Contracts (Restraint of Marriage). CH. XXI. s. 3. marry him: so that it restrained him from marrying at all, in case Illegal, &c., she had chosen not to permit him to marry her. So a wagering contract, that the plaintiff would not marry within six years, is prima facie in restraint of marriage, and is therefore void at common law-no circumstances appearing to show that such restraint was prudent and proper in the particular instance (s). Marriage brocage contract. Contract not to revoke will; to procure legacy, &c., to sell an expectancy. Sale of offices. So a marriage brocage contract, that is, an undertaking for reward to procure a marriage between two parties, is void (t). (e) Contracts as to Wills. A contract not to revoke a will is good; and although, by the Wills Act, 1837, 7 Will. 4 & 1 Vict. c. 37, s. 18, a will is revoked by marriage, such a contract is construed as being against revocation by the other modes of revocation (u). A contract to use influence to procure a legacy is bad (x); but a contract between expectants to abstain from using influence is good (y); and so is a contract to sell an expected devise (2). (f) Sale of Offices. Contracts for or respecting the sale or transfer of public appointments-though they may not be prohibited, in the particular cases, by the statutes relative to the sale of public offices which we shall hereafter notice (a)—may still be void at common law, as being contrary to public policy (b). Thus, where the defendant-in consideration that the plaintiff, who was master joiner in one of his Majesty's dockyards, would procure himself to be superannuated-undertook, in case he, the defendant, should succeed the plaintiff as master joiner, to allow him the extra pay from the yard books: it was held that this agreement, having been made without the knowledge of the Navy Board, to whom the appointment belonged, was void (c). So, a recommendation to an office in the King's household, though of a private nature, and not within the stat. 5 & 6 Edw. 6, c. 16, was held not to be a legal consideration for a contract (d). Nor could an action be maintained upon an agreement for the sale, by the owner, of the command of a ship in the East India Company's (s) Hartley v. Rice (1808), 10 East, 22; 10 R. R. 228. (t) See Hall v. Potter (1695), 3 Lev. 411; Keat v. Allen (1707), 2 Vern. 588; Cole v. Gibson (1750), Ves. 503; Co. Litt. 206 b, n. 1; and see Ch. XVIII., p. 472, ante. (u) Robinson v. Ommanney (1883), 21 Ch. D. 780. (x) Debenham v. Ox (1749), 1 Ves. sen. 275. (y) Higgins v. Hill (1887), 56 L. T. 426. (z) Cook v. Field (1850), 15 Q. B. 460. (a) See post, sect. 5 (e), and see the curious 12 Ric. 2, c. 2, repealed by the Promissory Oaths Act, 1871, Chitty's Statutes, tit. "Offices (Against Sale of). (b) See Richardson v. Mellish (1824), 2 Bing. 229; and per Lord Henley, C., Morris v. McCullock (1763), Ambl. 432. (c) Parsons v. Thompson (1790), 1 H. Bl. 322. (d) Hanington v. Du Chatel (1781), 1 Bro. C. C. 124. service, made without the sanction, and in violation of the byelaws of the Company (e). So, Lord Hardwicke refused to carry into execution an agreement to assign the fees of the office of keeper of Bridewell, and the profits of a tap-house connected with the prison (ƒ). And where a clerk of the peace-appointed by the corporation of a borough under the Municipal Corporations Act, and having fees attached to his office-entered into an agreement with the corporation to receive a salary and account to them for the fees it was held by Wood, V.-C., that this agreement was void on the ground of public policy (g). CH. XXI. s. 3. But there may be a partnership in the profits of an office, as Partnership was held in Sterry v. Clifton (h). (g) Interference with Justice. It is an indictable offence at common law to agree not to prosecute a felon (i); any corrupt taking of a reward to help to recover property obtained either by felony or misdemeanour is itself a felony (k), and proceedings on penal statutes cannot be compounded without leave of the Court (1). Analogously, any contract which can prevent or impede the due course of public justice is invalid (m), as appears from the leading case of Collins v. Blantern (m), in which an agreement not to appear and give evidence at the trial of an indictment for perjury was held bad; and from many subsequent cases, especially Keir v. Leeman (n), in which the prosecution was for riot and obstruction of a public officer, and Windhill Local Board v. Vint (o), in which it was for interference with and obstructing a public