Time contracts, in stocks which are merely, in substance, gaming contracts, cannot be enforced.' It is otherwise if they are bona fide purchases and sales.2

224. Contracts may sometimes be presumed to be fraudulent (or rather incapable of being enforced) from their subject matter; and of transactions of this description illustrations may be found in agreements to waive an equity of redemption, marriage brokage contracts, contracts in restraint of marriage, or of trade, and contracts for procurement of office.

As to the first of these contracts, the nature of an equity of redemption has been already explained in the chapter devoted to mortgages, and the reasons for the policy of the law, prohibiting any stipulations in the mortgage by which the right should be waived, were at the same time attempted to be elucidated.

It will be sufficient to say here that this doctrine should properly receive this passing notice under the head of fraud, as it was introduced for the purpose of preventing impositions upon the weakness and necessities of debtors. Any clause in a mortgage, or any collateral agreement, by which the mortgagee's equity of redemption is in any way clogged, will be considered as a fraud upon his rights, and will be disregarded in a court of equity.3

As to the other cases mentioned above, they all fall under the operation of the general maxim ex turpi causâ non oritur actio, which is recognized in equity, sometimes passively by the refusal of the courts to entertain any bill brought to enforce such a contract, and sometimes actively, by entertaining a bill filed for the purpose of having an illegal security, or rather a security given upon an illegal consideration, delivered up and cancelled; or for the purpose of enjoining any action under and by virtue of the illegal contract.

For example, marriage brokage contracts (which is the name usually given to agreements for negotiating marriages), while they were good at the civil law, have been held illegal at common law, and are regarded as utterly void in equity."

1 Brua's Appeal, 5 P. F. Sm. 294. 2 Smith v. Bouvier, 20 P. F. Sm. 325. 3 Ante, chap. on Mortgages, p. 158. 4 Matchmakers (proxenetæ) were allowed to receive a reward for their services.

5 Hall v. Potter, 3 Lev. 411; 1 Eq. Cas. Ab. 89; 3 P. Wms. 76; Shower's Parl. Cas. 76; Boynton v. Hubbard, 7 Mass. 112.

6 Cole v. Gibson, 1 Ves. Sr. 503.

Contracts in restraint of marriage, and contracts for future separation are equally, although for different reasons, illegal. A covenant not to marry any person except the covenantee is void at law; and a bond, with a similar condition, has been ordered to be cancelled in chancery.

225. Gifts in restraint of marriage, that is, gifts bestowed upon condition that they are to be forfeited in the event of marriage in general, or of some particular marriage, are of frequent occurrence, and may properly be noticed in this connection. The authorities upon this subject are not all to be reconciled, and it is difficult to state the law with entire precision. This confusion has arisen from the attempts to import the doctrine of the civil law upon this subject, into the law of England."

The civil law rule was that conditions in restraint of marriage were void.

The origin of the rule, as stated by the Chancellor (Lord Loughborough) in Stackpole v. Beaumont, was that in the Roman Empire the depopulation occasioned by the civil war led to habits of celibacy; and to correct this evil, in the time of Augustus, the Julian law (which went too far and was corrected by the Lex Papia Poppaa), not only offered encouragement to marriage, but laid heavy impositions upon celibacy. To impose even partial restraints therefore upon marriage was to act directly contrary to this law, and hence such restraints were necessarily invalid.

No such reasons existed at common law, and, hence, so far as real estate was concerned, the rule of the civil law was not followed, except that conditions in entire restraint of marriage were considered opposed to the policy of the law, and therefore void. But the succession to personalty having fallen into the hands of the ecclesiastical courts, and these having a great leaning towards the Roman law, the rule as to that species of

1 See notes to Scott v. Tyler, 2 Lead. Cas. Eq. 105.

2 As to trusts for future separation, see ante, p. 125.

3 Lowe v. Peers, 4 Burr. 2225.

4 Baker v. White, 2 Vern. 215.

5 See notes to Scott v. Tyler, 2 Lead. Cas. Eq. 208 (4th Eng. ed.).

6 3 Ves. 96.

7 See Morley v. Rennoldson, 2 Hare, 570; notes to Scott v. Tyler, 2 Lead. Cas. Eq. 214 (4th Eng. ed.).

||

property was the same as in the civil law. The tendency, however, of modern decisions is to bring the law in regard to personalty, in this particular, in accord with the doctrines applicable to real estate.

226. In considering this subject it will be convenient to notice, in the first place, conditions in general or entire restraint of marriage; and secondly, those in partial restraint.

A condition annexed to a gift entirely restraining the donee from marriage is void as against public policy; and the donce will take the gift free and discharged from the condition. So far as conditions subsequent are concerned, there is no difference as to this rule between realty and personalty. But in conditions precedent, although the condition be illegal or impossible, an estate in realty, according to the common law, could never vest unless the condition were complied with. Hence, if an estate in land is given when, or as soon as, the donce shall marry a particular person, the estate cannot vest until the marriage takes place. If the subject of the gift, however, is personalty, the condition although precedent being void, the donce will take it absolutely.3

The circumstance that there is a gift over upon non-compliance with the condition, will make no difference in the application of the above rules in regard to total restraints.*

227. Where the condition is only in partial restraint-as where it is against marrying a particular person, or before arriving at a particular age (provided, the period to which the marriage is postponed be reasonable)—it is valid, and will be enforced if there is a gift over. And this is the rule as respects realty, although there is no gift over. But in regard to personalty the rule is different, and a condition in partial restraint of marriage, if there is no gift over, will be held to be (as it is said) in terrorem only, and will not defeat the estate. It was,

96.

