3. A contract of champerty; that is, to furnish money for the maintenance of an action on the terms of sharing the proceeds if successful.

4. A contract in general restraint of trade.

[NOTE. But, if it is only to abstain from exercising a trade in a particular locality, it is good; but it must be within reasonable limits.

Illustrations. (a.) Gosnell and Price were hairdressers in London. They dissolved partnership, and Gosnell bought out Price, and Price covenanted with him not to carry on a similar business in London or Westminster, or within 600 miles of the same under a penalty of £5,000 In an action by Gosnell's executor against Price for breach of the agreement, it was held that the covenant was valid as far as it related to London and Westminster, but void as regarded the further limit of 600 miles, as being in restraint of trade. (a)

(6.) Vaughan gave up a shop, premises, and goodwill, and

a receipt for making ginger beer to Pemberton for £7 10s. Od., and agreed not to open a shop in the same line of business within a mile, under a penalty of £20. Vaughan did open a ginger beer shop within the prescribed limit, and Pemberton brought an action for the penalty. The Court held that the agreement was not in restraint of trade. (b)]

VI. ILLEGALITY OF CONSIDERATION.

Where the contract is to do something in contravention of an Act of parliament, or of the common law, it is void.

Examples. 1. A vendor of game, not having taken out a game-dealer's license under 1 & 2 Will. 4, c. 32, cannot sue for the price of the game sold.

2. Nor can one, who sells coals by measure instead of by weight, as ordered by 5 & 6 Will. 4, c. 63, s. 9.

(a) Price v. Green, 16 M. & W. 346.

(b) Pemberton v. Vaughan, 16 L. J. Q. B. 161.

3. Nor can a publican who sells beer on credit on the

premises. (c)

4. Nor can one who sells goods (other than milk, mackerel and bread under certain restrictions) in the

way of his trade on the Lord's day. (d)

5. Contracts by way of gaming are void.

No action can be brought by the winner to recover, either the bet from the loser, or money deposited in the hands of a third party to abide the event on which a wager is made. (e)

But the party making the deposit, may, even after the event has happened, if the stakeholder has not paid over the sum deposited, to the winner, give the stakeholder notice not to pay it over, but to return it, and can sue him for the amount.

Illustration. Hampden asserted that the world was flat; Wallace that it was round. They each deposited £500 with Walsh, who was to give his decision on the point, and to pay over the two deposits to the winner. Walsh decided in favour of Wallace, and though Hampden gave him notice not to part with his £500, he nevertheless paid over the two sums deposited, to Wallace. Hampden sued Walsh for his £500, and the Court held that the transaction was a wager, but that the plaintiff was entitled to recover his deposit from the defendant, the stakeholder. (ƒ) § "A contribution," however, to a prize for the winner of a game not forbidden by statute, is excepted from the operation of section 18 of 8 & 9 Vict. c. 109.

For instance, subscriptions of so many sovereigns, to be run for by race horses.

(c) 30 & 31 Vict. c. 142, s. 4.

(d) 29 Carl. 2, c. 7, s. 1.

(e) 8 & 9 Vict. c. 109, s. 18.

(f) Hampden v. Walsh, 1 Q. B. D. 189.

Ꭰ

But in the following case the Court held the transaction therein mentioned was simply a wager, and not a subscription to a lawful game.

Illustration. Hawkins and Batson deposited £50 each with Newman under an agreement that the £100 should be paid to Hawkins if his horse trotted eighteen miles in an hour, and to Batson, if he did not. Newman decided in favour of the horse, and Batson, before the money was paid over, demanded a return of his £50 from Newman. (a)

§ Securities given for a gaming debt, are given for an illegal consideration, and are void as between the original parties, (b) and money paid on them may be recovered. (c)

[NOTE. All games were lawful at common law, but on the petition of "The bowyers, fletchers, stringers and arrowhead-makers," 33 Hen. 8, c. 9, was passed "for the maintaining of artillery," by which a variety of innocent athletic games, such as bowls, quoits and tennis, were made unlawful, in order that young men's attention should not be distracted from the long bow, and the trade of the "bowyers, &c." should be protected. This restriction on games of skill remained in force, though obsolete, until 1845, when it was repealed by 8 & 9 Vict c. 109.

Illegal games. Certain gambling games have been prohibited by various statutes; they are

CHAPTER XI.

THE REMEDIES FOR A BREACH OF CONTRACT.

I. An action for damages.

II. An action for specific performance of the contract—

When the receipt of damages does not afford a complete remedy, the court will order the contract to be specifically performed.

For example, where a contract to deliver a cargo of wheat at a certain price is broken, the party injured can go into the market and buy other wheat of exactly the same character, and sue for the difference, if any, between the contract price and the price he had to pay for the wheat in the open market; and the damages he would in this way get would put him in the same position that he would have been in if the original contract had been performed.

But where a contract to sell a particular estate, or a chattel of a peculiar character, is broken, a complete remedy can only be had by a conveyance to the purchaser of that identical estate or chattel, as there is no other exactly like it in the market for him to buy. Illustration. Bryson, who was a dyer in Spitalfields, and

had a particular secret for dyeing bombaseen, agreed with Whitehead to sell him his business and secret. Disputes afterwards arose, and Whitehead refused to complete. The court, on Bryson's application, granted specific performance of the agreement. (d) III. Mandamus. A writ of mandamus to perform a contract will

(d) Bryson v. Whitehead, 1 Sim. & St. 74.

be granted where the contract involves the performance of a duty, in which the public at large, and the plaintiff himself personally, are interested. (a)

Illustration.

The commissioners under the Tunstall Improvement Act became indebted to Ward and Son, architects. By a provisional order the commissioners ceased to exist, and their property was transferred to the Tunstall Local Board, who were empowered to satisfy all debts contracted by the commissioners, out of such transferred property, and to charge any deficiency on the rates. There was a deficiency, and the Wards sued the board (in the name of their clerk), claiming a mandamus to compel the board to raise a rate to satisfy their claim. It was held that they were entitled to have the writ to issue. (b)

IV. An injunction to restrain the breach of a contract will be granted, where there is an agreement to abstain from doing a particular thing. (c)

Illustration. Dr. Martin and Lady Arabella Howard, his wife, had a house near the parish church of Hammersmith, and were greatly disturbed by the ringing of a five o'clock bell. They agreed with the vestry to build a cupola, and erect a clock to the church, on the terms that the bell should no longer be rung. The cupola was built, and the clock erected, and the bell ceased to ring. After two years, one Nutkin became churchwarden, and started the bell again, upon which an injunction was sought, and granted, to restrain the vestry from ringing the bell in breach of the agreement. (d)

(a) Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 68.

(b) Ward v. Lowndes, 28 L. J. Q. R. 265.

(c) Cf. Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 79. (d) Martin v. Nutkin, 2 P. Wms. 266.