ment of distances.

It is now settled, after some little uncertainty, that distances Measurespecified in contracts of this kind are to be measured as the crow flies, i.e. in a straight line on the map, neglecting curvature and inequalities of surface. This is only a rule of construction, and the parties may prescribe another measurement if they think fit, such as the nearest mode of access (a).

to serve

It is clear law that a contract to serve in a particular business Contract for an indefinite time, or even for life, is not void as in restraint for life not of trade or on any other ground of public policy (b). It would invalid. not be competent to the parties, however, to attach servile incidents to the contract, such as unlimited rights of personal control and correction, or over the servant's property (c). By the Contract French law indefinite contracts of service are not allowed (d). It is undisputed that an agreement by A. to work for nobody service but B. in A.'s particular trade, even for a limited time, would must be be void in the absence of a reciprocal obligation upon B. to employ A. (e). But a promise by B. to employ A. may be

(a) Mouflet v. Cole, L. R. 7 Ex. 70, in Ex. Ch. 8 Ex. 32.

(b) Wallis v. Day, 2 M. & W. 273, 1 Sm. L. C. 377-8.

(c) See Hargrave's argument in Sommersett's ca. 20 St. T. 49, 66.

(d) Cod. Civ. 1780: On ne peut

engager ses services qu'à temps, ou
pour une entreprise déterminée :
so the Italian Code, 1628.

(e) See note (a), next p. and cp.
the similar doctrine as to promises
of marriage, supra.

for exclusive

mutual.

D. Rules

as to treatment of

agreements in general.

collected from the whole tenor of the agreement between them, and so make the agreement good, without any express words to that effect (a).

D. The judicial treatment of unlawful agreements in general.

Thus far of the various specific grounds on which agreements are held unlawful. It remains for us to give as briefly as may unlawful be the rules which govern our Courts in dealing with them, and which are almost without exception independent of the particular ground of illegality. The general principle, of course, is that an unlawful agreement cannot be enforced. But this alone is insufficient. We still have to settle more fully what is meant by an unlawful agreement. For an agreement is the complex result of distinct elements, and the illegality must attach to one or more of those elements in particular. It is material whether it be found in the promise, the consideration, or the ultimate purpose. Again there are questions of evidence and procedure. for which auxiliary rules are needed within the bounds of purely municipal law. Moreover when the jurisdictions within which a contract is made, is to be performed, and is sued upon, do not coincide, it has to be ascertained by what local law the validity of the contract shall be determined (conflict of laws in space): again the law may be changed between the time of making the contract and the time of performance (conflict of laws in time, as it has been called).

1. Independent

promises, some law ful and

some un

lawful:

This general division is a rough one, but will serve to guide the arrangement of the following statement.

Unlawfulness of agreement as determined by particular
elements.

1. A lawful promise made for a lawful consideration is not invalid only by reason of an unlawful promise being made at the same time and for the same consideration.

In Pigot's case (b) it was resolved that if some of the covenants of an indenture or of the conditions indorsed upon a bond are against law, and some good and lawful, the covenants or conenforced. ditions which are against law are void ab initio and the others

the lawful ones can be

(a) Pilkington v. Scott, 15 M. & W. 657. Cp. Hartley v. Cummings,

5 C. B. 247.
(b) 11 Co. Rep. 27 t.

stand good. Accordingly "from Pigot's case, 6 Co. Rep. 26 (a), to the latest authorities it has always been held that when there are contained in the same instrument distinct engagements by which a party binds himself to do certain acts, some of which are legal and some illegal at common law, the performance of those which are legal may be enforced, though the performance of those which are illegal cannot" (b).

It was formerly supposed that where a deed is void in part by statute it is void altogether: but this is not so. "Where you cannot sever the illegal from the legal part of a covenant, the contract is altogether void; but where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good" (c).

2. If any part of the consideration for a promise or set of 2. Unlawpromises is unlawful, the whole agreement is void.

ful consideration

In consideraand the whole

tion avoids

"For it is impossible in such case to apportion the weight of or part of each part of the consideration in inducing the promise" (d). other words, where independent promises are in part lawful in part unlawful, those which are lawful can be enforced; but agreement where any part of an entire consideration is unlawful, all promises founded upon it are void.

3. When the immediate object of an agreement is unlawful 3. Agree the agreement is void.

ment is

void whose

unlawful.

This is an elementary proposition, for which it is nevertheless immediate rather difficult to find unexceptionable words. We mean it to object is cover only those cases where either the agreement could not be performed without doing some act unlawful in itself, or the performance is in itself lawful, but on grounds of public policy is not allowed to be made a matter of contract. The statement is material chiefly for the sake of the contrasted class of cases under the next rule.

4. When the immediate object or consideration of an agreement 4. Where is not unlawful, but the intention of one or both parties in mak- immediate ing it is unlawful, then—

(a) Sic in the report. Parts 11, 12, and 13 of Coke's Reports form vol. 6 in the edition of 1826.

(b) Bank of Australasia v. Breillat,

6 Moo. P. C. 152, 201.

(c) Per Willes, J. Pickering v.

Ilfracombe Ry. Co. L. R. 3 C. P.
at p. 250.

(d) Leake on Contracts, 409.
Waite v. Jones, 1 Bing. N. C. 656,
662.

object not unlawful,

unlawful intention of both

If the unlawful intention is at the date of the agreement common to both parties, or entertained by one party to the knowparties, or ledge of the other, the agreement is void.

of one party known to

If the unlawful intention of one party is not known to the other at the date of the agreement, there is a contract voidable at the option of the innocent party if he discovers that intention agreement at any time before the contract is executed.

the other,

makes

void : unlawful

intention

known at

In

Here it is necessary to consider what sort of connexion of the one not subject-matter of the agreement with an unlawful plan or purtime makes pose is enough to show an unlawful intention that will vitiate contract the agreement itself. This is not always easy to determine. the words of the Supreme Court of the United States :What "Questions upon illegal contracts have arisen very often both. constitutes in England and in this country; and no principle is better settled unlawful than that no action can be maintained on a contract the conside

voidable at

other's option.

intention in such cases.

&c. to

unlawful

use.

ration of which is either wicked in itself or prohibited by law. How far this principle is to affect subsequent or collateral contracts, the direct and immediate consideration of which is not immoral or illegal, is a question of considerable intricacy" (a): or perhaps we should rather say it is a question on which any attempt to lay down fixed and exhaustive rules in detail must lead to considerable intricacy: at the date of these remarks however (1826) the law was much less clear on specific points than it is now.

Intention We have in the first place a well marked class of transactions to put where there is an agreement for the transfer of property or property purchased possession for a lawful consideration, but for the purpose of an unlawful use being made of it. All agreements incident to such a transaction are void; and it does not matter whether the unlawful purpose is in fact carried out or not (b). The later authorities show that the agreement is void, not merely if the unlawful use of the subject-matter is part of the bargain, but if the intention of the one party so to use it is known to the other at the time of the agreement (c). Thus money lent to be used in an unlawful manner cannot be recovered (d). It is true that

(a) Armstrong v. Toler, 11 Wheat. at p. 272.

(b) Gas Light & Coke Co. v. Turner, 5 Bing. N. C. 666, in Ex. Ch. 6 ib. 324.

(c) Pearce v Brooks, L. R. 1 Ex. 213.

(d) Cannan v. Bryce, 3 B. & Ald. 179.