combination of

by the Court that the stipulation not to practise in London was valid, the limit of London not being too large for the profession in question, but that the stipulation as to not practising in towns where the plaintiffs might have been practising was an unreasonable restriction, and therefore illegal and void; and that the stipulation as to not practising in London was not affected by the illegality of the other part (2).

Agreement or An agreement or combination of employers binding employers. themselves only to employ workers at a certain rate of wages, or only to carry on their business in a certain specified way, is illegal, and no action lies on the breach of any such agreement (a). So also an agreement by employees to combine to increase the rate of wages cannot be enforced (b); but by the Trade Union Act, 1871 (c), it is provided that trade unions are not to be considered unlawful so as to render members thereof liable to be prosecuted, but agreements between members inter se are to be incapable of being enforced (d).

Trade Union
Act, 1871.

Contracts of an immoral mature.

Restraint of marriage.

Of contracts of an immoral nature, and as such illegal and void, may be mentioned agreements in consideration of cohabitation or future seduction (e), or the letting of lodgings for the direct purpose of prostitution.

Contracts which operate in general restraint of marriage are illegal and void.

(2) See also Price v. Green, 16 M. & W. 346.

(a) Hilton v. Eckersley, 6 E. & B. 47-66.

(b) Walsby v. Anley, 3 El. & El. 516.

(c) 34 & 35 Vict. c. 31.

(d) Sects. 2-4. Rigby v. Connel, L. R. 14 Ch. D. 482; 49 L. J. Ch. 328; 28 W. R. 650; Duke v. Littleboy, 49 L. J. Ch. So2; 28 W. R. 977; 43 L. T. 216.

(e) A contract to pay a sum in consideration of past seduction is not illegal, but it would afford no consideration to support a simple contract: Beaumont v. Reeve, 8 Q. B. 483; ante, p. 37.

Contracts involving maintenance and champerty are also illegal and void.

Maintenance may be defined as an offence which Maintenance. consists in officiously intermeddling in a suit that in no way belongs to one, as by maintaining or assisting either party with money or otherwise, although having nothing to do with it (f). Probably, however, at the present day, the offence of maintenance is obsolete, there being numerous and very wide exceptions (g).

Champerty consists in an agreement between a Champerty. litigant and a third party, whereby in consideration of that third party advancing him money he agrees to share with him the proceeds of the litigation (h). It may be noticed that the Attorneys' and Solicitors' Act, 1870 (), specially guards against champerty, in the case of solicitors, by providing (k) that "nothing in this Act contained shall be construed to give validity to any purchase by an attorney or solicitor of the interest of his client in any suit, action, or other contentious proceeding to be brought or maintained, or to give validity to any agreement by which an attorney or solicitor retained or employed to prosecute any suit or action stipulates for payment only in the event of success in such suit, action, or proceeding."

compromise

All contracts for the compromise of criminal offences, Contract to or to interfere with the course of justice, are illegal criminal and void.

offence.

(f) Brown's Law Dict. 328.

(g) Plating Co. v. Farquharson, L. R. 17 Ch. D. 49, 50; L. J. Ch. 406; 29 W. R. 510.

(h) Ball v. Warwick, 50 L. J. Q. B. 382: 29 W. R. 468; 44 L. T. 218. This case shews that in order to constitute champerty it is not essential that there should be an undertaking on the part of the litigant to proceed with the action.

(i) 33 & 34 Vict. c. 28; see ante, p. 183.

(k) Sect. 11.

Future separation.

Matters mala prohibita.

Gaming

contracts.

8 & 9 Vict. c. 109.

Difficulty

ascertaining

So also are contracts for future separation.

We will now consider some contracts which are rendered illegal by reason of some statutory provision.

Gaming and wagering contracts are illegal and void, being prohibited by statute. At common law, however, such contracts were valid unless of such a nature as to contravene public policy; as, for instance, if tending to the injury or annoyance of others, or to outrage decency (1). Various statutes have, however, been passed from time to time prohibiting gaming and wagering contracts, and the statute now in force on the subject, 8 & 9 Vict. c. 109, provides (m) "that all contracts or agreements whether by parol or in writing by way of gaming or wagering shall be null and void; and that no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to have been won upon any wager, or which shall have been deposited in the hands. of any person to abide the event on which any wager shall have been made; provided always that this enactment shall not be deemed to apply to any subscription, or contribution, or agreement to subscribe or contribute for or towards any plate, prize, or sum of money to be awarded to the winner or winners of any lawful game, sport, pastime, or exercise."

