a bill of exchange for one forged, at the instance of the forger, is not illegal, there being no agreement to prevent a prosecution for the forgery (x); and it seems to be a general rule, that where the offence may be made the subject of an action as well as an indictment, and civil and criminal proceedings are accordingly taken, an agreement to pay the costs of the action on its being stopped is binding, if the criminal costs be not included in the arrangement, and it be no part of the bargain that the indictment should be abandoned (y). It appears that an agreement to pay money, in consideration of a party using his interest to procure the pardon of a convict, is not binding (≈). So a wager as to the conviction or acquittal of a prisoner on trial on a criminal charge is illegal, as being contrary to public policy (a). And where a petition had been presented to parliament against the return of a member on the the ground of bribery, an agreement by the petitioner, in consideration of a sum of money paid to him to proceed no further with the petition, was held illegal (b). And we have seen that an agreement to indemnify a person against the consequences of doing an ilegal act cannot be supported (c). So an agreement to supply the voters at an election with refreshments is illegal, if the object be to induce the voters to vote for a particular candidate (d). There is not, however, any illegality in a peer of parliament, through whose lands a projected railway was intended to pass, agreeing for a consideration, to withdraw his opposition to a bill before parliament for making such railway, either on the ground that such agreement was concealed from parliament, or from the other landowners through whose lands the railway would pass, there being no apparent intention of the parties to conceal such agreement; nor perhaps had such intention appeared (e). Maintenance of suits, which is a public offence, is the officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party with money or otherwise, to prosecute or defend it (f). Champerty is the purchasing a suit or right of action of another person; or rather it is a bargain with a plaintiff or defendant to divide the land or other matter sued for between them, if they prevail at law; whereupon the champertee is to carry on the party's suit at his own expense (g). This also is an offence of a public nature. All contracts which have either of these offences within their object or operation are illegal. And even though a contract may not be within the strict legal limits assigned to these offences, a court of equity will not give effect to it, if it savours at all of maintenance or champerty (h). In Stanley v. Jones (i), it appeared that, by articles of agreement, T. S. covenanted to communicate to the defendant all such information as he, T. S., possessed or could procure, and to use and exert his utmost influence and means for procuring such evidence as should be requisite to substantiate the defendant's claims against R. M. and W. S. E.; in consideration of which, the defendant covenanted to pay T. S. one-eighth part or share of such sum as should at any time be recovered or obtained, either by suit at law or in equity, from R. M. and W. S. E. It was held that the agreement was illegal, as it amounted to champerty. Where an attorney agreed to save a party harmless from all costs of some suits, on his being allowed to retain half of whatever sums were recovered, this was held to amount to maintenance (k). (f) 4 Bla. C. 134; see per Buller, J., Master v. Miller, 4 T. R. 340. See the definition, &c., of this offence in the cases cited in the following notes; and Wallis v. Duke of Portland, 3 Ves. jun. 494; Shackell v. Rosier, 2 Bing. N. C. 634, 644; 3 Scott, 59, S. C. See instances in which it was questioned whether agreements did not amount to maintenance, Bell v. Smith, 7 D. & R. 816; 5 B. & C. 188; Williamson v. Henley, 6 Bing. 299; 3 M. & P. 731; or to embracery, Doe d. Oliver v. Powell, 3 Nev. & Man. 616. (g) 4 Bla. Com. 134, 135. See the definition of champerty, per Best, (h) Prosser v. Edmonds, 1 Y. & Col. 481. (k) In re Masters, 4 Dowl. 18; 1 Harr. & W. $40. When court will compel attorney to refund money voluntarily paid to him under such circumstances, Ex parte Yeatman, 4 Dowl. P. C. 304; 1 Harr. & W. 510, S. C. And though it is not maintenance to purchase an interest which is the subject of a suit, still if the purchaser give an indemnity against all the costs that have been or may be incurred by the seller in the prosecution of the suit, the transaction amounts to maintenance (1). But an agreement to lease the rectorial tithes of a parish, including the tithes of ninety acres supposed to be within the parish, but which had not paid tithes to the lessor during his incumbency, with a stipulation that the intended lessee would, within a given time, take such legal proceedings for the recovery of the tithes of the ninety acres as his counsel should advise, is not within the statute of maintenance (m). And in Williams v. Protheroe (n), where, by articles of agreement between the vendor and purchaser of an estate, it was agreed that the purchaser, bearing the expense of certain suits commenced by the vendor against an occupier for by-gone rent, should have the rent so to be recovered, and also any sum that could be recovered for dilapidations; and that the purchaser, at his expense, might use the name of the vendor in any action he might think fit to commence against the occupier for arrears of rent or dilapidations; it was held that the agreement was not void, as amounting to champerty. An agreement to fight is void, as tending to or creating a breach of the peace (o). And it would probably be held that a bet upon, or other contract connected with, a sparring match, at a public building, kept for the purpose of exhibiting the pugilistic art, and which tends to the encouragement of prize-fighting, is invalid (p). A contract made for the purpose of preventing the erection or continuance of a public nuisance appears to be good; although part of the consideration be the forbearance to prosecute for the inconvenience already sustained (q). An agreement, the natural