Agreements in derogation of private Acts of Parliament securities for money won at gaming or betting on games are treated as given for an illegal consideration. It would be inappropriate to the general purpose of this work, as well as impracticable within its limits, to enter in detail upon the contents or construction of the statutes which prohibit or affect various kinds of contracts by regulating particular professions and occupations or otherwise. It has been attempted, however, to make some collection of them in an appendix to this chapter. The writer does not suppose the catalogue to be complete, neither does he profess to have studied or even verified every one of the enactments referred to. On the contrary he has made free use of the index to the Revised Statutes, and has deemed himself entitled to assume its correct ness. The rules and principles of law which disallow agreements whose object is to contravene or evade an Act of Parliament do not apply to private Acts, so far as these are in the nature of agreements between parties. If any of the persons interested not neces- make arrangements between themselves to waive or vary prosarily bad. visions in a private Act relating only to their own interests, it cannot be objected to such an agreement that it is in derogation of, or an attempt to repeal the Act (a). B. Con trary to positive mo rality. B. Agreements contrary to morals or good manners. It is not every kind of immoral object or intention that will Practically vitiate an agreement in a court of justice. When we call a thing this means immoral in a legal sense we do not mean so much that it is only sexual morality. ethically wrong as that according to the common understanding of reasonable men it would be a scandal for a court of justice to treat it as lawful or indifferent, though the transaction may not come within any positive prohibition or penalty. What sort of things fall within this description is in a general way obvious enough. And the law might well stand substantially as it is, according to modern decisions at any rate, upon this ground Influence alone. Some complication has been introduced, however, by the of ecclesi- influence of ecclesiastical law, which on certain points has been very marked, and which has certainly brought in a tendency to astical law. (a) Savin v. Hoylake Ry. Co. L. R. 1 Ex. 9. Cp. & dist. Shaw's claim, 10 Ch. 177. treat these cases in a peculiar manner, to mix up the principles of ordinary social morality with considerations of a different kind, and with the help of those considerations to push them sometimes to extreme conclusions. Having regard to the large powers formerly exercised by spiritual courts in the control of opinions and conduct, and technically still subsisting, it seems certain that everything which our civil courts recognize as immoral is an offence against ecclesiastical law. Perhaps, indeed, the converse proposition is theoretically true, so far as the ecclesiastical law is not directly contrary to the common law (a). But this last question may be left aside as merely curious. As a matter of fact sexual immorality, which formerly was and in theory still is one of the chief subjects of ecclesiastical jurisdiction, is the only or almost the only kind of immorality of which the common law takes notice as such. Probably drunkenness would be on the same footing. It is conceived, for example, that a sale of intoxicating liquor to a man who then and there avowed his intention of making himself or others drunk with it would be void at common law. The actual cases of sale of goods and the like for immoral purposes, on whose analogy this hypothetical one is put, depend on the principles applicable to unlawful transactions in general, and are accordingly reserved for the last part of this chapter. Putting apart for the present these cases of indirectly immoral agreements, as they may be called, we find that agreements are held directly immoral in the limited sense above mentioned, on one of two grounds: as providing for or tending to illicit cohabitation, or as tending to disturb or prejudice the status of lawful marriage ("in derogation of the marriage contract" as it is sometimes expressed.) The Illicit cohabitation un-if future, considera With regard to the first class, the main principle is this. promise or expectation of future illicit cohabitation is an lawful consideration, and an agreement founded on it is void. an illegal Past cohabitation is not an unlawful consideration; indeed tion: if there may in some circumstances be a moral obligation on the past, no man to provide for the woman; but the general rule applies () tion. (a) Cp. Lord Westbury's remarks in Hunt v. Hunt, 4 D. F. J. at pp. 226-8, 233. (b) But the rule is modern (Ch. IV, above), and the earlier cases on this subject belong to a time when a different doctrine prevailed; they considera Judgment that a past executed consideration, whether such as to give rise to a moral duty or not, is equivalent in law to no consideration at all. An agreement made on no other consideration than past cohabitation is merely voluntary, and is in the same plight as any other voluntary agreement. If under seal it is binding and can be enforced (a), otherwise not (b). The exist ence of an express agreement to discontinue the illicit cohabitation, which in law is merely superfluous and adds nothing at all-or the fact of the defendant having previously seduced the plaintiff, which "adds nothing but an executed consideration resting on moral grounds only,"-can make no difference in this respect (b). The manner in which these principles are applied was thus stated in a recent case by Lord Selborne : "Most of the older authorities on the subject of contracts founded on immoral consideration are collected in the note to Benyon v. Nettlefold (c). Their results may be thus stated: 1. Bonds or covenants founded on past cohabitation, whether adulterous (d), incestuous, or simply immoral, are valid in law and not liable (unless there are other elements in the case) to be set aside in equity. 