Action for money had and received, ante, pp. 550, 551. The facts must be stated specially on the record, and the issues joined sufficiently point out the required evidence. Rules, 1883, O. xix., r. 15, ante, p. 283.

In an action for work and labour, the illegality of the transaction will be a defence. A party will not be permitted to recover either for work and labour done, or materials provided, where the whole combined forms one entire subject-matter, made in violation of the provisions of an act of parliament. Bensley v. Bignold, 5 B. & A. 335. Thus a printer, who made a false affidavit that he was sole proprietor of a paper, could not sue the real proprietors for the printing, or for any matter connected with its circulation. Stephens v. Robinson, 2 C. & J., 209; 38 Geo. 3, c. 78, s. 2. And the proprietor of a newspaper could not, before the filing of the affidavit, directed by the statute, recover upon a contract, for the printing of the paper. Houston v. Mills, 1 M. & Rob. 325. So, the printer of an immoral and libellous book cannot maintain an action for his bill against the publisher who employed him. Poplett v. Stockdale, Ry. & M. 337; and see Coates v. Hatton, 3 Stark. 61, and Clay v. Yates, 1 H. & N. 73; 25 L. J., Ex. 237, ante, p. 521. A promise to indemnify the plaintiff, in consideration of the plaintiff having published a libel, and defended an action brought against him for that libel, at the defendant's request, is void. Shackell v. Rosier, 2 N. C. 634. A contract which amounts to maintenance is illegal and cannot be enforced. S. C.; see Bradlangh v. Newdegate, 11 Q. B. D. 1, and cases there cited. A promise by a director of a railway company, A., that the company would indemnify the promoters of another railway company if they failed in obtaining a bill in parliament, is illegal, the company A. having no power by its act so to apply their funds, and no action lies on such promise. Macgregor v. Deal & Dover Ry. Co., 18 Q. B. 618; 22 L. J., Q. B. 69, Ex. Ch. But, an agreement by a railway company with a landowner to pay him a sum of money on the passing of a bill for extending the powers of the company, if he withdrew his opposition to it, is legal. Taylor v. Chichester & Midhurst Ry. Co., L. R., 4 H. L. 628. A contract with a company formed under the Company's Act, 1862, which is ultra vires, is absolutely void. Riche v. Ashbury Ry. Carriage, &c., Co., L. R., 7 H. L. 653. company of more than 20 members, formed after Nov. 14, 1862, having for its object the acquisition of gain by the company or its members, is illegal, unless registered under the Companies Act, 1862, or unless formed under some other statute or letters patent, or it be a mining company under the jurisdiction of the Stannaries; see sect. 4; and no action will lie in respect of services, rendered in forming or carrying out, the objects of such company if unregistered. In re S. Wales Atlantic Steamship Co., 2 Ch. D. 763, C. A. And a promissory note given to such a company, as security for a loan made by them, in the course of carrying on their business, is given for illegal consideration. Shaw v. Benson, 11 Q. B. D. 563, C. A. A mutual marine insurance company, of which persons become members by effecting a mutual policy of insurance, is within this section: In re Padstow &c. Assur. Assoc. 20 Ch. D. 137, C. A. So a mutual loan society. Shaw v. Benson, supra. See further hereon Smith v. Anderson, 15 Ch. D. 247, C. A. An unregistered association constituted before Nov. 1st, 1862, in which there was a continuous change of members, was held not to be formed on each such change, within sect. 4. Shaw v. Simmons, 12 Q. B. D. 117. A person who has expended money for the purposes of an unlicensed theatre cannot recover against another at whose request he expended the money, and who participated in the profits. De Begnis v. Armistead, 10 Bing. 107.

A

Money paid by the plaintiff as the price of a patent right, which he knew did not exist, but bought for the purpose of reselling to a company to be formed by him, cannot be recovered. Begbie v. Phosphate Sewage Co., L. R.,

VOL. I.

