BONDS GRANTED FOR IMMORAL PURPOSES. TITLE V. UNLAWFUL CONSIDERATION, AND UNLAWFUL SUBJECT-MATTER. We have now examined the general requisites to be observed in the authentication of deeds; and have seen that certain parties are wholly, and others to a certain extent, subject to legal incapacity as regards the granting of deeds. But a further preliminary inquiry remains to be gone into. The object of all law is to promote what is beneficial and right; and, in order that deeds may be sanctioned and enforced by Courts of Law, the consideration for which they are granted, as well as their subjectmatter, must be agreeable to good morals and public policy. Whatever is contrary to the moral or public law, therefore, is to be excluded from contracts or obligations. The general rule on this point is thus stated by Professor Bell in his Commentaries: No claim or right of action can spring out of an illegal contract;' 'no Court will lend its aid to give sanction to a claim grounded upon immoral or illegal acts.' In his Principles, Mr. Bell quotes the maxim, adopted by our law from the Roman law, applicable to such cases, viz., melior est conditio possidentis vel defendentis, which operates in this way:-no one can, at his own hand, enforce a claim against a recusant obligant; when parties refuse to fulfil their obligations, the aid of the Court is required; and, if the Court will not assist them, they are powerless; the Court, however, does refuse its aid to enforce an unlawful contract, and so the party in possession continues to hold,—melior est conditio possidentis. The party in possession gets the better of the claimant, because of the Court's refusal to interfere. There are thus certain classes of contracts or obligations which cannot receive effect through the instrumentality of a deed, however regular and complete in point of form, and there are others in which clauses and stipulations in regular deeds will be allowed only modified effect. Contracts or obligations contra bonos mores can receive no effect. No claim will be enforced, founded on a bond granted as the price or wages of prostitution, especially when the bond shows that it was to be 1 Bell's Commentaries, i. 298. 2 Bell's Principles, p. 18. 3 Bell's Illustrations, i. p. 59, and cases of Hamilton and Friend there cited. 2 forfeited in case of the return to a virtuous life.1 The objection of immoral consideration may also be stated in reference to a legacy by will; it is open to the executor to inquire whether the bequest was given ob turpem causam, with a view to its being set aside, if granted for such cause. But, as a general rule, a bond to the victim of seduction, granted after the criminal intercourse has ceased, and as a provision and compensation for injury done, and not being the result of any promise under which the illicit connexion had been carried on, will sustain a claim.3 The same principle, however, which bars action on a bond or bill granted for an unlawful consideration, previous to payment, equally bars the claim to restitution after payment. The Court will not interfere in either case, therefore melior est conditio possidentis.* Obligations offensive to decency or morality, or having a tendency to mischievous or pernicious purposes, are not actionable. Thus action was refused for the price of a picture, which the defendant had cut to pieces as libellous. Likewise on a wager, connected with the life of Napoleon Buonaparte; and for the price of printing an obscene and indecent book. On the principle that marriage ought to be free of all improper restraint, and that it should proceed from free choice, a general restriction against marriage, imposed as the condition of the grant of a bequest, or the like, will be void. A bond or obligation by any individual engaging not to marry is null, as encouraging irregularity of life, and devoid of any proper interest in the obligee. 9 Again, where a widow executed a trust-conveyance of her whole property acquired, and to be acquired, for behoof of herself in liferent, but so long only as she should remain unmarried, and to her deceased husband's children in fee, the qualification of her right of liferent was held ineffectual, as being in restraint of marriage; and, on the same ground, the conveyance of the fee was held effectual only as regarded what belonged to her previous to a second marriage.10 But there is nothing illegal in a stipulation in a contract or mutual deed of settlement between spouses, that the provision in favour of the surviving spouse shall be terminable in case of his or her entering into a second marriage.11 Although, however, everything of the nature of improper restraint, even when clear of direct fraud, is to be looked on with disfavour, distinctions are to be drawn between conditions relative to marriage, when imposed (1.) In obligations granted by a father, in consequence of his natural liability to provide for his children; (2.) When he is merely granting an additional provision; and (3.) When the condition is imposed by third parties. Lord Kilkerran discusses the rules applicable to 6 Gilbert, Bell's Illustrations, i. p. 62. 