or delivered should not subscribe their names to it as attesting witnesses. "It is," says Duncan, J., "a falsification of a fact material to the parties: if the witnesses die or remove out of the state proof of their hand-writing will establish the deed; it may respect lands and the grantee lie by until they are dead and then come out with his conveyance and proof of their hand-writing is proof of the delivery." Marshall v. Gougler, 10 S. & R. 168. The supreme court of Pennsylvania decided in this case that if the obligee caused the persons who subscribed as witnesses to put their names to the instrument without the consent and in the absence of the obligors, this would avoid the instrument. The party it said shall not take his chance of advantage from the falsification, and when that is detected, resort to another mode of proof and recover on the original instrument. There was in this case an assignment of the bond; the court was of opinion that if it appeared that the witnesses intended to put their names to the assignment to authenticate it, and by mistake put it to the bond, the bond would not then be void.

This case was not before the supreme court of North Carolina, at the time of its decision in Blackwell's adm'r v. Layne, 3 Dev. & Bat. 116, in which there having been placed on the paper the name of a person as a subscribing witness, as it seemed to the court not at the request or in the presence of the defendant, the court considered this not such an addition or alteration of the bond as would render it void.

The rule of Marshall v. Gougler has been recognized in Pennsylvania in subsequent cases. Foust v. Renno, 8 Barr 378; Henning v. Werkheiser, Id. 518; and Fritz v. Commissioners, 5 Harris 135. In one of these cases (Henning v. Werkheiser) there were to the instrument the names of two subscribing witnesses, each of whom proved that he wrote his name at the request of the plaintiff in the absence of the defendant. The court held the instrument void; it considered that the plaintiff having called the subscribing witnesses without success was not at liberty, as in the case of an unexploded deed, to give evidence aliunde of the execution of what had ceased by his misconduct to be a deed at all.

The doctrine has been considered by the supreme court of Massachusetts. This court holds 1, that if the obligee of au unattested bond, after the execution and delivery thereof, shall, without the knowledge and assent of the obligor, fraudulently and with a view to gain some improper advantage thereby, procure a person who was not present at the execution of the bond, to sign his name thereto as an attesting witness, such act will avoid the bond and discharge the obligor from all lia

bility on the same; 2, that the act of the obligee in procuring the signature of one as a witness who was not present at its execution and not duly authorized to attest it, will, if unexplained, be prima facie sufficient to authorize a jury to infer the fraudulent intent; but that it is competent for such obligee to rebut such inference; and if the act be shewn to have been done without any fraudulent purpose, the bond will not be avoided by such alteration. Adams &c. v. Frye, 3 Metcalf 108.

8. Whether bond is vitiated by expunging a credit on it.

In North Carolina it was contended that if a credit be entered on a bond and be fraudulently expunged, the bond itself is destroyed; the argument assuming that the entry of the credit becomes part of the bond so that its obliteration is a destruction of the whole instrument. This argument did not prevail; the court regarding the credit not as part of the deed but only as evidence of a payment on it, like a receipt. Simms v. Paschall, 5 Iredell 276.

CHAPTER IV.

ON A SEALED INSTRUMENT, THOUGH WITHOUT CONSIDERATION, THERE MAY BE A RIGHT OF ACTION WHEN NO ILLEGALITY APPEARS.

1. Bond without consideration valid.

For a covenant under seal no consideration is necessary. 16 M. & W. 353. Such is the rule of the common law. Sometimes we see it laid down that "the seal imports a consideration as much as if it was expressed in so many words." This is the language of Vanness, J., in Livingston v. Tremper, 4 Johns. 417. But the expression is thought not to be entirely accurate. No consideration being necessary to give validity to a deed, the law does not from the fact of execution make any inference one way or the other in reference to a consideration. Walker v. Walker, 13 Iredell 335.

Whilst a parol executory gift, or promise to give, may not be binding, the same promise, if evidenced by a sealed instrument, may be as binding as if founded on a valuable conside

ration. 10 Grat. 331. A voluntary bond for money, executed to a stranger, and professing on its face to be without consideration, and for mere friendship, is binding. 13 Iredell 336.

If a man who has seduced a woman shall endeavour in some degree to make her reparation, by giving her a bond for the payment of money, such bond may be enforced. Annandale v. Harris, 2 P. Wms. 432; 1 Brown's Par. Cas. 250 (Tomlin's edi.); 2 El. & Black. 123; 75 Eng. Com. Law Rep. 125. Though a bond be with a condition, reciting that it is "in consideration of cohabitation had" with the obligee, an action may nevertheless be maintained upon it. Turner v. Vaughan, 2 Wils. 339; where Bathurst, J., cites Exodus, c. 22. v. 16, and Deuteronomy, c. 22, v. 28, 29. Nor will it be a valid ground of defence to the action that the obligor was at the time of the cohabitation with the obligee, married to another woman, if the illicit connection with the obligee was determined before or at the time of giving the bond. Nye v. Moseley, 6 Barn. & Cress. 133; 13 Eug. Com. Law Rep. 119. These cases strikingly indicate the great effect of a seal. However strong in any of them may have been the precedent moral obligation, it would not be a consideration sufficient to sustain an action on a promise by words, or in a writing not under seal. Beaumont v. Reeve, 8 Adol. & El., N. S. 483; 55 Eng. Com. Law Rep. 483. Past cohabitation and previous seduction the law treats as no considerations at all. As, however, a bond or other instrument under seal is good without any consideration, so a bond for maintenance, founded upon past cohabitation, or previous seduction, is good. 3 El. & Black. 650; 77 Eng. Com. Law Rep. 650.

