of Africa, from thence to the West Indies or America, and afterwards to London in Great Britain, or to some delivering port in Europe," the variance was held to be fatal, notwithstanding the scilicet. White v. Wilson, 2 B. & P. 116. So a declaration which alleges a retainer to cause the plaintiff's ship to proceed to Gottenburgh, in order that she might afterwards proceed to Petersburgh, is not proved by evidence of a retainer to cause the ship to proceed to Gottenburgh, and afterwards, under certain conditions, to Petersburgh. Lopez v. De Tastet, 1 B. & B. 538. In the case of Frith v. Gray, 4 T. R. 561, n., in an action for not building the plaintiff a booth at a horse-race to be run on Barnet Common, in the county of Middlesex, it was proved that the whole of Barnet Common was in the county of Hertford. But Lord Mansfield and the rest of the Court, on a motion for a new trial on the ground of variance, held that as it was perfectly immaterial whether Barnet Common was in Middlesex or not, those words might be rejected as surplusage: tam. qu. A warranty to buy a horse at a certain price, scil. 86 l. 5 s., is not supported by evidence of a warranty upon the purchase of two horses jointly for the sum of 60 guineas. Hart v. Davis, N. P. Dec. 1796.

(t) Gladstone v. Neale, 13 East, 409. So where the alleged promise was to deliver stock on the 27th of February, but the contract proved was to deliver stock on the settling day, which at the time was fixed for and understood by the parties to mean the 27th of February, it was held that the proof was sufficient, the contract proved being in substance the same with that alleged. Wilks v. Gordon, 2 B. & A. 335. So an allegation of a contract for the delivery of gum-senegal is supported by evidence of a contract for the delivery of rough gum-senegal, coupled with evidence that all gum-senegal on its arrival

in this country is called rough. Silver v. Heseltine, 1 Chitty's R. 39; vide infra, 63, note (z).

(u) Where the promise was laid on the 24th of March, and to a plea of tender, the plaintiff replied a bill filed on the 12th of February; upon the objection being taken, the Court held that the day was alleged merely for form, and that the plaintiff would not have been confined to it in evidence; but, that if it had been the case of a note it would have been different, since then the day would have been an essential part of the agreement (Matthews v. Spicer, Str. 806); and semble, not even then, unless it had amounted to a misdescription of the instrument, by alleging that it bore date on such a day. Where an action was brought on a note dated 1704, and the replication alleged a bill filed in 1713, and that the cause of action arose within six years, it was held to be a departure, because the day was material, and judgment was arrested. Stafford v. Farrer, cited Stra. 22.

(x) Brown v. Sayer, 4 Taunt. 320. Mansfield, C. J. observed, that the record would certainly be evidence as to the amount of the rent between the same parties in another action. So where the plaintiff alleged that he had agreed to sell, and that the defendant had agreed to buy, certain goods and merchandises, to wit, 328 chests and 30 half-chests of oranges and lemons, at and for a certain price, to wit, the price of 6231. 3 s., and the contract proved was for 308 chests and 30 half-chests of China oranges, and 20 chests of lemons; it was held to be a fatal variance. Crispin v. Williamson, 1 Moore, 547. In an action for not retaining the plaintiff as a servant at a yearly salary, the declaration averred the agreement to be to pay 250l. per annum for the service; it was held to be necessary to prove the specific sum as alleged, though it was laid under a videlicet. Preston v. Butcher,