2. Such bonds or covenants, if given in consideration of future cohabitation, are void in law (e), and therefore of course also void in equity. 3. Relief cannot be given against any such bonds or covenants in equity if the illegal consideration appears on the face of the instrument (f). 4. If an illegal consideration does not appear on the face of the instrument the objection of particeps criminis will not prevail against a bill of discovery in equity in aid of the defence to an action at law (g), [this is now of little or no consequence in England, owing to the changes in procedure]. 5. Under some (but not under all) circumstances when the consideration is unlawful, and does not appear on the face of the instrument, relief may be given to a particeps criminis in equity" (h). The exception alluded to is probably this: that "where a party to the illegal or immoral purpose comes himself to be (a) Gray v. Mathias, 5 Ves. 286. (d) Kaye v. Moore, 1 Sim, & St. 61. to be really nothing else than an relieved from the obligation he has contracted in respect of it, he must state distinctly and exclusively such grounds of relief as the Court can legally attend to" (a). He must not put his case on the ground of an immoral consideration having in fact failed, 1 or complain that the instrument does not correctly express the terms of an immoral agreement (b). Where a security is given on account of past cohabitation, and the illicit connexion is afterwards resumed, or even is never broken off, the Court will not presume from that fact alone that the real consideration was future as well as past cohabitation, nor therefore treat the deed as invalid (c). 66 There existed a notion that in some cases the legal personal representative of a party to an immoral agreement might have it set aside, though no relief would have been given to the party himself in his lifetime: but this has been lately pronounced erroneous and contrary to law" (d). It must be borne in mind that the whole doctrine applies to executory agreements only. An actual transfer of property, which is on the face of it "a completed voluntary gift, valid and irrevocable in law" and confers an absolute beneficial interest, cannot be afterwards impeached either by the settlor or by his representatives, though in fact made on an immoral consideration (d). reconcilia ration deed is void. Where parties who have been living together in illicit cohabi- Proviso for tation separate, and the man covenants to pay an annuity to the tion in woman, with a proviso that the annuity shall cease or the deed quasi sepashall be void if the parties live together again, there the covenant is valid as a simple voluntary covenant to pay an annuity, but the proviso is wholly void. It makes no difference, of course, if the parties, being within the prohibited degrees of affinity, have gone through the form of marriage, and the deed is in the ordinary form of a separation deed between husband and wife (e). When the parties are really married such a proviso is usual but superfluous, for the deed is in any case avoided by the parties afterwards living together (f). (a) Batty v. Chester, 5 Beav.103,109. (b) Semble, relief will not be given if it appears that the immoral consideration has been executed: Sismey v. Eley, 17 Sim. 1: but the case is hardly intelligible. (c) Gray v. Mathias, 5 Ves. 286; This brings us to the second Hall v. Palmer, 3 Ha. 532. (d) Ayerst v. Jenkins, 16 Eq. 275, (e) Ex parte Naden, 9 Ch. 670. Separation deeds in general. Hunt v. Hunt. branch of this topic, namely the validity of separation deeds and agreements for separation. Both the history of the subject and the present state of the law will be found very clearly set forth in Lord Westbury's judgment in Hunt v. Hunt (a). From the ecclesiastical point of view marriage was a sacrament creating an indissoluble relation. The duties attaching to that relation were "of the highest possible religious obligation" and paramount to the will of the parties. In ecclesiastical courts an agreement or provision for a voluntary separation present or future was simply an agreement to commit a continuing breach of duties with which no secular authority could meddle, and therefore was illegal and void. For a long while all causes touching marriage even collaterally were claimed as within the exclusive jurisdiction of those courts. The sweeping character and the gradual decay of such claims have already been illustrated by cases we have had occasion to cite from the Year Books in other places. In later times the ecclesiastical view of marriage was still upheld, so far as the remaining ecclesiastical jurisdiction could uphold it (b), and continued to have much influence on the opinions of civil courts; the amount of that influence is indeed somewhat understated in Lord Westbury's exposition. But the common law, when once its jurisdiction in such matters was settled, never adopted the ecclesiastical theory to the full extent. A contract providing for and fixing the terms of an immediate separation is treated like any other legal contract. It must satisfy the ordinary condition of being made between competent parties, and the wife cannot contract with her husband: but even this difficulty is in certain exceptional cases not insuperable (p. 60 above) and it is generally circumvented by the contract being made between the husband and a trustee for the wife. Being good and enforceable at law, the contract is also good and enforceable in equity, nor is there any reason for refusing to enforce it by any of the peculiar remedies of equity. In Hunt v. Hunt the husband was restrained from suing in the Divorce Court for restitution of conjugal rights in violation of his covenant in a (a) 4 D. F. J. 221. The case was taken to the House of Lords, but the proceedings came to an end without any decision by the death of |