Defence of immorality to action

on a deed.

Illegal

contracts.

Defence of Illegality to be specially pleaded.

When contracts

founded

on an im

moral consideration they can

not be recovered

on.

Immoral Consideration («).

Statement of Defence to Annuity Deed.

1. The defendant says that at the time of the execution of the deed referred to in the paragraph of the statement of claim the said M. L. L. was a married woman, and was co

be recovered back. (Rosewarne v. Billing, 33 L. J. C. P. 55.) A bond given to secure payment of a racing debt is void. See as to wagers 23 & 24 Vict. c. 28, repealing Sir John Barnards' Act as to wagers.

Letting for illegal purpose.]—An agreement to let rooms intended for the purpose of delivering blasphemous lectures is not binding, and a landlord, though he assigned another ground for refusing to perform his contract, can set up this defence. (Cowan v. Milburn, L. R. 2 Ex. 230.) See infra as to letting for immoral purposes.

Contracts made on Sunday.]-By 29 Car. 2, c. 7, s. 1. "No tradesman, 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.' The contract must be completed on the Sunday to bring it within this provision. (Williams v. Paul, 6 Bing. 653; Bloxsome v. Williams, 3 B. & C. 232.)

Contracts in restraint of trade.]—Contracts in general restraint of trade are illegal.

See for further information on this subject notes to Mitchel v. Reynolds, 1 Smith L. Cas. 7th ed. 406.

The defence of illegality should, even formerly, have been specially pleaded, and it was not sufficient to state merely that the contract was illegal, but the particular facts should be stated from which the illegality as a matter of law could be inferred. (Ransford v. Copeland, 6 A. & É. 482.) This is in conformity with the present rules of pleading. Where the defence is not pleaded, and the illegality appears in the plaintiff's evidence, it seems no use can be made of it by the defendant. (Fenwick v. Laycock, 1 Q. B. 414.) But, quære, could a judge give judgment for a plaintiff after his knowledge was directed to the illegality? He would probably be not unwilling to allow the pleadings to be amended under such circumstances.

(a) Any person who is a party to an immoral contract, or a contract involving encouragement to immorality, cannot recover damages for its breach. Thus, charges for board and lodgings by a brothel-keeper cannot be recovered by him in an action against a prostitute. (Howard v. Hodges, 1 Selw. N. Prius, 13th ed. 80.) So, for rent of a room let to a prostitute with knowledge of her character, and that it was to be used for the purpose of prostitution, or for rent accrued due after becoming aware of the purpose for which it was taken. (Smith v. White, L. R. Ï Eq. 626.) So, the hire for a brougham supplied to a prostitute with a knowledge of her character, and that it was to be used by her for the purpose of attracting men. (Pearce v. Brooks, L. R. 1 Ex. 213.) It is not necessary in order to preclude persons letting or selling to prostitutes from recovering rent, hire, or price that the plaintiff should have looked expressly to the proceeds of prostitution for payment. (Id.)

But a person selling goods to a prostitute not evidently purchased to enable her to carry on prostitution, is not precluded from recovering the price. (Bowry v. Bennet, 1 Camp. 348.) So, where the plaintiff has been employed to wash clothes, consisting principally of expensive dresses, for a prostitute, knowing her to be such. (Lloyd v. Johnson, 1 B. & P. 430.) So, a person letting rooms, not knowing they were to be used for the purpose of prostitution. (Smith v. White, supra.)

habiting with the defendant, and it was intended that such cohabitation should continue, and that the defendant and the said M. L. L. should, after the execution of the said deed, immorally continue to commit adultery.

2. And the defendant says that the defendant was induced to execute the said deed in consideration and by reason of a contemplated and anticipated continuance of such adultery, and the same was the only consideration for such deed.

Infancy (a).

Statement of Defence to an Action against an Infant.

The defendant at the time of making the alleged promise in the statement of claim mentioned was under the age of twenty-one years.

A bond or agreement given in consideration of future illicit cohabitation is illegal, but a bond or deed for payment by way of provision after past cohabitation is valid (Nye v. Mosely, 6 B. & C. 133); though a simple contract founded thereon is not, as there is no consideration. (Binnington v. Wallis, 4 B. & Ald. 650; Beaumont v. Reeve, 8 Q. B. 483.) It is necessary in setting up a defence of immorality to state the facts on which the allegation of immorality is founded, in the same manner as in cases of illegality of which it is a species.

(a) By Order XVI. r. 8, “. Infants .. may sue as plaintiffs by their next friends in the manner practised in the Court of Chancery before the passing of this Act; and infants may in like manner defend any action by their guardians appointed for that purpose."

The question of the liability of infants is now mainly regulated by the 37 & 38 Vict. c. 62 (1874). The 1st section provides that all contracts whether by specialty or simple contract henceforth entered into by infants for the repayment of money lent or to be lent, or for goods supplied or to be supplied (other than contracts for necessaries), and all accounts stated with infants, shall be absolutely void, provided always that this enactment shall not invalidate any contract into which an infant may by any existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable." And by sect. 2, "no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, where there shall not be any new consideration for such promise or ratification after full age.

