impossibility of al action on the bond, the defendant pleaded that before the Subsequent said 25th December the debtor died, and upon demurrer judgment was given for the defendant on the authority of ternative Laughter's case (a). In a subsequent case, however, it was said by the Court that "the rule and reason in Laughter's case ought not to be taken so largely as Coke has reported it, but according to the nature of the case;" and it was stated that the judges who had decided Laughter's case had denied that they laid down such a rule as Coke had reported; yet the whole Court held that the case of Laughter was good law (b). So, where A. in consideration of £100 bound himself in a bond conditioned either to make a lease for the life of the obligee before such a day, or to pay him £100, and the obligee died before the day, it was adjudged that the obligor should pay the £100 (c). The plaintiff sued upon a bond, reciting the intended marriage of the plaintiff, and conditioned that defendant should pay to the plaintiff or to her children by her intended husband £3000 within six months after the defendant should become the Duke of Bolton; the defendant pleaded that the plaintiff's husband died without having any child before the defendant became Duke of Bolton, and relied upon the doctrine laid down by Coke in Laughter's case; but the Court denied that doctrine to be law, and held that, construing the condition of the bond according to the intention of the parties, the plea was bad (d). In the case of Jones v. How, a father upon the marriage of his daughter covenanted with her husband by deed or will to give, leave, and bequeath to his daughter an eighth part (that being an equal share with his other children), of all the real and personal estate of which he should die seised or possessed; the daughter died in the lifetime of her father, without issue, and the father did nothing in performance of the covenant; upon a case sent from the Court of 95. (a) Warner v. White, Sir T. Jones, (b) See Studholme v. Mandell, 1 L. Raym. 279; Drummond v. Duke of Bolton, Sayer, 243; and see per Kindersley, V.C., Barkworth v. Young, 4 Drew. 1, 24; 26 L. J. C. 153, 163. (d) Drummond v. Duke of Bolton, promise. Subsequent Chancery for the opinion of the Court of Common Pleas, impossi. the Court certified that there was no cause of action upon alternative the covenant, but assigned no reasons for the certificate (a). bility of promise. Impossibility of alternative promise after election. In the similar case of Barkworth v. Young (b), a father on the marriage of his daughter promised her husband that he would at his death leave to his daughter an equal share of his property with his other children; the daughter died in the lifetime of her father, leaving issue which survived him; the father died having made a will leaving all his property to other children to the exclusion of the daughter; upon a bill claiming the benefit of the promise against the father's estate, the Court treated the promise as an alternative one which was capable of being performed in two ways: either by bequeathing to his daughter by will an equal share, or by dying intestate and leaving her to share equally with his other children under the statute of distributions; by the death of the daughter in the lifetime of her father the latter mode of performing the promise became impossible, but, as she left children who survived her father, it was possible for him to have made a bequest to his daughter by will which by virtue of the 33rd section of the Wills Act, 1 Vict. c. 26, would not have lapsed, but would have taken effect as if the death of the daughter had happened immediately after his death. The Vice-Chancellor Kindersley was of opinion that it was manifestly the intention of the parties that in one way or other the daughter should have an equal share of the testator's property, and if the testator was prevented even by the act of God from performing his obligation in one way, he was bound to perform it in the other way which was possible, and he decreed accordingly (c). Where the contract is to perform one of two alternatives at the election of one of the parties, and the election is made, the contract becomes single and absolute to perform the alternative chosen; and if, after the election is made, the alternative chosen becomes impossible, the liability of the party bound depends upon the principles already stated (a) 9 C. B. 1; Wigram, V.C., confirmed the certificate, see S. C. 7 Hare 267; 19 L. J. C. 324; 9 C. B. 19 (a). (b) 4 Drew. 1; 26 L. J. C. 153. (c) See the observations of Kindersley, V.C., cited ante, p. 372. respecting subsequent impossibility (a). An insurance company, having insured certain buildings against fire by a policy reserving to them the option either to reinstate the premises injured or to pay the loss, upon a fire happening, chose the former alternative; the buildings were subsequently ordered to be taken down by the public authorities as being in a dangerous condition, but such condition was not caused by the fire; the company were, nevertheless, held bound by the alternative they had