thing dangerous or revolutionary in the Code, is the offspring, either of malignant opposition, of ignorance, or of prejudice. It would be blindness not to see and disingenuous to deny that American and English lawyers are from the beginning of their studies, nurtured with such a diet of prejudice that the chances are against their believing any thing new to be true or any thing old to be false. If they would bring themselves to consider the subject with the care with which they construct their briefs, they would, I cannot doubt, come to think it a part of their duty to help make the laws of the land more accessible to the people, to the judges and to themseives; and more easily understood when found. But as a general rule we might as soon expect a Mohammedan to take a Christian to his bosom, as a case-lawyer, or I might say a case-hardened lawyer take a Code to his. These are not pleasant things for a lawyer who loves his profession and believes in its inherent greatness to say, but they are true nevertheless, and being true should be understood by the people. The average practicing lawyer is, aud has always been against law reform. His heart may be as pure as the snow newly fallen upon the mountain, his philanthropy as clear as that of Howard or Cooper, yet whenever an amendment of the laws is proposed we may find him standing at the gates of reform with a battered shield on his breast and an old javelin in his hand. Every law reform has, it is true, been brought about by lawyers because none but lawyers know how to bring it about, but this has been done, be it understood, by the small band of reformers against the host of obstructives.

These men clamored against the Revised Statutes until their voices were drowned in the volume of praise; they made themselves hoarse over the Code of Civil Procedure of 1848, and before they were cured it had made the circuit of the globe; they rejoiced over the Code of Criminal Procedure as dead; it sprang into life, and they passed solemn resolutions against the Penal Code, which before not many days, they had the mortification to retract. No measure of law reform has been proposed within my memory which they did not at first laugh over, then clamor at, then resolve against, and at last in their despair, predict direful evils from, until the derision, the clamor, the resolve and the prediction were turned into mourning.

Mr. Carter has much to say about the rules of general average. Why not have the candor to add that when the Code was first proposed it professed to take the law as it then existed; but that in the legislative session of 1883, with the sanction of the judiciary committee, the York and Antwerp rules adopted by the association for the reform and codification of the law of nations, were introduced instead? He perhaps does not know that in order to avoid discussion over a subject of minor importance in the daily business of life, the subject has been now omitted. Neither, perhaps, does he know that in the report of the council of the association, made at Cologne in 1881, it was stated that these York and Antwerp rules" have become all but universally adopted; nor that in the year before it was reported to the association "that the first judgment of the English Queen's Bench and Appeal Courts, upon a matter of general average, has not only ratified, so far as the subject under consideration is concerned, the principles upon which the York and Antwerp rules are based, but has actually pronounced that the custom or practice, which for at least eighty years had prevailed among English average adjusters, and according to which they adopted a contrary system of adjustment, was at variance with the common law of England."

He sneers at the changes which have been made at successive revisions. Yes, we have tried to make the

Code better every time, and however small is the aid we have received from him and his colleagues, we have remembered the words of Macauley, that "the best Codes extant, if malignantly criticised, will be found to contain matter for censure in every page," and that the Indian commissioners had done as much "as could reasonably be expected from them, if they had furnished that which might, by suggestions from experienced and judicious persons (like Mr. Carter, for example), "be improved into a good Code."

Mr. Carter refers with great satisfaction to the thoughtless criticisms of Mr. Amos, which appear after all to rest on a few definitions. How strange those words appear by the side of a single sentence of those jurists of California who being under the responsibility of examing for the State as well as themselves, reported that they "found the four Codes, the Political Code, the Penal Code, the Civil Code and the Code of Criminal Procedure, as prepared by the commissioners, and enacted by the Legislature, perfect in their analysis, admirable in their order and arrangement, and furnishing a complete body of laws."

