of nonlitigious expectancy. &c. under penalties, without expressly making them void (a). Secus sale But the sale of a contingent right or a mere expectancy, not being in the nature of a claim adverse to any existing possession, is not forbidden. The sale of a man's possible interest as the devisee of a living owner, on the terms that he shall return the purchase-money if he does not become the devisee, is not bad either at common law as creating an unlawful interest in the present owner's death, or as a bargain for a pretended title under the statute (b). By the civil law, however, such contracts are regarded as contra bonos mores. "Huiusmodi pactiones odiosae videntur et plenae tristissimi et periculosi eventus," we read in a rescript of Justinian on an agreement between expectant co-heirs as to the disposal of the inheritance. The rescript goes on, quite in the spirit of our own statute, to forbid in general terms all dealings "in alienis rebus contra domini voluntatem " (C. 2. 3. de pactis, 30) (c). Proceedings in lunacy not Proceedings in lunacy seem not to be within the general rules as to champerty, as they are not analogous to ordinary litigation, within the and their object is the protection of the person and property of the lunatic, which is in itself to be encouraged; and "this object would in many cases be impeded rather than promoted by holding that all agreements relative to the costs of the proceedings or the ultimate division of the property were void" (d). rules against champerty. Maintenance in general. As to maintenance in general, maintenance in the strict and proper sense is understood to mean only the maintenance of an existing suit, not procuring the commencement of a new one. But the distinction is in practice immaterial even in the criminal law (e). It is of more importance that a transaction cannot be void for champerty or maintenance unless it be "something (a) Doe d. Williams v. Evans, 1 C. B. 717, 14 L. J. C. P. 237. Cp. above as to the construction of prohibitory statutes in general, p. 260. (b) Cook v. Field, 15 Q. B. 460, 19 L. J. Q. B. 441. (c) By the French Code Civil, art. 1600 (followed by the Italian Code, art. 1460). "On ne peut vendre la succession d'une personne vivante, même de son consentement: cp. 791, 1130. The Austrian Code (§ 879) also expressly forbids the alienation of an expected inheritance or legacy. In Roman law the rule that the inheritance of a living person could not be sold is put only on the technical ground "quia in rerum natura non sit quod venierit" (D. 18. 4. de hered. vel actione vendita, 1, and see eod. tit. 7-11.) (d) Persse v. Persse, 7 Cl. & F. 279, 316, per Lord Cottenham. (e) See Wood v. Downes, 18 Ves. at p. 125. against good policy and justice, something tending to promote unnecessary litigation, something that in a legal sense is immoral, and to the constitution of which a bad motive in the same sense is necessary" (a). Therefore, for example, a transaction cannot be bad for maintenance whose object is to enable a principal or other person really interested to assert his rights in his own name (a). Nor is it maintenance for several persons to agree to defend a suit in the result of which they have, or reasonably believe they have a common interest (b). But a bargain to have a share of property to be recovered in a suit in consideration of maintaining the suit by the supply of money and evidence is not saved from being champerty by the party's having a mere collateral interest in the result of the suit (c). relations Lineal kinship in the first degree or apparent heirship, and Certain to a certain extent, it seems, any degree of kindred or affinity, will justify or the relation of master and servant, may justify acts which as mainbetween strangers would be maintenance: but blood relationship will not justify champerty (d). tenance but not cham perty. c. As to matters touching legal duties of individuals in the c. Public performance of which the public have an interest. policy as to legal duties of Certain kinds of agreements are or have been considered un- indivilawful and void as providing for or tending to the omission of duals. duties which are indeed duties towards individuals, but such that their performance is of public importance. To this head must. ments as to custody or be referred the rule of law that a father cannot by contract Agreedeprive himself of the right to the custody of his children (e) or of his discretion as to their education. He "cannot bind education of children. himself conclusively by contract to exercise in all events in a (a) Fischer v. Kamala Naicker, 8 Moo. Ind. App. 170, 187. This is not necessarily applicable in England, being said with reference to the law of British India, where the English laws against maintenance and champerty are not specifically in force: see Ram Coomar Coondoo v. Chunder Canto Mookerjee, 2 App. Ca. 186, 207-9. But it fairly represents the principles on which English judges have acted in the modern cases. The