2. The defendant A. B. by her promissory note dated the 1st of May, 1880, promised to pay to the plaintiff £150 on demand.

The plaintiff claims:

(1) £150 from the defendant A. B.;

(2) That the said sum of £150 may be declared a charge upon the separate estate of the said A. B.;

(3) That the defendants C. D. and E. F. be directed to pay to the plaintiff out of the separate estate of the

said A. B. the sum of £150 and the costs of this

suit; or

(4) That a receiver be appointed of the interest of the defendant A. B. in the said separate estate ;

(5) A sale of her interest therein.

Defence of the Defendant A. B.

1. The said promissory note was paid by the defendant A. B. before action brought.

2. The only separate estate which the defendant has is a life interest in the income of a sum of £1000 settled upon the defendant without any power on her part of anticipating the

same.

Defence of Defendants C. D. and E. F.

ever

1. The defendants do not admit that the plaintiff A. B. signed the said promissory note or that it is now due and owing by her.

2. The defendant A. B. is entitled to the income of a sum of £1000 for her life without any power of anticipating the same, and she is not interested in any other sum or sums of which the defendants are trustees.

9. Claim against a Husband for alleged Necessaries supplied to his Wife.

1. Between the 30th of September, 1880, and the 10th of December, 1880, the plaintiff supplied goods which were of the nature of necessaries to the defendant's wife, amounting in all to the value of £54, particulars of which, exceeding in length three folios, are delivered herewith.

2. On the 9th of December the plaintiff lent the defendant's wife the sum of £15 with which to purchase necessary clothing.

3. At all times when the plaintiff supplied the said goods and advanced the said money the defendant's wife was living at R., having been deserted by the defendant and left by him. without any means of support and destitute.

Defence.

1. The defendant denies that the plaintiff supplied the said goods to his wife or that the same were necessaries.

2. He denies that the plaintiff lent his wife the said sum of £15, or that it was applied to the purchase of necessaries.

3. At the time when it is alleged the said goods were supplied and money advanced the defendant had not deserted his said wife.

4. She was living at R. in pursuance of an arrangement between the defendant and her, and she was then in actual receipt of an adequate allowance.

5. The defendant further says that at the said time the defendant's wife was living in adultery with one J. E.

6. Prior to the plaintiff supplying the said goods and advancing the said money the defendant had forbidden his wife to pledge his credit, and he had publicly notified such prohibition by advertisement and otherwise.

No action can be

brought on a promise to do an

illegal act,

or where

the consideration is illegal.

Illegality («).

1. Defence of Illegality to a Claim for Breach of Contract. After the defendant agreed to let the said premises, he discovered, as the fact was, that the plaintiff intended to use the same as a hall in which to deliver lectures blaspheming the

(a) No action can be brought on a promise to do an illegal act or an act with an illegal object; nor can an action be brought on a promise made for an illegal consideration, or on a promise made for a consideration consisting of several parts, any one of which is illegal. (Higgins v. Pitt, 4 Ex. 312: Hill v. Fox, 4 H. & N. 359.) But where the consideration is legal, and several promises are founded on it, some of which are legal and others illegal, the legal ones can be enforced. The test for determining whether a person is precluded from recovering on account of illegality, is by considering whether the plaintiff can make out his case

name of Christ and denying the truthfulness and inspiration of the Bible, whereupon the defendant refused to deliver up possession of the said premises, which is the grievance complained of.

otherwise than through the medium of the illegal transaction to which he was himself a party. (Taylor v. Chester, L. R. 4 Q. B. 309, 314.)

