tion deems fair and right is in the mores of age, and another generation may deem it wrong, and that makes it wrong.7

It is laid down by Anson that the policy of the law has on certain subjects been worked into a set of tolerably definite rules, "but no Court has any longer the power to extend its application." Pollock says, that the general tendency of modern ideas is no doubt against the continuance of jurisdiction in Courts of justice to hold transactions or dispositions. of property void simply because in the judgment of the Court it is against the public good that they should be enforced when the grounds of that judgment are novel. He adds, however, that there is a good deal of modern and even recent authority which makes it difficult to deny the continued existence of that power."

It does not seem that there can be any doubt on this subject in America. Our Courts frequently declare new kinds of contracts to be void because against public policy:

One may well ask this question:-If the Courts had the power in the nineteenth century to declare a contract to be void because against public policy, how and why have they lost that power in the twentieth century?

Some of the contracts which have been adjudged to be illegal because against public policy are classified in the following sections.

$ 102. Interference With the Executive or Legislative Func= tions of Government. A contract by which a commission is to be paid for inducing, by the exercise of personal influence, a government official to purchase supplies from a particular party is void. Even when the contract is for the exercise of influence with a foreign government by an officer of that gov

7 "The mores can make anything right and prevent condemnation of anything." W. G. Sumner, Folkways, ch. 15.

s Contracts, 10th ed. 213.

9 Contracts, m. p. 313. See the observations on this subject of Vaughan Williams, L. J., in Wilson v. Carnley [1908], 1 K. B. 737.

1 Tool Co. v. Norris, 2 Wallace, 45. In this case the Court said: "Public offices are trusts held solely for the public good.”

ernment, it will not be enforced in our Courts. This rule, however, does not prohibit the owner of goods from employing an agent to effect a sale to the government, when no corrupt influence is to be used, and when it is a fair commercial transaction, the agent not being employed to procure a contract as a matter of personal favor.3

4

A contract which affects the competition for public printing is void. And so is also an agreement by a candidate for public office to pay for the support of a newspaper.5

A contract which has a "tendency to prevent citizens from serving in the army and navy" is against public policy."

All contracts for a contingent compensation for obtaining legislation, or to use personal or any secret influence on legislation are against public policy and void. "Legislators should act from high considerations of public duty." An agreement for lobbying a bill is void. But persons interested in legislation may urge their claims openly, and a contract for such service is not illegal.

A contract whereby in consideration of A.'s procuring B.'s appointment as special counsel in certain causes against the Government and aiding him in managing them, B. agrees that he will pay A. one-half of the fee which he may receive from the government, is contrary to public policy and void.9

An agreement by a candidate to share the emoluments of a public office in consideration of aid in securing his election, is void.10

2 Oscanyan v. Arms Co., 103 U. S. 261.

3 Lyon v. Mitchell, 36 N. Y. 235; Mills v. Mills, 40 N. Y. 545; Winpenny v. French, 18 Ohio St. 475.

4 Brooks v. Cooper, 50 N. J. Eq. 761.

5 Livingston v. Page, 74 Vt. 356.

6 Potts' Summary, 383, citing Beard v. Hall [1908], 1 Ch. 383.

7 Marshall v. Balto. & Ohio R. Co., 16 Howard, 314.

8 Trist v. Child, 21 Wallace, 441. See also, Howard v. Church, 18 Md. 451.

9 Meguire v. Corwine, 101 U. S. 108.

10 Hunter v. Nolf, 71 Pa. 282; Martin v. Wade, 37 Cal. 168.

The salary of a public office cannot be assigned unless already earned and due.11 A contract to pay a public officer more than he is by law entitled to charge is void.12

"Any contract to appoint one to a public office, or involving the sale of a public or quasi-public office, or to do anything in consideration of the promisee's exchanging offices with, or securing an office for the promisor, or recommending him for such office, or resigning any office, is void."

$103.

913

Interference with the Course of Justice.

1. Agreements which tend to obstruct the administration of criminal law. Any contract whose object is to compound a felony, or stifle a prosecution or compromise a criminal proceeding, is held to be void upon the principle that the public welfare demands the punishment of offenders; that a man who knows that a crime has been committed should not be allowed to make it a source of personal profit, and that the State relies upon those having knowledge of a crime to aid the prosecution.1 Compounding a crime without leave of the Court is made a criminal offense by the Statute of 18 Eliz. c. 5, sec. 3. In some States prosecutions for assault and battery or for a misdemeanor may be compromised.2

11 Field v. Chipney, 79 Ky. 260; Stephenson v. Walden, 24 Iowa, 84; Brantly, Per. Prop. § 271. "When the law prohibits a municipality from changing the compensation of an officer during his term of office, he will not be estopped, by signing an agreement to accept a less amount in consideration of being retained in office and by accepting the amount so stipulated, from recovering the balance of his legal salary." Nelson v. City of Superior, 109 Wis. 618.