road. And the rule on this subject would appear to be, that in misdemeanours 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 (p); but that an agreement for suppressing evidence, or for stifling or compounding a criminal prosecution or proceeding for a felony, or (e) Blachford v. Preston (1799), 8 T. R. 89; 4 R. R. 598; and see, further, Richardson v. Mellish (1824), 2 Bing. 229, 241, 247, 253. (f) Methwold v. Walbank (1750), 2 Ves. 238. (g) Corporation of Liverpool v. Wright (1859), 28 L. J., Ch. 868. (h) Sterry v. Clifton (1850), 9 C. B. 130, and post, p. 596. (i) See Reg. v. Burgess (1885), 16 Q. B. D. 141. (k) Larceny Act, 1861, 24 & 25 Vict. c. 96, s. 101. (7) 18 Eliz. c. 5, s. 3; and see Chitty's Statutes, 5th ed., tit. "Penal Actions." (m) See Collins v. Blantern (1767), 2 Wils. 341; 1 Sm. L. C. (n) Keir v. Leeman (1846), 9 Q. B. 371. (0) Windhill Local Board v. Vint (1890), 45 Ch. D. 351, C. A. (p) Per Cur., Keir v. Leeman (1846), 9 Q. B. 371, 395, Ex. Ch. in offices. Contracts affecting the course of justice. Keir v. Leeman. CH. XXI. s. 3. Illegal, &c., Contracts (Interference with Justice). Invalidating stipulation need not be express. Jones v. Society. Payment of debt by debtor himself. What com- Keir v. for a misdemeanour of a public nature, e.g., perjury, or the like, is void (q). The invalidating stipulation not to prosecute, &c., need not be expressed, but may be implied. Thus, where a son forged his father's name as indorser to notes, and the forgery having been discovered, the father agreed to mortgage his property to the holders in consideration of the notes being delivered up, the House of Lords held the agreement to be void (r). And in Jones v. Merionethshire Building Society (s), the cases on this branch of the subject are reviewed by Vaughan Williams, J. There the secretary of a building society who had made default and was threatened by the society with a prosecution for embezzlement, applied for assistance to the plaintiffs, his brother-in-law and mother-in-law, who undertook, in their desire, known to the directors, to prevent prosecution of the secretary, to make good the greater part of his debt for the expressed consideration that the society would not sue him for such part. It was held to be an implied term of the agreement that there should be no prosecution, and two promissory notes given by the plaintiffs were ordered to be set aside. But there is a great distinction between the cases where a probably embezzling or stealing debtor pays the debt himself, and the cases where a third person, who is under no obligation, pays it for him. Although the creditor may have threatened prosecution, an agreement by the debtor to pay or give security for the debt may be perfectly valid, it being open to any creditor to obtain payment of a debt justly due to him, and it is not enough to show that the creditor was induced to refrain from prosecuting, but it is requisite, in order to invalidate the agreement, to show clearly that there was an invalidating consideration for it (t). But the private rights of an injured party may be made the subject of agreement, in cases where, by the previous conviction of the defendant, the rights of the public have been preserved inviolate (u). Thus, where the defendant-who had been convicted before magistrates for a breach of the excise laws-gave (q) Keir v. Leeman, supra (p); Clubb v. Hutson (1865), 18 C. B., N. S. 414 (false pretences); Edgcombe v. Rodd (1804), 5 East, 294; 7 R. R. 700. (r) Williams v. Bayley (1866), L. R., 1 H. L. 200; and see Wallace v. Hardacre (1807), 1 Camp. 45; 10 R. R. 629. (s) Jones v. Merionethshire Permanent Benefit Building Society, [1891] 2 Ch. 587, per Vaughan Williams, J., explaining and distinguishing Ward v. Lloyd (1844), 6 M. & G. 785, and Flower v. Sadler (1882), 10 Q. B. D. 572. (t) See Flower v. Sadler (1882), 10 Q. B. D. 572, C. A.; Jones v. Merionethshire, &c., Society, supra. (u) Per Cur.. Keir v. Leeman (1846), 9 Q. B. 371, 394, Ex. Ch.; Beeley v. Wingfield (1809), 11 East, 46; 10 Ř. R. 431; and see Baker v. Townsend (1817), 7 Taunt. 