36 Vict. On this ground, in part, the as to sepa ration deeds in general; The law on this point is now modified by the Act 36 Vict. c. 12, which enacts (s. 2) that "No agreement contained in any separation deed between the father and mother of an infant or infants shall be held to be invalid by reason only of its providing that the father of such infant or infants shall give up the custody or control thereof to the mother: Provided always that no Court shall enforce any such agreement if the Court shall be of opinion that it will not be for the benefit of the infant or infants to give effect thereto." The objections formerly entertained (as we have seen) first against separation deeds in general, and afterwards down to quite doctrines recent times against giving full effect to them in Courts of Equity, were based in part upon the same sort of grounds: and so are the reasons for which agreements providing for a future separation have always been held invalid. For not the parties alone, but society at large is interested in the observance of the duties incident to the marriage contract, as a matter of public example and general welfare. and as to sale of. offices. Insurance of seamen's wages. D. Public policy as to freedom of individual action. Considerations of the same kind enter into the policy of the law with respect to the sale of offices, also spoken of above. Such transactions clearly involve the abandonment or evasion of distinct legal duties. On similar grounds, again, seamen's wages, or any remuneration in lieu of such wages, cannot be the subject of insurance at common law (a). The reason of this is said to be "that if the title to wages did not depend upon the earning of freight by the performance of the voyage, seamen would want one great stimulus to exertion in times of difficulty and danger" (b). This reason however is removed in England by the Merchant Shipping Act 1854, (17 & 18 Vict. c. 104, s. 183) which makes the right to wages independent of freight being earned. The question has not yet presented itself for decision whether the rule founded upon it is to be considered as removed also. D. As to agreements unduly limiting the freedom of individual action. There are certain points in which it is considered that the (a) Webster v. De Tastet, 7 T. R. 157. (b) Kent, Comm. 3. 269. choice and free action of individuals should be as unfettered as possible. As a rule a man may bind himself to do or omit, or to procure another to do or omit, anything which the law does not forbid to be done or left undone. The matters as to which this power is specially limited on grounds of general convenience are: (a) Marriage. (3) Testamentary dispositions. (7) Trade. ments a. Marriage is a thing in itself encouraged by the law; the (a) Marriage. marriage contract is moreover that which of all others should be Marriage the result of full and free consent. Certain agreements are brokage therefore treated as against public policy either for tending to agreeimpede this freedom of consent and introduce unfit and void. extraneous motives into the contracting of particular marriages, or for tending to hinder marriage in general. The first class are the agreements to procure or negotiate marriages for reward which are known as marriage brokage contracts. All such agreements are void (a), and services rendered without request in procuring or forwarding a marriage (at all events a clandestine or improper one) are not merely no consideration, but an illegal consideration, for a subsequent promise of reward; which promise, even if under seal, is therefore void (b). The law is said to be comparatively modern on this head: however that may be, we venture to think that for practical purposes and in the present state of society it has already become needless to say much of it (c). The Austrian Code agrees with our law (§ 879). ment in general We pass on to the second class, agreements "in restraint of Agreemarriage" as they are called. An agreement by a bachelor or spinster not to marry at all is clearly void (d); so, it seems, would restraint be a bare agreement not to marry within a particular time (). riage void. (a) E.g. Cole v. Gibson, 1 Ves. Sr. 503. See Story, Eq. Jur., §§ 260 sqq. (b) Williamson v. Gibson, 2 Sch. & L. 357. (c) In the Roman law these contracts were good apart from special legislation they were limited as to amount (though with an expression of general disapproval) by a con stitution preserved only in a Greek (d) Love v. Peers, Wilmot 371: (e) Hartley v. Rice, 10 East 22 (a wager). of mar In Lowe v. Peers (a) a covenant not to marry any person other than the covenantee was held void. A promise to marry nobody but A. B. cannot be construed as a promise to marry A. B. and is thus in mere restraint of marriage: and even if it could, it was thought doubtful whether an unilateral covenant to marry A. B. would be valid, A. B. not being bound by any reciprocal promise (b). Lord Mansfield threw out the opinion (not without followers in our own time) (c), that even the ordinary con tract by mutual promises of marriage is not free from mischievous consequences. The decision was affirmed in the Exchequer Chamber, where it was observed that : "Both ladies and gentlemen frequently are induced to promise not to marry any other persons but the objects of their present passion; and if the law should not rescind such engagements, they would become prisoners for life at the will of most inexorable jailors-disappointed lovers" (d). We do not know of any express decision, but it may be gathered from the analogy of the cases on conditions that a contract not to marry some particular person, or any person of some particular class, would be good unless the real intention appeared to be to restrain marriage altogether; and that a contract by a widow not to marry at all would probably be good (e). The ditions in learning of conditions in restraint