although such loan be ultra vires. Coltman v. Coltman, 19 Ch. D. 64, C. A.

If a foreigner contract abroad with an Englishman to do an act legal there, but illegal in England, as to buy slaves of him, the foreigner may sue here on the contract. Santos v. Illidge, 8 C. B., N. S. 861; 29 L. J., C. P. 348, Ex. Ch.. The principle of this case seems to have been overlooked in Rousillon v. Rousillon, 14 Ch. D. 351, cor. Fry, J.

Illegality-Weights and Measures Acts, 1878, 1889.] Under 41 & 42 Vict. c. 49, s. 19, 'every contract, bargain, sale, or dealing, made or had in the United Kingdom for any work, goods, wares, or merchandise, or other thing which has been or is to be done, sold, delivered, carried, or agreed for by weight or measure, shall be deemed to be made and had according to one of the imperial weights or measures ascertained by this Act, or to some multiple or part thereof, and if not so made or had shall be void," and by sect. 25, any contract, bargain, sale, or dealing, made by any false weight, measure, scale, &c., shall be void. See 52 & 53 Vict. c. 21, s. 6, which confers on the Board of Trade power to make new denominations of standards, for the measurement of electricity, temperature, pressure, or gravities.

Illegality-Sale of spirituous liquors.] By the Tippling Act (24 Geo. 2, c. 40), s. 12, no person shall maintain any action for any sum, debt or demand whatsoever, for or on account of any spirituous liquors, unless such debt shall have been really and bona fide contracted at one time to the amount of 20s. or upwards; nor shall any item in any account or demand for such liquors be allowed where the liquors delivered at one time, and mentioned in such item, shall not amount to the full value of 20s. at the least, and that without fraud or covin, and where no part of the liquor so sold shall have been returned, or agreed to be returned, directly or indirectly. This statute is repealed, by the 25 & 26 Vict. c. 38, as to "liquors to be consumed elsewhere than on the premises where sold, and delivered at the residence of the purchaser thereof, in quantities not less at any one time than a reputed quart." The Act extends to the case of a person who purchases liquors in small quantities to retail them again; as the keeper of an eating-house. Hughes v. Done, 1 Q. B. 294. And also to the case of a tavern-keeper's bill in which there are items for spirits supplied to the defendant's guests. Burnyeat v. Hutchinson, 5 B. & A. 241. And a bill of exchange, part of the consideration for which is spirituous liquor sold in less quantities than of 208. value was held to be wholly void. Scott v. Gillmore, 3 Taunt. 226; Gaitskill v. Greathead, 1 D. & Ry. 359. But where a bill for 67. had been accepted by an officer in payment of small quantities of spirits, under 208., supplied for recruits under the defendant's command, the bill was held valid. Spencer v. Smith, 3 Camp. 9. Drunkenness being a punishable offence, a publican cannot recover for beer furnished to the defendant after he has become intoxicated by drinking in his public-house. Brandon v. Old, 3 C. & P. 440.

The County Courts Act, 1888 (51 & 52 Vict. c. 43), s. 182, provides that no action shall be brought or be maintainable in any county or other court to recover any debt or sum of money alleged to be due in respect of the sale of any ale, porter, beer, cider, or perry, which was consumed on the premises where sold or supplied, or in respect of any money or goods lent or supplied, or of any security given, for, in, or towards the obtaining of any such ale," &c."

Illegality-Sale on Sunday.] By the Lord's Day Act (29 Car. 2, c. 7), no tradesmen, artificer, workman, labourer, or other person what

s. 1,

soever shall do or exercise any worldly labour, business, or work of their ordinary callings, upon the Lord's day, or any part thereof, works of necessity and charity only excepted." Upon this statute it has been held that a horse-dealer cannot maintain an action upon a contract for the sale and warranty of a horse made by him upon a Sunday. Fennell v. Ridler, 5 B. & C. 408. But where A., not knowing that B. was a horse-dealer, made an oral bargain with him on a Sunday for the purchase of a horse, and the price, which was above 107., was then specified, and the horse warranted, but it was not delivered till the following Tuesday, when the money was paid, it was held that there was no complete contract till the delivery of the horse, and consequently that the contract was not void under the statute. Bloxsome v. Williams, 3 B. & C. 232; see Norton v. Powell, 4 M. & Gr. 42, and Beaumont v. Brengeri, 5 C. B. 301. Though the contract was made by an agent, and the objection is taken by the party at whose request it was entered into on the Sunday, it cannot be enforced. Smith v. Sparrow, 4 Bing. 84. But, where goods were bought on a Sunday, and the purchaser afterwards, while the goods were in his possession, made a promise to pay for them, it was held that the seller was entitled to recover on a quantum meruit. Williams v. Paul, 6 Bing. 653. The statute does not make every work or business done on the Sunday illegal; but only carrying on trade and ordinary callings on that day. Therefore the hiring of a servant by a farmer on a Sunday is good. R. v. Whitnash, 7 B. & C. 596; see also Scarfe v. Morgan, 4 M. & W. 270, and Begbie v. Levi, 1 C. & J. 180. So is a guarantee, given for the faithful services of a tradesman's traveller; Norton v. Powell, supra; and a contract for enlisting a soldier. Wolton v. Gavin, 16 Q. B. 48; 20 L. J., Q. B. 73. A farmer does not come within the provisions of this statute. R. v. Silvester, 33 L. J., M. C. 79, Q. B.

