illegal act to be performed by A., to which both are alike privy, and A. do his part in the business, B. has, it seems, no moral right to refuse performance of his part, provided there be nothing immoral in that part abstracted from the general end of the contract; as, for instance, if, under a contract to ship goods contrary to law, A. ship the goods, B. has no ground in natural equity for refusing to pay the stipulated price: A. and B. were equal in the culpability of the contract, but B. does a fresh wrong by refusing payment:(g) but it is a wrong for which no remedy is afforded by the law, for ex dolo malo non oritur actio. "It is not for his (the defendant's) sake," said Lord Mansfield, C. J., "that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the

(9) There is a difference of opinion amongst the jurists as to the binding nature of the promise, in the case above stated, in foro conscientia; though all agree that it cannot

be enforced. See Grot. de Jur. Bell. ac Pac. lib. ii, c. xi, s. 9; Pothier, Tr. des Oblig., Part I, chap. 1, sect. 1, art. 3, § 6.

to pay another for procuring a government contract for furnishing supplies. Tool Co. v. Norris, 2 Wall., 45. That a public officer should resign in order that another should have his office. Parsons v. Thompson, 1 H. Bl., 322: Eddy v. Capron, 4 R. I., 395. That one officer should exchange his office with another. Stroud v. Smith, 4 House (Del.), 448. A contract that aid should be given to obtain the appointment to office of a third party. Gray v. Hook, 4 Ň. Y., 449. That a bid will not be made for the labor of convicts. Gibbs v. Smith, 115 Mass., 592. That signatures shall be procured to a pardon, and the same obtained from the executive. Hatzfield v. Golden, 7 Watts, 152. A railroad company's contract that they will not maintain a depot at or near a given place. St. Joseph R. R. Co. v. Ryan, 11 Kan., 602. To pay the agents of a railroad company a given sum, provided they locate the road in a given place. Fuller v. Dame, 18 Pick., 472; Pacific R. R. Co. v. Seely, 45 Mo., 212. A combination for street improvement, agreeing to pay some who will come into the scheme. Maguire v. Smock, 42 Ind., 1; Howard v. First Ind. Church, 18 Med., 451. A contract that a right be waived, which is in contravention of State policy. Branch v. Tomlinson, 77 N. C., 388. Contracts in restraint of marriage. Lowe v. Peers, 4 Burr, 2225; Baker v. White, 2 Vern., 215; Woodhouse v. Shepley, 2 Atk, 535; Cook v. Richards, 10 Ves., 429; Phillips v. Medbury, 7 Conn., 567; Conrad v. Willlams, 6 Hill, 444; England v. Downes, 1 Beav., 96; Rarltey v. Rice, 10 East, 22; Sterling v. Sinnickson, 2 South, 750; Eldred v. Malroy, 2 Col. (Ter.), 320; Young, ex parte, 6 Biss., 53. A marriage brokerage contract. Roberts v. Roberts, 3 P. Wms., 74; Drury v. Hooke, 1 Vern., 412; Smith v. Aykwell, 3 Atk., 566; Boynton v. Hubbard, 7 Mass., 112. A contract for the purchase of land belonging to the United States, in fraud of the laws of the same. Brake v. Ballou, 19 Kan., 397; Smith v. Johnson, 37 Ala., 633. The contracts of a public enemy; no one can enforce them for his benefit. Brandon v. Nesbitt, 6 Term. Rep., 23; Albritcht v. Sussman, 2 V. & B., 323; Musson v. Fales, 16 Mass., 334. A contract cannot be enforced which is in restraint of trade or business. Alger v. Thatcher, 19 Pick., 51. Where the contract is void as against public policy, and has been executed, the law will not restore the price paid, nor will it redeliver property. Letter v. Alvey, 15 Kan., 159; Marksburg v. Taylor, 10 Bush., 519. Contracts not to bid against each other at a public auction, particularly where property is sold on execution. Puffers, or underbidders, who mislead other bidders. Jones v. Caswell, 3 John.'s Cas., 29; Dollin v. Ward, 6 Johns., 194; Wilbur v. How, 8 id., 444; Bartle v. Coleman, 4 Pet., 184; Craig v. State of Missouri, id., 436.

advantage of, contrary to the real justice between him and the plaintiff by accident, if I may so say."(h) Where the defendant has received the benefit of the contract, this defense is evidently an unrighteous one, and will accordingly be received by the court with some degree of disfavor.(¿)