It may often be a source of some difficulty to detersometimes in mine whether or no any particular contract is by way of gaming or wagering; thus although a security given for a gaming debt is void, or to be taken as given upon an illegal consideration (n), yet it has been held that,

whether a contract is by way of

wagering or gaming.

(1) Chitty on Contracts, 646.

(m) Sect. 18.

(n) See post, p. 270, where it is stated that certain securities of this nature are not to be absolutely void, but only taken to be given on an illegal consideration.

Yelverton.

where a person having lost bets gave a bond in respect Bubb v.
of the amount to the parties to whom he had lost the
money to prevent them taking proceedings before the
Jockey Club and posting him as a defaulter, the bond
was good, because there was a new consideration quite
irrespective of the original bets, viz., the forbearing of
such proceedings (0).

cases hereon.

An agreement between a principal and an agent Particular that the agent shall employ moneys of the principal in betting on horse-races, and pay over the winnings therefrom to his principal, is not illegal (p). Where a speculator employs a broker on the Stock Exchange to effect sales or purchases of stock according to the rules of the Stock Exchange for delivery on a future day, with the intention that he shall not be called upon actually to deliver or accept such stock as may be sold or purchased, but only to pay or receive, as the case may be, the difference between the price of the stock at the day of the sale and the price on the day named for delivery, the contract between the speculator and broker is not illegal (q). On the other hand, any mere deposit by two persons on an agreement that it shall be paid if a given event occurs, is a simple wager and illegal (r).

a stakeholder

But if on a gaming contract a deposit is made with a Deposit with person as stakeholder, here, before such deposit is ac- may be retually paid over, the person so depositing it has a right covered before to demand and recover it back again, for he has to this over. extent a locus pœnitentiæ (s). Both this point and also

(0) Bubb v. Yelverton, L. R. 9 Eq. 471. See as to forbearance of proceedings constituting a consideration, ante, p. 33.

(p) Beeston v. Beeston, L. R. 1 Ex. D. 8; 45 L. J. Ex. 230.

(q) Thacker v. Hardy, Thacker v. Wheatley, L. R. 4 Q. B. D. 685; 48 L. J. Q. B. 289. Ex parte Rogers, In re Rogers, L. R. 15 Ch. D. 207; 29 W. R. 29; 43 L. T. 163.

(r) Batson v. Newman, L. R. 1 C. P. D. 573.

(s) Varley v. Hickman, 17 L. J. (C. P.) 102; Martin v. Hewson, 24 L. J. (Ex.) 174; Diggle v. Higgs, L. R. 2 Ex. Div. 422 ; 46 L. J. Ex.

Hampden v.
Walsh.

As to the position of a stakeholder.

what will be held to be a gaming and wagering contract are well shown by the case of Hampden v. Walsh (t), in which the facts were as follows: The plaintiff and one Wallace each deposited £500 in the defendant's hands as stakeholder, upon an agreement that if Wallace proved the convexity or curvature to and fro of any canal, river, or lake by actual measurement and demonstration to the satisfaction of certain referees, he should receive both sums, but that if he failed then the plaintiff should receive both. The experiment was made and decided by the referees in favour of Wallace, and the defendant paid the whole £1000 over to him accordingly. Before, however, he had done so the plaintiff objected to the decision, and he afterwards brought this action to recover his own £500 deposit as money had and received by the defendant to his use, and it was held by the Court, (1) That the agreement was a wager, and so null and void within 8 & 9 Vict. c. 109, sect. 18; and (2) That the plaintiff was entitled to recover on the ground that that provision does not apply to an action by a person to recover his own deposit, and he had here revoked the authority of the stakeholder before he had paid over the money.

If, however, a stakeholder on any gaming contract pays the money over to the winner with the express or implied assent of the other party, then he is discharged from any further liability (u). No action will lie against a stakeholder by the winner on a gaming contract for the whole of the amount, for he is not by the fact of the winning converted into an agent for the winner for anything beyond what he originally was, viz., the amount of his own deposit (x). But this does not extend beyond the stakeholder, and if he pays

(t) L. R. 1 Q. B. Div. 189.

(u) Howson v. Hancock, 8 T. R. 575.
(x) Allport v. Nutt, 1 C. B. 974.