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facts (p). An infant is not liable on a bill of exchange
given in payment of necessaries (). (2) An infant is
bound by certain (and semble any) contracts (other than
for money lent or goods supplied, or on an account
stated) which are fair and reasonable and unequivocally
for his benefit, e.g., a proper contract of apprenticeship or
service (r). (3) Contracts which by custom or special
statute are binding, e.g., marriage settlements made with
the approval of the court under the Infants' Settlement
Act, 1855. (1) An infant is in some cases liable after
majority on a contract, unless he expressly repudiates it
within a reasonable time, e.g., a marriage settlement by (s),
or a lease of real property granted to, an infant. Finally,
it may be observed that, to make an adult liable on a debt
or obligation contracted during infancy, an actual new
promise, after attaining majority, must be proved, and not
a mere ratification.
(0) Jarried women.-

-At common law, with a few exceptions, a married woman could not contract at all. In equity, she was allowed to bind her " separate estate” by her contracts. Now, by the Married Women's Property Acts, 1870, 1874, 1882, and 1893, her position is that she is personally liable for her ante-nuptial debts (t); and she can during marriage enter into any contract, as if she were a feme sole ; and such contract binds all her separate property, whether existing at the time of the contract or acquired afterwards, except property which is subject to restraint on anticipation (u).

A judgment against a married woman upon a post

(p) E.g., Clyde Cycle Co. v. Hargreares (1898), 78 L. T. 296.

(9) Re Soltykoji, [1891] 1 Q. B. 413; but consider Walter Ererard, [1891]2 Q. B. 369.

(r) Clementi V. London and North Western Rail. Co., [1894] 2 Q. B. 482; Fellows v. Wood (1889), 39 L. T. 513.

(8) Edwurde v. Carter, [1893) A. C. 360.

(t) Robinson v. Lynes, [1894) 2 Q. B. 577.

(u) See the Act of 1882, s. 1, and the Act of 1893, s. 1 ; Sweet v. Sweet, [1895] I Q. B. 12; HoodBarry v. Cathcart, [1894] 2 Q. B. 559.

nuptial liability cannot, however, be enforced against her personally, but only against her property (.).

Although a married woman's contract is presumed to bind her own separate property, yet, in certain cases,

her husband may be exclusively or

be exclusively or jointly liable for it. For instance, he is exclusively liable for wressaries ordered by his wife for herself or the household, except where he has expressly forbidden her to pledge his credit, or the tradesman to give her credit, or where she is already well supplied with goods of the kind in question (y).

But where the parties are separated, the husband is not liable, unless the separation is owing to his own misconduct, and he fails to make her an adequate allowance for maintenance (:).

(7) Lunatics.-A lunatic's contract is binding upon him, unless it can be shown that the other contracting party was aware at the time of the contract that he was dealing with a person of unsound mind (a). And in any case a lunatic is liable to pay a reasonable price for "necessaries" sold and delivered to him (b).

(8) Drunken persons.—The rule as to these is practically the same as that applicable to lunatics. But it is obvious that it would in most cases be less easy for the party seeking to enforce the contract to prove his ignorance of the intoxication than of the insanity of the other party.

(9) Corporations.-A corporation at common law has, generally speaking, the same capacity to contract that a natural person has. But statutory or chartered corporations are subject to any restriction imposed by the statute or charter creating them. And joint stock companies and other companies created by or under statute for particular purposes are strictly limited to the powers, of contracting and otherwise, conferred by their memorandum of association, or by the special statute creating them (c).

(x) Scott Morley (1887), (z) Eastland v. Burchell (1878), 20 Q. B. D. 120.

3 Q. B. D. 432. (y) Manby v. Scott (1659), 1 Sid. (a) Imperiul Co. v. Stone, [1892] 112; Seaton v. Benedict (1828), 1 Q. B. 599. 5 Bing. 28 ; Debenham v. Mellon (6) Re Rhodes (1880), 44 Ch. D. (1880), L. R. 6 App. Cas. 24; 94 ; Sale of Goods Act, 1893, s. 2. Morel v.

Westmoreland (1902), 51 W. R. 290.

Sub-section (7).--Legality of subject matter. A contract which is illegal is, of course, unenforceable ; but the mere fact that a contract legal in itself might be performed in an illegal manner, does not necessarily avoid it, unless an intention so to perform it can be proved (d). A bond or other security given for a debt originating in an illegal transaction, is deemed by law to be tainted with the original illegality, and is therefore unenforceable (e). But where the contract was merely void and not illegal in the sense of being prohibited, a security given in respect of it, if under seal, is enforceable (1). Again, money paid under an illegal agreement, which has been executed wholly or in a material part, cannot be recovered, on the principle “in pari delicto melior est conditio possidentis.But if the agreement has not yet been carried out in any material respect, the money may be recovered back. (9). Money paid to a stakeholder to abide the event of a wager can also be recovered in any case, if notice reclaiming it is yiven before it has been actually paid over to the owner (1).

