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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. But in Williams v. Protheroe (d), 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 (e). 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 (f).

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 (g).

An agreement, the natural effect of which is to induce a public officer to neglect his duty, is invalid.

Thus, as before observed (h), parish officers cannot legally take any other security, under the statute 6 G. 2, 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 cannot 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 (i).

(d) In Error from K. B. 3 Y. & J. 129; S. C. in 2 M. & P. 779, and 5 Bing. 309.

(e) Bul. N. P. 16.

(f) See Hunt v. Bell, 7 Moore, 212; 1 Bing. 1, S. C.

(g) Fallowes v. Taylor, 7 T. R. 475;

Peak 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.
(h) Ante, 228, 9.

(i) See Hughes v. Statham, 4. B. & C. 187; 6 D. & R. 219, S. C.

An engagement to indemnify a sheriff, in the execution of a lawful, or apparently legal, act, is good (k). 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 (7). 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 (m).

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 (n).

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 (o).

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 (p).

3rdly. OF CONTRACTS VOIDABLE on the Ground OF FRAUD. Effect of fraud.-Fraud avoids a contract, ab initio, both at law and in equity, whether the object be to deceive the public,

(k) Arundel v. Gardiner, Cro. Jac. 652; Blacket v. Crissop, 1 Ld. Raym. 279; Benskin v. French, 1 Sid. 132. (1) Beawfage's Case, 10 Co. 102; Featherston v. Hutchinson, Cro. El. 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,399.

(m) Wright v. Lord Verney, 3 Doug. 240. See the usual form of indem

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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 (q).

And the fraud of an authorised agent equally avoids a contract made by him for his principal (r). Thus, where it appeared that the agent of the vendor of a picture, knowing that the vendee laboured under a delusion with respect to the picture, which materially influenced his judgment, permitted him to make a purchase, without removing that delusion; Lord Ellenborough held, that the sale was void against the purchaser (s).

It is not competent to the person, who is guilty of the fraud on the other party to the agreement, to avoid the contract on this ground. The election is left solely to the party defrauded. And it seems, that a party who has executed a bill of sale of his goods, cannot be allowed to impeach it, on the ground that it was given to defeat the claims of creditors (t). But where the contract has for its object and consideration a fraud on a third person, and both the parties to the agreement (u) are guilty of the fraudulent intention; it seems not to be permitted to either of them to found a claim upon such contract, in a court of law (x).

In what Fraud may consist.-Fraud is of various kinds; but it generally consists either in the misrepresentation, or the concealment, of a material fact.

It is extremely difficult to advance any general principle, or elementary doctrine, upon this subject. Cases of fraud depend peculiarly on the particular facts which have occurred, the relative situation of the parties, and their means of information.

(q) 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.

(r) Fitzherbert v. Mather, 1 T. R. 12; Doe v. Martin, 4 id.,39; Richardson v. Mellish, 2 Bing. 243; 9 Moo. 435; 1 Car. & P. 24, 241;" Everett

v. Desborough, 5 Bing. 503; 3 M. & P. 190, S. C.

(s) Hill v. Gray, 1 Stark. R. 434. See Fox v. Macketh, 2 Bro. C. C. 420.

(t) Ante, 327; Deady v. Harrison, 1 Stark. R. 60; Robinson v. M'Donnell, 2 B. & Al. 134; Doe d. Roberts v. Roberts, id., 367; Hawes v. Leader, Cro. Jac. 270, cited Doe d. Roberts v. Roberts, 2 B. & Ald. 369; and Yelv. 196, S. C.; 3 V. & B. 42. A conveyance without consideration, and pro tempore, to give a title to kill game, held binding, Doe v. Roberts, suprà.

(u) See Jones v. Yates, 9 B. & C. 538, per Lord Tenterden, C. J., 4 Man. & Ryl. 621.

(x) Sce the cases, Infra.

On the one hand, courts of justice have endeavoured to repress dishonesty; on the other hand, they have required and expected that each party shall be vigilant, and exercise a due degree of caution. Vigilantibus et non dormientibus succurrunt jura. It is difficult to imagine that a general misrepresentation as to value, &c., the truth of which a party has an opportunity of ascertaining; or the concealment of a matter which an individual possessed of ordinary sense, vigilance, or skill, might discover; can, in law, constitute fraud. There can be no fraud if the bargain be merely a fair contest, or trial of judgment. In all contracts, each party naturally and fairly attempts to obtain advantage. As in a contract of sale, the vendor endeavours to extol the article, the vendee to depreciate; each exercises his own judgment, and neither party can be said to be guilty of a fraud in making bare assertions, upon which the other party probably places no reliance, and which he does not embody in his contract (y).