422; 18 R. R. 521. CH. XXI. s. 3. legal, &c., Contracts (Interference with Justice). compromises. to the plaintiff to whom a warrant had been directed to levy So, a contract made for the purpose of preventing the erection Nuisance. or continuance of a public nuisance, has been said to be good; although part of the consideration be the forbearance to prosecute for the inconvenience already sustained (z). on attach So a contract entered into for the purpose of procuring the Liberation liberation of a person from custody under process which, although from custody criminal in form, is merely ancillary to civil proceedings-e.g., an ment. attachment issued against a receiver, for non-payment of a balance certified to be due from him-has been held valid (a). In the case of an assault, the injured party may undertake not Assault. to prosecute on behalf of the public (b); but the same rule will not apply where the assault was coupled with a riot, or with the Riot. obstruction of a public officer (c). An agreement to pay money, in consideration of a party using Procurement his interest to procure the pardon of a convict, is not binding (d). of pardon. Nor is an agreement to pay a sum of money to a party, in con- Withdrawal sideration of his withdrawing a petition to the House of Commons, against the return of a member on the ground of bribery (e). of election petition. An agreement by a shareholder in a company which is being Winding-up. compulsorily wound up, that in consideration of a sum of money, he would endeavour to postpone the making of a call, or would support the claim of a creditor, is illegal, as being contrary to the policy of the Winding-up Acts (ƒ). And so is an agreement, the consideration for which was the "Answering forbearing to further prosecute an application to the Court, to matters." compel a solicitor to answer the matters of an affidavit (g). CH. XXI. s. 3. All "composition" agreements between a debtor and creditor Illegal, &c., of a preferential character are void. The essence of such agreeContracts (Interference ments is equality between the creditors, consequently a creditor with Justice). who has executed a composition deed is entitled to repudiate it, if he afterwards discovers that other creditors have been induced to execute the deed by means of a secret bargain for a payment to them in excess of the composition, even if the bargain was made after his own execution of the deed (h). Similarly agreements for the withdrawal of opposition to the discharge of a bankrupt are bad (i). Bankruptcy. Milner, Ex parte. Divorce. Bail. Conduct of ceedings so as not to damage Also, in divorce, a bond by an adulterer who had seduced the obligee's wife to pay money in consideration of the husband forbearing to petition is void (k). A contract with bail to indemnify him is bad (1). A bond founded upon a consideration including promises that criminal pro- criminal proceedings should be so conducted that the name of a certain person should not be mentioned, or should be mentioned in such a way as not to damage him, was held to be founded partly on an illegal consideration, and it was recognised as an established principle that any contract having a tendency, however slight, to affect the administration of justice is illegal and void (m). person not Lound v. Maintenance. Champerty. (h) Maintenance and Champerty. Maintenance of suits is when one officiously intermeddles in a Bradlaugh v. suit depending in any Court, which no way belongs to him, by Newdegate. maintaining or assisting either party with money or otherwise, to prosecute or defend it (n). It is indictable both at common law and by statute, and is also actionable (o). Champerty is the purchasing a suit or right of action of another person; or rather, it is a bargain by some person, with a plaintiff or defendant, to divide the land or other matter sued for between them, if they prevail at law; whereupon that person, who is called the champertee, agrees to carry on the party's suit at his own expense (p). This also is a criminal offence both at common law (q) and by statutes declaratory thereof (r), and would seem also to be actionable. (h) Milner, Ex parte, Milner, In re (1885), 15 Q. B. D. 605. For other cases on this subject, see the numerous works on Bankruptcy. (i) See McKewan v. Sanderson (1875), L. R., 20 Eq. 65. (k) Brown v. Brine (1875), 1 Ex. D. 5. (1) Herman v. Jeuchner (1885), 15 Q. B. D. 561; and p. 68, ante. (m) Lound v. Grimwade (1888), 39 Ch. D. 605, per Stirling, J. (n) See Bradlaugh v. Newdegate (1883), 11 Q. B. D. 1; Alabaster v. Harness, [1995] 1 Q. B. 339, in both of which cases it was held that an action for maintenance lay. (0) See last note. (p) Per Williams, J., Anderson v. Radcliffe (1860), E., B. & E. 825, Ex. Ch. (9) See Master v. Miller (1791), 4 T. R. at p. 340, per Buller, J.; 2 R. R. 399. () See 3 Ed. 1, c. 25; 13 Ed. 1, st. 1, c. 49; 32 Hen. 8, c. 9, Chit. Stat., 5th ed., tit. " Champerty"; Attorneys and Solicitors Act, 1870, 33 & 34 Vict. |