G. Agree ment not void though for bidden, if statute expressly so provides. H. Agree cannot recover any commission, but a purchase of shares made by him in the market is not void: and if he has to pay the purchase money by the usage of the market, he can recover from his principal the money so paid. And see further, as to statutory prohibitions of this kind, Benjamin on Sale 427-433. And in general an agreement which the law forbids to be made is void if made. But an agreement forbidden by statute may be saved from being void by the statute itself, and on the other hand an agreement made void or not enforceable by statute is not necessarily illegal. An agreement may be forbidden without being void, or void without being forbidden. (G). Where a statute forbids an agreement, but says that if made it shall not be void, then if made it is a contract which the Court must enforce. By 1 & 2 Vict. c. 106, it is unlawful for a spiritual person to engage in trade, and the ecclesiastical court may inflict penalties for it. But by s. 31 a contract is not to be void by reason only of being entered into by a spiritual person contrary to the Act. It was contended without success in Lewis v. Bright (a) that this proviso could not apply when the other party knew with whom he was dealing. But the Court held that the knowledge of the other party was immaterial; the legislature meant to provide against the scandal of such a defence being set up. And Erle, J. said that one main purpose of the law was to make people perform their contracts, and in this case it fortunately could be carried out. (H). Where no penalty is imposed, and the intention of the ment may legislature appears to be simply that the agreement is not to be be simply enforced, there neither the agreement itself nor the performance of it is to be treated as unlawful for any other purpose. not enforceable, but not otherwise unlawful. Modern legislation has produced some very curious results of this kind. In several cases the agreement cannot even be called void, being good and recognizable by the law for some purposes or for every purpose other than that of creating a right of action. These cases are reserved for a special chapter (b). (a) 4 E. & B. 917,24 L. J. Q. B. 191. (b) See ch. XII. On Agreements of Imperfect Obligation. minus civil law. Void but not abso The distinction between an enactment which imposes a Lex perpenalty without making the transaction void, and one which fecta and makes the forbidden transaction void, is expressed in the civil quam perlaw by the terms (which are classical) minus quam perfecta lex fecta in the and perfecta lex (a). A constitution of Theodosius and Valentinian (Cod. 1. 14. de leg. 5) enjoined that all prohibitory enactments were to be construed as avoiding the transactions prohibited by them (that is, as leges perfectae) whether it were so expressed or not. In the case of wagers the agreement is null Wagers. and void by 8 & 9 Vict. c. 109, s. 18, and money won upon a wager cannot be recovered either from the loser or from a stake- lutely illegal. holder (with a saving as to subscriptions or contributions for Fitch . prizes or money to be awarded "to the winner of any lawful Jones. game, sport, pastime, or exercise"). Wagers were not as such. unlawful or unenforceable at common law (we shall have to recur to this under the head of "public policy"): and since the statute does not create any offence or impose any penalty, a man may still without violating any law make a wager, and if he loses it pay the money or give a note for the amount. The consideration for a note so given is in point of law not an illegal consideration, but merely no consideration at all. The difference is important to the subsequent holder of such a note. If the transaction between the original parties were fraudulent or in the proper sense illegal, the burden of proof would be on the holder to show that he was in fact a holder for value; but here the ordinary presumption in favour of the holder of a negotiable instrument is not excluded (b). In like manner "if a party loses a wager and requests another to pay it for him, he is liable to the party so paying it for money paid at his request:" as where a broker is employed in fictitious dealings in shares which are really wagers on the price of shares, and according to custom himself pays the amount due (c). This goes farther than an earlier case in which it was held, in a somewhat guarded manner, that payment by the drawer of racing debts of the acceptor is a good consideration for a bill of exchange (d). But under another modern statute (5 & 6 Wm. 4, c. 41, s. 1) (a) See Sav. Syst. 4. 550. (b) Fitch v. Jones, 5 E. & B. 238, 24 L. J. Q. B. 293, see judgments of Lord Campbell, C. J. and Erle, J. (c) Rosewarne v. Billing, 15 C. B. 577. R 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 co habitation With regard to the first class, the main principle is this. promise or expectation of future illicit cohabitation is an un-if future, 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 considera Judgment of Lord Selborne, Ayerst v. Jenkins. 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 existence 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 (ƒ). 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 |