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printed his name (*). So, too, it was held that a person could not recover money advanced for the bringing out of Italian operas at a theatre, which he must have known was not licensed as required by 10 Geo. II., c. 28, and 28 Geo. III. c. 30(t). The chief difficulty arises when the object of the contract is not necessarily or manifestly immoral. A lessor, for example, sues for the rent of lodgings which he knows are to be used for the purposes of prostitution (u). A washerwoman washes and does up clothes for a woman known to be a prostitute (.r). An owner of a brougham lets it to a prostitute to enable her to ply her calling (y). The cases in which facts such as these have been proved, have not been consistent; but the true rule seems to be laid down by the Court of Exchequer in Pearce v. Brooks (2),-an action by coachmakers for the hire of a brougham let to one who used it for immoral purposes-that the plaintiff cannot recover if an article were supplied with a knowledge that it was to be used for such a purpose. The application to cases of hiring and service is obvious. No one could recover for services which he knew were given in furtherance of an immoral object.

It is impossible to enumerate here all the kinds of considerations which have been pronounced invalid as being contrary to public policy. The views of the Courts as to this have varied from time to time. Some judges have claimed

(s) Bensley v. Bignold (1822), 5 B. & Ald. 335. See also Allen v. Rescous, (28 Chas. II.), 2 Lev. 174. Contract “to beat J. S. out of a close." Cope v. Rowlands (1836), 2 M. & W. 149. (Unlicensed broker in London cannot recover commission.) Harrington v. Victoria Graring Dock Co. (1878), L. R. 3 Q. B. D. 549 ; 47 L. J. Q. B. 594. (Plaintiff, an engineer of rail. way company, sued the defendants upon a contract for commission in consideration of his using his influence to induce the railway com

(t) De Begnis v. Armistead (1833), 10 Bing. 107.

(u) Girardy v: Richardson (1793), 1 Esp. 13.

(x) Lloyd v. Johnson (1798), 1 B. & P. 340.

(y) Pearce v. Brooks (1866), L. R. 1 Ex. 213.

(z) See note (y). See also Waugh v. Morris (1873), L. R. 8 Q. B. 202; 42 L. J. Q. B. 57. The dictum of Ellenborough, C. J., in Bowry v. Bennet (1808), 1 Camp. 348, that it must be shown not only that the plaintiff had notice of the defendant's immoral calling, but that he expected to be paid from the prosts derived from it, cannot be regarded as correct.

accept the defendants' tender for the repair of ships ; no vight of action, though the jury found that this contract had not in fact affected the mind o? the plaintiff.)

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almost uncontrolled power to decide what is public policy. Others have declined to go beyond the lines of past decisions. The doctrine has been acted upon with respect to marriage brokage bonds, contracts in restraint of trade, insurances by sailors of their wages, and sales of offices ((). The following are two of the most important classes bearing upon the subject of this book :

(1.) Contracts for sale of public offices. At Common Law contracts for the sale of public offices are null and void (b). The Legislature has also declared that such transactions are invalid; see 12 Rich. II., c. 2; 5 & 6 Edw. VI., c. 16, and 49 Geo. III., c. 126. The Act of Edward VI. enumerates a large number of public offices, and imposes (sec. 1) a penalty for the buying and selling of them. Bargains, sales, promises, bonds, agreements relating to such transactions are declared void. The 49 Geo. III., c. 126, extended the provisions of 5 & 6 Edw. VI., to all offices in the gift of the Crown (sec. 1), and declared that persons buying, selling, receiving, or paying money or rewards for offices were guilty of misdemeanors. An agreement which stated that the defendant held the office of “customer” at Carlisle in trust for the plaintiff, and by which the defendant promised to appoint such deputy as the plaintiff should nominate, and to empower him to receive the salary, was held to be illegal at Common Law, and contrary to the two firstnamed statutes (c). So, too, where the defendant promised the plaintiff, who was master joiner at His Majesty's dock-yard at Chatham, in case the defendant should succeed the plaintiff in his post, to allow him a certain annual share of the profits of the office, Lord Loughborough refused to recognise that there was a good consideration, and declared the agreement invalid (d). For similar reasons the Courts have declared

(a) For discussion of the subject, see opinions of the judges in Egerton v. Broenlov (1853), 4 H. of L. 1.