Illegality-Contract by or concerning bankrupt.] The Bankruptcy Act, 1883, contains no provisions avoiding contracts made for the payment of debts barred by bankruptcy, or securities given to induce the forbearance of creditors pending proceedings in bankruptcy; but any agreement whereby proceedings in bankruptcy, or the distribution of the assets is affected, is void as against the policy of the law. Thus a promissory note given by a third person to a creditor in order to induce him to forbear from opposing an insolvent's petition, was void. Hills v. Mitson, 8 Exch. 751; 22 L. J., Ex. 273; Hall v. Dyson, 17 Q. B. 785; 21 L. J., Q. B. 224. So a guarantee given to a creditor to induce him to accept a composition; McKewan v. Sanderson, L. R., 20 Eq. 65; or to secure the payment of notes given for the like purpose, is void. Clay v. Ray, 17 C. B., N. S. 188; Geere v. Mare, 2 H. & C. 339; 33 L. J., Ex. 50. See also Kearley v. Thomson, ante, p. 591. An agreement of this kind, otherwise illegal, was not the less void because it had been made with the knowledge of the other creditors, and sanctioned by the Commissioners in Bankruptcy. Humphreys v. Willing, 1 H. & C. 7; 32 L. J., Ex. 33. See also Blacklock v. Dobie, 1 C. P. D. 265; Rimini v. Van Praagh, L. R., 8 Q. B. 1.

An agreement contrary to the policy of the Winding-up Acts is void. Elliott v. Richardson, L. R., 5 C. P. 744.

Illegality-Contract in restraint of trade.] All restraints upon trade are bad as being in violation of public policy, unless they are natural and not unreasonable for the protection of the parties in dealing legally with some subject-matter of contract. The principle is that, though every man is to remain at liberty to work for himself; yet when he has obtained some

thing he wants to sell, he should be at liberty to sell it to the best advantage, and for this purpose, must be able to preclude himself entering into competition with the purchaser. In such case a stipulation, however restrictive, will be good if the restriction is not, in the judgment of the court, unreasonable, having regard to the subject-matter of the contract. Leather Cloth Co. v. Lorsont, L. R., 9 Eq. 345, 353, 354, per James, V.-C. Thus a contract to restrain a man from trading at all, or if made without consideration, is illegal and void, as against public policy; but a contract in which the restraint is limited in respect of time or space is legal, if founded on good consideration. Mitchell v. Reynolds, 1 P. Wms. 181; 1 Smith's L. C. The court will not, however, inquire into the adequacy of the consideration. Pilkington v. Scott, 15 M. & W. 657, 660, per Alderson, B.; Collins v. Locke, 4 Ap. Ca. 674, 686, per P. C. Where the restriction is divisible and is good as to part, and bad as to the rest, the court will give effect to the former part. Price v. Green, 6 M. & W. 346, Ex. Ch. Numerous cases are reported as to what contracts have been adjudged to be reasonable; an enumeration of them would be beyond the scope of the present work: they will be found collected in the notes to Mitchell v. Reynolds, 1 Smith's Lead. Cas.; see also Collins v. Locke,

supra.

It may be observed that in a contract not to carry on a trade within a specified distance, the distance is to be measured "as the crow flies,” i.e., by a straight line on a map, and not by the nearest mode of practicable access. Mouflet v. Cole, L. R., 8 Ex. 32, Ex. Ch.

As to trade unions, see stat. 34 & 35 Vict. c. 31, ss. 3, 4, and Rigby v. Connol, 14 Ch. D. 482; and Wolfe v. Matthews, 21 Ch. D. 194, decided thereon.