I may be pardoned for adding, that since Mr. Amos' work was published, I have had the good fortune to make his acquaintance, and have seen much of him, and though I cannot say that he has told me so, I am led to think that he has changed his opinion. The works of Mr. Amos and Mr.Pollock however both show that this Code has had no inconsiderable influence upon English opinion, and upon legislation both in England and in India. An English writer is rather slow to find good out of England, and even Pollock could say nothing better of the French Codes, than their showing, that an imperfect Code was far better than no Code at all. But however this may be, the opinion of any number of theorists weigh nothing in comparison with the weight of experience. Our Civil Code has been copied in California and Dakota, the most central and the most western communities of this continent, and it has been their law for a decade. How they find it let the letters in the appendix show. They were written by Messrs. Dwinelle, Burch and Haywood, who bore a leading part in introducing the Codes to California, and may therefore be supposed most anxious to study their operations, by Mr. Cadwalader, an eminent lawyer of California, by Mr. Stewart, formerly senator from Nevada, by Mr. Sanderson, formerly chief justice of California, and by Judge Sawyer, Circuit judge of the United States. The practice of ten years outweighs in importance the theories of ten professors. The Americans are a practical people, and they want something they can understand and live by.

In the fourth place, the vilification of the Legislature is set forth in two remarkable passages of the pamphlets I am answering, passages which I will not copy, but which it is amazing that they who desire the favorable opinions of the members should throw in their faces.

And lastly, why he should vilify me I do not know except it be from habit. I have done nothing that I was not commissioned by the Legislature to do, as any one inay see who will look at chapter 266 of the Laws of 1857, and read it by the light of the Constitution, and I have done the best I could. It is hardly a misdemeanor to take a commission from the lawgivers of the State; nor yet a felony to lay before them the fruits of obedience. But no matter. His censure does not in the least disturb me, and in the language of the lawyers, I submit it without argument, to the judges of good taste and good manners.

NEW YORK, Feb. 8, 1884.

DAVID DUDLEY Field.

APPENDIX.

SAN FRANCISCO, CAL., Sept. 25, 1877. HON. DAVID DUDLEY FIELD:

DEAR SIR-Mr. has requested me to write to you my opinion as to the Codes of California, their working, their acceptability, etc.

My opinion is, that with the amendments adopted in 1874, they contain a body of laws better than those of any other people of British origin or political descent, and as nearly perfect as any that have ever been compiled for any people. In administration they work smoothly and well. There is no recalcitration against them, either by the courts or by the legal profession. On the contrary, they are highly esteemed and well received by both. By the people at large they are held in great repute.

64

The Civil Code is a hand-book among business men. After careful consideration I put my students upon the Civil Code the first thing. Melius est petere fontes quam rivulos sequari." It is not pedantic to use the quotation. For with us, hereafter the Codes are the fountains and the well-springs of the law. The thous and volumes of statutes and reports which preceded them now belong only to its history and illustrations. We congratulate ourselves that we have been the first to appropriate in so large a degree the work of yourself and of your distinguished associates. I am yours most truly,

JOHN W. DWINELLE.

SAN FRANCISCO, Sept. 27, 1877.

HON. DAVID DUDLEY FIELD:

64

DEAR SIR-The Codes of California, particularly the Civil, which is almost wholly your own work, have been in operation in our own State since January, 1872, and in accordance with a promise made to you long since to inform you of the manner in which this latter Code was received and how it has worked, I write to inform you that I have been in constant practice of the law since the completion of our work as a

Code commission; that I have, as a matter of duty, observed the workings of the system, and the result is all that you or I could wish or even expect. Change of any kind is regarded with jealousy by all working under a former practice, even if it were not a system. The Codes had this jealousy to contend with, and I am very much pleased to say to you that now it has entirely disappeared. Whatever of difficulty has been experienced by the profession has arisen alone from one fact. Those who informed themselves of what the Code contained had a vast advantage over those who continued in ignorance of its provisions. I know of one student of law who passed the best examination of his class before our Supreme Court,and was introduced into the class by myself on a letter from a brother lawyer, and who was remarkable for his clear, lucid, and satisfactory answers, who after admission stated to me that his thoroughness was the result of his study and attention to the provisions of a copy of the report of the California Code commission of the Civil Code. I speak of this fact simply to show how thorough the Civil Code is, and has been found to be. Here was a young man whose only knowledge of the law almost was obtained from a careful reading of our Civil Code, and on an examination by justices who had not read the Code, was pronounced learned in the law. The Civil Code works with remarkable smoothness, and it is growing in favor daily. As the bar fiuds how much work has been done for them by the author, they are only surprised that they did not learn to appreciate and know the necessity of it earlier. I sincerely hope the Legislature of your State shall as soon as possible adopt the Civil Code and put it in force, so that we here may have the advantage of the adjudications of