(6) Coke, Litt. 234a ; Corporation of Liverpool v. Wright (1859), 28 L.

J. C. 868.

(e) Gauforth v. Fcaron (1787), 1 H. B. 328.

(d) Parsons v. Thompson (1790), 1 H. B. 322.


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that agreements for a sale or an assignment of the profits or emoluments of such offices (e) are invalid. But in order to come within the principle, the offices must be really of a public character. In Grenfell v. The Dean and Canons of Windsor (), it was proved that the defendant, M., a Canon of Windsor, had granted his canonry and the profits of it to the plaintiffs to secure a sum of money. There was no cure of souls; the only requirement was residence within the Castle, and attendance at chapel twenty-one days a year. Lord Langdale held the agreement to be valid; the duties not having been shown to be in any way for the benefit of the public, or the maintenance of the dignity of the sovereign (g).

(2.) Contracts in restraint of trade. Contracts which are in general restraint of trade are void.

It will be seen from the note below, that the origin of the rule is uncertain, and that its exact limitation was not always understood (h). But since the decision in Mitchel v.



(e) Palmer v. Bate (1821), 2 B. & B. 673. (Sale of profits of clerk of the peace.)

(f) (1846), 2 Beav. 544.

(9) See also Low v. Low (i735), 3 P. W. 391 ; Blackford v. Preston (1799), 8 T. R. 89; Hanington v. Duchastel (1781), 1 Bro. C. C. 124 ; i Sw. 139 n.; Flarty v. Odlum (1790), 3 T. R. 681 ; Waldo v. Martin (1825), 4 B. & C. 319; Thomson v. Thomsm (1802), 7 Ves. 478 ; Card V. Hope (1824), 2 B. & C. 661 ; 4 D. & R. 164 (a deed of sale of ship in service of East India Company); Richardson v. Mellish (1824), 2 Bing. 229 ; Cooper v. Reilly (1829), 2 Sim. 560 (salary of assistant parliamentary counsel to Treasury not assignable); R. v. Charretie (1849), 13 Q. B. 447 ; Graeme v. Wroughton (1855), 11 Ex. 146 ; 24 L. J. Ex. 265; Corporation of Liverpool v. Wright (1859), 28 L. J. Ch. 868. (For other

cases under the above Acts, Chitty's Statutes, Vol. iv., edited by Lely.)

(h) As to the difference of opinion, see Jollyfe v. Broad (1621), Cro. Jac. 596.

Mr. Parsons suggests (Contract 2, 748) that the law as to straint of trade grew out of the English law of apprenticeship, by which no person could exercise any regular trade or handicraft, except alter a long apprenticeship, and generally a formal admission to the proper guild. “If he had a trade, he must continue in that trade, or have none. To relinquish it, therefore, was to throw himself out of employment ; to fall as a burthen upon the community ; to become a pauper.' The principle was not, perhaps, definitely laid down until 1711, when Mitchel v. Reymolds was decided ; but it is stated long before the pass.

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Reynolds (i), in the King's Bench, in 1711, the following principles have been established :-(1.) That all contracts in general restraint of trade are void ; (2.) That particular or limited restraints, if for good consideration, are valid. Primâ facie," to quote the language of the Court in Hilton v. Eckersley (k), “it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it (his trade) on, according to his own discretion and choice. If the law has in any matter regulated or restrained his mode of doing this, the law must be obeyed. But no power short of the general law ought to restrain his free discretion.” Hence the Courts have refused

" to give effect to agreements by which persons professed to surrender this right.

