific sum and the delivery of several promissory notes; C. D. undertaking, in the event of any of the notes being dishonoured, and the plaintiff issuing a capias thereupon against his original debtor B., either to surrender B. to prison, or himself pay the money due on the notes; it was held that this contract was legal, and the undertaking by C. D. to surrender B. must be understood to mean that he was to procure his surrender by lawful means, as by his consent, or for a debt due to himself (m)...

› In Ingram v. Wyatt (n), the Lord Chancellor (Brougham) said that in cases of wills impeached on the ground of fraud, it was incumbent on the parties who sought to establish the will to remove or to explain, and so to neutralize the facts out of which that suspicion arose. It was different where contracts or instruments between parties were alleged to have been fraudu lently executed. There it was for the party impeaching the instrument to show that he had good grounds for supporting the accusation which he brought forward (o). In the one case the burden of proof rested on the parties who sought to establish the will; in the other case, they who assailed the instrument were obliged to prove the existence of the facts by which they alleged it was vitiated." The effect of an agreement being in part invalid will be considered in the next section (p), g

Of Contracts illegal at Common Law-as being,

ན་

3. Fraudulent.

!། ༄

I. Of Immoral Contracts.

Cohabitation.-An agreement in consideration of future illicit cohabitation between the parties is void (q). But past seduction and cohabitation is an innocent consideration for a bond or spe cialty, which requires no consideration; as it is in such case considered that the object was to redress an injury inflicted on the woman, and there is a moral obligation to support or relieve her. And past cohabitation, even in adultery and without seduction, is not an illegal consideration; so that a bond or other specialty, even from a married man, founded upon such consi deration, is not invalid (r). 1 In Friend v. Harrison (s), which was an action on an annuity bond for 501. a year, it appeared that the plaintiff was a common prostitute when the defendant first became acquainted with her

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that after they had cohabited for two years he gave her the bond; that she still continued to cohabit with him for some weeks, when she went to her friends, and afterwards renewed the connexion. Best, C. J. said that the bond, if given merely for past cohabitation, was good; but that if the plaintiff obtained the bond from the defendant, intending at the same time to con→ tinue the connexion, it was void. The jury found a verdict for the plaintiff.

(9) Walker v. Perkins, 3 Burr. 1568; 1 Bla. R. 517, S. C.; Rex v. The Inhabitants of Northwingfield, 1 B. & Ad. 912. A., for many years a common prostitute, was kept by B. for some time, and then married C.; B. continued his visits to her, and gave her a note for 1000l. payable on demand. B. died; and on a bill filed in chancery by his administratrix, the note was set aside, it being given er turpi causá, not as premium pudicitiæ ;

Robinson v. Cor, 9 Mod. R. 263.

(r) Nye v. Moseley, 6 B. & C. 183; 9 D. & R. 165, S. C.; Knye v.) Moore, 1 S. & S. 61, and 2 id. 260, S. C. See Turner v. Vaughan, 2 Wils. 339; Priest v. Parrot, 2 Ves. 160; and see Belt's Supplement, 313; Marchioness of Annandale v. Harris, 1 Br. P. C. 250; 2 P. Wms. 432, S. C.; Cray v. Rook, Forrester, 153. (s) 2 C. & P. 584.

In Gibson v. Dickie (t), the court held a declaration in assumpsit good, which stated, that before and at the time of making the defendant's promise, the plaintiff had cohabited, and then lived with him; and the defendant had received of the plaintiff 1087. bank stock, and 1007. sterling, and that certain differences had arisen between them; whereupon the defendant agreed, in case the plaintiff and defendant should separate, that he would pay to one J. S., for her use, the value of the 1087. bank stock, and 1007. sterling, deducting the value of the 100l. three per cent. consolidated bank annuities; and would allow the plaintiff 301. per annum during her life, by quarterly payments, provided the plaintiff, from and after such separation, should continue single, and did not cohabit with one D. G., or any one else. The court observed, "that this was a voluntary compensation, by way of maintenance, made to the plaintiff for the injury done her by their past illicit connexion; and that so far from its being an inducement for her to continue the cohabitation, it was rather an inducement to separate."

But a declaration in assumpsit, which stated that the plaintiff had cohabited with the defendant as his mistress, and that it was agreed that no further immoral connexion should take place between them, and that the defendant, as a compensation, should allow her an annuity so long as she should continue virtuous; and thereupon, in consideration of the premises, and that the plaintiff would give up the annuity, the defendant promised to pay as much as the annuity was reasonably worth; was held bad, on general demurrer (u). The court remarked, that it was not averred that the defendant was the seducer; and that "there was no authority to shew that past cohabitation alone, or the ceasing to cohabit in future, is a good consideration for a promise of this nature. That the cases cited were distinguishable from that before the court, because they were all cases of deeds; and that it was a very different question, whether a consideration be sufficiently good to sustain a promise, and whether it be so illegal as to make the deed, which required no consideration, void." The latter decision appears to have proceeded entirely on the ground of want of consideration.