1 Bell's Illustrations, i. p. 60, and case of Walker there cited. 2 Johnstone, 4th Dec. 1835, 14 Sh. 106. 3 Bell's Commentaries, i. 299, and Eng lish cases there cited. 4 Hamilton, 21st May 1816, F. C. English case of Du Bost, Bell's Illustrations, i. p. 61. 7 Poplet, ibid. p. 62. 8 Roper on Legacies, White's edition. 9 Bell's Commentaries, i. 301. 10 Leith, 25th Jan. 1853, 2 Stuart's Cases, 197. 11 Kidd, 10th December 1863, 2 Macph. 227. DOMESTIC RELATIONS. these cases, in his report of the case of Mackenzie ; and holds that a bond by the father, in fulfilment of his natural obligation to provide for his children, would be exigible, if a suitable marriage should take place, although the consent of third parties to his child's marriage, stipulated for by the father, should not have been obtained;-but that the condition would be strictly construed, in the case of conditions imposed by third parties, or by the father, in reference to additional provisions, and stipulating for his own consent; which propositions are supported by the cases noted below.2 Such a condition was found not transgressed when not known to the party; in which case the irritancy was found not incurred.3 But ignorance of the condition was thought of no importance in Mackenzie's case; and effect was given to an absolute condition by a father, applicable to his daughter's marrying without his consent, though she had been privately married before the date of the bond.* But, where the consent of third parties is the condition, such consent can be given effectually after, as well as before, the marriage,5 even although the clause shall in its terms require the consent to be first had and obtained. And the special form of giving consent pointed out in the deed of provision will not be insisted in, if there really is consent. Moreover, the refusal of third parties to give the consent, stipulated to be required of them, will not be effectual if they decline to give a reason for refusing; especially if the party refusing consent, and declining to give his reason, has a personal interest to refuse, as being debtor in the bond containing the provision." On the same principle of the Law's jealousy of all undue interference with marriage, marriage brokage contracts, that is, agreements or bonds for a premium to be given to a broker, or matchmaker, for his or her influence in bringing about a marriage (proxeneticum), are void. The decisions on that point are very numerous, and such contracts have never been sustained.10 Any stipulation which interferes with the natural exercise of the domestic affections, and relative duties, is also looked upon very unfavourably by the Law. It is not in all cases disallowed; for we have seen Courts of Law depriving a father of the guardianship of his children; and, in recent cases, refusing to support a father's claim to intercourse with his children; and withdrawing children from the custody of their 1 Mackenzie, 6th June 1750, M. 2977. 2 Dalziel, 9th June 1687, M. 2971; Rae, 3 Fetterneer, 3d Dec. 1686, M. 2969; 13 D. 1211; same parties, 17th Dec. 1856, 19 D. 187. 7 Grahame, 9th Feb. 1774, M. 2979. 8 Foord, March 1682, M. 2970. Pringle, 20th July 1688, M. 2972. 10 See on this point the cases reported in Morison's Dictionary, beginning at p. 2963, and the English cases cited by Professor Bell in his Illustrations, vol. i. pp. 63, 64, and Bell's Commentaries, i. 302. mother; and, in a case requiring extreme measures, it is probable that the Court would give effect to stipulations in private deeds, so far at least as to sanction a clause contingently involving the forfeiture of a patrimonial possession. But unless strong cause be shown, and especially if it appear that the stipulation is suggested by morbid feeling, I apprehend that it would not be allowed effect.1 In Reid's case, a party by his settlement conveyed his estate to trustees for his nephew, under a condition that the nephew should not reside with his mother, or any of her relations, nor his mother with him; and that, if he should contravene, the trustees should withhold from him all benefit under the settlement, during the period of contravention. Nothing is said in the report as to the character or status of the mother, or her relations. The rubric of the report bears that such condition 'is lawful in a settlement by an uncle upon his nephew;' which is also stated to be its purport in Ivory's Erskine. But perhaps the case, as reported, scarcely goes so far. In Fraser's case, a condition was made by a father in his will, that his daughter should forfeit her provision if she resided with her mother. The mother's character was proved, and admitted by the testator's trustees, to be pure and irreproachable; and the condition was held contra bonos mores, and pro non scripto. I will read to you