A plaintiff will not be able to recover either for work done or materials Instances provided where the whole forms one entire subject-matter made in viola- of illegal tion of an Act of Parliament. (Bensley v. Bignold, 5 B. & A. 335.) Thus contracts. a printer will not be able to recover from the publisher his charges for work and paper, &c., in the printing of a libellous or blasphemous book. (Poplett v. Stockdale, Ry. & M. 337; Clay v. Yates, 25 L. J. Ex. 237.) An undertaking by a railway company to indemnify the promoters of another railway in case of their failing to obtain a bill is illegal, as there is no authority to expend any of its funds in such a manner. (Macgregor v. Deal and Dover Rail. Co., 22 L. J. Q. B. 69, Ex. Ch.) But an agreement with a landowner for a payment in consideration of his withdrawing opposition to a bill for extension of powers is not illegal. (Taylor v. Chichester and Midhurst Rail. Co., L. R. 4 H. L. 628.) A London broker cannot maintain an action for commission for buying and selling stock, &c., unless duly licensed by the mayor and aldermen of London under 6 Anne, c. 16 (Cope v. Rowlands, 2 M. & W. 149) ; nor for sale of shares in a company British or foreign (Smith v. Lindo, 27 L. J. C. P. 335), but he may recover money paid by him to a seller on account of his principal for which the broker is by usage liable as principal. (Ib.) Money lent for the purpose of playing an illegal game cannot be recovered (Mc Kinnell v. Robinson, 3 M. & W. 434); but money paid at the implied request of the principal in fulfilment of a wagering contract may be recovered back (Rosewarne v. Billing, 33 L. J. C. P. 55; 15 C. B. (N.S.) 316; Oldham v. Ramsden, 44 L. J. C. P. 309; Ex parte Tyke in Re Lister, 8 Ch. D. 754; Lynch v. Goodwin, 26 Sol. Jour. 509; and Read v. Anderson, 10 Q. B. Div. 100). "Although the law will not compel the Payment loser of a bet to pay it, he may lawfully do so if he pleases; and what he of bets. may lawfully do himself he may lawfully authorise anybody else to do for him; and if by his request or authority another person pays his lost bets, the amount so paid can be recovered from him as so much money paid to his use" (Per Hawkins, J., in latter case).

By the 8 & 9 Vict. c. 109, s. 41, "All contracts and agreements, whether Gaming by parol or in writing, by way of gaming or wagering shall be null and void, and and no suit shall be brought or maintainable in any court of law or equity wagering for recovering any sum of money or valuable thing alleged to have been contracts. 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." In Diggle v. Higgs, 2 Ex. Div. 422; 46 L. J. 721, the cases under this section were reviewed by the Court of Appeal, and it was held that an agreement to walk a match for £200 a side, the money being deposited with a stakeholder, is a wager, and null and void under the 8 & 9 Vict. c. 109. The deposit of the money is not a subscription or contribution for a sum of money to be awarded to the winner of a lawful game within the proviso. The winner of the match cannot sue the loser or the stakeholder to recover the stakes, but a depositor may maintain an action to recover back the share deposited by him with the stakeholder, overruling Batty v. Mar

2. Another Defence of Illegality to a Claim for Money had and received.

The defendant says that the only agreement he ever made with the plaintiff was that in the event a horse called Regal winning the Grand National, and the defendant realising large sums by his bets thereon, he would pay the plaintiff £50 out of such winnings. The said agreement was by way of gaming and wagering, and is within the 8 & 9 Vict. c. 109.

Illegal

contracts.

Defence of

illegality to be

specially pleaded.

When contracts founded

on an immoral con

Immorality (a).

1. Defence of Immoral Consideration to a Claim for Hire of a Brougham.

The said brougham was hired by the defendant, as the plaintiff well knew, for the purpose of attracting men, and for an immoral purpose.

riott (5 C. B. 818; 17 L. J. C. P. 215). See also upon this statute. Batson v. Newman, 1 C. P. D. 573; Beeston v. Beeston, 1 Ex. D. 13; Higginson v. Simpson. 2 C. P. D. 76; Hampden v. Walsh, 1 Q. B. D. 189; 45 L. J. Q. B. 238; Trimble v. Hill, 5 Appeal Cases, 342.

