(B) What Acts are absolutely void. in the proper county, yet if an impartial or satisfactory trial cannot be had. there, they will not change it; as, in an action for words spoken of a justice of the peace by a candidate on the hustings at a county election. Cowp. 510. And in order to avoid delay, the courts will not change the venue, except by consent, or upon an affidavit of merits, into the city of Bristol or Norwich, (where there are no Lent assizes,) in Michaelmas or Hilary term. Barnes, 481; 1 Wils. 138; 11 Price, 613; sed vide 1 Chit. R. 334; 11 Price, 742. See further as to cases where the venue may and may not be changed, Tidd's Prac. vol. 1, c. 24, (9th edit.); Archb. Prac. vol. 2, p. 193, (2d edit.)|| VOID AND VOIDABLE. In the law, some acts are absolutely void, and others are voidable only; for the better understanding whereof, it is necessary to consider, (A) The Distinction between void and voidable. (B) What Acts are void; wherein, of the Degrees in which Acts may be void, as, 1. What Acts are absolutely void as to all Purposes. 2. What void as to some Purposes only. 3. What as to some Persons only. 4. How Acts void by Operation of Law may be made good by subsequent matter. (C) What Acts are voidable only. (D) How voidable Acts may be made good. (E) How they may be avoided. (F) By whom they may be avoided. (A) The Distinction between void and voidable. A THING is void which was done against law at the very time of the doing it, and no person is bound by such an act; but a thing is only voidable which is done by a person who ought not to have done it, but who nevertheless cannot avoid it himself after it is done; though it may by some act in law be made void by his heir, &c. 2 Lill. Abr. 807. [The doctrine in the text as to voidable acts is far from being universally just. It does not hold in the case of infants. An infant, when he comes of age may himself avoid a voidable act done by him in his infancy.] See Bouv. L. D. v. Void; Id. v. Voidable. (B) What Acts are absolutely void. ACTs, it is said, may be void in several degrees, according to the particular circumstances of the case. Cart. 19, Keite v. Clopton. It will be proper, therefore, to consider, (B) What Acts are absolutely void. 1. What Acts are absolutely void as to all Purposes. Bond of a feme covert and infant are void. Bro. Obligation, pl. 26. This, however, with regard to the infant must be understood with some restriction; for if an infant gives a bond without a penalty for necessaries, it is good; and the reason why it is void, if with a penalty, seems to be that the law gives validity to every act of the infant's which may be for his benefit; but it cannot be presumed to be for his benefit to enter into a penalty. Noy, 85, Delaval v. Clare; Cro. Eliz. 920; Ayliff v. Archdale, S. C.; Moor, 697; 1 Inst. 172 a; 1 Roll. Abr. 729; 1 Lev. 87, Russell v. Lee; Fisher v. Mowbray, 8 East, 330; Baylis v. Dineley, 3 Maule & S. 477; Ingledew v. Douglas, 2 Stark. Ca. 36; and where a feme covert having a separate estate, gave a bond for a sum advanced at her request to her son-in-law, it was held, that a promise by her to pay it after her husband's decease, was binding on her executors. Lee v. Muggeridge, 5 Taunt. 36. [A warrant of attorney given by an infant is merely void. Saunderson v. Marr, 1 H. Black. 75.] And see Storton v. Tomlins, 2 Bing. R. 475. The trading contract of an infant is not void, but he may enforce it at his election. Bruce v. Warwick, 6 Taunt. 118. And an infant's promise as one of two acceptors of a bill of exchange seems only voidable, not void. Gibbs v. Merrill, 3 Taunt. 307; sed vide contra, 2 Barn. & C. 826.|| ||The probate of the will of a feme covert is absolutely void. Clayton v. Adams, 6 Term R. 605.