It will be seen that the first section of this Act excepts "necessaries," which are generally defined to be food, drink, apparel, lodging, and education; but much would depend on the fortune and position of the infant, and proof of such fortune, &c., lies on the plaintiff. (Ryder v. Wombwell, L. R. 4 Ex. 32, Ex. Ch., reversing decision in S. C. in the Exchequer.) But the judge may by his decision relieve the plaintiff of such onus; he has to decide whether such onus is or is not on the plaintiff, and in the former case whether there is any proof to satisfy the onus and to nonsuit if there is not, instead of leaving the ques

Defence of immorality

to action

on a deed.

Defence of infancy to action on a

contract.

Infants not now liable

on any con

tracts except for necessaries.

Innkeeper (a).

Claim for Goods of Guest stolen in the Defendant's Inn.

1. The plaintiff is, and at the time of the committing of the grievance hereinafter mentioned was, a commission agent. The

tion to the jury. (16.) Dinners, fruit, and confectionery supplied to an undergraduate out of college are not primâ facie necessaries as coming under the head of "meat." Matters of mere ornament, such as gold rings, betting-books, &c., are not within the rule as to necessaries suitable to one's condition. Mere luxuries, such as cigars, are not, in the absence of special circumstances, to be regarded as necessaries. (Bryant v. Richardson, L. R. 3 Ex. 93 n., and see Ryder v. Wombwell, supra.) Necessaries for an infant's wife are on the same footing as those for himself. (Turner v. Tresby, 1 Str. 168.)

See decisions in particular cases as to what are and are not necessaries, collected in Roscoe Ev., 13th ed., 635, 636.

It is no defence to an action for necessaries that the infant had an allowance sufficient to buy all necessaries with ready money. (Burghart v. Hall, 4 M. & W. 727.) Nor is evidence admissible to show that the infant had a sufficient supply of necessaries. (Ryder v. Wombwell, L. R. 3 Ex. 90, Bramwell, B., dissentiente, and decision not included in reversal in Ex. Ch. L. R. 4 Ex. 32.)

Before the passing of 37 & 38 Vict. c. 62, above referred to, it was held that an infant was not liable on an account stated even for necessaries, and that such account was not admissible as an admission that necessaries to the amount shown had been supplied (Ingledew v. Douglas, 2 Stark. 36); nor for money lent, though laid out in purchasing necessaries (Robart v. Knouth, 2 Esp. 28); nor on a bill of exchange for amount of necessaries. (Williamson v. Watts, 1 Camp. 552.) Though the above Act excepts contracts, &c., for necessaries from its operation, yet as it does not expressly alter the former state of the law, but only provides that such contracts are not within the enactment, these decisions do not seem to be disturbed.

A person is liable on a bill accepted by him after attaining his majority, though drawn before. (Stevens v. Jackson, 4 Camp. 164.) But where goods not necessaries ordered by an infant are delivered to a carrier for him before majority, but do not reach him until after, he is not liable. (Griffin v. Langfield, 3 Camp. 254.)

When an action, though in form ex contractu, is in fact founded on tort, as where an infant is sued for money had and received in a case where such money has been fraudulently appropriated or embezzled by him, infancy is no defence. (Bristow v. Eastman, 1 Esp. 172. And see Burnard v. Haggis, 32 L. J. C. P. 189.) But if the action is for a fraudulent misrepresentation, infancy is a defence. (Liverpool Adelphi v. Fairhurst, 9 Ex. 422.) An infant is not liable upon a warranty given by him. (Howlett v. Haswell, 4 Camp. 118.)

It is no answer to a plea of infancy that the defendant fraudulently represented himself to be of full age. (Bartlett v. Wells, 31 L. J. Q. B. 57.) It is not competent to a plaintiff to treat a breach of contract as a tort for the purpose of suing the infant upon it. (Jennings v. Randall, 8 T. R. 335.)

(a) By the 26 & 27 Vict. c. 41, s. 1, no innkeeper shall be liable to make good to any guest any loss of or injury to property brought to the inn (not being a horse or other live animal, or any gear appertaining thereto, or any carriage) to a greater amount than £30, except in the following cases(1) Where the property shall have been stolen, lost, or injured through the wilful act, default, or neglect of the innkeeper, or any

defendant at the like time was and still is the keeper of an inn Against at C., in the county of B., for the reception and accommodation of travellers.

an innkeeper.

servant in his employ. (2) Where the property shall have been deposited Statutory expressly for safe custody with the innkeeper; provided that in case of protection such deposit the innkeeper may require as a condition of his liability of innthat the property be deposited in a box or other receptacle fastened and keeper. sealed by the person depositing it. By sect. 2, if an innkeeper shall refuse to receive for safe custody any property of his guest, or if the guest shall, through any default of the innkeeper, be unable to deposit his property, the innkeeper shall not be entitled to the benefit of the Act in respect of such property. By sect. 3, every innkeeper is bound to cause at least one copy of sect. 1 of the Act, printed in plain type, to be exhibited in a conspicuous part of the hall or entrance of his inn, and is to be entitled to the benefit of the Act in respect of such property only as shall be brought to his inn while such copy is so exhibited. An "inn" means under the Act any hotel, inn, tavern, public-house, or other place of refreshment the keeper of which is by law responsible for the property of his guests (sect. 4).