§ 460. The principle on which this defense reposes is shown by the cases on the specific performance of awards; for the illegality of the act directed to be done by the award will be a ground for refusing specific performance, although the unreasonableness of the act would be no ground, it being a decision by the judge chosen by the parties. (j) It is further illustrated by this, that where, in a suit for specific performance, a fact not put in issue by either party has come out on the evidence affecting the legality of the contract, it has been noticed by the court, which has not proceeded without directing an inquiry.(k)

§ 461. As to the clearness of the illegality which will be a bar to specific performance, there is perhaps some slight diversity of expression. In Johnson v. Shrewsbury and Birmingham Railway Co.,(7) Knight Bruce, L. J., laid it down that, before the court would enforce the specific performance of a contract, it must be satisfied that there is not a reasonable ground for contending that the contract is illegal or against the policy of the law: and in another case, (m) Turner, L. J., refused to enforce a contract for sale which he held to have been entered into for the purpose of acquiring the right to set aside a transaction for fraud committed on the vendor to the plaintiff: he declined to determine whether the contract was tainted with champerty or maintenance; but held that the right to complain of fraud was not a marketable commodity. But in a case on a contract by a solicitor retiring from a firm, to allow his name to be used after his retirement, Lord Hatherley (then Wood, V. C.) observed, "the agreement must be legal or illegal, and it is not within the discretion of the court to refuse specific performance, because an agreement savors of illegality. It must be shown to be illegal.”(n)

(h) In Holman v. Johnson, Cowp., 343. (i) Shrewsbury and Birmingham Railway Co. v. London and North-Western Railway Co., 16 Beav., 44. See, also, supra, § 318, and cf. Williams v. The St. George's Harbor Co., 2 De G. & J., 547, 558.

(j) Wood v. Griffith, 1 Sw., 43.

(k) Parken v. Whitby, T. & R., 366; Evans v. Richardson, 3 Mer., 469.

(l) 3 De G. M & G., 914. See, also, City of London v. Nash, 3 Atk., 512; S. C., 1 Ves. Sen., 12.

(m) De Hoghton v. Money, L. R. 2 Ch., 164. (n) Aubin v. Holt K & J., 70.

§ 462. Where a trust is constituted, designed to give effect to a contract in itself incapable of being enforced, and the trust is in itself perfectly lawful and independent of the contract, except so far as that may be necessary to explain the constitution of the trust, there the trust may be enforced, and by means of it the contract incidently performed. This principle was acted on in the case of Powell v. Knowler, (0) before Fortescue, M. R., where A. and B. entered into a contract for the division of an estate to be recovered, which was incapable of being enforced on the ground of champerty, and the party who, according to the contract, was to convey part of the estate to the other, by a codicil directed the contract to be carried into execution, and created a trust for that purpose; the trust was specifically enforced against the trustee.

§ 463. The principle of this case is in analogy with that of several other cases. Thus where an act, though the result of an unlawful contract, is itself lawful, it may form the consideration for a lawful contract, as, for instance, the actual transfer of stock, the contract for which was illegal.(p) Similarly a trustee into whose hands money is paid on account of a third person cannot set up the illegality of the trust under which the money was so paid, though the cestui que trust could not have enforced his right against the payer directly, as in that case he could only have got at the money through the illegal contract. (q)

§ 464. The position of the court with regard to illegal contracts was thus stated by Jessel, M. R., in a recent case.(r) "I think," said his lordship, "the principle is clear that you cannot directly enforce an illegal contract, and you cannot ask the court to assist you in carrying it out. You cannot enforce it indirectly; that is, by claiming damages or compensation for the breach of it, or contribution from the persons making the profits realized from it. It does not follow that you cannot, in some cases, recover money paid over to third persons in pursuance of the contract; and it does not follow that you cannot, in other cases, obtain, even from the parties to the contract, moneys which they have become possessed of by representations

(0) 2 Atk., 224.