effect of which is to induce a public officer to neglect his duty, is invalid. (1) Harrington v. Long, 2 Mylne & K. 590; and see Jones v. Thomas, 2 You. & Col. 428. (m) White v. Gardner, 1 Y. & Col. 385. (n) In error from K. B., 3 Y. & J. 129; S. C. in 2 M. & P. 779, and 5 Bing. 309. (0) Bul. N. P. 16. (p) See Hunt v. Bell, 7 Moore, 212; 1 Bing. 1, S. C. (q) Fallowes v. Taylor, 7 T. R. 475; Peake Add. C. 155, S. C. Equity will restrain the improper use of a bond given under such circumstances; Roy v. Duke of Beaufort, 2 Atk. 190. Thus, as before observed (r), parish officers could not legally take any other security, under the statute 6 Geo. II. c. 31, from the putative father of a bastard, than such as indemnifies them from time to time against the expenses of the maintenance of the child they could not take a sum certain by way of compounding for all future expenses, as it thereby becomes the interest of the parish to neglect the child. It seems that an agreement between the defendant, being the town-clerk and clerk of the peace of a borough, and the plaintiff, to recommend the latter to parties who might want an attorney to conduct prosecutions arising in the town-clerk's office, for reward to the former, is illegal (s). An engagement to indemnify a sheriff in the execution of a lawful or apparently legal act is good (t). But where the act to be done by him would be a plain violation of his duty, the agreement to protect him from the consequence is invalid (u). Indemnity bonds to the sheriff in cases of disputed property in goods, and given to induce him to execute, or not to execute, a fieri facias against such goods, are clearly lawful. But it seems that a bond to a sheriff, the condition of which recites that the sheriff by virtue of a fi. fa. had taken in execution of the goods of R. V., certain goods upon a judgment against him, and that the sheriff, at the request of R. V. (one of the obligors) had quitted possession, and agreed to return nulla bona, and then for indemnifying the sheriff for so doing, is illegal (x). Trading with an enemy.-Trading with an enemy is also injurious to the public welfare, and is therefore illegal; and no contract connected therewith can form the subject of an action (y). Health.-A contract, by which a brewer binds a publican to deal with him in the articles used in the business of the latter, is not invalid, but shall not be favoured, as tending to prejudice the health of the subject; and the law tacitly annexes this condition, that the articles shall be good and marketable (z). (r) Ante, 286. (s) See Hughes v. Statham, 4 B. & C. 187; 6 D. & R. 219, S. C. (t) Arundel v. Gardiner, Cro. Jac. 652; Blacket v. Crissop, 1 Ld. Raym. 279; Benskin v. French, 1 Sid. 132. When avoided by fraud of the officer, post, 680, note (e). (u) Beawfuge's case, 10 Co. 102; Featherston v. Hutchinson, Cro. Eliz. 199; Martyn v. Blithman, Yelv. 197; Blithman v. Martin, 2 Buls. 213; Morris v. Chapman, T. Jones, 24. See various instances, Tidd, 8th ed. 221; 9th ed. Index, tit. Sheriff; ante, 504. (x) Wright v. Lord Verney, 3 Doug. 240. See the usual form of indemnity bond, Watson on Sheriffs, 380. (y) Ante, 182. (z) Holcombe v. Hewson, 2 Camp. A bond given contrary to the policy of the Apothecaries' Act, on the terms of an agreement, that the obligee should take the obligor's son as an apprentice, to learn the profession of a surgeon, apothecary and man-midwife, for the term of two years, but that in the articles it should be stated and be made appear, that the son had been articled for the full term of five years, so that he might be admitted to examination to practise as an apothecary, on serving an apprenticeship of two years, instead of five years, is void (a). Wagers against public policy.-Many wagers, as we have seen, have also been held void, on the ground that they lead to inquiries, the investigation of which might affect the public interest (b). III. Of Contracts voidable on the Ground of Fraud. Effect of Fraud (c).-Fraud avoids a contract ab initio both at law and in equity, whether the object be to deceive the public or third persons, or one party endeavour thereby to cheat the other. For the law will not sanction dishonest views and practices, by enabling an individual to acquire, through the medium of his deception, any right or interest (d). And the fraud of an authorised agent equally avoids a contract made by him for his principal (e). Thus, where it appeared that 391; Jones v. Edney, 3 Camp. 286; Thornton v. Sherratt, 8 Taunt. 529. See further ante, 669. (a) Prole v. Wiggins, 3 Scott, 601; 3 Bing. N. C. 601, S. C. (b) See generally as to wagers, ante, 496. (c) Lord Lyndhurst observed in the House of Lords, in the case of Small v. Attwood, 22 March, 1838, that" where a representation, false in fact, and false to the knowledge of the party making the representation, and relating to the nature and character of the subject matter, and affecting its value, had been the foundation of a contract with a person who was ignorant of the falsehood of the representation, and acted upon the belief of its truth, such false representation would in a court of law be considered a sufficient foundation for an action to recover damages for the injury which had been inflicted upon the party deceived, and in a court of equity would be deemed a sufficient ground for setting aside the contract which had been made upon such fraudulent misrepresentation. This doctrine had been distinctly laid down in the case of Edwards v. Macneil, decided first by Sir William Grant, and subsequently on appeal by Lord Eldon, and was now entirely out of controversy." (d) See Fermor's case, 3 Co. 77; per Lord Mansfield, C. J., Bright v. Eynon, 1 Burr. 390; and Foxcraft v. Devonshire, 1 Bla. R. 193; see 1 Fonbl. Tr. Eq. 6th ed. 122, and notes; Boulton v. Bull, 2 Bla. R. 465; Willis v. Baldwin, 2 Dougl. 450; Carter v. Boehm, 3 Burr. 1909; 3 Ves. & B. 42; Haigh v. De La Cour, 3 Camp. 319, 154, 506; 3 Chitty, Com. L. 155, 306, 698. When concealment of a material fact avoids a release, Bowles v. Stewart, 1 Sch. & Lef. 209. (e) Fitzherbert v. Mather, 1 T. R. 12; Doe v. Martin, 4 id. 39; Richardson v. Mellish, 2 Bing. 243; 9 Moo. |