De Groot v. Van Duzer. receive at his office in the city of New-York, &c. As what broker? as one acting for the company and on their behalf as their agent. At what office? at the office kept for the purpose. For what purpose did he as their broker and agent procure and receive such bills? For the purpose of enabling such company to discount notes, checks, bills, and issuing promissory notes, commonly called bank notes of the Washington Banking Company, and other promissory notes and evidences of debt to be put in circulation as money. The plea then goes on to allege that the agreement was made for the benefit of the said Washington Banking Company, the better to enable them to carry on their operations and business of discounting and issuing bank notes as aforesaid, at their said office in Wall-street. The inference therefore is irresistible, that the plea alleges that the agreement was made for the benefit of the company, the better to enable them to do an illegal act, and if so made, the court could not properly aid the plaintiff in seeking his remedy for a violation of it; if it was not so made, then the agreement was valid. But the plaintiff, by his general demurrer, admits it was made, the better to enable the company to do an unlawful act, as I conceive it. The test of the validity of the agreement must rest upon the fact, whether it was to effect such an object or not; this, in my view, was a proper subject for the jury, and the plaintiff, instead of demurring and thereby admitting it, should have taken issue upon it. I am therefore for overruling the demurrer to this class of pleas. As to the second class: I am of opinion that these pleas are radically defective. They contain no averment that the agreement was that the defendant should receive bills under the denomination of five dollars. The averment is, that a large portion of the notes were under the denomination of five dollars; but there is no averment that such bills were included in the agreement as forming a part of it, or that the defendant was by the terms of the agreement under any obligation to take them. The agreement as there set out is, that the defendant was to receive and discount all such notes of the Washington Banking Company as should be procured by the plaintiff, which must be taken De Groot v. Van Duzer. to mean such notes as he might legally procure in the course of business under the then existing laws of the state, and not such as the law prohibited the circulation of. The contract should not by implication receive an illegal construction. When a contract is capable of receiving two constructions, the one legal and the other illegal, it should receive that construction which would hold it legal. I am of the opinion, therefore, the demurrers as to this class of pleas were well taken, and should be sustained. The only remaining question appears to be, whether the motion for a new trial for the misdirection of the judge should have been denied. The judge charged the jury that the defendant showed no authority whatever to make the contract on the part of the bank; that as president merely, he had no such right, and it did not appear that there was any resolution of the bank, or any act of the directors, to authorize it; that the defendant having thus contracted in terms, which purported to bind him personally; and showing no authority from the bank (whose agent he now claimed to be) to bind it, he must be considered as contracting with the plaintiff in his own behalf, &c. The judge seemed to labor under the impression that the defendant must have shown a resolution of the board, or some act of the directors, to give him authority to make the contract in question, and that in the absence of such proof, he must be considered as contracting in his own behalf. This, I apprehend, was a misconception on the part of the judge, and under the circumstances of the case, was well calculated to mislead the jury. It was not necessary that a special authority should have been shewn from the company. Corporations, like individuals, are responsible in the manner in which they permit their agents to hold themselves out to the public. Buckley v. The Derby Fishing Company, 2 Conn. R. 252. Angel on Corp. 158. If circumstances were shewn, sufficient to raise a reasonable presumption that he was contracting as the president of the bank, and in that behalf as its official agent, it was a proper question for the jury. It was proved by Solomons, that Van Duzer knew he was the De Groot v. Van Duzer. agent of the bank, and that he knew the president. That Van Duzer wished to know if he was willing to allow him one per cent to give the bills a circulation, and being answered in the negative, he requested him to speak to the president of the bank, and see if he would not allow it. That Van Duzer's money came to the office addressed to George W. Yule, cashier of the Washington Banking Company, Hackensack, New-Jersey; and he produced more than twenty envelopes that came to him from Van Duzer, with bills enclosed, which went to his account with the bank. Homan also concurs with Solomons as to the manner in which the packages were addressed. That they were addressed to the cashier of the bank as well after as before they were redeemed at Solomons. All the difference as to the manner of redemption, after the agreement was made with De Groot, seems to be, that they were redeemed at Solomon's office, who was the agent of the bank, and before the agreement Van Duzer either sent or carried them to the bank. Both of these witnesses testify to a variety of