result of the Indian case last mentioned seems to be that in British India the Courts are free to (b) Findon v. Parker, 11 M. & W. (d) Hutley v. Hutley, L. R. 8 Q. (e) Re Andrews, L. R. 8 Q. B. 153, and authorities there collected. In separa tion deeds particular way rights which the law gives him for the benefit of his children and not for his own." And an agreement to that effect-such as an agreement made before marriage between a husband and wife of different religions that boys shall be educated in the religion of the father, and girls in the religion of the mother -cannot be enforced as a contract either at law or in equity (a). After the father's death Courts of Equity have a certain discretion. The children are indeed to be brought up in his religion, unless it is distinctly shown by special circumstances that it would be contrary to the infant's benefit (b). When such circumstances are in question, however, the Court may inquire "whether the father has so acted that he ought to be held to have waived or abandoned his right to have his children educated in his own religion"; and in determining this the existence of such an agreement as above mentioned is material (c). The father's conduct in giving up the maintenance, control, or education of his children to others may not only leave the Court free to make after his death such provision as seems in itself best; it may preclude him even from asserting his rights in his lifetime (d). Clauses in separation deeds or agreements for separation, purporting to bind the father to give up the general custody of his children or some of them, have for the like reasons been held void; and specific performance of an agreement to execute a separation deed containing such clauses has been refused (e). In one case, however, such a contract can be enforced; namely where there has been such misconduct on the father's part that the Court would have interfered to take the custody of the children from him in the exercise of its appropriate jurisdiction and on grounds independent of contract. The general rule is only that the custody of children cannot be made a mere matter of bargain, not that the husband can in no circumstances bind himself not to set up his paternal rights (ƒ). (a) Andrews v. Salt, 8 Ch. 622, 636. Ch. 539. (c) Andrews v. Salt, 8 Ch. at p. 637. (d) Lyons v. Blenkin, Jac. 245, 255, 263. (e) Vansittart v. Vansittart, 2 De G. & J. 249, 259. As to the validity of partial restrictions of the husband's right, Hamilton v. Hector, 6 Ch. 701, 13 Eq. 511. (f) Swift v. Swift, 4 D. F. J. 710, 714; and see the remarks in 6 Ch. 705, 13 Eq. 520. The law on this point is now modified by the Act 36 Vict. 36 Vict. c. 12, s. 2. 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." as to sepa The objections formerly entertained (as we have seen) first On this against separation deeds in general, and afterwards down to quite ground, in part, the recent times against giving full effect to them in Courts of doctrines Equity, were based in part upon the same sort of grounds: and ration so are the reasons for which agreements providing for a future deeds in separation have always been held invalid. For not the parties general; 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. sale of Considerations of the same kind enter into the policy of the and as to law with respect to the sale of offices, also spoken of above. offices. 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. Insurance of seamen's wages. D. As to agreements unduly limiting the freedom of indivi- D. Public dual action. policy as to freedom of There are certain points in which it is considered that the individual action. (a) Webster v. De Tastet, 7 T. R. 157. (b) Kent, Comm. 3. 269. X (a) Mar- agree ments void. choice and free action of individuals should be as unfettered as are : (a) Marriage. (B) Testamentary dispositions. (y) Trade. (a) Marriage is a thing in itself encouraged by the law; the marriage contract is moreover that which of all others should be brokage the result of full and free consent. Certain agreements are therefore treated as against public policy either for tending to impede this freedom of consent and introduce unfit and 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). Agree ment in general The Austrian Code agrees with our law (§ 879). We pass on to the second class, agreements "in restraint of marriage" as they are called. An agreement by a bachelor or restraint spinster not to marry at all is clearly void (d); so, it seems, would be a bare agreement not to marry within a particular time (e). of mar riage void. (a) E.g. Cole v. Gibson, 1 Ves. Sr. 503. See Story, Eq. Jur. §§ 260 sqq. (b) Williamson v. Gihon, 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 epitome: Č. 5. 1. de sponsalibus, &c. 6. (d) Lowe v. Peers, Wilmot 371: where it is said that it is a contract to omit a moral duty, and "tends to depopulation, the greatest of all political sins." (e) Hartley v. Rice, 10 East 22 (a wager). |