10 Q. B. 491; 1 Q. B. D. 679, C. A. So, money deposited with an agent, and expended by him in illegal disbursements, cannot be recovered from him by his principal, if the principal was at the time aware of the illegal disbursements, or assented to them. Bayntun v. Cattle, 1 M. & Rob. 265. Payments made by an election agent or sub-agent, other than the expense agent of a parliamentary candidate A., cannot be recovered from A., such payments being illegal under Stat. 26 & 27 Vict. c. 29, s. 2. In re Parker, 21 Ch. D. 408, C. A. A London broker cannot maintain an action for commission for buying and selling stock, &c., unless duly licensed by the mayor and aldermen of the city of London, pursuant to 6 Anne, c. 68, (c. 16, Ruff.); Cope v. Rowlands, 2 M. & W. 149; nor for sale of shares in a company, British or foreign; Smith v. Lindo, 4 C. B., N. S. 395; 5 C. B., N. S. 587; 27 L. J., C. P. 335, Ex. Ch. But, he may recover money paid by him to the seller on account of his principal, for which the broker is, by usage, liable as a principal; Id. Money lent for the express purpose of playing at an illegal game, such as hazard; M'Kinnell v. Robinson, 3 M. & W. 434; or, for illegally settling stock-jobbing transactions; Cannan v. Bryce, 3 B. & A. 179; cannot be recovered back; see, however, Pearce v. Brooks, L. R., 1 Ex. 213, 219, per Martin, B.; and Bagot v. Arnott, I. R., 1 C. L. 1, C. P. But money lent to enable the borrower to pay a bet, already lost, is not lent on an illegal consideration within the Stat. 5 & 6 Will. 4, c. 41. Ex pte. Pyke, 8 Ch. D. 754. C. A. Money paid at the request of the defendant in fulfilment of a wagering contract may be recovered. Rosewarne v. Billing, 15 C. B., N. S. 316; 33 L. J., C. P. 55; Read v. Anderson, 10 Q. B. D. 100, cited ante, p. 530. A broker or agent cannot sue for commission in respect of a sale mentioned in an instrument made by him, and not duly stamped as required by the Stamp Act, 1870, s. 69, ante, p. 234; nor can an insurance broker recover brokerage or premiums, in respect of an unstamped policy, ante, p. 248. As to wagers, see now 8 & 9 Vict. c. 109, s. 18, vide ante, p. 550, and with reference to sales of stock, vide ante, p. 518. As to the validity of a bond given for racing debts, see Bubb v. Yelverton, L. R., 9 Ex. 471.

It is an answer to an action for refusing to allow the plaintiff to use rooms pursuant to agreement that he intended to use them for the delivery of blasphemous lectures. Cowan v. Milbourn, L. R., 2 Ex. 230. The defendant is entitled to justify his refusal on this ground, although, at the time of the breach, he assigned a different reason to the plaintiff. S. C.

No action lies for the value of goods knowingly sold for illegal purposesas brewers' drugs; Langton v. Hughes, 1 M. & S. 593; or bricks under statutable size; Law v. Hodson, 11 East, 300. See also Gaslight & Coke Co. v. Turner, 5 N. C. 666; 6 N. C. 324, Ex. Ch. A collateral security given for payment of the purchase-money of land, knowingly sold for the purpose of re-sale by lottery, is illegal; Fisher v. Bridges, 3 E. & B. 642 ; 22 L. J., Q. B. 270; and this though the security be by deed: Id.

Where the party seeking to enforce the contract has been guilty of contravening a law made for the purposes of the revenue only, it has been held that this is not such an illegality as will prevent him from recovering at law on the contract; as where several partners sued the defendant for the price of spirituous liquors sold, it was held that the omission of the name of one of them in the licence to carry on the business of distillers was no answer. Brown v. Duncan, 10 B. & C. 93, and cases there cited. The question is, whether the legislature has either expressly or by implication prohibited the contract? If not, a breach of the law regulating the vendor's trade may expose the firm to penalities, but does not necessarily avoid a contract of sale by him. Smith v. Mawhood, 14 M. & W. 452; Bailey v. Harris, 12 Q. B. 905. Non-delivery of a ticket to the purchaser of coals in

Illegality.-Sale of Spirituous Liquors.

