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ceedings, obtain another obligation, not corroborative, but of a different nature; and an obligation so obtained, though corroborative of the original debt, if it exceed it, will be cut down. Thus, where one in prison for debt was prevailed on to give his creditors an absolute disposition to his house, the deed was reduced in as far as it was an absolute conveyance, but was retained as a security for any debts which might be proved. That it was granted under the influence of threats or violence towards a near relation of the granter, is a good ground of reducing a deed, as in an old case where a bond was obtained from a son by apprehending his aged father on an illegal caption, carrying him to the hills and threatening him with death.3

SECT. 3.-Completion of imperfect Obligations by Homologation and Rei Interventus.

Some obligations cannot be incurred without the intervention of writing, and other ceremonials (see below, Chap. II.); others are completed by simple consent, and writing is but the evidence of that consent. In either case, if the engagement is not completed by the necessary evidence of consent being given, there is room for the party to retire, unless there have taken place Homologation or Rei interventus.

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Homologation consists in the individual who has entered on the incomplete engagement, knowingly and willingly doing acts in furtherance of its purpose. A deed which is declared null for want of certain formalities may be homologated, but not (it is maintained) a deed by one incapable of consent, as an idiot or pupil.5 (See above, pp. 43, 125). The act must unequivocally refer to the imperfect obligation, and show an intention by the party to depart from any ground of challenge known by him to exist, and to adopt the imperfect obligation as his own;6 and so if a party is ignorant of the facts, or, it would seem, of the law which would entitle him to challenge the obligation, he will not be held to homologate it. The mere signing as witness will not homologate a deed, as the proper purpose of the signature is solely to attest, not the terms of the writing, but the granter's subscription; but in the case of a near relation so signing, it is

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E. iv. 1, 26.- Fraser v. Black, 13th December 1810.-3 M'Intosh v. Farquharson, 13th June 1672. 2 B. Sup. 634.- E. iii. 3, 47.-5 Ibid.— Ibid. 48.- Johnstone v. Paterson, 29th November 1825. Gardner v. Gardner, 3d December 1830.-8 Walwood v. Taylor, 19th July 1625, M.

inferred (and perhaps the reverse would require to be specifically proved), that he knew the contents of the deed, and his attestation is held a homologation; as where one signed as witness his son's contract of marriage. Where an heir, however, attests a deed granted by his father on deathbed (see above, p. 97), it is held that he may have other motives for doing so than an acquiescence in the contents, and homologation does not take place.2 Homologation by a party entitled to challenge or resile from an imperfect obligation, cannot affect the right of a third party not deriving his title through him.3

Rei interventus takes place when one of the parties to a contract not formally completed allows the other to act as if the obligation were complete and binding, so that he will be a loser if it be not fulfilled by both. Homologation operates in gratuitous obligations, but the proper subject of rei interventus is an onerous obligation, where something is to be done or given on both sides. The best illustration of rei interventus is that of a purchaser paying the whole or part of the price in implement of an imperfect contract of sale. It is essential that a party, before he can be bound by rei interventus, should know that the other is proceeding on the faith of the agreement.5 In one case a cautioner for a loan was bound by a vitiated bond, he having been present when the loan was completed, received the money as agent of the principal party, and paid it away for his behoof. Here homologation and rei interventus were united.6 Operations under a cash credit were held rei interventus to validate an imperfect obligation to relieve the cautioner.7 (As to Rei interventus in Leases, see this head in Index.)

SECT. 4.-Illegal and Immoral Engagements.

There are some contracts which, owing to the injury done to the community by the circumstances out of which they arise, are null by statute, or will not be given effect to by any court of law.

An obligation granted on the condition of committing a crime, or some breach of morality or decency, or which acts as an incentive to any such breach of morals, will not be given effect to. Thus, a bond as the price of prostitution is

1 Johnston v. Berry, 7th July 1725, M. 5657.-2 Dallas v. Paul, 13th January 1704, M. 5677.3 E. iii. 3, 49.— Ibid. 2, 3.5 B. C. i. 329.— Hamilton v. Wright, 12th February 1838, App.- Ballantyne v. Carter, 21st January 1842.

void; but a bond, as a provision to a female who has lived in prostitution with the granter, may be supported if it be merely a provision to a person injured, and not an inducement to farther immorality. "But the favour indulged to bonds of this description is withheld where the grantee is a prostitute, or where she knew the granter to be married at the time of their connexion." Contracts or obligations as to libels, nuisances, and indecent publications, cannot be en forced.3

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Gambling, &c.-Obligations as to debts incurred in gambling are null in the hands of one of the original parties, but not in those of a third party, being placed in the same position as obligations affected by the usury laws. (See below, p. 132.) Debts incurred by wager are not given effect to by the courts of law.5

Liquor Act.-No action can be maintained for the price of spirituous liquors, unless purchased to the amount of 20s. worth at one time. The law cannot be evaded by adding several items together to make the whole amount to 20s., unless they individually exceed that sum. It was found, where there was an account for liquor and other articles, that the creditor might impute indefinite payments of money to the liquor part of it, and pursue before the small debt court for the remainder.