|| So likewise the bond of a person non compos mentis, after office found, is absolutely void. 4 Co. R. 128, Beverley's case. It is said the reason why the bond of an infant or person non compos, is void, is because the law has appointed no act to be done to avoid it; and the only reason why the party cannot plead non est factum is, that the cause of nullity is extrinsic, and does not appear on the face of the deed. 2 Salk. 675, Thompson v. Leach. And see post, What acts are voidable only. And in general all bonds which are given for a purpose malum in se, as to kill or rob another, are void. See ante, tit. Obligation (D) and (E). See Badger v. Williams, 1 Chip. 137; Whitaker v. Cone, 2 Johns. Cas. 58; Swett v. Poor, 11 Mass. 549; Toler v. Armstrong, 4 Wash. C. C. R. 297; Jones v. Caswell, 3 Johns. Cas. 29; Thompson v. Davies, 13 Johns. 112; Gulick v. Ward, 5 Halst. 87; Hudson v. Wilkins, Mass. 370; Churchill v. Perkins, 5 Mass. 541; Denny v. Lincoln, 5 Mass. 385; Belding v. Pitkin, 2 Caines, 147. A contract to do an illegal or immoral act is void. Forsythe v. State, 6 Ham. 21; Winnebinner v. Weisiger, 3 Monr. 35.7 Likewise bonds given for the performance of a malum prohibitum, as for maintenance. And bonds to oblige persons to neglect their duty to the king and kingdom, are absolutely void. If a future lease be made to commence after the death of tenant in tail, it is merely void in its creation; for it is not to commence till the title of the issue commences, and that is an elder title concurring with it; and if the law should make it otherwise than void, the law would make him a trespasser. 2 Salk. 620, Machil v. Clerk. See post, (C). If a bishop grants administration, and there are bona notabilia, such administration is absolutely void, as well as to the goods within his own diocese as elsewhere, because he hath in such case no jurisdiction whatever. 5 Rep. 30, Prince's case; 8 Rep. 135, Sir John Nedham's case; Noy, 96, Crossman v. Hume. {See 2 Mass. T. Rep. 120, Wales v. Willard. And see post, (C). As to the other cases in which administration is void, and in which voidable, see Toller, Law of Ex. 120, (5th edit.;) ante, tit. Executors and Administrators.|| (B) What Acts are absolutely void. So likewise a judgment, given by persons who have no good commission for that purpose is void. 3 Inst. 231. And it may be added, that in general all acts done by ministers of justice without authority are void. 10 Rep. 76 b. And see post, (C). ||By 4 G. 4, c. 76, § 22, marriages in any other place than a church or public chapel, &c., unless by special license, or without publication of banns, or license of marriage, or solemnized by a person not being in holy orders, are null and void to all intents and purposes. 4 G. 4, c. 76, § 22; and see tit. Marriage, (C).|| Commissioners were bound by law to build a courthouse, certain persons agreed by subscription to pay the commissioners a certain sum, provided they would build on a certain lot; this contract is not binding, although they build on the lot, it being contrary to public policy. County Commissioners v. Jones, 1 Breese, 103; see State v. Collins, 6 Hamm. 142. Where any part of the consideration of a contract is the suppression of evidence in a criminal prosecution, such contract is void. Badger v. Williams, 1 Chip. 137. A contract made to indemnify a party for doing an illegal or immoral act, to be done at a future period, is void. Kneeland v. Rogers, 2 Hall, 579; 14 Johns. 381; 1 Caines, 450; see Gulick v. Ward, 5 Halst. 87. An agreement to give B $1000 on condition that he will not offer to the postmaster-general to carry the mail, on a mail route, is void. Gulick v. Ward, 5 Halst. 87. An agreement tending to prevent a competition at a sale on execution, is void. Jones v. Caswell, 3 Johns. Cas. 29; Thompson v. Davies, 13 Johns. 112; 6 Johns. 194; 8 Johns. 444. An agreement to reprint a literary work, in violation of the proprietor's copyright, is void. Nichols v. Ruggles, 3 Day, 145. An agreement made between a third person and an officer to indemnify the latter for neglecting his duty, is void. Hudson v. Williams, 7 Greenl. 