But it seems difficult to support the last two cases, more especially the latter, even had the defendant been the seducer of

(t) 3 M. & Sel. 463.

(u) Binnington v. Wallis, 4 B. & Al, 650.

the plaintiff; for though there might have been a moral obligation on the part of the defendants in both cases to support the plaintiffs, still that would not be sufficient to uphold a promise not under seal; since it has been decided in a late case (a) that an express promise can only revive a precedent good consideration, which might have been enforced at law through the medium of an implied promise, had it not been suspended by some positive rule of law, but can give no original cause of action if the obligation on which it is founded never could have been enforced at law, though not barred by any legal maxim or statute provision (x).

And equity will not enforce the performance of a verbal promise by a single man, that he would settle an annuity on a married woman, with whom he had cohabited whilst she was separated from her husband (y).

An action is not maintainable to recover the rent of lodgings knowingly let for the purpose of prostitution, from the profits whereof the landlord expected to be paid (2). And although the landlord were not apprised, at the time of the letting, of the tenant's mode of life, and her object in taking the lodging; yet if he allow her to remain after he knows her character, and becomes acquainted with the use to which the apartments are applied, and after the period when he might legally have evicted the tenant, he shall not recover from her any rent for the period which has elapsed since he willingly permitted her to remain and occupy the premises for this illegal purpose (a). Although the tenant be an immodest woman, and the landlord be aware of her character, he may recover his rent, if she receive her visitors elsewhere, and do not use the premises she occupied for immoral purposes (b).

So, where in an action against a woman of the town for board and lodging, it appeared that the plaintiff, the keeper of a house of ill fame, received a portion of the gains of the unfortunate women in her house, as well as payment for their board and lodging, Lord Kenyon refused to sanction such a demand (c).

(x) Eastwood v. Kenyon, 3 Per. & Dav. 282; and see note to Wennall v. Adney, 3 B. & P. 249.

(y) Matthews v. L-e, 1 Mad. V. Ch. Rep. 558.

(2) Girardy v. Richardson, 1 Esp. R. 13; Crisp v. Churchill, cited 1 B. & P. 340, 341.

(a) Jennings v. Throgmorton, R. & M. 251.

(b) Appleton v. Campbell, 2 C. & P.

347.

(c) Howard v. Hodges, Midd. Sitt. B. R., before Kenyon, C. J., 2nd Dec: 1796; 1 Selw. N. P. 8th ed. 70.

But an action for clothes sold to a prostitute (d), or for washing her apparel (c), cannot be defeated, merely by showing that the plaintiff was aware of the defendant's unfortunate situation; although, from the nature of the articles, the use to which the defendant would apply them might have been known to the plaintiff.

Libels, &c.-An action cannot be maintained to recover the price or value of libellous or immoral pictures, sold by the plaintiff to the defendant (ƒ). And in Poplett v. Stockdale (g), Best, C.J. held that the plaintiff, a printer, could not recover any remuneration for printing "the Memoirs of Harriette Wilson," it being a work of a grossly immoral and libellous nature. Although it would be a good defence to an action for not supplying manuscript to complete a work according to agreement, that the subject matter of the intended publication was of an illegal nature; yet if the work be not produced, the presumption shall be that the publication was lawful (h).

It has already been seen that no contract will be implied to indemnify a party against the consequences of his publishing a libel on a third person at the request of the defendant, from whom the indemnity is claimed (i).

Wagers.—We have already considered when wagers are void, on account of their immoral or injurious tendency (k),

II. Of Contracts void at Common Law, as affecting
Public Policy.

A doubtful matter of public policy is not sufficient to invalidate a contract. An agreement is not void on this ground, unless it expressly and unquestionably contravene public policy, and be manifestly injurious to the interests of the state (1).

Restraint of trade.-A partial restraint of trade, as an agreement not to transact business at specified places, or beyond a limited distance, or with particular persons, does not invalidate an agreement, if there be some legal consideration for such restraint;

(d) Bowry v. Bennet, 1 Camp. 348; see Williamson v. Watts, id. 553. (c) Lloyd v. Johnson, B. & P.

240.

(f) Fores v. Johnes, 4 Esp. 97; ante, 418.

(g) Sitt. after Mich. Term, 1825, MS.; R. & M. 337, S. C.

(h) Gale v. Leckie, 2 Stark. R. 107;

ante, 574.

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(i) Ante, 505; Shackell v. Rosier, $ Scott, 59; 2 Bing. N. C. 624, S. C. (k) Ante, 496 to 498.

(1) See Richardson v. Mellish, 2 Bing. 242; 9 Moore, 461; Roche v. O'Brien, 1 Ball & B. 338,