CH. XXI. s. 2. Illegal, &c., able Bar gains). Expectant heirs. Lord Ayles ford's Case. Repeal of Effect of Sale of Reversions Act. Age of borrower not material. Result of cases as to Beynon v. SECT. 2.-Unconscionable Bargains. It has long been a rule of equity that hard bargains with expectant heirs, e.g., where the heir being in distress for money sells his reversion at an undervalue, or borrows money at exorbitant interest, may be set aside as "unconscionable." The leading case is Earl of Chesterfield v. Jansen (b); the most authoritative Earl of Aylesford v. Morris (c), and the latest, Nevill v. Snelling (d), and Fry v. Lane (e), in both of which latter all the previous cases are fully reviewed. In the Earl of Aylesford's Case, the plaintiff, when twenty-two years of age, and entitled to large property in event of his surviving his father, borrowed money at about sixty per cent. on bills, and the Court restrained an action upon the bills, and decreed that they should be delivered up on payment of the sums actually advanced and interest at five per cent. The repeal of the usury laws in 1854, by 17 & 18 Vict. c. 90, has not affected the rules of equity on this subject; nor has the Act 31 & 32 Vict. c. 4, by which no purchase of a reversionary interest may be set aside, merely on the ground of undervalue, for that Act is carefully limited to purchases made bonâ fide and without fraud or unfair dealing (ƒ). The age of the borrower or seller does not appear to be material, except as rendering it more likely that he should have been imposed upon his poverty and ignorance appear to afford sufficient grounds for relief (g), and the state of distress is considered to continue till the reversion falls into possession (h). The only result of the cases seems to be that the Court looks at bargains with the reasonableness of a bargain with a reversioner, and if it is what a reversioner. is called a hard bargain, sets it aside (i), with allowance to the other party of the money advanced and simple interest at five per cent. And it is material to observe that out of the very numerous modern cases reported, in three only (k) does the expectant appear to have failed to obtain relief. In one of them (1), the expectant was not dealing with a reversion properly so called, and was fully able to take care (b) Earl of Chesterfield v. Jansen (1750), 1 W. & T., L. C. (c) Earl of Aylesford v. Morris (1873), L. R., 8 Ch. 484; recognised as law by the House of Lords in O'Rorke v. Bolingbroke (1877), 2 App. Cas. 814, though on the particular facts relief was refused. (d) Nevill v. Snelling (1880), 15 Ch. D. 679, per Denman, J. (e) Fry v. Lane (1888), 40 Ch. D. 312, per Kay, J. See also James v. Kerr (1889), 40 Ch. D. 449, per Kay, J. (f) Earl of Aylesford v. Morris (1873), L. R., 8 Ch. at p. 490. As to the law before this Act, see St. Albyn v. Harding (1859), 27 Beav. 11. (g) Fry v. Lane, supra. (h) Beynon v. Cook (1875), L. R., 10 Ch. 389. (i) Per Jessel, M. R., in Beynon v. Cook (1875), L. R., 10 Ch. at p. 391, n. (k) In King v. Hamlet (1835), 3 Cl. & F. 218; Webster v. Cook (1867), L. R. 2 Ch. 542; and O'Rorke v. Bolingbroke (1877), 2 App. Cas. 814. (1) In Webster v. Cook, supra. of himself, and in the other two (m) he had the assistance of his CH. XXI. s. 2. father. The interference of the Court is not confined to sales of reversions by expectants: it applies also to sales of property in possession by poor and illiterate persons (n). SECT. 3.-Contracts Illegal at Common Law. (a) Immoral Contracts. Illegal, &c., Contracts (Unconscionable Bargains). Sales of pro perty in possession. The common law prohibits everything which is contra bonos Cohabitation. mores (o); any agreement in consideration of future illicit cohabita- Ayerst v. tion between the parties, is void both at law and in equity (p). So a Court of Equity will not enforce performance of a verbal promise by a single man, that he would settle an annuity on a married woman, with whom he had cohabited whilst she was separated from her husband (g). But where the declaration stated that, before and at the time of making the defendant's promise, the plaintiff had cohabited with the defendant; and that certain differences had arisen between them; whereupon the defendant agreed that, in case he and the plaintiff should separate, he would allow her £30 per annum, during her life, by quarterly payments, provided, from and after such separation, she should continue single, and did not cohabit with one D. G., or anyone else: the Court held that the agreement was good (r); and where the reputed father of an illegitimate child promised to pay the mother an annuity, if she would maintain the child and keep their connection secret: it was held that the maintenance of the child was a sufficient consideration for the contract (s). Jenkins. So a bond or covenant founded