It has been held that the word wilful in the words "wilful act, default, or neglect " in the 1st section, must be read with "act only, and not with "default" or "neglect." (Squire v. Wheeler, 16 L. T. N. S. 93, per Byles, J.)

It has been held that a mere verbal error in the copy of sect. 1 of the Act will not vitiate the notice so as to make it ineffectual, provided the notice states correctly the provisions of the Act; but the omission of a material portion of the statute will render the notice ineffectual to protect the innkeeper. (Spice v. Bacon, 46 L. J. 713, App.) And the accidental omission of the word "act" in the recital of the first section of the Act was held to be a material omission. (Ib.)

An innkeeper is bound at common law to receive persons who present themselves as guests at any hour of the day or night, provided they offer themselves in proper condition to be received into the inn and are ready to pay for the accommodation, and provided there is room to accommodate them; but he is at liberty to set up an inn for the reception of a particular class of persons, and in such a case he is only bound to do what he publicly professes to do. (See per Parke, B., in Johnson v. Midland Railway Co., 4 Ex. 373.) Coffee-house keepers who do not profess to lodge guests, boarding-house keepers, lodging-house keepers, and the owners of public-houses who do not let bed-rooms, are not innkeepers at common law. To constitute a person an innkeeper, he must profess to entertain and lodge all travellers. (See 2 Kent Com. 559-6.) Some of these persons, however, would come under the definition of the above statute.

The real innkeeper is the person liable, and not a manager in whose name the licenses have been taken out. (Dixon v. Birch, L. R. 8 Ex. 135.) This would, semble, hold in cases which the above statute includes.

How it

may be

lost.

Who are

innkeepers.

The innkeeper's lien and right of sale under

An innkeeper has a lien for his charges upon all goods brought by the guest to his inn; but until the other day he could merely retain the goods until payment. He might not sell them and satisfy his debt. However, by an Act of the present session, which came into operation on the 8th August, 1878, an innkeeper may sell the goods on which he has a lien, provided (1) he keeps them six weeks before doing so, and (2) adver- it. tises the sale as directed by the Act a month before the sale.

Defences.]-In actions against innkeepers, where they are under the protection of the above statute they can set up the defence that the guest did not comply with the statute. On the other hand, if the innkeeper

2. On or about the 1st of October, 1876, the defendant received into his said inn the plaintiff as and being a traveller.

3. The plaintiff brought with him into the said inn a portmanteau containing articles of wearing apparel, and he placed the same in the bedroom allotted to him by the defendant in the said inn.

4. During the night of the 3rd or morning of the 4th of October, 1876-and while the plaintiff continued to abide in the said inn as a traveller and guest-some person or persons effected an entrance into the plaintiff's said bedroom, and stole thence the said portmanteau and its contents, whereby the same were wholly lost to the plaintiff.

5. The said loss to the plaintiff was brought about by the negligence of the defendant in not providing proper bolts and locks for the door of plaintiff's said bedroom, and by his negligence in employing dishonest servants, and by his negligence in allowing dishonest persons to have access to the premises of his said inn.

The plaintiff claims :

Statement of Defence.

1. The defendant does not admit the allegations contained in the 3rd paragraph of the statement of claim.

2. The defendant denies that the plaintiff's portmanteau and its contents were stolen as alleged in the 4th paragraph of the statement of claim, or at all.

3. If the plaintiff's portmanteau and its contents were stolen

has not brought himself within it by not complying with its requirements, such as exhibiting the printed copy of sect. 1, the plaintiff may in his reply state such omission. In one case it was held that in actions founded on the common law liability of innkeepers, it is a good defence that neither they nor their servants were guilty of any negligence or default in keeping the goods. (Dawson v. Chamney, 5 Q. B. 164.) But the loss of the goods raises a presumption of negligence, and throws on the innkeeper the onus of proving that there was in fact no negligence. He may do this by showing the precautions taken by him, or by showing that the loss happened by the negligence of the guest himself (Armistead v. Wilde, 20 L. J. Q. B. 524 ; Burgess v. Clements, 4 M. & S. 306); but it must be shown that the loss would not have happened if the guest had used the ordinary care of a prudent man. And in Morgan v. Ravey, 6 H. & N. 265, it was laid down generally that an innkeeper, though guilty of no negligence but even diligent, is liable for the loss of or injury to goods of his guest not arising from the negligence of the guest, the act of God, or the Queen's enemies.