72. Definition.-Subject Matter is the thing agreed to be done or to be left undone.

73. What May be Subject Matter.-The general rule is that one may contract to do or omit to do anything that is in the nature of things possible. There are,, as we shall see, exceptions to this rule and as these are far less numerous than the cases falling within the rule it will be simpler to enumerate and classify the subjects prohibited than those allowed.

74. What Cannot be Subject Matter.-The law will not permit certain things to be subjects of contracts because they are,—(1) Impolitic, or opposed to the welfare and progress of the community; (2) Immoral, or those tending to corrupt the good morals of the parties or community; (3) Fraudulent; (4) Agreements to commit a civil wrong; (5) Agreements to commit a crime or some act specially prohibited by law.

75. Contracts In General Restraint of Trade.-Although valid in every other respect if the fulfillment of a contract would operate in any

way to prevent one or both of the parties or an outsider from engaging in trade at all or in trade of a particular kind, the law deems it pernicious and it is void. The law looks with favor upon trade and therefore fosters it, and views with a jealous eye any restraint that parties may seek to place upon it. An agreement for partial restraint will, if reasonable, be sustained, but its unreasonableness will always be presumed and its reasonableness must be shown. What is reasonable must be determined by the circumstances of each case.

A, a retail dry goods merchant of Chicago, sells to B his stock of goods and good will and agrees not to engage in the retail dry goods business anywhere in the State of Illinois for five years. This is evidently an unreasonable restraint and will not be upheld. Had it been a wholesale business and his trade extended over the whole state then it would not be an unreasonable restriction.

76. Contracts in General Restraint of Marriage. For a like reason contracts placing a general restraint upon marriage are void. Examples of this are frequently seen where a father leaves a bequest to his daughter on condition that she never marries. This is void, but if the condition be that she do not marry until she is of age it is valid because this tends to protect her from her own rashness. A bequest left by a husband to his widow on condition that she do not marry again has been held to be reasonable and hence valid, she having been married once. A marriage brokerage contract being an agreement to negotiate a marriage for a consideration is void and money paid thereon may be recovered.

77. Contracts for Obstructing Public Justice.-Good government is deemed an absolute essential for the welfare of the community, and hence any agreement by which the aims of justice may be thwarted is void on the ground of public policy.

An agreement to suppress the evidence in a criminal case, or withdraw from the prosecution of it, is void. So is an agreement by a legislator to use his influence to secure the passage of certain act, or an argeement to disclose state secrets. No agreement that is opposed to the policy of the law will be enforced.

78. Wagers. All contracts of the character of a wager, are void. They were not void by the common law, but have been made so by most if not all the statutes, and in some states money so lost may be recovered. The United States government has done what it could to aid the states in this regard and has forbidden the use of the mails by lotteries.

79. Sunday Desecration. The old English common law was very strict concerning the proper observance of Sunday. It forbade all kinds of merchandising on that day and all labor except works of necessity or charity under penalty. This law has been substantially re-enacted by many of our states, but generally the rule has been much relaxed. Some go so far as to make void any contract if it be made on Sunday, but the greater number simply refuse to permit the courts to enforce a contract, the fulfilling of which would violate the Sunday statute.

Whoever

"Sunday shall include the time from midnight to midnight. disturbs the peace and good order of society by labor (works of necessity and charity excepted), or by any amusement or diversion on Sunday, shall be fined not exceeding $25. This section shall not be construed to prevent watermen and railroad companies from landing their passengers, or watermen from loading and unloading their cargoes, or ferrymen from carrying over the water travelers and persons moving their families, on the first day of the week, nor to prevent the due exercise of the rights of conscience by whomever thinks proper to keep any other day as a Sabbath." Extracts from Illinois statutes.

80. Fraud. It is said that "the law abhors fraud," and certainly it will use its utmost endeavors to ferret out and thwart its object. The fraud in an agreement may be perpetrated (1) by one of the parties upon the other, or (2) by one or both of the parties upon a third party.

81. Fraud by One Party upon the Other.-When one party is induced to enter into a contract through the fraudulent representations of the other, the contract is voidable at the option of the injured party. No one can take advantage of his own wrong or fraud to avoid a contract. When both parties have been equally, guilty of fraud, neither can obtain relief, but the law will leave them where it finds them. Often when there exists a confidential relation between the parties, a mere silence will amount to a misrepresentation or fraud upon the other party. In an executed contract into which fraud has entered, the injured party may rescind the contract, and return whatever benefit he may have received within a reasonable time after the discovery of the fraud. (See Sec. 56.)

82. Fraudulent Agreement to the Injury of Third Persons.Any contract, the performance of which would defraud a third person, though valid as between the parties themselves, is void at the instance of such third person. One of the most frequent cases of this is selling personal property but retaining the possession thereof.

This acts as a fraud upon creditors who, ignorant of the sale, and seeing the property still in the debtor's possession, extend a larger credit to him on account of it. They have a right to have the sale set aside and the property applied in satisfaction of their claims.

Another case is that of adebtor who, seeing himself about to fail, with a view to defrauding his creditors, makes a sale to a friend who has knowledge of the object of the sale. Even though full value be given, yet the creditors can have the sale set aside or declared void, and the proceeds applied in payment of their claims. The friend may in this way lose the value he has paid, but it is no more than he deserves for attempting to defraud others.

It is not, however, considered a fraud upon other creditors for a failing debtor to make an assignment, and state that certain creditors must first be paid. This is called "assigning with preferred credit

ors.

83. Contracts Specially Forbidden by Statute.-The national and the different state statutes forbid certain things to be subjects of contract. Thus most of the states have by statutes prohibited contracts to pay more than a certain per cent of interest.

It seems almost superfluous to add that an agreement to commit a crime is void, neither can one make a valid agreement to commit a civil wrong, such as to print a libel or commit a trespass.

84. Effect. The question naturally arises what is the effect when parties have agreed to that which cannot be legal subject matter, or in other words, to a contract that is void, or at best voidable. No general rule can be laid down to cover all cases, for the courts will in many cases make such order as will be just; but usually if the contract be an executory one it will be as if never made. If it be an executed one money paid can often be recovered, and especially is this the case where the party seeking to recover has been defrauded, but where the parties have been equally culpable the law will do nothing for either but will leave them where it finds them. When the contract is void on account of a statutory provision the statute usually provides its own penalty, as in the case of usury.

CHAPTER IX.

REMEDIES.

85. Definition.-It has long been the boast of our law that under it there is provided a redress for every wrong. The legal means which the law uses for the purpose are called its remedies. In case the wrong is a public one, it is called a crime, and its punishment is provided for by the criminal law. It is however, particularly to wrongs against the individual that this work is addressed. The remedies provided for this purpose are termed civil remedies. These are always secured through the formality of "a suit at law," for it is a maxim of law, "That no man shall be condemned unheard,” or "Every man has his day in court."

86. Legal Steps.-The following are the formal steps to be taken by a creditor for realizing on an account against his debtor:

87. Summons.-The first step is to secure from the clerk of the court a summons, and have it served upon the defendant. This is in effect a notice to him of the plaintiff's demand, and the day, place and hour of trial, that he may have the opportunity of being present and of making his defense.

88. The Trial is conducted by a regular and well understood code of rules, each party being allowed at the proper time to offer evidence in his own behalf. It will be well for the student to understand that the plaintiff must prove his case by a preponderance of the evidence. The debtor is not presumed to owe the debt, and therefore, the creditor (plaintiff) must overcome this presumption by producing