pin v. Kendle, Devonshire Lent Ass. 1809; Sel. N. P. 61. It has been held, that this statute does not extend to a security given in payment for small quantities of spirituous liquors. Spencer v. Smith, 3 Camp. 9; contrà Scott v. Gilmore, 3 Taunt. 226. The statute is not confined to sales to the consumer. Bennyatt v. Hutchinson, 5 B. & A. 241; overruling, as it seems, Jackson v. Attrill. Peake's C. 40, So, in general, agreements against the principles of sound policy are void. As, for instance, all agreements for the sale of public offices; or that one person shall hold an office of trust for another. Parsons v. Thomson, 1 H. B. 322. Blackford et al. v. Preston, 8 T. R. 89. Layng v. Payne, Willes, 571; 3 T. R. 19; 2 Wills. 133. Garforth v..Fearon, 1 H. B. 327; and see the stat. 12 R. 2, c.2; 5 & 6 Ed. 6, c. 15. So, all agreements are illegal and void which tend to the obstruction or hindrance of public justice: as to prevent the due examination of a bankrupt by the commissioners. Perot v. Wallace, 3 T. R. 17. To omit to call the defendant up to receive judgment for a misdemeanor. Pool v. Bousfield, 1 Camp. C. 55. So, all agreements in restraint of trade are illegal ; but an agreement not to use a trade in a particular place is legal. Cro. J. 596. Bunn v. Guy, 4 East, 190. So is a general agreement among those who use a particular trade to establish a general lien. Hickman v. Shawcross, 6 T. R. 14. It is also a general rule that fraud will vitiate a contract: for illustrations of this position, see tit. BILLS OF EXCHANGE.--FRAUD.-MONEY HAD AND

RECEIVED.

Thus, any secret agreement or stipulation, or compositions with insolvents, by means of which one creditor seeks to obtain an unfair advantage, are void. Cockshott v. Bennett, 2 T. R. 763. Leicester v. Rose, 4 East, 372. Stocke v. Madder, 1 B. & P. 286. Thomas v. Courtnay, 1 B. & A. 1; or by which any unfair advantage may be obtained over a third person (Jackson v. Duchaire, 3 T. R. 551. Pidcock v. Bishop, 3 B. & C. 605), is void. So also no action will lie in furtherance of any agreement whatsoever of a vicious or immoral tendency. As if lodgings be let for an illegal purpose. Crisp v. Churchill, 1 B. & P. 340, 1, n. Girardy v. Richardson, Ib. As prostitution, Ib. Or where the plaintiff lodges unfortunate women and partakes of the profits. Howard v. Hodges, cor. Ld. Kenyon, C. J. Dec. 2, 1796. Nor for the price of immoral, libellous, or indecent prints, per Lawrence, J., 4 Esp. C. 97. It seems, however, that though clothes or lodgings are supplied to a prostitute, the mere knowledge on the part of the plaintiff of

her situation and circumstances will not exclude his right of action, unless they were directly supplied for that purpose; or under an agreement or expectation, at least, that he should be paid out of the illegal profits. Bowry v. Bennett, 1 Camp. 348. It was held that a washerwoman might recover for the washing of expensive clothes and dresses, though it was obvious that the plaintiff must have known that they were to be used for improper purposes. Buller, J. observed, "This unfortunate woman must have clean linen, and it is impossible for the Court to take into consideration which of these articles were used for an improper purpose, and which were not." Lloyd v. Johnson, 1 B. & P. 341; and see tit. MONEY HAD AND RECEIVED.

Some of the decisions upon this head have conflicted, not so much in consequence of any doubt upon general principles, as of the difficulty in applying them. The general principle and foundation of them all is this, that the law will not lend its aid in furtherance of an illegal or immoral transaction, or of any contract which is in general inconsistent with sound policy; but that, on the contrary, it will interfere for the purpose of preventing the execution of an illegal agreement, and of furthering the enactments of any prohibitory or remedial statute. The application of this principle is strongly exemplified in the case of the action for money had and received, where the law prohibits or enforces the recovery of the money, just as the prohibition or enforcement will further the object of the legislature. If the money has been paid upon an illegal agreement which remains executory between the parties, the law enforces the recovery of the money, because it thereby prevents a violation of the law by carrying the illegal agreement into effect; it affords the party a locus pænitentiæ, and encourages him to recede from the illegal contract before it is too late. Where the money has been paid by one who was the object of the law's protection, and who is not equally culpable with the defendant who has received the money, the Courts allow it to be recovered, although the agreement has been carried into effect, since the object of the statute was to protect the plaintiff. But where both parties are equally implicated in guilt, and the illegal contract has been carried into effect, the law denies its aid; for both parties are equally guilty, and equally undeserving of the aid of the law, and the best policy is to favour neither. (See Lacaussade v. White, 7 T. R. 535, contrà; but this case has often been denied.) The principal difficulty has arisen where a claim has been made by one partner in an illegal transaction against another. It