595

London disables the vendor from recovering the price. Cundell v. Dawson, 4 C. B. 376.

An agreement not to prosecute for a criminal offence is illegal; Keir v. Leeman, 9 Q. B. 371 Ex. Ch. ; Williams v. Bailey, L. R., 1 H. L. 200; but unless given in pursuance of such agreement, securities given to a creditor, by a debtor whose debt has been contracted under circumstances that might have rendered him liable to a prosecution, may be enforced. Flower v. Sadler, 10 Q. B. D. 572, C. A.

Where a contract is made for the performance of an illegal act, knowledge that the act is illegal is not material, and the contract is void; but where the contract is capable of being legally performed, it can only be avoided by showing a wicked intention to break the law; and for this purpose knowledge of what the law is becomes material. Waugh v. Morris, L. R., 8 Q. B. 202.

A foreigner selling and delivering goods abroad to a British subject may recover the price, although he knows at the time of the sale and delivery that the buyer intends to smuggle them into this country, provided he takes no actual part in the illegal adventure, as by packing, &c. Pellecat v. Angell, 2 C. M. & R. 311. A brewer delivering beer to an unlicensed keeper of the public-house, may maintain an action against him for the price. Brooker v. Wood, 5 B. & Ad. 1052. A municipal corporation may be sued for money lent, though for purposes which were ultra vires, and though secured by a covenant in a mortgage, which they had made without the consent of the treasury, as required by stat. 5 & 6 Will. 4, c. 76. Payne v. Brecon, Mayor of, 3 H. & N. 572; 27 L. J., Ex. 495. So if trustees lend their trust money to A. they may recover it from A., although such loan be ultra vires. Coltman v. Coltman, 19 Ch. D. 64, C. A.

If a foreigner contract abroad with an Englishman to do an act legal there, but illegal in England, as to buy slaves of him, the foreigner may sue here on the contract. Santos v. Illidge, 8 C. B., N. S. 861; 29 L. J., C. P. 348, Ex. Ch. The principle of this case seems to have been overlooked in Rousillon v. Rousillon, 14 Ch. D. 351, cor. Fry J.

Illegality-Weights and Measures Act, 1878.] Under 41 & 42 Vict. c. 49, s. 19, which came into force (sect. 2) on 1st January, 1879, "every contract bargain, sale, or dealing, made or had in the United Kingdom for any work, goods, wares, or merchandise, or other thing which has been or is to be done, sold, delivered, carried, or agreed for by weight or measure, shall be deemed to be made and had according to one of the imperial weights or measures ascertained by this act, or to some multiple or part thereof, and if not so made or had shall be void," and by sect. 25, any contract, bargain, sale, or dealing, made by any false weight, measure, scale, &c., shall be void.

Illegality.-Sale of spirituous liquors.] By the Tippling Act (24 Geo. 2, c. 40), s. 12, no person shall maintain any action for any sum, debt or demand whatsoever for or on account of any spirituous liquors, unless such debt shall have been really and bonú fide contracted at one time to the amount of 20s. or upwards; nor shall any item in any account or demand for such liquors be allowed where the liquors delivered at one time, and mentioned in such item, shall not amount to the full value of 20s., at the least, and that without fraud or covin, and where no part of the liquor so sold shall have been returned, or agreed to be returned, directly or indirectly. This statute is repealed, by the 25 & 26 Vict. c. 38, as to "liquors to be consumed elsewhere than on the premises where sold, and delivered at the residence of the purchaser thereof, in quantities not less at any one time than a reputed