Illegality-Immorality.] One who is a party to an immoral contract cannot enforce it. Thus the price of obscene and libellous prints cannot be recovered. Fores v. Johnes, 4 Esp. 97. And where an action was brought against the defendant for board and lodging, and it appeared that she was a prostitute, and had boarded and lodged with the plaintiff, who kept a house of ill-fame, and partook of the profits of her prostitution, it was held that such a demand could not be supported. Howard v. Hodges, 1 Selw. N. P. 13th ed., 80. But a person may recover for goods sold to a prostitute, not being evidently sold to enable her to carry on prostitution. Bowry v. Bennet, 1 Camp. 348. So where the plaintiff was employed to wash clothes for a prostitute, knowing her to be such, and the clothes consisting principally of expensive dresses and men's nightcaps, it was held that she was entitled to recover. Lloyd v. Johnson, 1 B. & P. 340. So for lodgings let to one, if not knowingly let for the purpose of prostitution. Crisp v. Churchill, cited 1 B. & P. 340; Jennings v. Throgmorton, Ry. & M. 251. But after plaintiff has become aware of the purpose for which they were let, he cannot recover. S. C.; Smith v. White, L. R., 1 Eq. 626. So the hire for a brougham cannot be recovered from a prostitute where the coachmaker knew her to be such, and supplied the brougham knowing it was to be used by her as part of her display to attract men. Pearce v. Brooks, L. R., 1 Ex. 213. It is unnecessary that the plaintiff should have looked expressly to the proceeds of the defendant's prostitution for payment. Id.; overruling, on this point, Bowry v. Bennet, supra. See Taylor v. Chester, L. R., 4 Q. B. 309.

Where a bond has been given by a man to his concubine, it is not to be presumed from the subsequent continuance of the cohabitation, that it

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was given to secure such cohabitation, and therefore for an immoral consideration. Vallance v. Blagden, 26 Ch. D. 353.

Infancy.

That the defendant was an infant at the time of the contract made, is a good defence, unless the action be for necessaries; the defence must be specially pleaded. Rules, 1883, O. xix. r. 15, ante, p. 301. An infant apprentice, A., cannot be sued by his master for not serving him; Gylbert v. Fletcher, Cro. Car. 179; nor be restrained from serving another person, B., contrary to the apprenticeship agreement; nor can B. be restrained from employing A. De Francesco v. Barnum, 43 Ch. D. 165. See S. C. 45 Ch. D. 430.

Where the action, though in form ex contractu, is, in fact, founded upon tort, infancy will be no defence. Burnand v. Haggis, 14 C. B., N. S. 45; 32 L. J., C. P. 189. Thus an action for money had and received lies against an infant for money which he has appropriated by fraud or embezzlement. Bristow v. Eastman, 1 Esp. 172. But if the action be founded on mere fraudulent representation, infancy is a defence. Johnson v. Pye, 1 Sid. 258; see also Liverpool Adelphi v. Fairhurst, 9 Exch. 422, the case of a feme covert. It seems, since the J. Act, 1873, to be an answer to the defence of infancy that the infant fraudulently represented himself to be of full age. Ex pte. Unity Joint Stock Mutual Banking Association, 3 D. G. & J. 63; 27 L. J., Bky. 33; see cases cited in Lemprière v. Lange, 12 Ch. D. 675.

In calculating age fractions of days are disregarded; thus a person born on Sept. 3rd, becomes of age on Sept. 2nd, 21 years afterwards. Anon., cited per Holt, C. J., Ld. Raym. 480; 1096, S. CC.; Salk. 625, 44. See also 1 Bl. Com. 463.

What are necessaries.] An infant may bind himself for necessaries, that is, for meat, drink, apparel, lodging, medicines, &c., and also for his good teaching or instruction. Co. Litt. 172 a; Com. Dig. Enfant (B. 5). The question of what are necessaries is to be governed by the fortune and circumstances of the infant; and the proof of those circumstances lies on the plaintiff. Per Ld. Kenyon, C. J.; Ford v. Fothergill, 1 Esp. 211; Ryder v. Wombwell, L. R., 4 Ex. 32, Ex. Ch., reversing S. C., L. R., 3 Ex. 90. They may be necessaries without being absolutely requisite for bare subsistence. Peters v. Fleming, 6 M. & W. 42. It is a mixed question of law and fact to be left to the jury, subject to the opinion of the court as to the manner in which the jury have exercised their judgment. Harrison v. Fane, 1 M. & Gr. 550, 553; Wharton v. Mackenzie, 5 Q. B. 606. The judge must decide whether the case is such as to cast on the plaintiff the onus of proving that the articles are necessaries, and then whether there is any evidence to satisfy that onus; if the judge require such evidence, and the plaintiff do not produce any, the judge is bound to nonsuit, and ought not to leave the case to the jury. Ryder v. Wombwell, L. R., 4 Ex. 40, per Ex. Ch. An infant, a captain in the army, has been held liable for a livery ordered by him for his servant; but not for cockades for the soldiers of his company. Hands v. Slaney, 8 T. R. 578; and see Coates v. Wilson, 5 Esp. 152. So an infant may contract to pay a fine due upon his admission to a copyhold estate; Evelyn v. Chichester, 3 Burr. 1717; or for necessaries supplied to his wife. Turner v. Trisby, 1 Str. 168; B. N. P. 155. A fair contract for work and labour to be done by him is binding. Wood v. Fenwick, 10 M. & W. 195; Cooper v. Simmons, 7 H. & N. 707; 31 L. J., M. C. 138; Leslie v. Fitzpatrick, 3 Q. B. D. 229. But not if