has been allowed on all hands, that where one partner has paid money for another in an illegal transaction, no action can be maintained, without evidence of an express request made by the defendant to the plaintiff to pay the money, since no implied assumpsit to pay the money can arise out of an illegal transaction; where such request has been made, many learned Judges have been of opinion that the partner or agent in the illegal transaction who paid the money, might rely on the express assumpsit, and that he had no more concern with the illegal transaction itself in the course of which the money was paid, than if a mere stranger had paid it at the defendant's request; and that therefore where the illegal object was merely malum prohibitum, the plaintiff was entitled to recover. In other and later instances very learned Judges have held, that a partner in such an illegal transaction, who had paid money even at the express request of his co-partner, could not recover, since his claim is mixed up and contaminated with the illegal agreement itself, and cannot be separated from it; that the distinction founded on an express request is untenable, because in every case of such a partnership the jury would be warranted in finding an assent to the payment; and lastly, that the distinction between malum prohibitum and malum in se is not a sound one. It is indeed a distinction very difficult to be supported; every act which is immoral, must, it should seem, be malum in se, and it can scarcely be denied that the wilful violation of any positive law is not more or less immoral. A man may in fact be more guilty in a moral point of view in doing that which is usually termed a mere malum prohibitum, than in committing that which is malum in se. The destruction of the current coin of the realm to the prejudice of the whole community is merely malum prohibitum, if there be any virtue in the distinction; yet surely any act tending to this prejudice is more mischievous and more immoral than the telling a lie, which is malum in se. In reality, an act is immoral, independently of any prohibitory law, in proportion to the evil which is likely to result from it; in a moral point of view, every act from which evil is likely to flow is malum in se, and the abstract immorality does not depend on any positive prohibition. The broad, general, and intelligible test for the decision of these cases, seems to depend upon the question, whether the sustaining such actions would encourage and support illegal or immoral contracts, or whether the immorality be not so far out of the question that no rule of principle of sound policy is violated in enforcing a contract which in conscience ought to be performed? If money be advanced in order to effectuate VOL. II.

a criminal purpose, and be applied in furtherance of that object, a Court, in lending its aid to the recovery of that money, would be sanctioning and consummating a contract founded in criminality; the affording legal protection to the lender would encourage the affording of aid and supplies for such purposes in future, and in consequence encourage the committing of the offence itself.

A party who lends his aid to the commission of an offence is himself criminal in point of law as well as morals. If a man were to advance money to another to purchase a weapon for the committing of treason or murder, would he not at least be guilty of a misprision of treason or felony? In such cases, and where the money is so applied, the plaintiff's claim is tainted with criminality, and he seeks to recover through the medium of an illegal transaction. It can make no difference in principle whether the money was advanced by a partner, or by a stranger, provided the criminal object was known and intended, or whether the contract was express or implied. Upon the same principle of policy, the law, in many instances, permits money supplied for an illegal purpose to be recovered before the object has been executed; for it is the policy of the law to assist and encourage parties in receding from illegal projects. Where money has been paid in execution of an illegal contract to the agent, whose principal is a particeps criminis, the principal, it seems, ought to recover it; the party who paid it to the agent is not entitled to it, since it has been paid in consummation of an executed illegal contract, and it would be against conscience that the agent should be allowed to retain it; it is the money of the principal, and the case seems to be the same in effect as if the principal had received the money with his own hands, and then delivered it to the agent. He does not claim as from the agent, through the medium of an illegal contract: his title arises immediately from the act of the agent in receiving the money to his use; and therefore the case differs widely from that of money knowingly lent for an unlawful purpose, where the illegal object is immediately connected with the lending, which is the consideration for the promise.

The case of Cannan v. Bryce, 3 B. & A. 179, seems to remove the doubts formerly entertained upon questions of this nature, vid. infra, 77-93.