(a) Thomson v. Thomson, 7 Ves., 470; Ten" (p) M'Callan v. Mortimer, 9 M. & W., 636. ant v. Elliott, 1 B. & P., 3. (r) Sykes v. Beadon, 11 Ch. D., 170.

that the contract was legal, and which belonged to the persons who seek to recover them." (s)

§ 465. Trade unions being, apart from the trade union act, 1871, illegal associations, the court will not, at the instance of a member of such an union, enforce a contract contained in its rules for providing benefits for its members. (t)1

(8) 11 Ch. D.,197. (t) Rigby v. Connol, 14 Ch. D., 482; cf. Duke v. Littleboy, 28 W. R., 977.

1 Where the consideration is immoral.] Such contracts are never enforced at law or in equity. An agreement for the commission of crime, or in violation of a statute law, or the writing, printing or sale of an immoral or libelous book or picture. Trovinger v. McBurney, 5 Cow., 253; Fores v. Johns., 4 Esp., 97; Poplet v. Stockdale, R. & M., 337.

Contract forbidden by statute_law.] It is hardly necessary to say that such agreements are always void. Tucker v. West, 29 Ark., 386.

Prohibitory words in statute.] The rule is now well-settled, that although there are no prohibitory words in statute, that a penalty imparts a prohibition. Bartlett v. Vinor, Carth., 252; Little v. Poole, 9 B. & C., 192; Cannan v. Bryce, 3 B. & Ald., 179; De Begnis v. Armistead, 10 Bing., 107: Foster v. Taylor, 5 B. & Ald., 896; Ferguson v. Norman, 6 Scott, 794; Mitchell v. Smith, 4 Dall., 269; Pray v. Burbank, 10 N. H., 377; Sharp v. Lease, 4 Halst., 352; Seidenhender v. Charles, 4 Serg. & Rawle, 159; Harris v. Runnels, 12 How., 80; Coombs v. Emery, 14 Me., 404; Terrett v. Bartlett, 21 Vt., 184; White v. Bass, 3 Cush., 449.

Usury affecting the contract.] Such contracts cannot be enforced specifically. Belcher v. Vardon, 2 Col., 173. A plaintiff seeking the aid of a court of equity from a contract usurious in its nature, must expect relief only upon the terms of paying what is, in fact, due to the defendant. Where he does not offer to do so, the pleadings may be demurred to. Story's Eq. Jur., § 301; Burfield v. Solomons, 9 Ves., 84; Rogers v. Rathbun, 1 John.'s Ch, 367; Ballenger v. Edwards, 4 Ired. Eq., 449; Beard v. Bingham, 76 N. C., 285.

Wagering contracts.] A wager is "a contract in which the parties stipulate that they shall gain or lose upon the happening of an uncertain event in which they have no interest, except that arising from the possibility of such gain or loss." Fareira v. Gobell, 89 Pa. St., 90. Such contracts were lawful at common law. Chitty on Con., 615. An action will be sustained, brought to compel a gambling security to be given up to be canceled. Rawden v. Shadwell, Ambler, 269; Hasket v. Wotman, 1 Nott. & McCord, 180; Wood v. Wood, 2 Murphy, 172; Forrest v. Hunt, id., 458; Martin v. Terrell, 12 Sm. & Marsh, 571; contra, Cowles v. Raquet, 14 Ohio, 55. The entire contract is void, where a part of the consideration of the same was lost and won at gambling. Reed v. Reeve, 13 Bush. (Ky.), 447.

Frustrating the administration of justice.] No contract which has this for its object, can ever be enforced; that evidence shall be withheld and the like. Kimbrough v. Lane, 11 Bush. (Ky.), 550. A contract was made with a party to pay him, he being a witness in a cause on trial, provided his evidence should lead to a favorable result for the party calling him. Held, that such contract was void. Pollock v. Gregory, 9 Bosw., 116; Nickleson v. Wilson, 6 N. Y., 862; reversing S. C., 1 Huň., 615, is an instructive case on this point.

Compounding a felony ] Where a contract is sought to be avoided on the ground that the consideration was the compounding a felony, it must be shown that the compounding the felony was the consideration for the contract in question. The consideration of an instrument was bona fide, and the debtor was under an obligation to pay or secure the same. Held, that a threat of a criminal prosecution, unless a mortgage is given, does not compound the offense. Plant v. Gunn, 2 Woods., 372.