If a party who has paid money under an illegal contract has done so innocently, or under such circumstances that he cannot be regarded as in pari delicto, he can recover it, even after performance of the contract.

Where part only of a contract is illegal, a promise which (C) Ashbury Carriage Co. v. (5) Fisher v. Bridges (1854), Riche (1875), L. R. 7 H. L. 653 ; 3 E. & B. 642. Veccastle-on-Tyne v. Attorney (g) Taylor v. Bovers (1876), General, [1892] A. C. 568.

1 Q. B. D. 291 ; Kearley v. T'hom(d) Waugh v. Morris (1873), son (1890), 24 Q. B. D. 746. L. R. 8 Q. B. 202.

(h) Unirersal ock Exchange v. (e) Negotiable

Strachan, [1896] A. C. 166. stand on a special footing. (See poxt, p. 158.)


can be separated from the illegality may be valid (i). Finally, it should be remembered that a contract originally legal may become discharged, owing to illegality subsequently supervening (;).

Contracts may be illegal either (1) at common law or (2) by statute. Illegality in the former case is usually based on grounds of immorality, criminality, or antagonism to public policy. In statutory cases, regard is to be had merely to the express provisions of the statute, though, of course, the ratio legis would generally be based on similar grounds to those just mentioned. A statute may prohibit a contract either expressly or by clear implication. The fact of a statute imposing a penalty presumptively implies a prohibition (k).

On the other hand, it may be observed that if a contract is expressly confirmed by Act of Parliament, every clause in it has statutory validity (1).

We will consider, briefly, the chief classes of illegal contracts. For the purposes of the present work, only a few kinds require any detailed explanation.


(1) Contracts tending to interfere with the Government : e.f., agreements involving bribery or undue influence at elections (m); agreements for the sale of public offices ; agreements for the procuring of titles of honour for a consideration (n); agreements for the sale of public officials' salaries or pensions for continuing or future public services (o).

(i) Pickering v. Ilfracombe Railaray (1868), L. R. 3 C. P. 250.

(1) O'Neil v. Armstrong, [1895] 2 Q. B. 418.

(k) Cope v. Rowlands (1836), 2 M. & W. 149.

(l) Manchester Ship Canal Co. v. Manchester Racecourse Co., [1901] 2 Ch. 37.

(m) Cooper v. Slade (1857), 6 H. L. C. 746 ; Coppock v. Bourer (1838), 4 M. & W. 361.

(n) Egerton v. Brownlour (1853), 4 H. L. C. 1. (0) Lucas

Harris (1887), 18 Q. B. D. 127.


(2) Contracts tending to impele the alministration of justice : e.g., agreements tending to pervert the course of justice, for instance, to pay a witness in proportion to the amount recovered at the trial ; or to indemnify a person who goes bail for a prisoner (p).

(3) Contracts for the encouragement or procuring of crimes : e.g., an agreement to commit a murder, or an agreement between several persons to buy shares in a company in order to induce the public to believe that there is bona fide market in such shares (9).

(4) Contracts to compound criminal prosecutions : e.g., to acknowledge the signature on a forged bill in consideration of the holder forbearing to prosecute the forger (r). But the mere existence of a threat of criminal proceedings does not vitiate a contract, if there is no agreement to abstain from prosecuting ($). And the compromise of a claim for damages is valid, even though the injured party may have an alternative remedy of a public nature by prosecution (t).

(5) Contracts in the nature of maintenance or champerty: e.g., an indemnity against costs given to a party for the purpose of maintaining a suit in which the person indemnifying has no bona fide interest ; or an agreement for the sale of the right to any damages recovered in a pending suit (u).

(6) Contracts with an enemy Government or its subjects in time of war (:). But there is an exception where the Crown grants a licence to trade with the enemy.

(p) Collins v. Blantern (1767), 1 Sm. L. C. 355 ; Consolidated, etc. Co. v. Musgrave, [1900] 1 Ch. 37.

(9) Scott v. Brown, [1892] 2 Q. B. 724.

(r) Brook v. Hook (1871), L. R. 6 Ex. 89; Collins v. Blantern (1767), 1 Sm. L. C. 369.

(*) Jonex v. Merioneth Building Society, [1892] 1 Ch. 173.

(1) Windhill

v. l'indt (1890), 45 Cl. D. 351.

(ul) See, generally, Bradlaugh v. Verdigate (1883), 11 Q. B. D. 11 ; Alabaster v. Harness, [1895) 1 Q. B. 339 ; Rees v. De Bernardy, [1896] 2 Ch. 437.

(2) Willison v. Pattison (1819), 1 Taunt. 439; Janson v. Driefontein Mines, [1902] A. C. 484.

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