For further illustration of the principles above adverted to, it may be proper to refer to the following decisions. Where the plaintiff received into his employment the defendant, a person of competent but inferior skill in the plaintiff's profession, upon a stipulation that he might discharge him upon three months' notice, and the

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defendant covenanted in case of dismissal not to practise within 100 miles, it was held that the contract was one which contained a restraint on the defendant in respect of his trade far larger than was necessary for the protection of the plaintiff in the enjoyment of his, and could not therefore form the subject of an action. Horner v. Graves, 7 Bing. 735. So where the consideration of an agreement, by which a party undertook to work exclusively for another, was wholly without adequate consideration, and placed him entirely at the mercy of the latter; and a promissory note, given by the former for breaches of the agreement on his part, cannot be set off against his claim for work performed by him before he became bankrupt, in an action by his assignees, such note being void for want of consideration. Young v. Timmins, 1 Cr. & J. 330, and 1 Tyrw. 226. Where three persons carrying on a similar trade, and vending their manufactures about the country, entered into an agreement for their mutual benefit, to confine themselves to certain districts, and that neither should purchase certain articles at or beyond a certain price, and that if any other persons should set up the same trade, and oppose them, that then they would meet together, and enter into such mutual agreement as should be beneficial to their mutual interests, it being their intention not to do any acts prejudicial, but to aid and assist each other in the said trade to the utmost of their power; held that such agreement not operating as a general restraint of trade, was valid, and that there was on the face of it a sufficient consideration for the partial restraint it contemplated. Wickens v. Evans, 3 Y. & J. 318; and see Davies v. Mant, 5 East, 120. An agreement, reciting that the plaintiff was possessed of the means of furnishing evidence enabling the defendant to recover certain sums, of which it was alleged that he had been defrauded, and stipulating that he should use his utmost means and influence for procuring evidence to substantiate the defendant's claims, and that he should receive a certain proportion of the amount recovered by his means; was held to be illegal. Stanley v. Jones, 7 Bing. 369, and 5 M. & P. 193. agreement between two sons to convey and assign, the one to the other, a moiety of all such real or personal estate as they should respectively derive under their father's will, so that each should take an equal moiety, and that in such division all sums, &c. received in his life-time as advancement should be taken into account, was held to be valid. Wethered v. Wethered, 2 Sim. 183. So was an agreement between two parties having expectancies from a third party, to divide equally what he might leave them respectively. Harwood v. Tooke, 2 Sim. 192. Where the plaintiff had pur

An

chased the certificates or obligations of a revolted colony of a foreign State, assuming to be an independent State, but not recognised by the Government of this country, the defendants representing that they had entered into a contract for the loan, and expected it would bear a premium; held, that independently of any question of fraud, the purchase being founded on a contract which; the Court upon grounds of public policy could not sanction, it could not relieve the plaintiff as to the instalments he had paid; held also, that as it did not appear that the payments of the interest on such instruments were to be paid in this country, the stipulation for six per cent. interest was not usurious. Thompson v. Powles, 2 Sim. 195. A publican cannot recover for beer, &c. furnished to third persons, by order of a party who has been allowed to become previously intoxicated; the permitting persons to become so in his house being illegal, he cannot take advantage of an offence which he has been instrumental to. Brandon v. Old, 3 C. & P. 440. Where, pending an action, a party undertook to pay the plaintiff's attorney his costs, in consideration of the plaintiff's, with his attorney's consent, giving an authority to the defendant to pay over the debt sued for to a creditor of the plaintiff; it was held, that the action could not be supported. Taylor v. Watson, 4 M. & Ry. 259. Where the plaintiff, a creditor, having seized goods in execution, afterwards at a meeting of creditors declared he would not come into a composition nor withdraw the execution, without security for a certain part of his debt, to which a third party consented, and gave a guarantee, and he thereupon signed the deed; held that such security was fraudu lent as against the rest of the creditors, and void. Colman v. Waller, 3 Y. & J. 212. Upon a previous agreement with a third person for a benefit by supplying coals, to a stated amount, if the plaintiff would sign an agreement for a composition with his debtor for 10 s. in the pound, and for which the defendant afterwards signed a joint and several note, although the coals were supplied, and no other creditor was acquainted with or influenced by the transaction, it was held that the plaintiff could not recover on the note. Knight v. Hunt, 5 Bing. 432. Where the insolvent having been opposed by a creditor was remanded to a future day, and in the meantime his attorney undertook, in consideration of the creditor's withdrawing his opposition, that he should be appointed sole assignee, and receive a certain sum within a fixed time, held that such agreement being contrary to the policy of the Insolvent Acts, no action could be maintained thereon. Murray v. Reeves, 8 B. & C. 421. Where a party elected died before taking his seat, held that the representation having become