An agreement to let rooms intended for the purpose of delivering blasphemous lectures is not binding, and a landlord, though he assigned another ground for refusing to perform his contract, can set up this defence. (Cowan v. Milburn, L. R. 2 Ex. 230.)

By 29 Car. 2, c. 7, s. 1, "No tradesman, artificer, workman, labourer. or other person whatsoever shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord's-day or any part thereof, works of necessity and charity only excepted." The contract must be completed on the Sunday to bring it within this provision. (Williams v. Paul, 6 Bing, 653; Bloxsome v. Williams, 3 B. & C. 232.)

Contracts in general restraint of trade are illegal. See, for further information on this subject, notes to Mitchel v. Reynolds, 1 Smith L. Cas. 406.

The defence of illegality should, even formerly, have been specially pleaded, and it was not sufficient to state merely that the contract was illegal, but the particular facts should be stated from which the illegality as a matter of law could be inferred. (Ransford v. Copeland, 6 A. & E. 482.) This is in conformity with the present rules of pleading. Where the defence is not pleaded, and the illegality appears in the plaintiff's evidence, it seems no use can be made of it by the defendant. (Fenwick v. Laycock, 1 Q. B. 414.)

(a) Any person who is a party to an immoral contract, or a contract involving encouragement to immorality, cannot recover damages for its breach. Thus, charges for board and lodgings by a brothel-keeper cannot be recovered by him in an action against a prostitute. (Howard v. Hedges, 1 Selw. N. Prius, 13th Ed. 80.) So, for rent of a room let to a

2. Defence of Immoral Consideration to a Claim on a Deed.

The only consideration for the defendant's covenant in the said deed was a promise by the plaintiff to renew and continue an immoral intimacy with him.

Infancy (a).

Defence of Infancy to a Claim.

The defendant was an infant at the time of making the alleged contract [or, contracting the alleged debt, as the case may be].

they cannot be recovered on.

prostitute with knowledge of her character, and that it was to be used sideration for the purpose of prostitution, or for rent accrued due after becoming aware of the purpose for which it was taken. (Smith v. White, L. R. 1 Eq. 626.) So, the hire for a brougham supplied to a prostitute with a knowledge of her character, and that it was to be used by her for the purpose of attracting men. (Pearce v. Brooks, L. R. 1 Ex. 213.) It is not necessary in order to preclude persons letting or selling to prostitutes from recovering rent, hire, or price that the plaintiff should have looked expressly to the proceeds of prostitution for payment. (Id.)

But a person selling goods to a prostitute not evidently purchased to enable her to carry on prostitution, is not precluded from recovering the price. (Bowry v. Bennet, 1 Camp. 348.) So, where the plaintiff has been employed to wash clothes, consisting principally of expensive dresses, for a prostitute, knowing her to be such. (Lloyd v. Johnson, 1 B. & P. 430.) So, a person letting rooms, not knowing they were to be used for the purpose of prostitution. (Smith v. White, supra.)

A bond or agreement given in consideration of future illicit cohabitation is illegal, but a bond or deed for payment by way of provision after past cohabitation is valid (Nye v. Mosely, 6 B. & C. 133); though a simple contract founded thereon is not, as there is no consideration. (Binnington v. Wallis, 4 B. & Ald. 650; Beaumont v. Reeve, 8 Q. B. 483.) (a) By Order XVI. r. 6, of the new rules, infants may sue as plaintiffs by their next friends, in the manner heretofore practised in the Chancery Division, and may in like manner defend by their guardians. See the full text of Order XVI. set out in the Appendix, as to the appointment of guardians ad litem, and so forth.

The question of the liability of infants is now mainly regulated by the 37 & 38 Vict. c. 62 (1874). The 1st section provides that "all contracts whether by specialty or simple contract henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void, provided always that this enactment shall not invalidate any contract into which an infant may by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable." And by sect. 2, "no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made

Y

Infants not now liable on any contracts except for necessaries.