public policy; and it might, perhaps have been [*124] more simple to have ranked this and the former

that bonds are void only where the consideration is immoral, as in all cases where it appears that future cohabitation is contemplatedSee Smyth v. Griffin, 14 Law Journ. L. C. 28.

understanding injurious to the purity of the public service; (Gar. immoral and libellous; Poplett v. Stockdale, Ryan & Moody, 337, 21 E. C. L. R.

Nothing is better settled than that a promise in consideration of future illicit cohabitation is void; Walker v. Perkins, 3 Burrow, 1568; Rex v. Inhabitants of Withringfield, 1 Barn. & Adolp. 912, 20 E. C. L. R.; Winnebrun v. Weisiger, 3 Monroe, 35; Travinger v. M'Burney, 5 Cowen, 253; and it is immaterial whether such promise be or be not backed by the solemnity of a seal; Walker v. Perkins. But where the sealed instrument is given in consideration of past seduction or cohabitation, it will be enforced; Turner v. Vaughan, 2 Wilson, 339; Wye v. Mosely, 6 Barn. & Cress. 133; while a parol promise, based upon such a consideration, is worthless; Beaumont v. Reeve, 8 Queen's Bench; Singleton v. Bremar, Harper, 201. The distinction between these classes of cases is this: all contracts, whether sealed or parol, based upon future immoral connexion, are void, because to enforce them would be to offer a premium for future immorality. And all parol contracts in consideration of past connexion are void, on the simple ground of the consideration being executed, and the transaction not being such, as according to the rules already explained, the law would imply a promise to pay for. But a specialty given for past connexion can be enforced, because there is a consideration, viz., that imported by the seal, and as regards the immorality, the injury having been already done, there is no principle of law that forbids its being remedied, and it has been latterly held that even if connexion be continued after the giving of the bond, that will not vitiate the instrument, if such continuance did not enter into the transaction; Hall v. Palmer, 3 Hare, 532; and in a trial at Nisi Prius, Best, Ch. J., left it to the jury to determine, whether at the time of giving such a bond, the continuance of the connexion formed part of the transaction, for if it did, the obligee could not recover; if it did not, there was nothing in the transaction prohibited by the law; Friend v. Harrison, 2 Car. & Payne, 584, 12 E. C. L. R.

There is a class of cases which determine that promises in conside

as one and the same class, since it is obvious that wherever a contract has an immoral ten

[125]

forth v. Fearon, 1 H. Bl. 327; Blachford v. Preston, 8 T. R. 89.)1 All acts whereby favouritism is purchased at the sacrifice of any public trust or interest, such as contracts with particular creditors against the policy of the bankrupt laws (Nerot v. Wallace, 3 T. R. 17; Davis v. Holding, 1 M. & W. 159; and Staines v. Wainwright, 6 B. N. C. 174, 37 E. C. L. R.), or of purity of election. See Coppock v. Bower, 4 M. & W. 361, where a petition having been presented to the House of Commons against the return of a member on the ground of bribery, the petitioner entered into an agreement in consideration of a sum of money, and upon other terms, to proceed no further with the petition, it was holden that this agreement was illegal. So are

ration of a forbearance or compromise of a prosecution for bastardy, can be enforced; Haven v. Hobbs, 1 Vermont, 238; Holcomb v. Stimpson, 8 Id. 141; Robinson v. Crenshaw, 2 Stew. & Porter, 276; Maurer v. Mitchell, 9 Watts & Serg. 71; and these cases proceed upon the ground of the prosecutions being rather civil in their chaSee note 1, to next page.

racter.

1

Thus, no action will lie on a contract to procure the appointment of clerk of a court, or any office relating to the administration of justice; Haralson v. Dickins, 2 Car. Law Reps. 66; Lewis v. Knox, 2 Bibb, 453; Carlton v. Whitcher, 5 New Hamp. 196; Proprietors v. Page, 6 Id. 183; or to promote the election of a candidate for office; Swayze v. Hull, 3 Halsted, 54; Dearborn v. Bowman, 3 Met. 135; Duke v. Asbee, 11 Iredell, 112. So of the procuring or defeating by improper means or personal influence the passage of an act of the legislature; Wood v. M'Cann, 6 Dana, 366; Clippenger v. Hepbaugh, 5 Watts & Serg. 315, or the use of interest to procure the pardon of a convict; Norman v. Cole, 3 Esp. 253; Hatzfield v. Gulden, 7 Watts, 152.

So, where in contemplation of an assignment for, or composition with creditors, or of bankruptcy, an agreement whereby one creditor is to receive more than the others, cannot, if unknown to the rest, be enforced; Jackson v. Lomas, 4 Term, 169; Smith v. Cuff, 6 Maule & Sel. 160; Baker v. Matlack, 1 Ashmead, 68; Mann v. Darlington, 3 Harris, 312; (see Bradshaw v. Bradshaw, 9 Mees. & Welsb. 28, and Horton v. Riley, 11 Id. 492, as to the debtor's right

dency, there it is opposed to the public policy, and the only reason for dividing them into two classes is, that

all contracts which affect the rights of the revenue; for instance, all such as relate to smuggling, though the plaintiff merely aided in the act, are void; Lordson v. Temple, 5 Taunt. 181, 1 E. C. L. R. The mere sale of goods, however, by a person who takes no part in their illegal use afterwards, though he knows of it, has been held to be a valid contract; (Holman v. Johnson, 1 Cowp. 341.) And it may be taken as a general rule, applicable to all cases of illegality of contract, that where it is legal at the time it is made, the prior or subsequent illegality of transactions relating to it, but not entering into the contract in question, or essential to it, does not invalidate it; M'Callan v. Mortimer, 9 M. & W. 643. All contracts tending to any breach of the peace are void. It would be easy to multiply cases on this kind of illegality, but it is apprehended that the explanation of the law in relation to it would be nowise assisted by citing them.'