1 See Stackpole v. Beaumont, 3 Ves.

2 Morley v. Rennoldson, 2 Hare, 570; notes to Scott v. Tyler (sup.).

5 Harvey v. Aston, 1 Atk. 378; McIlvaine v. Gethen, 3 Whart. 575; Hoopes v. Dundas, 10 Barr, 75; Hotz's Estate, 2 Wright, 422; Cornell v. Lovett, 11 Casey,

3 Keily v. Monck, 3 Ridg. P. C. 205; 100; Maddox v. Maddox, 11 Grat. 804;

Maddox . Maddox, 11 Grat. 804.

4 See Morley v. Rennoldson, 2 Hare,

Waters v. Tazewell, 9 Maryl. 291. Hill

on Trustees, 496 (775, 4th Am. ed.).

however, held by Sir Wm. Page Wood, then vice-chancellor, in Newton v. Marsden, that a condition in restraint of marriage attached to a legacy to the widow of the testator's nephew, was valid.'

If the condition in partial restraint is precedent, it will be enforced, even if there is no limitation over.2

Restraints upon marriage may sometimes be enforced by way of limitation, when they would be ineffectual if put in the shåpe of conditions. A testator may make the period of enjoyment of his bounty as short as he pleases, and may fix the occurrence or non-occurrence of any event, no matter how absurd or arbitrary the limitation may be, as the boundary, at which the estate is to cease. In such a case the particular estate will come to an end by virtue of its own limitation, and the estate in remainder will, of course, vest in possession.

If then an estate be given to A. until she marries, and from and after her marriage to B., the marriage of A. would not operate to defeat an estate already vested, but would simply mark the period at which a vested estate of uncertain duration is to determine.3 In such a case the law of conditions has no place. Hence it is settled that a gift durante viduitate with a limitation over, is valid; and that upon marriage of the widow, the party in remainder will take.1

The real principle of cases of this kind is, that the condition is not regarded as an arbitrary prohibition of marriage altogether, but the conditional gift is considered as made to the widow, because she is a widow, and because the circumstances would be entirely changed if she entered into a new relation.5

228. Still another class of contracts, which are illegal by reason of their nature, are contracts in general restraint of trade. The rule upon this subject is that a contract in general restraint

12 Johns. & H. 356. See, also, Commonwealth v. Stauffer, 10 Barr, 350; McCullough's Appeal, 2 Jones, 197; Phillips v. Medbury, 7 Conn. 568.

Dana, 229; Pringle v. Dunkley, 14 Sm. & Marsh. 15; Hughes v. Boyd, 2 Sneed, 512; notes to Scott v. Tyler, 2 Lead. Cas. Eq. 412 (Am. ed.), where this rule is

2 Stackpole v. Beaumont, 3 Ves. 89; somewhat criticized by the learned AmeriHill on Trustees, 496.

3 See Fearne on Cont. Rem. 10.

can editor.

5 Per Wood, V. C., in Newton v. Mars

See Vance v. Campbell's Heirs, 1 den, 2 Johns. & H. 367.

of trade is void; but if in partial restraint of trade only, it may be supported, provided the restraint be reasonable, and the contract be founded on consideration. The doctrine is a very old one, a case being found in the year books, in which Mr. Justice Hall lost his temper at the very sight of the bond, and exclaimed, with an oath, that if the plaintiff had been in court, he should have gone to prison until he had paid a fine.

The leading authority upon the subject is Mitchell v. Reynolds-from which, and from subsequent authorities in England and in this country, it may be gathered that a restraint upon trade in order to be good at law must be, in the first place, partial; in the second place, reasonable, that is, such a restraint only as may be necessary to protect the business of the party for whose benefit the contract is made; and thirdly, founded on a valuable consideration, although as to this last point it is now settled that the courts will not enter into the question of adequacy of consideration, unless perhaps the inadequacy is such as to stamp the agreement as an unreasonable one.1

A contract in restraint of trade which is, for any of the reasons stated above, obnoxious in the eye of the law, cannot (upon the general principles already referred to) be enforced in equity; and an instrument given to secure such an agreement may be decreed to be delivered up and cancelled.

Equity, moreover, is loth to enforce a contract in restraint of trade, even although it be good at law, if the terms are hard or even complex.5

Contracts in restraint of trade, however, if they are partial, reasonable, and founded on a valuable consideration, and not for any special reason unjust or inequitable, will be enforced in equity.

Combinations entered into for the purpose of preventing the parties thereto, or others, from engaging in trade, are illegal.'

1 Smith on Contracts, 135, Sharswood's note.

2 Henry VI.

3 1 P. Wms. 181.

4 See notes to Mitchell v. Reynolds, 1 Sm. Lead. Cas. 705.

5 Kimberly v. Jennings, 6 Sim. 340; Kemble v. Kean, 6 Sim. 335; Whittaker

v. Howe, 3 Beav. 383; Kerr on Injunctions, 506, 514; post, Part III., Chap. II. 6 Morris v. Colman, 18 Ves. 437. See Cruttwell v. Lye, 17 Ves. 335.

7 Story's Eq., 292; Stanton v. Allen, 5 Denio, 434; Hilton v. Eckersley, 32 Eng. L. and Eq. R. 198; 34 Id. 224.