Sec 305

To a contract to do a particular thing it is also a defence that the service promised has subsequently been absolutely prohibited by law.4 In a modern English case, the defendant had leased certain land with a covenant that only ornamental buildings should be erected by him on certain adjacent land he retained. This adjacent land, however, was taken and used for a station by a railroad company, under a parliamentary power. It was held that this intervention of the legislature relieved the defendant from his obligation to keep the land free from any buildings that were not ornamental.5 And to a suit on a recognizance alleged to be forfeited, it is a defence that the party whom the bail undertook to deliver was intermediately taken out of the custody of the bail by legal process in the state to whose laws the recognizance was subject.1 It is otherwise, as will be seen, when the arrest is in a foreign state.2 - It may happen that an injunction, at the suit of a third party, is served on a party to a contract, prohibiting from performing his part in the contract. If so, this is a defence to a suit for specific performance, though it might not be a defence to a suit for damages if the party enjoined, by his negligence or other improper conduct, exposed himself to the injunction. Or, aside from the question of injunction, the doing of the thing contracted may be made subsequently to the contract illegal, as when during the pendency of a foreign war the furnishing of supplies of a particular kind is interdicted.3 Whenever, in any way, performance becomes illegal, then performance cannot be exacted.4 - In a suit against a carrier, it is a good defence that the goods were taken from the carrier by legal process.5 - An embargo which prevents the performance of a contract only suspends, but does not extinguish the obligation;6 and so of a war between the countries of the obligor and of the obligee.7 And a party who insures against a particular event is not relieved by the fact that the event in question is brought about by the action of the public authorities.8 Subsequent legislation also does not excuse when it merely makes the duty burdensome and expensive.1

Subsequently occurring legal prohibition a defence.

1 Maule, J., Moss v. Smith, 9 C. B. 103, cited Leake, 2d ed. 682.

2 Infra, sec 308, 311. 3 Infra, sec 328, 629.

4 Wood v. Griffith, 1 Swanst. 55; Brown v. Mayor, 9 C. B. N. S. 726; Anglesea v. Rugeley, 6 Q. B. 107; Davis v. Carey, 15 Q. B. 418; Wynn v. R. R., 5 Ex. 420; Baily v. De Cres-pigny, L. R. 4 Q. B. 180; Baylies v. Fettyplace, 7 Mass. 325; Sears v.

Boston, 16 Pick. 357; Jones v. Judd, 4 N. Y. 412; Presb. Ch. v. N. Y., 5 Cow. 538; Claney v. Overman, 1 Dev. & Bat. 402; Stone v. Dennis, 3 Porter, 231; Brown v. Dillahunty, 4 Sm. & M. 714. As to bail-bonds, see infra, sec 321.

5 Baily v. De Crespigny, L. R. 4 Q. B. 180; see Mills v. East London Union, L. R. 8 C. P. 79.

1 Infra, sec 321. 2 Ibid.

3 See infra, sec 473.

4 Jones v. Judd, 4 N. Y. 412. That a contract to violate a statute cannot be enforced, see infra, sec 360 et seq. That ordinarily a contract cannot be modified by subsequent litigation, see infra, sec 367.

5 Savannah, etc., R. R. v. Wilcox, 48 Ga. 432. A lessee who is dispossessed by military authority during war, his lessor having gone within the enemy's lines, is released from the payment of the rent accruing during the period of his dispossession. Gates v. Goodloe, 101 U. S. 612. See more fully, infra, sec 319, 473.

6 Hadley v. Clarke, 8 T. R. 259; Baylies v. Fettyplace, 7 Mass. 325; see Geipel v. Smith, L. R. 7 Q. B. 404: Jackson v. Ins. Co., L. R. 10 C. P. 125; The Teutonia, L. R. 3 Ad. & E. 394; L. R. 4 P. C. 171.

7 Infra, sec 476; Reid v. Hoskins, 4 E. & B. 979; 6 E. & B. 953; Esposito v. Bowden, 7 E. & B. 763; and cases cited infra, sec 476. That temporary impossibility only suspends remedy, see infra, sec 331.

8 Brown v. Ins. Co., 1 E. & E. 853; infra, sec 311; see infra, sec 473 et seq.