113; Ayer v. Hutching, 4 Mass. 370; 5 Mass. 541. See Denny v. Lincoln, 5 Mass. 385. An agreement in restraint of trade generally throughout the state, is void. Nobles v. Bates, 7 Cowen, 307. But when the party is restrained from trading only in a particular place, or for a particular time, the contract is not void for this cause. 7 Cowen, 307. See 8 Mass. 223; 9 Mass. 522; 1 Pick. 450; 3 Pick. 188; 4 Bibb, 486. An action cannot be maintained for the price of lottery tickets not authorized by law. 6 Binn. 329; Seidenbender v. Charles, 4 S. & R. 151. See Barton v. Hughes, 2 P. A. Browne, 48; Biddis v. James, 6 Binn. 312; Yohe v. Robertson, 2 Whart. 155; Hunt v. Knickerbacker, 5 Johns. 327. An obligation for the sale of an office, or a deputation, is void. Daton v. Rodes, 3 Marsh. 433; Harolson v. Dickens, 2 Car. Law Repos. 66. See Meredith v. Ladd, 2 N. H. Rep. 517; Cardigan v. Page, 6 N. H. Rep. 183; De Forrest v. Brainerd, 2 Day, 528; Tappan v. Brown, 9 Wend. 175. (B) What Acts are absolutely void. An agreement in direct opposition to the laws of the place where it is made, is void. Hall v. Mullen, 5 Har. & Johns. 193. See Wheeler v. Russell, 17 Mass. 258; Farrar v. Barton, 5 Mass. 395; Roby v. West, 4 N. H. Rep. 285. When a part of the consideration of an entire contract is against law, the whole contract is void. Carlton v. Whitcher, 5 N. H. Rep. 196; Hind v. Chamberlin, 6 N. H. Rep. 225; Loomis v. Newhall, 15 Pick. 159. By article of agreement under seal, it was agreed that the defendant should become assistant to the plaintiffs in their business of surgeon-dentists for four years; that the plaintiffs should instruct him in the business of a surgeon-dentist, and that after the expiration of the term, the defendant should not carry on that business in London, or in any of the towns or places in England or Scotland, where the plaintiffs might have been practising before the expiration of the said service. The declaration alleged as breaches, 1st, that after the term, the defendant carried on the said business in London; 2dly, that the plaintiffs had, during the said term, carried on the said business in Great Russell street, Bloomsbury; yet the defendant, after the term, carried on the said business in the same place. Plea, to first breach, that London was a large and populous district, containing 1,500,000 inhabitants, and that the stipulation in the agreement was an undue, unreasonable, and unlawful restriction of trade. Plea, to the second breach, that before the expiration of the service, the plaintiffs had practised in very many towns in England, and amongst others, London, Preston, Oswestry, &c., and that divers of the said towns were distant from each other 150 miles; wherefore the said stipulation was an unreasonable restriction of trade, and the said agreement, as to so much, was wholly void. Held, that the first plea was bad, as the covenant not to practise in London was valid, the limit of London not being too large for the profession in question, and that the latter part of it was also bad, for attempting to put in issue matter of law, viz., the reasonableness of the restriction. Semble, that in considering the question of restriction, the populousness of particular districts ought not to be taken into consideration. Held, secondly, that the stipula tion as to not practising in towns where the plaintiffs might have been practising during the service, was an unreasonable restriction, and therefore illegal and void; but that the stipulation as to not practising in London, was not affected by the illegality of the other part. Every restraint of trade which is larger than what is required for the necessary protection of the party with whom the contract is made, is unreasonable and void, as injurious to the interests of the public, on the ground of public policy. Mallan v. May, 11 M. & W. 653.7 2. What Acts are void as to some Purposes only. Void things are good to some purposes. As, if lessee for twenty years take a lease for ten years, to begin presently, upon condition that if a certain thing be not done the lease shall be void; in that case, though the second lease be void on the breach of the condition, yet the surrender remains good. Finch's Law, 62. So likewise if a feoffiment be made, to be void on the non-performance of a certain condition, yet, after the feoffor's entry for the condition VOL. X.