A misrepresentation of the legal effect of an agreement, does not constitute fraud (≈).

Fraud more clearly occurs where one person substantially misrepresents, or conceals, a material fact, peculiarly within his own. knowledge (a); in consequence of which a delusion exists; or uses a device naturally calculated to lull the suspicions of a careful man, and induce him to forego inquiry into a matter upon which the other party has information, although such information be not exclusively within his reach (b). However, a misrepresentation is unimportant, if the party to whom the false statement is made knew the real state of the facts, for in such case he was not deceived (c).

(y) See ante, 321, 361. It seems that a misrepresentation by a horse dealer in selling a horse, as to the place from whence he received it or bought it, will not constitute a case of fraud to defeat the contract; Geddes, appellant, Pennington, respondent-appeal from the Scotch Court of Session to House of Lords, 5 Dow. R. 159.

(z) Lewis v. Jones, 4 B. & C. 506; 6 D. & R. 567, S. C.

(a) A partner who superintended exclusively the accounts of the concern agreed to purchase his co-partner's share of the business,fora sum which he knew,

from accounts in his possession, but which he concealed from his co-partner, was an inadequate consideration: the agreement was set aside in equity; Maddeford v. Austwick, 1 Sim. 89.

(b) 2 Bla. Com. 451; 3 id. 166; Sugd. V. & P. 1, &c.; Com. on Contr. 38; Dobell v. Stevens, 3 B. & C. 623; 5 D. & R. 490, S. C. Semble, that the concealment of a matter which may disable a party from performing the contract is a fraud; Rex v. Inhabitants of Taunton, St. James, 9 B. & C. 837, per Littledale, J.

(c) Cowen v. Simpson, 1 Esp. R.

M M

In general, a representation, though false, will not afford the party to whom it was made an opportunity of vacating the contract, provided such representation were not fraudulent, and formed no part of the contract; and this more peculiarly applies in the case of written agreements; for, to allow such a representation to prevail, or have effect, in the instance of a contract in writing, would be to admit parol testimony to contradict or add to a written instrument (d). The omission to communicate a fact may also not amount to a fraud, where the party acted bona fide, and without actual fraud (e). But in the case of insurances, the party insuring is bound to communicate to the underwriter all material facts within his knowledge, touching the subject matter of the insurance. It is a question for a jury whether or not any particular fact was material; and if it be so, and were not communicated, no claim can be made by the assured, although it do not appear that he was aware of the materiality of the fact (f).

Inadequacy of consideration for the contract will not, as we have observed (g), of itself, defeat the contract, or substantiate a charge of fraud. But, with other circumstances of suspicion, it may undoubtedly assist in establishing fraud, at least in a court of equity (h). And although weakness of intellect, not amounting to insanity, is not a ground for invalidating a contract, it would certainly have much weight to that effect, if additional facts, betraying an intention to overreach, could be proved (i). Cases of fraud, of this nature, are more properly cognizable in a court of equity (k).

290. Fraud is a cause of nullity of the agreement, when the stratagems practised by one of the parties are such that it is evident that without such stratagems the other party would not have contracted. French Code Civil, Bk. 3, Tit. 3, Article 1116.

(d) See Flinn v. Tobin, Moo. & M. 367; Early v. Garnett, 9 B. & C. 928 ; ante, 91,361. But the misrepresentation of a fact known by the party making the statement to be untrue, amounts to a fraud in law, if the misrepresentation be naturally calculated, or be expressly intended, to induce a person to act thereon so that he may be prejudiced; Polhill v. Walter, 3 B. & Ad. 114.

(e) See id.

(f) Lindenau v. Desborough, 8 B. & C. 586; Maynard v. Rhode, 3 M. & R. 45; 3 D. & R. 266; 1 C. & P. 360, S. C.; Everett v. Desborough, 5 Bing. 503; 3 M. & P. 190, S. C. (g) Ante, 26.

(h) 2 Bro. C. C. 179, n. 175; 3 Ves. & B. 187, 117; Astley v. Weldon, 2 B. & P. 851; 3 Chitty Com. Law, 158, 159; Fonbl. Tr. Eq. 5th ed. 130, 132, 348; 6th ed. 127, note (d).

(i) Osmond v. Fitzroy, 3 P. W. 130; Fonbl. Tr. Eq. 3rd ed. 68, 69; 5th ed. 62; 6th ed. 68; 6 Bro. P. C. 137; ante, 109, 113.

(k) See other instances, &c. 3 Chitty Com. L. 155, &c.

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