the views most emphatically expressed by the Lord President Boyle, at disposing of His Lordship says, 'This is certainly and most happily an this case. ' unusual case. If this is not a condition contra bonos mores, it is impossible to say what is such a condition. It is admitted that there is 'not the least ground for any insinuation against the maternal conduct of 'the pursuer's mother. Taking it for the fact that her conduct has been 'perfectly irreproachable, I hold that there is not the least reason for thinking that this young lady, if left under her management, would 'suffer any moral contamination from her society. I think, therefore, 'that there cannot be the least difficulty in holding that this condition 'is contra bonos mores. I deny that any parent is entitled to dissolve 'the obligations under which the child lies to the other parent. A 'father has no title to say to his child, "You forfeit your rights from me 'if you do not cease to discharge your duties to your mother." While 'there is an express command of Almighty God, "Thou shalt honour thy 'father and thy mother," I hold that such a condition as this, whatever ' equivalent may be held out as its reward, is directly contra bonos mores, ' and contrary to the best interests of society." The passion which dictates such unnatural provisions, I have no doubt, is very imperious; but Conveyancers may often, by judicious firmness, prevent expression being given in a deed to feelings so unnatural, and which generally inflict much discredit on their author. You will find some very judicious remarks on this point by Mr. Christopher Douglas, W.S., in a letter to a testator, quoted in the case of Scott.3 1 See Reid, 5th March 1813, F. C.; and Fraser, 18th July 1849, 11 D. 1466. 2 Ivory's Erskine, p. 694. 3 Scott, 8th Feb. 1864, 2 Macph. 613. RESTRAINTS ON THE PERSON. Restraints on the liberty of the person were, in older times, partially THE LIBERTY OF allowed; but the last vestige of them was done away by the Acts relative to labourers astricted to coal and salt works.1 That curious chapter in the social arrangements of this country is now happily a matter of history. The Court had long previously refused to extend to fishermen the law regarding colliers and salters.2 3 Restraints on the ordinary privileges of the subject are to a certain extent allowable; but the assumption of exclusive rights by parties or associations who have no corporate monopolies, is illegal. It not unfrequently, however, has happened that one, entering the service of another, is required to restrain himself from carrying on the particular trade of his master, within a specified district, for the purpose of preventing future rivalship or competition. On this subject Professor Bell says,*—(1.) A general restraint extending to the whole country is void, whether with or without consideration given, on the ground of injury both to the individual sought to be restrained and to the public, who may thereby be deprived of a useful member; (2.) Particular restraints are effectual, on the principle that a man may, by his own consent, give over his business, or part with it to another, in a particular place; and he refers to the English case of Mitchell in support of this view. On this principle, agreements have been sustained, restraining one of the parties from particular trades within the same parish, or within half a mile, or within ten miles, or within the same city.5 The case of Davis was that of an assistant to a country surgeon. In Stalker's case, two persons entered into a copartnery of bookselling in Glasgow, to continue for three years, and, because (as the report says) the place was judged too narrow for two booksellers at a time, it was stipulated, 'That, after 'the expiry of the three years, either of them refusing to enter into a 'new contract upon the former terms should be debarred from any con'cern in bookselling within the city of Glasgow.' In a reduction of the contract, the Lords found the debarring clause in the contract a lawful. paction, and not contrary to the common liberty of the subject. The same principle was allowed effect in a recent case." Contracts, or stipulations, which interfere with the freedom of election to offices or places of trust, are void at Common Law. In these cases, as in the others we were lately considering, the rule Melior est conditio possidentis' equally holds. A person to whom money was paid, to be employed in bribery with reference to an election, was found not liable to be called to account in 1 15 Geo. III. c. 28, and 39 Geo. III. c. 56; 13th June 1799. 2 Allan, Dec. 1728, M. 9454. 3 Weavers of Glasgow, 17th Dec. 1734, Elch. Pactum Illicitum, No. 2; and Brown's Synopsis, iii. 1434; and Young, 21st Dec. 1765, M. 9564. 4 Bell's Commentaries, i. 302. 5 Mitchell's case; Chesman & Davis, Bell's Commentaries, i. 302; Stalker, 15th Jan. 1735, M. 9455 & 16,427; and Elch. Pactum Illicitum, No. 3. Watson, 14th July 1863, 1 Macph. 1110. |