(1.) The first requisite of valid agreements in any way in restraint of trade is that they must be partial as regards space. Even if limited in time, a contract unlimited as regards space will be void. Thus, a bond by which a person boudd himself not to follow, or be employed in, the business of a coal merchant for nine months after he should have left his employment, was held bad (). But the Courts will enforce an agreement to take an apprentice, servant, or clerk or traveller, on condition that he shall not solicit custom from the master's customers after or during his engagement, or set up the same trade in opposition to his employer in the immediate neighbourhood.

(2.) The restraint or limitation must be reasonable. This is a question of law for the Court (m). The test will be whether the limit imposed is in excess of what is required

ing of the 5th of Elizabeth-the first reported case bearing date 1415 (2 Hen. V., f. 5, pl. 16) -and at Common Law there was no such restriction. In Owen, p. 143, the doctrine is based on the words of Magna Charta

Probably it arose out of the necessity of putting limits to the practice of corporations by bye-laws, and otherwise preventing persons

exercising trades, except they were free of the city. See Introduction.

(i) 1 P. W. 181 ; 1 Smith's L. C., 8th Ed. 417. For reasons of the distinction, Ward v. Byrne (1839), 5 M. & W. 548.

(k) (1856), 6 E. & B. 66 ; 25 L. J. Q. B. 199.

(1) Ward v. Byrne ; see note (i).
(m) Parke, B., in Mallan v. May

for the protection of the party in favour of whom it is made. “Whatever restraint," it has been said, “is larger than the necessary protection of the party, can be of no benefit to either; it can only be oppressive; and, if oppressive, it is in the eyes of the law unreasonable" (n). Agreements not to carry on business of perfumer and hair merchant within London or Westminster, or 600 miles from the same (o); not to be employed as coal merchants for nine months(p); not to carry on trade as brewer, &c., in Sheffield or elsewhere for ten years (1), have been held void. On the other hand, agreements by vendors of a patent process of manufacture, not to carry on in any part of Europe a manufacture with the same object as the patent (1); not to carry on business as a surgeon within ten miles of a place for fourteen years (8); not to practise as attorney within London or 150 miles of it (t); not to carry on business in horsehair within 200 miles of Birmingham (u); not to carry on trade as a milkman for twenty-four months within five miles of Northampton Square (y), have been held valid. The decision of the Privy Council in Collins v. Locke (z), illustrates the mode of dealing with this question. Certain persons carrying on the business of stevedores in Melbourne, entered into an agreement with a view to prevent competition. One

(1843), 11 M. & W. at p. 668 ; Tallis V. Tallis (1853), 1 E. & B. 391 ; 22 L. J. Q. B. 185.

(n) Tindal, C. J., in Horner v. Groves (1831), 7 Bing. 743 ; see also Parke, B.'s, judgment in Mallan v. May (1843), 11 M. & W. 653.

(0) Price v. Green (1839), 16 M. & W. 346.

(P) Ward v. Byrene (1839), 5 M. & W. 548.

(9) Hinde v. Gray (1840), 1 M. & G. 195.

(r) Leather Cloth Co., v. Lorsont (1869), L. R. 9 Eq. 345; 39 L. J. Ch. 86.

(s) Davis v. Moxon (1793), 5 T. R. 118.

(1) Bunn v. Guy (1803), 4 East, 190

(1) Harms v. Parsons (1862), 32 Beav. 328 ; 32 L. J. Ch. 247.

(y) Proctor v. Sargent (1840), 2 M. & G. 20. As to what is meant by carrying on business, see Turner v. Evans (1852), 2 E. & B. 512; Arrry v. Langford (1854), Kay, 663 ; 23 L. J. Ch. 837. As to mode of measurement of distance, Atkyns v. Kinnier, (1850), 19 L. J. Ex. 132; Duignan v. Walker (1859), 28 L. J. Ch. 867 ; Mouflet v. Cole (1872), L. R. 8 Ex. 32 ; 42 L. J. Ex. 8. As to how far such contracts may be partly sustained and partly rejected, Price v. Green (1847), 16 M. & W. 346 ; Mallan v. May (1843), 11 M. & W. 653 ; Nicholls v. Stretton (1847), 10 Q. B. 346.

(z) (1879) L. R. 4 Ap. 674.

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