Page images

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 Eng. 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

man to a woman for the performance of an agreement "to live 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.

A contract excluding a party from carrying on any where or at any time a particular trade or business is illegal. Alger v. Thatcher, 19 Pick. 51. But there may be a covenant not to carry on such trade or business within a prescribed distance; the courts sustain as valid, a restriction reasonably limited as to space. Elves v. Crofts, 10 Com. Bench (J. Scott) 259; 70 Eng. Com. Law Rep. 259. The prescribed limits were deemed not unreasonable in Pierce v. Fuller, 8 Mass. 223; Perkins v. Lyman, 9 Id. 522; Stearns v. Barret, 1 Pick. 450; Palmer &c. v. Stebbins, 3 Id. 188; Pierce v. Woodward, 6 Id. 206; Nobles v. Bates, 8 Cow. 307; Chappel v. Brockway, 21 Wend. 157; Pyke v. Thomas, 4 Bibb 486.

A covenant in restraint of trade, is sometimes divisible, and held reasonable and valid as it regards the exercise of a particular business in a certain section of country, and unreasonable and void for a greater distance. Chesman v. Namby, 2 Str. 739; 2 Ld. Raym. 1456; Mallan &c. v. May, 11 M. & W. 667; Price v. Green, 16 Id. 352; Nicholls v. Stratton, 10 Adol. & El., N. S. 346; 59 Eng. Com. Law Rep. 346.

4. Bond or covenant may be good in part, and void for the residue.

That bonds and other deeds may, in many cases, be good in part, and void for the residue, where the residue is founded in illegality, but not malum in se, is a doctrine of the common law, recognized from an early period. Pigot's case, 11 Rep. 276. Notwithstanding the case of Lee v. Coleshill, Cro. Eliz. 529, the doctrine is still maintained in all cases where the dif ferent covenants or conditions are severable, and independent of each other, and do not import malum in se. Newman v. Newman, 4 M. & S. 66. And though in Norton v. Simmes, Hob. 14, a distinction was taken between a bond void by statute and by common law, the distinction prevails only when the statute has not confined its prohibitions to the illegal conditions, covenants or grants, but has expressly, or by necessary implication, avoided the whole instrument to all intents and purposes. Malaverer v. Redshaw, 1 Mod. 35. It is considered in other cases that there is no distinction between bonds and other deeds containing covenants or grants not malum in se, but illegal at the common law, and those containing conditions, covenants or grants illegal by the express prohibitions of statutes; but that the bonds or other deeds are void as to such conditions, covenants or grants which are illegal, and are good as to all others which are legal and unexceptionable in their purport. This doctrine has been maintained and acted

on by the supreme court of the United States. Postmaster General v. Early, 12 Wheat. 136; Smith v. U. S. 5 Peters 293; Brown v. U. S. Id. 373; U. S. v. Bradley, 10 Peters 363; the court 1egarded it as established by the cases of Mouse v. Leake, 8 T. R. 411; Kerrison v. Cole, 8 East 236; Wigg v. Shuttleworth, 13 Id. 87; How v. Synge, 15 Id. 440; Greenwood v. Bishop of London, 5 Taunt. 727; 1 Marsh. 292; Thompson v. Pilcher, 6 Taunt. 359; 2 Marsh. 61.



There are two kinds of covenants, viz., a covenant in law and a covenant in deed. 1 Co. Lit. 1396; which last is termed an express covenant. Vaughan's Rep. 118.

1. Of implied covenants.

A covenant in law, properly speaking, is an agreement which the law infers or implies from the use of certain words, having a known legal operation in the creation of an estate; so that after they have had their primary operation in creating the estate, the law gives them a secondary force, by implying an agreement on the part of the grantor to protect and preserve the estate so by those words already created; as if a man by deed demise land for years, covenant lies upon the word "demise," which imports or makes a covenant in law for quiet enjoyment; or if he grant land by feoffment, covenant will lie upon the word dedi. Tindal, C. J. in Williams v. Burrell, 1 Man. Gr. & Scott 429; 50 Eng. Com. Law Rep. 429; 7 Gill & J. 315.

The implied covenant created by the word demise in a lease made by tenant for life, will only extend to make him warrant the estate as long as he lived; though there may be an ouster by the remainderman after the death of the tenant for life and before the effluxion of the term, no action will lie against the executors of the lessor on his implied covenant. Dyer 257a; Bendloe 150; Bragg v. Wiseman, 1 Brownl. 22; Hyde v. Canons of Windsor, Cro. Eliz. 553; Shep. Touch.

« PreviousContinue »