on past cohabitation, whether Bonds and adulterous, incestuous, or simply immoral, is valid in law, and is covenants. not liable, unless there be other elements in the case, to be set aside in equity (t). And it would seem that a bond given on such a con (m) In King v. Hamlet and O'Rorke v. Bolingbroke, supra. (n) Wood v. Abrey (1818), 3 Madd. 417; 18 R. R. 264; and see Fry v. Lane (1888), 40 Ch. D. 312. (o) See Brown v. Brine (1875), 1 Ex. D. 5; Allen v. Rescous (1677), 2 Lev. 174; Fletcher v. Harcot (1623), Hutton, 56; Holman v. Johnson (1775), Cowp. 341. (p) Ayerst v. Jenkins (1873), L. R., 16 Eq. 275; and ante, p. 5. (9) Matthews v. L. E. (1816), 1 Madd. 558. (r) Gibson v. Dickie (1815), 3 M. & S. 463. But the reasons given for this ruling, as contained in the above report of the judgment, are not very satisfactory. (s) Jennings v. Brown (1842), 9 M. & W. 496; see also Hicks v. Gregory (1849), 8 C. B. 378; Smith v. Roche (1859), 6 C. B., N. S. 223. (t) Per Lord Selborne, C., Ayerst v. Jenkins (1873), L. R., 16 Eq. 275, 282; and see Nye v. Moseley (1826), 6 B. & C. 133; Turner v. Vaughan (1767), 2 Wils. 339; Priest v. Parrott (1750), 2 Ves. Contracts Prostitution. CH. XXI. s. 3. sideration is valid, even although the obligor do not, after it is given, Illegal, &c., cease to cohabit with the obligee (u). But in Friend v. Harrison (x), (Immorality). Best, C. J., said that a bond, if merely given for past cohabitation, was good; but that, if the plaintiff obtained it from the defendant, intending at the same time to continue the connection, it was void. An action is not maintainable to recover the rent of lodgings, knowingly let for the purpose of prostitution (y). And where the landlord, at the time of the letting, was not aware of the tenant's mode of life and her object in taking the lodgings; but allowed her to remain in them after he had become acquainted with her character, and the use to which her apartments were put; it was held that he could not recover from her, the rent which accrued after this came to his knowledge (z). So where, in an action against a woman of the town for board and lodging, it appeared that the plaintiff, the keeper of a house of ill fame, received a portion of the gains of the women in her house, as well as payment for their board and lodging, Lord Kenyon refused to sanction such a demand (a). And where the defendant, a prostitute, was sued by the plaintiffs for the hire of a brougham; and the jury found that the plaintiffs knew her to be a prostitute, and had lent the brougham with a knowledge that it would be, as in fact it was, used by her as part of her display to attract men: it was held that they could not recover (b). Hire of Contracts Cleaver v. But although the tenant of apartments be an immodest woman, and the landlord be aware of her character, he may recover his rent, if she receive her visitors elsewhere, and do not use his premises for immoral purposes (c); and a contract to sell clothes to a prostitute (d), or to wash for her (e), is of course good. No system of jurisprudence can with reason include amongst the rights which it enforces, rights directly resulting to the person asserting them, from the crime of that person. Therefore, where a husband insured his life for the benefit of his wife, and his wife was convicted of murdering him, it was said that the wife could not recover the insurance money, nor could her representatives, although it was held that the husband's representatives could, inasmuch as between them and the insurers no question of public 160; Marchioness of Annandale v. Har- (u) Hall v. Palmer (1844), 3 Hare, 532. (y) Girardy v. Richardson (1793), 1 Esp. 13; and see Smith v. White (1866), L. R., 1 Eq. 626. (z) Jennings v. Throgmorton (1825), R. & M. 251. (a) Howard v. Hodges (1796), 1 Selw. N. P., 13th ed., 80. (b) Pearce v. Brooks (1866), L. R., 1 Ex. 213. (c) Appleton v. Campbell (1826), 2 C. & P. 347. (d) Bowry v. Bennett (1808), 1 Camp. 348; 10 R. R. 697. (e) Lloyd v. Johnson (1798), 1 B. & P. 340; 4 R. R. 822. Contracts (Crime). policy arose, their trust for her being merely incapable of per- CH. XXI. s. 3. formance (f). Similarly, a contract of life insurance is not en- Illegal, &c. forceable if the assured feloniously commit suicide (though not unless it be so expressly provided, if he commit suicide when of Suicide. unsound mind (g)), nor, when forgery was punishable by death, Forgery. could the assignees of the forger recover on it (h), much less could Murder. the representatives of a man who, having insured the life of another for his own benefit, afterwards murdered him for the sake of the insurance money, recover from the insurers (i). An action cannot be maintained to recover the price or value of Libels, &c. libellous or immoral pictures, sold by the plaintiff to the defendant (j). And in Poplett v. Stockdale (k), Best, C. J., held, that the plaintiff, a printer, could not recover any remuneration for printing "The Memoirs of Harriette Wilson," it being a work of a grossly immoral and libellous nature. Milbourn. Blasphemy being an indictable offence, and attacks on Chris- Blasphemy. tianity, however decent, by a person brought up as a Christian, Cowan v. being indictable by statute, 9 & 10 W. 3, c. 32 (in Rev. Stats. c. 35), it has been held that a contract to let rooms for the delivery of lectures may be justifiably broken on the ground that the lectures would represent that the character of Christ is defective and the Bible no more inspired than any other book (1). An agreement may be held void as against public policy, but not Against public policy. unless it manifestly contravene public policy, and be injurious to the interests of the state (m); and where an agreement is contrary Contract to the policy of the English law our Courts will not enforce it, made abroad. although it was entered into in a foreign country, by the law of which it was valid (n). (b) Restraint of Trade. It was laid down in the leading case of Mitchel v. Reynolds (0), Contracts that a bond to restrain oneself from trading in a particular place, if restraint of in general made upon a reasonable consideration, is good, though if it be on trade void. 6 R. R. 840. (k) Poplett v. Stockdale (1825), R. & M. 337. (1) Cowan v. Milbourn (1867), L. R., 2 Ex. 230. How far blasphemy is still a common law offence, see R. v. Ramsey and Foote (1883), C. & E. 126, and the comments thereon in Shortt on Literature and Art, Pt. IV., Ch. II. (m) See per Best, C. J., Richardson v. Mellish (1824), 2 Bing. 229, 242; Roche v. O'Brien (1810), 1 Ball & B. 330. (n) Per Fry, J., Rousillon v. Rousillon (1880), 14 Ch. D. 351 (champagne trade). (0) Mitchel v. Reynolds (1711), 1 P. Wms. 181; 1 Sm. L. C. Mitchel v. CH. XXI. s. 3. no reasonable consideration or to restrain a man from trading at all, Illegal, dc., it is void; and judgment was given for the plaintiff on a bond not (Restraint of to trade as a baker within the parish of St. Andrew's, Holborn, for Contracts Trade). Mitchel v. Review of authorities. Davies v. Nordenfelt Whitaker v. 5 years, or to pay 50l. to the plaintiff. Since Mitchel v. Reynolds the cases have been numerous and occasionally conflicting, with a great preponderance however in the favour of upholding the validity of restraints when contested. The questions raised have mainly arisen from the sale of the goodwill of a business, from the dissolution of a partnership, or from the engagement of a servant, the seller agreeing not to compete with the buyer, the partner agreeing not to compete with the firm, or the servant agreeing not to compete with the master, within a specified area or during a limited time, or both. 66 The principal authorities and the general policy of the law of "restraint of trade," were very fully discussed in 1887 by the Court of Appeal in Davies v. Davies (p), in which it was held that an agreement by a retiring partner in a firm of galvanisers to retire from the business as far as the law allows" was too vague to be enforced, and in 1894 by the House of Lords in Nordenfelt, app. v. Maxim Nordenfelt Guns and Ammunition Co., resps. (q), where it was held that a covenant not to trade anywhere except on behalf of the company as a manufacturer of guns or ammunition for 25 years was not, having regard to the nature of the business and the limited number of customers for the guns and ammunition for war which it was the main business of the company to supply, wider than was necessary for the protection of the company, nor injurious to the public interests of this country; and was therefore valid and enforceable by injunction. Many of the judgments in the Nordenfelt Case emphatically recognise that the law of the subject has been gradually growing in the direction of liberality in correspondence with, and in proportion to, the gradually changing circumstances of trade. No prior authority was expressly overruled; but any prior authority not having a tendency to weaken the invalidity of contracts in restraint of trade, may be said to have been shaken. One celebrated authority, Whitaker v. Howe (r), in which Lord Langdale granted an interlocutory injunction restraining a London attorney and solicitor who had sold his business on the terms that he would not practise anywhere in Great Britain for 20 years, but had resumed business in London, was pronounced by Bowen, L. J., in the Court of Appeal, to be "inexplicable," and appears to have been thought by Lord Herschell to be doubtful, (p) Davies v. Davies (1887), 36 Ch. D. 359, C. A. (q) Nordenfelt v. Maxim Nordenfelt, &c., Co., [1894] A. C. 535, affirming judgment below, which had reversed that of Romer, J., [1893] 1 Ch. 630. (r) Whitaker v. Howe (1841), 3 Beav. 383. |