the law and of the constitution, it furnishes a rule much more general than the first class, yet definite in its terms, and clearly distinguishable from that class of public policy or political expediency which would comprise such questions, as, whether it is wise to have a sinking fund or a paper circulation, and which would properly guide the legislature or the executive government in determining any question which they might have to deal with. It is evident that courts of law cannot decide upon these considerations. It would seem that all the cases which have been decided upon the ground of public policy are referable to one or other of the two classes above mentioned, and perhaps this section of law cannot be summed up in a way more satisfactory to the reader than by quoting the words of Parker, C. J., in the famous case of Mitchell v. Reynolds: "All the instances of a condition against law in a proper sense are reducible under one of these heads: first, either to do something that is malum in se or malum prohibitum; secondly, to omit the doing of something that is a duty; thirdly, to encourage such crimes and omissions. [225] Such conditions as these the law will always, and without regard to circumstances, defeat, being concerned to remove all temptations and inducements to those crimes."'7

The third class of cases consists of those in which the contract is avoided on the ground of fraud; that is, deceit practised upon the contracting party in order to induce him to enter into it. [226] The deceit may be of an active kind, as falsehood and misrepresentation actually used by one party for the purpose of deceiving the other; or it may be passive, as where a vendor knows that a purchaser labors under a delusion, which he also knows is influencing his judgment in favor of purchasing, and [being under a duty or obligation to communicate the facts] suffers him to complete his purchase under that delusion.

If the representation be not known to be false by the utterer of it, or be not used with intent to deceive, it will

6. 1 P. Wms. 189; 1 Smith's L. C. (7th Am. Ed.) *508.

7. See, generally, Clark on Con

tracts (3d Ed.), 348-404, where the subject is fully considered and the cases cited.

not amount to fraud, although really false. [227] Moral fraud in a representation is essential in order to invalidate a contract made upon the faith of that representation. But it is not necessary, in order to constitute moral fraud, that it should be false to the knowledge of the party making it: if untrue in fact, and not believed to be true by the party making it, and made for a fraudulent purpose, it is both a legal and a moral fraud. This deceit, moreover, must also actually induce the contracting party to enter into the contract. If he contracted, not believing it, or trusting to his own judgment, and not to the representation, he cannot avoid this contract on account of the falsehood. [228]

With regard to the class of contracts void because illegal under the express provisions of some statute, no contract prohibited by the express provisions of a statute can be enforced in any court of law. An implied prohibition is equally fatal to its validity. The examples which most commonly occur in practice of implied prohibition are in cases in which an act does not in express terms enact that a particular thing shall not be done, but imposes a penalty upon the person doing it. [229] In such cases the imposition of the penalty is invariably held to amount to an implied prohibition of the thing itself, on the doing of which the penalty is to accrue. The sole question in every case is whether the statute means to prohibit the contract. [233]

There is a practical distinction between contracts forbidden by the express or implied enactment of some statute, and another class, in which the contract itself does not violate the statute, but some incidental illegality occurs in carrying it into effect. [234] In these latter cases the contract is good, and may be made the subject-matter of an action, notwithstanding the breach of the law which has occurred in carrying it into effect1

8. Moens v. Heyworth, 10 M. & W. 147; Atwood v. Small, 6 Cl. & Fin. 232; note Smith on Contracts (7th Am. Ed.), *248; Clark on Contracts (3d Ed.), 272-297 and cases cited.

9. Wetherell v. Jones, 3 B. & Ad.

221. See, generally, Clark on Contracts (3d Ed.), 320 et seq. and cases cited.

1. See the note on page 259, 7th Am. Ed. of Smith on Contracts and cases cited; also next note, supra.

Where a contract is to do a thing which cannot be performed without a violation of the law, it is void whether the parties knew the law or not. [236] But in order to avoid a contract which can be legally performed, on the ground that there was an intention to perform it in an illegal manner, it is necessary to show that there was the wicked intention to break the law.

The distinction concerning an indidental illegality applies to cases of common law as well as statutable illegality. [237]

At common law, contracts by way of gaming or wagering were not, as such, unlawful.2 [245] Their illegality depends upon statute law. If a party loses a wager [made illegal by statute], and requests another to pay it for him, the loser is liable to the party so paying it for money paid at his request. [246] But it has been held also, that the amount of a bet lost at a horse-race, and paid by the loser into the hands of a third party, on the promise of the latter to pay it to the winner, cannot be recovered by the winner out of the assets of such third person, if deceased. [247]

There is one class of wagers which require some attention, viz., wagers in the shape of policies of insurance. [248] An insurance is a contract by which, in consideration of a premium, one or more persons assure another person or persons in a certain amount against the happening of a particular event; for instance, the death of an individual, the loss of a ship, or the destruction of property by fire. These three classes of policies, upon ships, lives, and fire, are of the most common occurrence; but there is nothing to prevent insurance against other events.3

What is to be considered as an interest in the event within the meaning of the statutes upon this subject? [251] It is clear that a creditor has an interest in the life of his

10

2. Hampden v. Walsh, 1 Q. B. D. 189; Campbell v. Richardson, John. 406; Clark on Contracts (3d Ed.), 341, 342.

In some states, however, all wagers on matters in which the parties have no interest are illegal, as being con

trary to public policy. Clark on Contracts, 342 and notes.

3. Wager policies, or policies wherein the insured has no interest in the life or thing insured, are by the weight of authority invalid. Clark on Contracts (3d Ed.), 343.

debtor, that a trustee may insure for the benefit of his cestui que trust, that a wife has an interest in her husband's life, and that a man may assure his own life; but he cannot evade the statute by doing so with the money of another, which other is to derive the beneft of the assurance, and has no interest in his life."

4. Clark on Contracta, 344.

LECTURE VII. [253]

THE LORD'S DAY ACT.

SIDERATION.

TRACTS.

- BILLS OF EXCHANGE FOR ILLEGAL CONRECOVERY OF MONEY PAID ON ILLEGAL CON

Contracts falling within the operation of the Lord's Day Act, 29 Car. II., c. 7. This statute enacts that no tradesman, artificer, workman, laborer, or other person whatever shall do or exercise any worldly labor, or business or work of their ordinary callings, upon the Lord's day (works of necessity or charity only excepted), and that every person of the age of fourteen years offending in the premises shall forfeit five shillings." [254] The contracts prohibited by this statute are, not every contract made on Sunday, but contracts made in the exercise of a man's trade or ordinary calling: thus it has been decided that a contract made on Sunday by a farmer for the hire of a laborer is valid. The court decided, first, that a farmer was not a person within the meaning of the statute at all, for that the meaning of the words "tradesman, artificer, workman, laborer, or other person whatsoever," was to prohibit the classes of persons named and other persons ejusdem generis, of a like denomination; and they did not consider a farmer to be so. And, secondly, they held that even if the farmer were comprehended within the class of persons prohibited, the hiring of the servant could not be considered as work done in his ordinary calling.

The former of the two points decided in this case furnishes a very good exemplification of the celebrated rule of construction as applied to statutes, namely, that where an act mentions particular classes of persons, and then uses general words, such as "all others," the general words are

5. Statutes upon this subject containing provisions more or less strict than those of the statute of Charles have been re-enacted in most, if not all, of the United States. The stu

dent is referred to the statutes and decisions of the several states upon the subject. See, also, Clark on Contracts (3d Ed.), 328-332.