Contract for goods purchased for an illegal purpose.] Where an action is brought to recover the price of goods sold, the vendor knowing that they were purchased for an illegal purpose-Held, that it was no defense, provided it was not made a part of the contract that they should be used for that purpose; and also provided, that nothing has been done by the vendor in furtherance of the unlawful design. Holman v. Johnson, Cowp., 341; Faikney v. Reynous, 4 Burr, 2069; Hodgson v. Temple, 5 Taunt., 181; Merchants' Bank v. Spalding, 12 Barb., 302; Armstrong v. Toller, 11 Wheat., 258; Tracy v. Talmage, 14 N. Y., 162; McKinny v. Andrews, 41 Texas, 363; contra, Langdon v. Hughes, 1 Maule & Seld., 593. Walworth, Ch., in De Groot v. Vanduzer, 20 Wend., 390, gives a very clear exposition of the law on this question: "There are, undoubtedly many conflicting decisions upon the question, how far the vendor of an article is chargeable with a participation in the illegal purpose for which it is intended to be used, from a mere knowledge of the fact that the purchaser intends so to use it. The case of the druggist who sold drugs to a brewer, knowing that he intended to use them in brewing, contrary to the statute, is a very strong case in favor of extending the principle to a collateral contract, which had no necessary connection with the violation of the law. That case shows, too, that where the agreement is made for the purpose of aiding the violation of the law, it is not necessary to aver and prove that the offense was, in fact, consumated by an actual violation subsequent to the agreement, which agreement is void from the beginning. Langton v. Hughes, I Maule & Seld., 593. If a trader agrees to furnish a robber with arms and ammunition for the purpose of carrying on his business of highwayman, it cannot be a valid answer to the illegality of the contract, that the arms and ammunition sold to him for that purpose were not, in fact, used in the prosecution of the illegal object originally intended at the time of the purchase. The illegality of the contract consists in the intention to aid in a violation of the law, or of a principle of public policy, or to commit a breach of good morals, and not in the actual consummation of the offense. These cases in which an independent contract has been held void from a mere knowledge of the fact of the illegal end in view, proceed on the ground that the party having such knowledge, intended to aid the illegal object at the time he made the contract; and whenever, therefore, that intention is shown, no doubt can exist as to the propriety of applying the rule that no action or claim can be sustained in a court of justice founded upon such contract."

Contracts in cases where the parties sustain fiduciary relations to each other.] Such contracts are those between attorney and client, guardian and ward, parent and child, physician and patient, principal and agent, and trustee and cestui que trust. Such agreements are rarely enforced, and are regarded with suspicion. Goddard v. Carlisle, 9 Price, 169; Fox v. McKrath, 2 Bro. C. C., 407; Baker v. Bradley, 35 Eng. Law & Eq., 449; Wolmesley v. Booth, 2 Atk., 25; Edwards v. Myrick, 2 Hare, 60; Billing v. Southee, 10 Eng. Law & Eq., 37; Dent v. Bennett, 4 M. & C., 269; Dawson v. Massey, 1 B. & B., 226; Hylton v. Hylton, 2 Ves., 548; Hatch v. Hatch, 9 id., 292; Cecil v. Plaistour, 1 Aust., 202; Taylor v. Taylor, 8 How, 200; Jenkins v. Pye, 12 Pet., 241; Socum v. Marshall, 2 Wash. C. C., 397; Whalen v. Whalen, 3 Cow., 537; Bonney v. Hollingsworth, 23 Ala., 698: Sears v. Shafer, 2 Seld., 268; Hewett v. Crane, 2 Halst. Ch., 159; Howell v. Ransom, 11 Paige's Ch., 538; Evans v. Ellis, 5 Denio, 640; Voorhees v. Presbyterian Church, 8 Barb., 136; Blackmore v. Shelly, 8 Humph., 439; Dobson v. Racey, 3 Sandf., 61; Pratt v. Thornton, 28 Me., 335; Van Epps v. Van Epps, 9 Paige's Ch., 207; Farnam v. Brooks, 9 Pick., 212; King v. Baldwin, 2 John. Ch., 554; Bank of N. S. v. Etting, 11 Wheat., 59; Kerr on Fraud, 161, 162.

Equity of redemption.] Contracts between mortgagor and mortgagee, which have for their object the extinguishment of the equity of redemption, are viewed with great suspicion by the courts; yet a new contract made between them, whereby the title becomes absolute, if it is fair, will not be disturbed. Remsen v. Hoy, 2 Edw. Ch., 535; Wilson v. Carpenter, 62 Ind., 495.