2. Distinction between a bond without consideration and a bond on illegal consideration; the latter void.

A seal does not prevent a contract from being impeached in a court of common law, for the illegality of the consideration. The distinction is between a bond given without consideration and a bond given upon an illegal consideration; one given to carry into effect an illegal object, or in pursuance of an illegal contract. A defendant, though he is not at liberty to shew that a bond executed by him is without consideration, may nevertheless prove that the consideration upon which it was given is illegal, as being immoral or contrary to public policy. Martin &c. v. Amos, 13 Iredell 201.

An action will not lie to enforce an illegal agreement, nor to enforce a bond or other instrument given in pursuance of the illegal agreement. It will not lie on a bond given by a

(6 to live

man to a woman for the performance of an agreement together" in a state of fornication, Walker v. Perkins, 1 W. Bl. 517; 3 Burr. 1568; or upon any agreement to pay money in consideration of future unlawful cohabitation; or upon a bond to secure money payable under such agreement, 3 El. & Black. 650; 77 Eng. Com. Law Rep. 650; or to indemnify against a note that is void, Collins v. Blantern, 2 Wils. 349; or upon any contract for a matter or thing prohibited by statute. Bartlett v. Viner, Carth. 252. A court of law will not lend its aid to enforce the performance of a contract between parties which appears upon the face of the record to have been entered into by both the contracting parties for the express purpose of carrying into effect that which is prohibited by the law of the land. This principle was acted on in Paxton v. Popham, 9 East 408, and the Gas light and Coke Co. v. Turner, 5 Bingh. N. C. 688; 35 Eng. Com. Law Rep. 268; in each of which cases the action was on a bond or covenant. "It would, indeed," says Tindal, C. J., "be inconsistent with reason and principle, to hold that by the mere ceremony of putting a seal to an instrument, that is, by the voluntary act of the parties themselves, a contract which was void in itself, on the ground of its being in violation of the law of the land, should be deemed valid, and an action maintainable thereon in a court of justice." S. C. The authorities clearly shew that a bond or covenant which springs from and is the creature of the illegal agreement, cannot be enforced. Fisher v. Bridges, 2 El. & Black. 118; 3 Id. 642; 75 Eng. Com. Law Rep. 118; 77 Id. 642; 25 Eng. Law and Eq. 207.

A like doctrine is maintained in the United States. Gray v. Hook, 4 Comstock 457, 459. The charge of Washington, J. in Toler v. Armstrong, 4 Wash. C. C. R. 299, stood the test of examination; his judgment was affirmed by the supreme court of the United States. Armstrong v. Toler, 11 Wheat. 268. The same principle is maintained in the state courts-of Massachusetts in Wheeler v. Russell, 17 Mass. 281; Fuller v. Dame, 18 Pick. 479; and White v. The Franklin Bank, 22 Id. 183; of Pennsylvania in Mitchell v. Smith, 1 Binn. 110; of New York in Neller v. Clark, 20 Wend. 24; 4 Hill 424; and Gray v. Hook.

The principle is applied to contracts made to influence unduly the operations of government. Wood v. McCann, 6 Dana 369; Hatzfield v. Gulden, 7 Watts 152; Cloppenger v. Hepbaugh, 5 W. & S. 315; Fuller v. Dame, 18 Pick. 472; Gray v. Hook, 4 Comstock 456.

"It is," says Mr. Justice Grier, "an undoubted principle of the common law, that it will not lend its aid to enforce a VOL. II.-3

contract to do an act that is illegal; or which is inconsistent with sound morals or public policy; or which tends to corrupt or contaminate, by improper influences, the integrity of our social or political institutions. Hence all contracts to evade the revenue laws are void. Persons entering into the marriage relation should be free from extraneous or deceptive influences; hence the law avoids all contracts to pay money for procuring a marriage. It is the interest of the state that all places of public trust should be filled by men of capacity and integrity, and that the appointing power should be shielded from influences which may prevent the best selection; hence the law annuls every contract for procuring the appointment or election of any person to an office. The pardoning power, committed to the executive, should be exercised as free from any improper bias or influence as the trial of the convict before the court; consequently, the law will not enforce a contract to pay money for soliciting petitions or using influence to obtain a pardon. Legislators should act from high considerations of public duty. Public policy and sound morality do therefore imperatively require that courts should put the stamp of their disapprobation on every act, and pronounce void every contract the ultimate or probable tendency of which would be to sully the purity or mislead the judgments of those to whom the high trust of legislation is confided." Marshall v. Baltimore & Ohio R. R. Co. 16 How. 334.

Generally speaking, no illegality being disclosed by the agreement, the court is unable to pronounce against it as illegal, until the illegality is pleaded and admitted or proved. Jones v. Waite, 9 Clark & Fin. 109; Wood v. McCann, 6 Dana 369. Illegality on the face of the instrument was shewn in Martin &c. v. Amos, 13 Iredell 201, and often appears in actions upon covenants in restraint of trade.

3. Rule as to bond or covenant in restraint of trade.

The authorities in respect to bonds and covenants in restraint of trade were reviewed, and the principle to be extracted from them defined in Hitchcock v. Coker, 6 Adol. & El. 438; 33 Eng. Com. Law Rep. 98; and Mallan &c. v. May, 11 M. & W. 667. The principle thus established has been since recognized as beyond controversy. Rannie v. Irvine, 7 Man. & Grang. 969; 49 Eng. Com. Law Rep. 969; Pemberton v. Vaughan, 10 Adol. & El. 87; 59 Eng. Com. Law Rep. 87; Hastings &c. v. Whitley, 2 W. H. & G. 611; Elves v. Crofts, 10 Com. Bench (J. Scott) 259; 70 Eng. Com. Law Rep. 259.