chosen, and became liable in an action for not reinstating the premises (b). tion impos In contracts containing an executory consideration, or in Considera. which a promise is given for a promise, the impossibility of sible of perperformance may be incident upon the consideration of the formance. contract; and the question will then be as to the effect of the impossibility upon the promise made in respect of such consideration (c). A promise which, at the time of making it, is void by reason of impossibility of performance cannot form a sufficient consideration for a contract (d). A promise which is possible and valid at the time of making it would form a sufficient consideration to support a contract, though it might become subsequently impossible. The contract might be made conditional on the continued possibility of performance, and then, upon the event of the impossibility occurring, the contract would be void (e); or the performance of the consideration might be made a condition precedent to the promise made in respect of it, and then the promise would fail by reason of the non-performance of the condition precedent, in the event of such condition becoming impossible of performance (ƒ). (a) See ante, p. 361. (b) Brown v. Royal Ins. Co., 1 E. & E. 853; 28 L. J. Q. B. 275. (c) See ante, p. 11. (d) Harvey v. Gibbons, 2 Lev. 161; Nerot v. Wallace, 3 T. R. 17; (e) See ante, p. 364. cited Illegality. If there is anything unlawful in the matter or purpose of an agreement it is void on the ground of illegality, and cannot give rise to a contract. A matter may be illegal by By the com. mon law. By statute law. Matters force of the common law or of the statute law. The common law forbids generally such matters as are contrary to morality and public policy; but the particular instances in which it will avoid agreements upon those grounds must be sought in the decisions of the Courts. The statute law expresses its commands and prohibitions in written language, upon the construction of which it is to be determined whether a particular agreement is forbidden or not. The statute law sometimes imposes a penalty on a partisubjected to cular matter without further expressly restraining it; it is penalties. then held, as a general rule, that such a penalty implies a prohibition, and that an agreement concerning the matter so prohibited is void for illegality (a). Acts of Parliament sometimes impose a penalty or prohibit a matter for some particular purpose only, as for the purpose of protecting the revenue, and without intending the prohibition to have any further operation; an agreement concerning such matter may be held to be valid, although a party to it may incur a penalty or commit an offence against the statute (b). In (a) Bartlett v. Vinor, Carthew, 252; Law v. Hudson, 2 Camp. 147; 11 East, 300; Cope v. Rowlands, 2 M. & W. 149; Forster v. Taylor, 5 B. & Ad. 887. (b) Johnson v. Hudson, 11 East, 180; Wetherell v. Jones, 3 B. & Ad. 221; Brown v. Duncan, 10 B. & C. 93; Smith v. Mawhood, 14 M. & W. 452; Bailey v. Harris, 12 Q. B. 905. such cases the question arises upon the construction of the Act of Parliament, whether the Legislature means to prohibit the contract made or not; if it does, the purpose of the Legislature, whether that of the revenue or otherwise, is immaterial,—the contract is illegal and void, and no right of action can arise out of it (a). The following are some of the principal matters which have been declared to be illegal by the statute or the common law in cases where agreements made concerning them. have been called into question, and decided to be void, on the ground of illegality. contracts. A wager is a contract conditional upon an event in which Wagering the parties have no interest, except that which they create by the wager. At common law wagers were not unlawful and might give a good cause of action (b); but there were wagers upon some subjects, which, upon grounds of public policy, the law refused to recognise. Thus, wagers which affected the interests or feelings of other persons were held void in law, as a wager respecting the sex of another person (c); a wager as to the duration of the life of Napoleon Bonaparte was held void, as tending to encourage his assassination (d); a wager on the conviction or acquittal of a prisoner upon his trial on a criminal charge was held void. as tending to pervert the course of public justice (e); a wager on the event of an election was held void (f); so, a wager upon the future amount of a branch of the public revenue (g); a wager made by a person that he would not marry within six years was held void, as tending to discourage marriage (h). The statute 8 & 9 Vict. c. 109, s. 18, enacts "that all contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void; and that no suit shall be brought or maintained in any Court of (a) Ib. (b) Good v. Elliott, 3 T. R. 693; Cousins v. Nantes, 3 Taunt. 513, 515; Hussey v. Crickitt, 3 Camp. 168; Dalby v. India Life Ass. Co., 15 C. B. 365, 387; 24 L. J. C. P. 2, 6. (c) Da Costa v. Jones, Cowp. 729. (d) Gilbert v. Sykes, 16 East, 150. P. 467. (h) Hartley v. Rice, 10 East, 22. |