12 Carroll v. Barber, 2 H. & G. 57.

13 Greenhood on Public Policy, 338.

1 Collins v. Blantern, 1 Smith's Ldg Cases, 369, note; Pearce v. Wilson, 111 Pa. 14; Henderson v. Palmer, 71 Ill. 579. In Williams v. Bayley, L. R. 1 H. L. 220, Lord Westbury said: "You shall not make a trade of a felony. If you are aware that a crime has been committed, you shall not convert that crime into a source of profit or benefit to yourself."

2 Whether an agreement to compromise a prosecution for a misdemeanor, for which the prosecutor may also institute a civil suit, is valid or not, is the subject of conflicting decision in America, but most of them hold that unless authorized by statute the agreement

A contract to pay an attorney a contingent fee to procure the settlement of a criminal charge is void.3 So, after conviction, à contract to pay money to induce the prosecutor to ask the Court to mitigate the punishment is void.*

A mortgage given by a bank officer to suppress a prosecntion against him for embezzlement cannot be enforced. So where the son of the mortgagor having been guilty of embezzlement, the mortgage was executed for the amount embezzled and in consideration of an agreement by the mortgagee that there should be no prosecution, it was also held to be unenforceable." But other cases consider that a note or security given for the amount stolen is valid, although the accompanying promise not to prosecute is void. And some cases hold that when a man's signature has been forged, a note or security given to him or to another in consideration of the surrender of the forgery is enforceable.8

Where the consideration of the promise was that the promisee would obtain, without the use of improper means, a nolle prosequi from the Governor upon a pending indictment against certain parties, the contract was held to be void as against public policy." "Where a person interposes his interest and good offices to procure a pardon it ought to be done gratuitously, and not for money." So a promise by a

is void. See Greenhood on Public Policy, 455. The English rule is. that if the offense is not of a public nature the compromise is valid. Keir v. Leeman, 9 Q. B. 395; Windhill Local Board v. Vint, 45 Ch. D. 351. The Md. Code, Art. 10, sec. 21, authorizes the compromise of a prosecution for assault and battery.

3 Ormerod v. Dearman, 100 Pa. 561. But money paid for compounding, etc., is not recoverable. Haynes v. Rudd, 102 N. Y. 372; Gotwalt v. Neal, 25 Md. 434.

4 Buck v. First Nat. Bank, 27 Mich. 293.

5 Pearce v. Wilson, 111 Pa. 14; Henderson v. Palmer, 71 Ill. 579.

6 Peed v. McKee, 42 Iowa, 689; Foley v. Greene, 14 R. I. 618.

7 Bibb v. Hitchcock, 49 Ala. 468; Catlin v. Heston, 9 Wis. 476. But see Taylor v. Jacques, 106 Mass. 291. A note appended to Bankhead v. Shed, 16 L. R. A. (N. S.) 971, collects cases relating to the effect of an agreement to stifle prosecution upon contract to pay existing indebtedness, or the value of property or money, feloniously obtained. 8 Chittenham Co. v. Cook, 44 Mo. 29; Swope v. Ins. Co., 93 Pa. 186. 9 Wildey v. Collier, 7 Md. 273.

convict's sister to pay a sum of money to one who undertakes to secure a commutation of the punishment, is void.10 But the doctrine of other cases is that a contract to pay a sum of money for services in securing a pardon for the promisor by the use of fair maens is valid.11

It is generally held in this country that a contract to indemnify a person who becomes bail for one accused of a crime is not against public policy.12 But the rule in England is that such a contract is void, because the surety then has no motive to produce the accused or see that the condition of the recognizance is performed.

13

2. Agreements tending to pervert the course of civil jus tice-Champerty and maintenance. Maintenance exists when a party "improperly and for the purpose of stirring up litigation or strife, encourages others either to bring actions or make defences which they have no right to make."14 Champerty is "maintenance aggravated by an agreement to have part of the thing in dispute."

15..

"All our cases of maintenance and champerty," said Lord Abinger,' "are founded on the principle that no encouragement should be given to litigation by the introduction of parties to enforce those rights which others are not disposed to enforce *** It seems to me that it would be strongly against public policy that in such a case persons who have no interest whatever in the action and who cannot be affected by the verdict in it, or made liable to pay costs, should be allowed to assist another person in maintaining it against the plaintiffs as the defendant has done."

10 Kribben v. Haycraft, 26 Mo. 396; O'Reilly v. Clearly, 8 Mo.. Ap. 186.

11 Moyer v. Cautieny, 41 Minn. 242.

12 Moloney v. Nelson, 158 N. Y. 351; 12 App. Div. N. Y. 548: Stevens v. Hay, 61 Ill. 399; Carr v. Davis, 64 W. Va. 522; 20 L. R. A. (N. S.) 58. Cf. U. S. v. Simmons, 47 Fed. 575.

13 Herman r. Jenchner, 15 Q. B. D. 561; Consol. Exploration Co. v. Musgrave [1900], 1 Ch. 37.

14 Findon v. Parker, 11 M. & Welsby, 682. See Thompson v. Reynolds, 73 Ill. 11.

15 In Prosser r. Edmunds, 1 Y. & C. 481, quoted in Alabaster . Harness [1895], 1 Q. B. 339.