circumstances sufficient to raise a rational presumption that De Groot was transacting the business as the agent of the bank, and with their knowledge and approbation, and should therefore have been submitted to the jury, in such manner as to leave the jury freely to exercise their own judgment upon them. Not that the court may not give its opinion as to matters of fact; it has an undoubted right to do so, for the consideration of the jury, but as the jurors are the triors of the facts, such an expression of opinion by the court should be so guarded as to leave the jury free in the exercise of their own judgments. Tracy v. Swartout, 10 Peters' R. 96. This in my judgment, was not done in the case under consideration, but the court assumed the right of drawing inferences from the facts, and instructing the jury as to those facts. The jurors being the legally constituted judges of the facts proved, no instructions of the court should infringe upon their high prerogative. The next objection urged for our consideration is, that the exception to the judge's charge was too general. This objection, however, in my judgment, is untenable. The exception appears De Groot v. Van Duzer. to be sufficiently explicit, for the attention of the judge was particularly called to the main and essential point. The defendant's counsel alleged that it was a contract with the defendant as president of the bank, and in behalf of the bank as its agent; and the judge then in substance charged the jury that the defendant must shew his authority, by saying that it did not appear that there was any resolution of the bank, or any act of the directors, to authorize it; that the defendant having thus contracted in terms, which purported to bind him personally, and having no authority from the bank to bind it, he must be considered as contracting with the plaintiff in his own behalf; leaving the jury plainly to infer that it was necessary there should be a resolution of the bank, or some act of the directors, to authorize him to make the contract as agent, so as to bind the bank; whereas neither was necessary. If, as president, he assumed to act as agent, and these acts were brought home to the knowledge of the directors in the transactions of the business of the bank, and they' permitted him to hold himself out to the public as their acting agent, in the management of their affairs, the bank, as it respects third persons, must be held responsible. It is unnecessary to shew a direct authority in such cases. That he was the president of the bank, acting as the general agent of the corporation, negotiating as to their paper, and did not assume or undertake to contract in his individual capacity, together with the other facts and circumstances, proved, was enough to entitle the defendant to the full benefit of the verdict of the jury, to find whether such contract should be considered as a private transaction or not. I am of the opinion a new trial should have been granted, and I am for reversing the judgment on both grounds, with leave to the plaintiff to withdraw his demurrer to the first class of pleas, and amend on payment of costs; but am for sustaining the demurrer to the second class of pleas with costs. By Senator VERPLANCK. The main question in this case is, as to the correct interpretation and right application of the legal principle expressed in the old law maxim, ex turpi contractu non oritur actio; that a contract resting on an illegal or immoral De Groot v. Van Duzer. consideration, is void. The principle itself is undoubted, and is acknowledged in one form or other, throughout the jurisprudence of the whole civilized world. Yet there is a degree of uncertainty as to its extent and application, and that in relation to cases of very frequent occurrence in the ordinary business of life. On some points there is an apparent contrariety in the decided cases; and a great deal of doubt, and even contradiction in the elementary books, as well as in the reasoning of learned judges. I have myself, in making up my decision on this case, hesitated a good deal; not indeed as to the equity of the case, but as to the exact rule which should govern as to all transactions of a similar nature. I have therefore thought it proper, in expressing my concurrence with the decision of the supreme court, to state, as briefly as I can, my own views of this doctrine and its limitations, as well as its peculiar application to the case under judg ment. The original grounds and reasons of this doctrine have been clearly stated by Lord Mansfield, in one of the earlier cases on this point; and whenever principles have been stated in full, by that illustrious magistrate, and elucidated by his reasoning, we have in our hands a clue to guide us, cæca regens vestigia filo, through any labyrinth of conflicting authorities or inconsistent adjudications. "The objection," says he, “that a contract is illegal, or immoral, as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that this objection is ever allowed; but it is founded on general principles of policy, which the defendant has advantage of, contrary to the real justice between him and the plaintiff, if I may so say. The principle of public policy is this-ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an illegal or immoral act. If from the plaintiff's own showing, or otherwise, the cause of action appears to arise ex turpi causa, or from the transgression of the positive laws of his country, then, the courts say that he has no right to be assisted. It is upon that ground the court goes-not for the sake of the |