quart." The act extends to the case of a person who purchases liquors in small quantities to retail them again; as the keeper of an eating-house. Hughes v. Done, 1 Q. B. 294. And also to the case of a tavern-keeper's bill in which there are items for spirits supplied to the defendant's guests. Burnyeat v. Hutchinson, 5 B. & A. 241. And a bill of exchange, part of the consideration for which is spirituous liquor sold in less quantities than of 20s. value was held to be wholly void. Scott v. Gillmore, 3 Taunt. 226; Gaitskill v. Greathead, 1 D. & Ry. 359. But, where a bill for 6l. had been accepted by an officer in payment of small quantities of spirits, under 20s., supplied for recruits under the defendant's command, the bill was held valid. Spencer v. Smith, 3 Camp. 9. Drunkenness being a punishable offence, a publican cannot recover for beer, furnished to the defendant, after he has become intoxicated by drinking in his public-house. Brandon v. Old,

3 C. & P. 440.

The County Courts Act, 1867, (30 & 31 Vict. c. 142), s. 4, provides that no action shall be brought or be maintainable in any court to recover any debt or sum of money alleged to be due in respect of the sale of any ale, porter, beer, cider, or perry "consumed on the premises where sold or supplied, or in respect of any money or goods lent or supplied, or of any security given, for, in, or towards the obtaining of any such ale," &c.

Illegality-Sale on Sunday.] By the Lord's Day Act, (29 Car. 2, c. 7), s. 1, no tradesmen, artificer, workman, labourer, or other person whatsoever shall do or exercise any worldly labour, business, or work of their ordinary callings, upon the Lord's day, or any part thereof, works of necessity and charity only excepted." Upon this statute it has been held that a horse-dealer cannot maintain an action upon a contract for the sale and warranty of a horse made by him upon a Sunday. Fennell v. Ridler, 5 B. & C. 408. But, where A., not knowing that B. was a horse-dealer made an oral bargain with him on a Sunday for the purchase of a horse, and the price, which was above 10., was then specified, and the horse warranted, but it was not delivered till the following Tuesday, when the money was paid, it was held that there was no complete contract till the delivery of the horse, and consequently that the contract was not void under the statute. Bloxsome v. Williams, 3 B. & C. 232; see Norton v. Powell, 4 M. & Gr. 42, and Beaumont v. Brengeri, 5 C. B. 301. Though the contract was made by an agent, and the objection is taken by the party at whose request it was entered into on the Sunday, it cannot be enforced. Smith v. Sparrow, 4 Bing. 84. But, where goods were bought on a Sunday, and the purchaser afterwards, while the goods were in his possession, made a promise to pay for them, it was held that the seller was entitled to recover on a quantum meruit. Williams v. Paul, 6 Bing. 653. The statute does not make every work or business done on the Sunday illegal; but only carrying on trade and ordinary callings on that day. Therefore the hiring of a servant by a farmer on a Sunday is good. R. v. Whitnash, 7 B. & C. 596; see also Scarfe v. Morgan, 4 M. & W. 270, and Begbie v. Levi, 1 C. & J. 180. So is a guarantee, given for the faithful services of a tradesman's traveller; Norton v. Powell, supra; and a contract for enlisting a soldier. Wolton v. Gavin, 16 Q. B. 48; 20 L. J., Q. B. 73. A farmer does not come within the provisions of this statute. R. v. Silvester, 33 L. J., M. C. 79, Q. B.

Illegality-Contract by bankrupt.] The Bankruptcy Act, 1883, contains no provisions avoiding contracts made for the payment of debts barred by bankruptcy, or securities given to induce the forbearance of creditors pending proceedings in bankruptcy; but any agreement whereby proceedings in bankruptcy, or the distribution of the assets is affected, is void as against

Illegality.-Restraint of trade.-Immorality.