such contract be inequitable; S. C.; R. v. Lord, 12 Q. B. 757; as if his master reserves a right to stop wages at will; S. C. See Meakin v. Morris, 12 Q. B. D. 352; De Francesco v. Barnum, 45 Ch. D. 430.

In an action for a trousseau supplied to a female infant before her marriage, it was held that the true test of whether the goods supplied were necessaries was the real position of the future husband in society, and not the apparent or assumed condition he might take upon himself. Stacy v. Firth, 16 L. T., N. S. 498, Lush, J. A female infant who has no property of her own to settle may contract with a solicitor for the expenses of a marriage settlement. Helps v. Clayton, 17 C. B., N. S. 553; 34 L. J., C. P. 1. So she may bind herself for the expenses of her husband's funeral though he left no assets. Chapple v. Cooper, 13 M. & W. 252.

It is not material to the defence whether the infant was in fact supplied by his friends with an allowance sufficient to buy all necessaries with ready money. Burghart v. Hall, 4 M. & W. 727. Nor is it a condition precedent to recovery that the plaintiff should have made inquiry as to the necessity of the articles sold before he supplied them. Brayshaw v. Eaton, 5 N. Č. 231; S. C., 7 Scott, 183; Dalton v. Gib, 5 N. C. 198. In order to rebut the evidence that the goods supplied to him were necessaries, the defendant may show that he was already supplied with a sufficiency of similar goods, although this was not known to the plaintiff. Bainbridge v. Pickering, 2 W. Bl. 1325; Brayshaw v. Eaton, 7 Scott, 183; Foster v. Redgrave, L. R., 4 Ex. 35, n., Q. B.; Barnes v. Toye, 13 Q. B. D. 410; Johnstone v. Marks, 19 Q. B. D. 509, cor. M. R. & L. JJ., dissenting on this point from Ryder v. Wombwell, L. R., 3 Ex. 90. In Bainbridge v. Pickering, supra, it was held that a female infant residing with her mother and supplied by her with necessaries could not be liable at all, as it was for the mother to decide what articles were necessaries for her daughter.

What are not necessaries.] Although an infant may enter into a partnership he will not be liable for the contracts of the partnership made during his infancy; but he will be liable upon such contracts made after his full age unless he notifies his disaffirmance of the partnership. Goode v. Harrison, 5 B. & A. 147, Ex. Ch. An infant is not liable upon an account stated, even though it appears to be for necessaries; nor can the account stated be used as evidence by way of admission on the part of the defendant to show that necessaries have been supplied to that amount. Ingledew v. Douglas, 2 Stark. 36. Nor is he liable for money lent, though it has been laid out in necessaries. Darby v. Boucher, 1 Salk. 279; Probart v. Knouth, 2 Esp. 472, n. And now see Infants' Relief Act, 1874, s. 1, post, p. 644. He is not liable on a bill of exchange though given for necessaries. Williamson v. Watts, 1 Camp. 552. But he is liable on a bill accepted by him after 21, though drawn before. Stevens v. Jackson, 4 Camp. 164. Where goods, not being necessaries, are delivered to a carrier for an infant, the infant cannot be charged though the goods do not reach him till after he is of age. Griffin v. Langfield, 3 Camp. 254. An infant cannot be sued on a warranty of a horse. Howlett v. Haswell, 4 Camp. 118. An infant lieutenant in the navy is not liable for the price of a chronometer, he being out of employment at the time of its being furnished. Berolles v. Ramsay, Holt, N. P. 77. Dinners, confectionery, and fruit, supplied to an undergraduate out of college, are not primâ facie necessaries. Brooker v. Scott, 11 M. & W. 67; Wharton v. Mackenzie, and Cripps v. Hills, 5 Q. B. 606. And articles supplied cannot be considered as suitable necessaries if they are merely of an ornamental character, as gold rings, &c.; see Peters v. Fleming, 6 M. & W. 42, per cur.; or betting books. Jenner v. Walker, 19 L. T., N. S. 398, cor. Cockburn, C. J.