of marriage (which always or almost always occur in wills) does not properly fall within our subject. Nevertheless it may be worth while to give a summary statement of what is believed to be the result of the authorities. As to con restraint of marriage. Conditions in restraint of marriage :— If precedent, are with trifling exceptions (if any) valid as to both real and personal estate. If subsequent, General restraint. Good, it seems, as to real estate (see 1 Atk. 380, n.) Bad as to personal estate (f) or mixed fund (or a fund arising only from sale of realty, semble) : Bellairs v. Bellairs, 18 Eq. 510 -and this whether there is a gift over or not. (a) 4 Burr. 2225, in Ex. Ch. Wilm. 364. (b) But of this qu.: for a refusal by A. B. to marry on request within a reasonable time would surely discharge the promisor on general principles. (e) 4 Burr. 2230; per Martin, B. Hall v. Wright, E. B. & E. at p. 788, 29 L. J. Q. B. at p. 49. (d) Wilm. 371. (e) See Scott v. Tyler in 2 Wh. & T. L. C. and notes. (f) For a general account of the doctrine as to personalty see Morley v. Rennoldson, 2 Ha. 570. Particular restraint. Good as to real estate (1 Ro. Ab. 418, X pl. 6); and good as to personal estate if there is a gift over, otherwise not. These rules do not apply to conditions restraining the marriage of a widow (whether of the testator or of any other person): Newton v. Marsden, 2 J. & H. 356 (a) : Nor to conditional limitations (as a gift until marriage) in a disposition of either real or personal estate. The Master of the Rolls observed in a late case (b) that the rule against conditions in restraint of marriage, at first adopted from the ecclesiastical courts on grounds of public policy, has been so modified in its application by courts of equity that it can now be treated only as an arbitrary rule of construction. A glance at the statement above will show, if we may be allowed to say so, the complete justness of the remark. By the law of France promises of marriage are invalid, "comme portant atteinte à la liberté illimitée qui doit exister dans les mariages": nevertheless if actual special damage (préjudice) can be shown to have resulted from non-fulfilment of the promise, the amount of it can be recovered, it would seem as due ex delicto rather than ex contractu (c). ment to B. An agreement to use influence with a testator in favour (8) Agreeof a particular person or object is void (d). On the other hand, influence it is well established that a man may validly bind himself or testator. his estate by a contract to make any particular disposition (if in itself lawful) by his own will (e). Such contracts were not recognized by Roman law (ƒ), and even a gift inter vivos of all the donor's after-acquired property would have been bad as an evasion of the rule: but in the modern civil law of Germany, as with us, a contract of this sort (Erbvertrag) is good (g). 7. Agreements in restraint of trade. It would be impossible (7) Reto give an adequate account of this subject on the plan and straint of within the limits of this book; and it is satisfactory to feel that (a) The exception does not extend to a condition in restraint of the second marriage of a man. Allen v. Jackson, 19 Eq. 631. (b) Bellairs v. Bellairs, 18 Eq. 510, 516. (c) See notes in Sirey & Gilbert on Code Civ. art. 1142. Nos. 11-19. (d) Debenham v. Ox, 1 Ves. Sr. 276. (e) De Beil v. Thomson, 3 Beav. 469, s.c. nom. Hammersley v. Baron de Biel, 12 Cl. & F. 45; Brookman's tr. 5 Ch. 182. (f) Stipulatio hoc modo concepta: Si heredem me non feceris, tantum dare spondes? inutilis est, quia contra bonos mores est haec stipulatio. D. 45. 1. de v. o. 61. (9) Savigny, Syst. 4. 142-5. trade. General Hilton v. any attempt to do so is rendered needless by the place already given to it in a work of no small authority (a). We shall here only give the principles and the short results of the authorities, with some mention of recent decisions. The general rule is that a man ought not to be allowed to principle. restrain himself by contract from exercising any lawful craft or business at his own discretion and in his own way. Partial restrictions, however, are admitted to the extent and for the reasons to be presently stated. Thus an agreement between Eckersley. several master manufacturers to regulate their wages and hours of work, the suspending of work partially or altogether, and the discipline and management of their establishments, by the decision of a majority of their number, is in general restraint of trade as depriving each one of them of the control of his own business, and is therefore not enforceable (b). It makes no difference that the object of the combination is alleged to be mutual defence against a similar combination of workmen. The case decides on the whole that neither an agreement for a strike nor an agreement for a lock-out is enforceable by law. The Court of Exchequer Chamber thus expressed the general principle in the course of their judgment : "Prima facie it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it [his trade] on according to his own discretion and choice. If the law has in any matter [qu. manner?] regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion" (c). But it is not an unlawful restraint of trade for a certain number of proprietors or manufacturers to agree not to compete with one another for a public contract, but to make what is really a joint tender in the name of one of them (d). (a) See notes to Mitchel v. Reynolds, 1 Sm. L. C. 356. (b) Hilton v. Eckersley, 6 E. & B. 47, in Exch. Ch. ib. 66; 24 L. J. Q. B. 353, 25 ib. 199. The dicta there leave it doubtful if the agreement would be a criminal offence at common law. By the Trade Union Act, 1871, 34 & 35 Vict. c. 31, ss. 2-5, agreements of this kind between workmen are protected against the (d) Jones v. North, 19 Eq. 426. The case seems not free from difficulties on other grounds. |