shew that he had good grounds for supporting the accusation which he brought forward (m). 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.

SECTION 1.

Of Contracts illegal at Common Law-as being,
1. Immoral, or

2. Contrary to public Policy, or

3. Fraudulent.

1st. OF IMMORAL CONTRACTS.

Cohabitation. An agreement in consideration of future illicit cohabitation between the parties is void (n). But past seduction and cohabitation will not only be deemed an innocent consideration for a bond or specialty, (which requires no consideration,) but will form an adequate consideration for a promise not under seal; 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 consideration, is not invalid (0).

In Friend v. Harrison (p), 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—

(m) And by the French law fraud is not to be presumed; Code Civil, Bk. 3, Tit. 3, ch. 2, Art. 1116.

(n) 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 ex turpi causâ, not as premium pudicitiæ; Robinson v. Cox, 9 Mod. R. 263.

(0) Nye v. Moseley, 6 B. & C. 133; 9 D. & R. 165, S. Č. 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 Bro. P. C. 250; 2 P. W. 432, S. C.; Cray v. Rook, Forrester, 153.

(p) 2 C. & P. 584.

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 continue the connexion, it was void. The jury found a verdict for the plaintiff.

In Gibson v. Dickie (q), 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 100%. 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 1007. 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 (r). 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;

(q) 3 M. & Sel. 463.

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

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.

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 (s).

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 (t). 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 (u). Although the tenant be an immodest woman, and the landlord be aware of her character, he may recover his rent, if she receive her visiters elsewhere, and do not use the premises she occupied for immoral purposes (x).

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 (y). But an action for clothes sold to a prostitute (z); or for washing her apparel (a); cannot be defeated, merely by shewing 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.

M. 251.
(x) Appleton v. Campbell, 2 C. & P.

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

(2) Boury v. Bennet, 1 Camp. 348; see Williamson v. Watts, id., 553. (a) Lloyd v. Johnson, 1 B. & P. 340.

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 (b). And in Poplett v. Stockdale (c), 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 (d).

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

2ndly. 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 (ƒ).

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 a consideration for such restraint; but a consideration must appear in such case, whether the restriction be by bond or simple contract and a general restraint of trade, as an agreement that a party would not trade any where, is invalid, although there be a consideration to support it (g).

A contract entered into by a practising attorney, for a valuable

(b) Fores v. Johnes, 4 Esp. 97.

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

(d) Gale v. Leckie, 2 Stark. R. 107. (e) Ante, 394 to 396.

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

(g) Mitchell v. Reynolds, 1 P. Wms. 181; Chesman v. Nainby, 2 Stra. 739; Ld. Raym. 1456, S. C.; 2 Saund. 156, n. 1; Homer v. Ashford, 12 Moor, 91; 3 Bing. 322, S. C.; Wickens v. Evans, 3 Y. & J. 318; Young v. Timmins,

1 C. & J. 331. In Homer v. Ashford, it was decided in covenant that if the declaration state that " for certain considerations mentioned in the deed," the defendant agreed to submit to certain restrictions in his trade, the defendant cannot avail himself of the objection that the nature and extent of the consideration are not shown, except by a special demurrer. An independent illegal clause restraining trade, in an agreement, will not affect the validity of the rest of the contract; M'Allen v. Churchill, 11 Moor, 483.

consideration, that he would relinquish and make over to B. and G., two other attornies, his business as an attorney, so far as respected his professional practice in London, and 150 miles from thence (h), and all his business as agent for any attorney; and that he would not practise as an attorney within those limits, and would recommend his clients, and permit B. and G. to use his name in the business without his interference; has been holden valid (i).

And an agreement not to set up as surgeon, or man-midwife, in a certain town, or within twenty miles thereof, is legal (k). So is a contract between two coachmasters not to oppose each other, and to charge the same prices (1); or between the manager of a theatre and a dramatic author, that the latter should not write dramatic pieces for any other theatre (m); or to sell a secret in a particular trade, and never again practise it (n); provided in all these instances there be a good consideration for the restrictions.

A covenant in a lease by the lessee to indemnify the overseers of the poor of the parish for the time being from all charges, by reason of the lessee taking a servant or apprentice, who should thereby gain a settlement in or become chargeable to the parish, is not unlawful (0).

Here also may be mentioned agreements creating, or tending to create, or secure a monopoly; these are illegal, as affecting the public weal: there is an exception in the case of patent rights under the 21 Jac. 1, c. 3 (p).

An agreement by a publican, upon good consideration, to take beer only from a particular brewery, is valid, whilst good and wholesome beer is supplied (q). But where the lessee of a public house covenanted for himself, his executors, and assigns, with his lessors, (brewers,) to take all his beer of them, or their successors in their said trade; and the lessors sold their trade

(h) The assignor of a lease of a public house in London covenanted not to keep a public house within the distance of half a mile from the premises assigned. This means half a mile measured by the nearest way of access between the premises assigned and any public house afterwards kept by the assignor; Leigh v. Hind, 9 B. & C. 774; 4 Man. & Ryl. 597.

(i) Bunn v. Guy, 4 East, 190. (k) Hayward v. Young, 2 Chitty, R. 407.

(l) Id.

(m) Morris v. Coleman, 18Ves. 437. (n) Bryson v. Whitehead, 2 Sim. & Stu. 74.

(0) Walsh v. Fussell, 6 Bing. 163; 3 M. & P. 457, S. C.

(p) Duvergier v. Fellows, 10 B. & C. 826. See Godson on Patents.

(q) Thornton v. Sherratt, 8 Taunt. 529; Holcombe v. Hewson, 2 Camp. 391; Jones v. Edney, 3 Camp. 285; Cooper v. Twibill, 3 id., 286, note (a); ante, 358, post 527.