Marriage-Brokerage.-Obligations connected with contracts to bring about marriages are null;9 and so are obligations creating a restraint on marriage, such as an obligation to pay so much if one do or do not marry, or if one marry a particular person.10

Contracts inferring permanent restraint on personal freedom are unfavourably viewed; and, in an old case where certain fishing boats' crews agreed for three nineteen years to be astricted to particular boats, the contract was reduced. In this case, however, the individuals were minors when they engaged themselves, and no practical line seems to have been laid down as to the extent to which one may bind himself." Contracts infringing the freedom of commerce or of

1 Hamilton v. De Gares, 26th January 1765, M. 9471.-2 B. C. i. 299.3 Ibid. Poplett v. Stockdale, 1 R. & M. 337.- 9 Anne, c. 14. 5 & 6 Wm. IV. c. 41. Wordsworth v. Pettigrew, 15th May 1799, M. 9524.24 Geo. II. c. 40, § 12.-7 Circuit App., Alexander v. Boyd, 10th March 1824, 2 S. D. 788.8 Murphy v. Reid, 18th May 1839. Thomson v. Mackaile, 14th February 1770, M. 9519.-20 B. C. i. 301. Baker r. White, 2 Vern, 215. See Lowe v. Peers, Burr, 2225.- Allan v. Skene, December 1728, M. 9454.

labour are in the general case void, such as engagements not to exercise any particular trade or profession; but a person may, for a reasonable consideration, engage to leave a certain field of exertion open to another, and in viewing how far such a contract is legal, the court will consider whether the extent of the exclusion is necessary for protecting the individual who has bought off the other party. Thus, where one became assistant to a surgeon on condition of not practising within ten miles of the same town under a penalty, the obligation was held good,2 but it was held that a similar obligation covering a diameter of 200 miles should be void as unreasonable.3

Obligations interfering with the course of justice are illegal, as a bond to avoid prosecuting or to procure pardon for an offence. By an old act, it is declared illegal for any judges, officers of court, counsel, or agent, to purchase property under litigation before their respective courts.5 The act, however, does not (it would seem) render such bargains null, it merely renders the purchasers liable to deprivation of office or profession. Contracts by which a law-agent or counsel undertakes to conduct a case for a share of what is recovered are not binding. Thus, where an agent engaged to take the half of certain property if he gained a case concerning it, and to charge nothing if unsuccessful, the engagement was found not binding, independently of any allegation of fraud. Where a country agent bound himself to employ an Edinburgh agent in the business of his clients, and to make advances to him, stipulating for a share in the profits, the contract was held illegal, as prejudicial to the interests of clients.9

A condition by those who have the patronage of a public office, inconsistent with its constitution, to the effect that a candidate, if chosen, shall hold the situation at their pleasure, is illegal,10 and so is an obligation by a successful candidate to pay over part of the salary to another candidate, though undertaken at the direction of the patrons." But it is said, that "where there are several candidates for an office, it would seem not to be unlawful for one of them who retired from the contest to stipulate with any other, that, in the

Homer v. Ashford, 26th November 1825, 3 Bing. 322. Horner v. Graves, 13th June 1831. 7 Bing. 735.-2 Davis v. Mason, 25th January 1793. 5 T. R. 118.—3 Horner v. Graves, ut supra.-1 Stewart v. Galloway, 3d June 1752, M. 9465.5 1594, c. 220.- Purves v. Keith, 20th December 1683, M. 9500.- St. i. 10, 8.8 Johnston v. Rome, 1st February 1831.A v. B, 12th May 1832.-10 Duff v. Grant, 20th February 1799, M. 9576. Thomson v. Dove, 16th February 1811.

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event of his being successful, he should pay a certain sum to the one who had retired." On this subject, however, Professor Bell says, "I cannot see much reason to hesitate in discountenancing a transaction which substantially destroys the freedom of election." The same authority lays it down that "the salary of a public officer cannot lawfully be burdened with the payment of a sum as a consideration for the exertion of influence to procure the nomination," but that 66 an agreement by an officer in bad health to share the emolument with an assistant is effectual."2 A contract of a depute-clerk of Session with the assistant-clerk to perform his functions was found to be illegal.3

SECT. 5.-Engagements injurious to the Revenue and the National Policy.

The courts of justice will not interpose to exact performance of contracts founded on infringements of the revenue laws, or any other legal restriction. Thus, where two British subjects joined in an adventure to the coast of Africa for the purchase of slaves, it was held that one partner had no remedy against the other for his share of the loss, but it was found that the one might compel the other to account for simple advances, though arising from the illegal adventure. A bargain respecting smuggled goods cannot be enforced in favour of a party contracting in the knowledge of their being so.5 The same rule applies to the claims of foreigners, who will not receive the assistance of our courts in contracts which involve an infringement of our revenue laws; on this subject the following distinction has been taken, "that when a merchant settled abroad, whether foreigner or native of this country, simply sells goods to a smuggler tanquam quilibit, and makes delivery on the spot, he has action for them in our courts, though he suspected or even knew they were to be smuggled into Britain; but if he be accessory to the smuggling, and thereby to an infringement of the laws of the land, he cannot demand the aid of the British courts for recovery of his debt;"7 and a similar doctrine has been held in England. The making up of the papers of the ship, or the packing of the goods in such a

M. St. Ixiv. B. C. i. 128, n. 10.-2 B. C. i. 128.-3 Mason v. Wilson, 28th November 1844.- Gibson v. Stewart, 7th March 1828, and 6th June 1834.5 Scougall v. Gilchrist, 16th November 1736, M. 9536. M'Lure v. Paterson, 3d November 1775, 5 Br. Sup. 532.-6 Stoddart v. M'Quan, &c. 28th July 1779, 5 Br. Sup. 533.—7 Cullen v. Philip, 15th May 1793, M. 9554.-8 Holman v. Johnson, 5th July 1775, Cowper, 341.

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