There is one illegality requiring notice-maintenance, or the illegal

to recover back money so paid, which right is distinguished from the principle in pari delicto, potior est conditio defendentis, on the ground of advantage being taken of the debtor's circumstances to exercise oppression over him.)

See the note to Collins v. Blantern, 1 Smith's Leading Cases, where many instances are collected. A class of cases, however, should be here referred to as of constant occurrence. These depend on contracts based on a compromise or compounding of some offence. It is well settled that an agreement to compound a felony will not be enforced, and any security based upon such a consideration will be void; on the other hand, some prosecutions for misdemeanour, as for example, for bastardy, Holcomb v. Stimpson, 8 Verm. 144; Maurer v. Mitchell, 9 W. & S. 71; Robinson v. Crenshaw, 2 Stew. & Porter, 276; or, for assault and battery, Price v. Summers, 2 Southard, 578; (unless when coupled with a riot, Kier v. Lehman, 6 C. B. 308, 51 E. C. L. R., in error, 9 Id. 371, 58 E. C. L. R., or with an intent to kill, Gardiner v. Maxey, 9 B. Monroe, 90,) are allowed to be compromised by the parties, and to form a valid consideration for promises based on such compromise. Where, however, the relation of debtor and creditor has existed between the parties, the compromise of prosecutions for secreting property, for obtaining money under false pretences, and

there are some contracts which involve no offence against the laws of morality, and nevertheless are

abetting of suits by parties not concerned in them, or to use the broad language of Coke, "When one maintaineth the one side without having any part of the thing in the plea or suit;" Co. Litt. 368 b.) But the ancient doctrine has been somewhat narrowed by more modern judgments; (see Master v. Miller, 4 T. R. 340, per Wilmot J.);1 the like, is, if not held to form an illegal consideration (as it was in the late case of Shaw v. Reed, 30 Maine, 105), at least looked upon with the strongest disfavour, as affording a ready instrument to abuse and oppression; Prough v. Entriken, 1 Jones (Pa.), 81. The result of the authorities generally upon this subject appears to be that where the misdemeanour is one in which the welfare of society is immediately concerned, agreements based upon their compromise will not be sanctioned (and its having been done originally by the leave of the Court makes no difference, Kier v. Lehman, 9 Q. B. 394), but the rigour of the rule will be relaxed in proportion as the general welfare ceases to be interested, and the offence and its punishment becomes personal between the parties, and still more as the prosecution loses a criminal complexion, and assumes a civil one. In perhaps the most recent prominent case in England, Kier v. Lehman, supra, which went on error from the Queen's Bench to the Exchequer Chamber, Chief Justice Tindal, in delivering the opinion of the latter tribunal, said, that if the matter were res integra, they would have no doubt in holding that any compromise of any misdemeanour, or any public offence, was an illegal consideration to support a promise, and that it was remarkable what very little authority, consisting rather of dicta than decision, there was to support such considerations. "We have no doubt that in all offences which involve damages to an injured party for which he may maintain an action, it is competent for him, notwithstanding they are also of a public nature, to compromise or settle his private damage in any way he may think fit. It is said, indeed, that in the case of an assault he may also undertake not to prosecute on behalf of the public. It may be so, but we are not disposed to extend this any further." And the current of more recent authorities on this side of the Atlantic, sets strongly against the validity of such considerations; Clark v. Ricker, 14 New Hamp. 44; Commonwealth v. Johnson, 3 Cush. 454; Gardner v. Maxey, 9 B. Monroe, 90.

1 And see also Stanley v. Jones, 7 Bingham, 369, 20 E. C. L.

opposed to public policy; such, for instance, are contracts in general restraint of trade.

There seems to be nothing obviously immoral in a

man's promising or covenanting not to carry *on [*126] his trade within the limits of England. Nevertheless, such a covenant or promise is totally void. This was decided so long ago as in the reign of Henry V. in the year-book of the second year of which reign, fol. 5, a bond restraining a weaver from exercising his trade was held void and Judge Hall flew into such a passion, at the sight of it, that he swore on the bench, and threatened to send the obligee to prison till he had paid a fine to the king; upon which Lord Macclesfield observes, in Mitchell v. Reynolds, 1 P. Wm. 181, "that he could not but approve of the indignation the judge

it is now requisite in order to constitute maintenance, that a man should neither have nor believe he has any interest in the suit he abets, either individually or collectively with others. In this case only is he guilty of maintenance. But where landlords, for instance, have joined together in protecting their reversionary interest, supposing that all their tenants would be included in proceedings taken against some of them to extinguish a modus, and thereupon united in defending a suit brought against the tenants, this was held recently not to be maintenance. (Findon v. Parker, 11 M. & W. 675.) In that case Lord Abinger, C. J., said, "The law of maintenance, as I understand it upon the modern constructions, is confined to cases where a man improperly, and for the purpose of stirring up litigation and strife, encourages others either to bring actions or to make defences which they have no right to make." In such cases no contract arising out of the bringing or conducting such action is legal.

Champerty is an agreement to share the fruits of maintenance, and equally void. See Stanley v. Jones, 7 Bing. 369, 20 E. C. L. R., per Tindal, C. J.; and Stevens v. Bagwell, 15 Ves. jun. 139.

R.; Doe v. Evans, 1 Com. Bench, 717, 50 E. C. L. R.; Prosser v. Edmonds, 1 Young. & Col. 481; Harrington v. Long, 2 Myl. & Keen, 390; Anson v. Lee, 4 Simons, 364; Hunter v. Daniel, 4 Hare, 420; Wilson v. Short, 6 Id. 366.