only a rule of construction, and the parties may prescribe another measurement if they think fit, such as the nearest mode of access (e). to serve for It is clear law that a contract to serve in a particular Contract business for an indefinite time, or even for life, is not void life not as in restraint of trade or on any other ground of public invalid. policy (f). It would 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 (g). By the French law indefinite contracts of service are not allowed (h). It is undisputed Contract that an agreement by A. to work for nobody but B. in A.'s clusive particular trade, even for a limited time, would be void in service the absence of a reciprocal obligation upon B. to employ mutual. A. (i). But a promise by B. to employ A. may be collected from the whole tenor of the agreement between them, and so make the agreement good, without any express words to that effect (k). D. The judicial treatment of unlawful agreements in general. for ex must be as to ful agree Thus far of the various specific grounds on which agree- D. Rules ments are held unlawful. It remains for us to give as treatment briefly as may be the rules which govern our Courts in of unlawdealing with them, and which are almost without exception ments in independent of the particular ground of illegality. The general. general principle, of course, is that an unlawful agreement cannot be enforced. But this alone is insufficient. We (e) Mouflet v. Cole, L. R. 7 Ex. 70, in Ex. Ch. 8 Ex. 32. (f) Wallis v. Day, 2 M. & W. 273, 1 Sm. L. C. 377-8. The law of Scotland is apparently the same according to the modern authorities. (g) See Hargrave's argument in Sommersett's ca. 20 St. T. 49, 66. (h) Cod. Civ. 1780: On ne peut engager ses services qu'à temps, ou (i) See next note, and cp. the (k) Pilkington v. Scott, 15 M. & W. 657. Cp. Hartley v. Cummings, 5 C. B. 247. 1. Independent promises, some law ful and some un lawful: the lawful ones can be enforced. 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). 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 (1) 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 conditions which are against law are void ab initio and the others stand good. Accordingly" from Pigot's case, 6 Co. Rep. 26 (m), 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 (7) 11 Co. Rep. 27b. (m) Sic. in the report. Parts 11, 12, and 13 of Coke's Reports form vol. 6 in the edition of 1826. GENERAL RULES: UNLAWFUL CONSIDERATION OR OBJECT. which are legal may be enforced, though the performance of those which are illegal cannot " (n). And where a transaction partly valid and partly not is deliberately separated by the parties into two agreements, one expressing the valid and the other the invalid part; there a party who is called upon to perform his part of that agreement which is on the face of it valid cannot be heard to say that the transaction as a whole is unlawful and void (0). 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” (p). 321 ful consideration considera tion avoids the whole 2. If any part of the consideration for a promise or set 2. Unlawof promises is unlawful, the whole agreement is void. "For it is impossible in such case to apportion the or part of weight of each part of the consideration in inducing the promise" (q). In other words, where independent promises are in part lawful and in part unlawful, those which are ment. lawful can be enforced; but where any part of an entire consideration is unlawful, all promises founded upon it are void. agree 3. When the immediate object of an agreement is un- 3. Agreelawful the agreement is void. ment is void whose object is This is an elementary proposition, for which it is never- immediate theless rather difficult to find unexceptionable words. We unlawful. mean it to cover only those cases where either the agree (n) Bank of Australasia v. Breillat, 6 Moo. P. C. 152, 201. (0) Odessa Tramways Co. v. Mendel (C.A.), 8 Ch. D. 235. (p) Per Willes, J. Pickering v. Ilfracombe Ry. Co. L. R. 3 C. P. at p. 250. P. 409. (9) Leake on Contracts (1st ed.), Waite v. Jones, 1 Bing. N. C. 656, 662. To be consistent with the foregoing rule this must be limited to cases where the consideration is really inseparable. 4. Where immediate ment 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 object not agreement is not unlawful, but the intention of one or both unlawful, parties in making it is unlawful, then unlawful intention of both parties, or of one party known to makes If the unlawful intention is at the date of the agreement common to both parties, or entertained by one party to the knowledge of the other, the agreement is void. If the unlawful intention of one party is not known to the other, the other at the date of the agreement, there is a contract agreement voidable at the option of the innocent party if he disvoid : covers that intention at any time before the contract is executed. unlawful intention of one not known at time makes contract voidable at other's Here it is necessary to consider what sort of connexion of the subject-matter of the agreement with an unlawful plan or purpose is enough to show an unlawful intention option. that will vitiate the agreement itself. This is not always constitutes easy to determine. In the words of the Supreme Court of unlawful the United States : What intention in such cases. "Questions upon illegal contracts have arisen very often both in England and in this country; and no principle is better settled than that no action can be maintained on a contract the consideration 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" (r): 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 (r) Armstrong v. Toler, 11 Wheat. at p. 272. considerable intricacy: at the date of these remarks however (1826) the law was much less clear on specific points than it is now. of to put property purfor chased, &c., to All unlawful We have in the first place a well marked class of trans- Intention actions where there is an agreement for the transfer property or possession for a lawful consideration, but the purpose of an unlawful use being made of it. agreements incident to such a transaction are void; and it use. does not matter whether the unlawful purpose is in fact carried out or not (s). 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 (t). Thus money lent to be used in an unlawful manner cannot be recovered (u). It is true that money lent to pay bets can be recovered, but that, as we have seen, is because there is nothing unlawful in either making a bet or paying it if lost, though the payment cannot be enforced. If goods are sold by a vendor who knows that the purchaser means to apply them to an illegal or immoral purpose, he cannot recover the price it is the same of letting goods on hire (t). If a building is demised in order to be used in a manner forbidden by a Building Act, the lessor cannot recover on any covenant in the lease (s). And in like manner if the lessee of a house which to his knowledge is used by the occupiers for immoral purposes assigns the lease, knowing that the assignee means to continue the same use, he cannot recover on the assignee's covenant to indemnify him against the covenants of the original lease (r). It does not matter whether the seller or lessor does or does not expect to be paid out of the fruits of the illegal use of the property (†). (s) Gas Light & Coke Co. v. Turner, 5 Bing. N. C. 666, in Ex. Ch. 6 ib. 324. (t) Pearce v. Brooks, L. R. 1 Ex. 213. 179. (u) Cannan v. Bryce, 3 B. & Ald. |