597

the policy of the law. Thus a promissory note given by a third person to a creditor in order to induce him to forbear from opposing an insolvent's petition, was void. Hills v. Mitson, 8 Exch. 751; 22 L. J., Ex. 273; Hall v. Dyson, 17 Q. B. 785; 21 L. J., Q. B. 224. So, a guarantee given to a creditor to induce him to accept a composition; McKewan v. Sanderson, L. R., 20 Eq. 65; or to secure the payment of notes given for the like purpose, is void. Clay v. Ray, 17 C. B., N. S. 188; Geere v. Mare, 2 H. & C. 339; 33 L. J., Ex. 50. An agreement of this kind, otherwise illegal, was not the less void because it had been made with the knowledge of the other creditors, and sanctioned by the Commissioners in Bankruptcy. Humphreys v. Willing, 1 H. & C. 7; 32 L. J., Ex. 33. See also Blacklock v. Dobie, 1 C. P. D. 265; Rimini v. Van Praagh, L. R., 8 Q. B. 1.

An agreement contrary to the policy of the winding-up acts is void. Elliott v. Richardson, L. R., 5 C. P. 744.

Illegality-Contract in restraint of trade.] All restraints upon trade are bad as being in violation of public policy, unless they are natural and not unreasonable for the protection of the parties in dealing legally with some subject-matter of contract. The principle is that, though every man is to remain at liberty to work for himself; yet when he has obtained something he wants to sell, he should be at liberty to sell it to the best advantage, and for this purpose, must be able to preclude himself entering into competition with the purchaser. In such case a stipulation, however restrictive, will be good if the restriction is not, in the judgment of the court, unreasonable, having regard to the subject-matter of the contract. Leather Cloth Co. v. Lorsont, L. R., 9 Eq. 345, 353, 354, per James, V.-C. Thus a contract to restrain a man from trading at all, or if made without consideration, is illegal and void, as against public policy; but a contract in which the restraint is limited in respect of time or space is legal, if founded on good consideration. Mitchell v. Reynolds, 1 P. Wms. 181; 1 Smith's L. C. The court will not, however, enquire into the adequacy of the consideration. Pilkington v. Scott, 15 M. & W. 657, 660, per Alderson, B; Collins v. Locke, 4 Ap. Ca. 674, 686, per P. C. Where the restriction is divisible and is good as to part, and bad as to the rest, the court will give effect to the former part. Price v. Green, 6 M. & W. 346, Ex. Ch. Numerous cases are reported as to what contracts have been adjudged to be reasonable; an enumeration of them would be beyond the scope of the present work: they will be found collected in the notes to Mitchell v. Reynolds, 1 Smith's Lead. Cas. ; see also Collins v. Locke, supra.

It may be observed that in a contract not to carry on a trade within a specified distance, the distance is to be measured "as the crow flies," i.e., by a straight line on a map, and not by the nearest mode of practicable access. Mouflet v. Cole, L. R., 8 Ex. 32, Ex. Ch.

As to trade unions see stat. 34 & 35 Vict. c 31, ss. 3, 4, and Rigby v. Connol, 14 Ch. D. 482; and Wolfe v. Matthews, 21 Ch. D. 194, decided thereon.

Illegality-Immorality.] One who is a party to an immoral contract cannot enforce it. Thus the price of obscene and libellous prints cannot be recovered. Fores v. Johnes, 4 Esp. 97. And where an action was brought against the defendant for board and lodging, and it appeared that she was a prostitute, aud had boarded and lodged with the plaintiff, who kept a house of ill-fame, and partook of the profits of her prostitution, it was held that such a demand could not be supported. Howard v. Hodges, 1 Selw. N. P. 13th ed., 80. But, a person may recover for goods sold to a prostitute, not being evidently sold to enable her to carry on prostitution. Bowry v. Bennet, 1 Camp. 348. So, where the plaintiff was employed to wash clothes for a prostitute, knowing her to be such and the clothes consisting principally of