-48 212 (B) What Acts are absolutely void. broken, the feoffee shall have an action for a trespass done by the feoffor before. Finch's Law, 62. Also, if tenant at will grants over his estate, though the grant be void, yet it determines his will. Arg. Hard. 47, Jones v. Clerk. But if an act be made void by a statute, it shall avail to no purpose whatever: therefore a simoniacal presentation does not so much as amount to a claim. Arg. Ibid. [A bill of exchange, or promissory note for money lost at play, is void in the hands of an endorsee, though without notice, and for a valuable consideration. 1 Salk. 344; 2 Burr. 1077.] See 4 Taunt. 683; 4 Barn. & Ald. 212.|| [The like law, where it is given on an usurious contract. Dougl. 736.] But not in case of usury, if it is in the hands of a bonâ fide holder for value. St. 58 G. 3, c. 93. Where a statute expressly declares bills, &c., given on a certain consideration, void to all purposes, there they are void even in the hands of a bona fide holder for value, as under the gaming act, 9 Ann. c. 14, § 1, the 45 G. 3, c. 72, § 16, 17, respecting the illegal ransom of vessels, &c.; Bowyer v. Bampton, Stra. 1155; Chitt. on Bills, 81; Webb v. Brooke, 3 Taunt. 6; Jackson v. Warwick, 7 Term R. 121. But unless the instrument is declared void, the mere illegality of the consideration is no defence against a bona fide holder for value. Wyatt v. Bulmer, 2 Espin. R. 538; Chitt. on Bills, 81; unless it is taken after due, Brown v. Turner, 7 Term R. 630. [A lease of a rectory by a rector is void by his non-residence for eighty days, 2 Term R. 749. An annuity deed not enrolled pursuant to the directions of the 17 G. 3, c. 26, is absolutely void. Ibid. 603.] 3. What Acts are void as to some Persons only. A fraudulent gift of goods is not void against all, for it remains good against the donor, and is only void against his creditors. Per Anderson, Cro. Eliz. 445, Upton v. Basset. So likewise, a feoffment upon maintenance or champerty is not void against the feoffor, but against him that hath right: per Beamond, J. Cro. Eliz. 445, Upton v. Basset. Also, where a feme covert or infant are bound in an obligation with others, though the bond is void as to the feme covert or infant, yet it is good as to the others, who shall be sued alone, and the writ shall not abate. Bro. Obligation, pl. 26; 1 Roll. R. 41, Winscombe v. Pigott. And see there whether it is necessary to aver the declaration, that the other is a feme covert or infant. By 5 & 6 E. 6, c. 16, all bargains, sales, promises, bonds, &c., for sale of any offices or deputations of any offices shall be void to and against them by whom such bargains, sales, &c., are made. 5 & 6 Ed. 6, c. 16; and see 49 G. 3, c. 126, and tit. Offices and Officers, Vol. vii.|| Imbecility of mind, not amounting to lunacy, or idiocy, in the grantor of land, is not sufficient to avoid his deed, when there has been no fraud in obtaining it. Odell v. Buck, 21 Wend. 142. See Desilver's estate, 5 Rawle, 111. All contracts made by lunatics after inquisition found, are absolutely void. L'Amoureux v. Crosby, 2 Paige, 422. See as to efficacy of contracts of lunatics, ante, Idiots and Lunatics, (F).z 4. How Acts void by Operation of Law may be made good by subsequent Matter. In equity the consent of the heir makes good a void devise. Chan. Cases, 209, Lord Cornbury v. Middleton. So likewise, a devise void by misnomer of the corporation was decreed to be a good appointment of a charitable use, within the 43 Eliz. Chan. Cases, 267, Anon. |