MY DEAR SIR-Your letter requesting my views as to the operation of the "Civil Code of California " and the prevailing opinions in regard to it, since the date of my last letter upon the same subject, written several years ago, was received so near the time of my departure from Sacramento for this city, that my reply necessarily comes from here. This Code still meets my approval, and indeed all I said in the letter referred to in regard to its great efficiency I can safely, and do now, reiterate.

The book has stood the test of nine years' use-stood it so well that I do not think a judge or lawyer can be found who would be willing to dispense with it.

Dissatisfaction with it would naturally have exhibited itself in efforts at repeal; yet, living as I do, at the capital of California, I am not aware of any attempts at repeal having been made.

I send you herewith a volume of what might be which it is used almost exclusively by bench and bar called a pocket edition of it. This is the form in of my State. All can see how easy it is for a lawyer to have for his constant companion the stock or essence of a great law library.

Each section of this Code is an admirable model of and for legislation each is a fairly stated and easily understood proposition, a law of itself, capable (when desired) of easy amendment or total repeal, without

interfering with the other sections or the harmony of the system. With the same degree of ease and safety can new rules be added as occasion requires.

I intend remaining here until the 1st of the coming month and will be glad to furnish more specific information as to my opinion of the great utility of the Civil Code of California, which has been in operation since the 1st of January, 1873.

Very truly your obedient servant.

*

* **

DEAR SIR-The occasion of return to Washington, I embrace to assure you, that since my last letter to you on the subject of "The Civil Code of California and How it is Liked," written in the early part of 1882, I have been in a great variety of situations affording opportunities to hear either hypercritical or captious remarks concerning that great compendium of the law uttered by judges, lawyers and litigants, had they been so inclined, and the fact that within such a period I have not heard a disparaging statement regarding the scope or the operation of your greatest work-so we designate it out here-is full of flattering significance, especially as I recall various verbal tributes of admiration over its great accuracy and efficiency, from distinguished sources.

Very truly, your obedient servant,

GEORGE CADWALADER.

SAN BERNARDINO, CAL., Jan. 6, 1883. MY DEAR SIR-Your favor of December 22, 1882, is received and contents noted.

The Civil Code of California which has been in force since March, 1872, has been very beneficial in its operation; the arrangement of the various subjects is orderly and convenient; its declarations of the principles of the common law accurate and comprehensive. The use of it in our courts greatly facilitates the administration of justice, while affording authoritative and accurate rules in many cases where conflicting decisions of the courts of the various States had rendered matters uncertain.

The profession of this State are well satisfied with this Code and would by no means dispense with it. There is no probability that it will ever be repealed. Yours truly,

WILLIAM M. STEWART.

HON. DAVID DUDLEY FIELD,

115 Broadway, N. Y.

SAN FRANCISCO, CAL., Dec. 28, 1882. HON. DAVID DUDLEY FIELD, New York:

DEAR SIR-I take the earliest opportunity of answering, but hastily, your favor of December 14. So far as my observation extends, the Codes have all worked well in this State. The Civil, Political and Criminal Codes all went into operation January 1, 1873. This was three years after I ceased to be Chief Justice of the Supreme Court of the State, and became United States Circuit Judge for the ninth circuit. Since I have occupied the position of United States Circuit Judge, the class of questions litigated has been to a great extent different from those arising in the State courts and I have had much less to do with State statutes, and so favorable an opportunity of observing the practical operation of the Code. But as far as my experience and observation go, the result seems decidedly favorable to the Code; and I think such are the views of our leading lawyers and State Judges. I have spoken to several attorneys upon the subject, and this is the view generally expressed. It really seems remarkable to me that the changes could have been made, however desirable, without producing greater temporary inconvenience. The fact that so little inconvenience resulted argues well for the Codes. Of course it is impossible, in view of our limited intellectual powers, to provide specifically for every conjunction of circumstances that is possible to arise; but as to the great body of the laws, the Codes present a more definite, concise, specific and unmistakable statement of the laws in force, which is also more readily found and understood, than is possible to be found in the common-law system independent of Codes. If a case arises which is not clearly provided for, the courts will of course, as heretofore, be compelled to determine the case upon the nearest analogies, and even to resort perhaps, to the analogies of the common law.

As for myself, I should not hesitate to adopt the Codes. I think it will simplify the laws, and greatly facilitate their administration.

able, approve their workings and there is now no opposition to the system of law reform which the Codes represent.

It will always be matter of regret that the great State of New York did not avail herself of the opportunity offered by your labors, and at once adopt the Codes prepared. Her example would have been followed by sister States, and ere this, Codes would have been the rule. Of course as a Californian, my regrets are tempered by the knowledge that New York's opportunity lost was an opportunity found for my adopted State; one which allowed California to to earn and wear the proud distinction of being the first English-speaking community to supplement written Constitutions with written laws.

Trusting that at this hour New York may reclaim as far as possible the opportunity thrown away; acknowledging our great obligations to yourself-with kindest wishes for your success, I am, Sincerely yours,

HON. DAVID DUDLEY FIELD,

CREED HAYMOND.

115 Broadway, N. Y.

SAN FRANCISCO, CAL., Dec. 21, 1882. HON. DAVID DUDLEY FIELD, New York City:

MY DEAR SIR-I have been shown the report of a special committee of the Bar Association of New York, urging the rejection of the proposed Civil Code. To this report are annexed extracts from two letters written by John T. Doyle of this city, to Albert Matthews, one dated April 22, and the other May, 28, 1882.

Having been chairman of the commission which framed the Codes of California, or rather which adapted your work to the laws of California, I may be fairly presumed to have some knowledge of their history.

Prior to the appointment of the committee of which I had the honor to be chairman, a revision committee had xeisted in California, but that commission did very little work, if any. When the law was passed providing for the commission of which I afterward became a member, it was feared that no better results would follow, and for this reason the existence of the commission was limited to about twenty months. To do the work in that period required the constant, untiring efforts of every member of the commission, and it was not and could not be expected that that work should be perfect. At the request of the commission, and prior to the presention of its work to the Legislature, Governor Booth named two very distinguished gentlemen as an advisory committee-Sidney Johnson, who had formerly practiced at New Orleans and was a civil lawyer of great ability, and Charles A. Tuttle, whom you know.

After the adoption of the Codes it was thought advisable by the governor of the State and by the commission, that a careful and thorough revision should be made, and again, at the suggestion of the Code commissiou, the governor appointed a commission consisting of Mr. Justice Field, Mr. Jackson Temple, a justice of the Supreme Court of California, and John W. Dwinelle, an eminent member of the legal profession, to examine the Codes and to suggest such amendments as their judgment might dictate.

This commission spent several months in the work, and suggested the amendments which were adopted at the first session of the Legislature thereafter, and to which Mr. Doyle in his letter refers.

sion, out of deference to the opinion of the profession in this State, which did not seem to like the change, restored the words "prima facie." As the word "primary" was used in very many sections this change alone necessitated many amendments.

Mr. Doyle seems to think that the fact that the most of the legislation of the State is in the shape of amendments to the Code is an evidence that the Codes have not fulfilled the purpose for which they were adopted. My idea has always been that, when the time shall come that no other bills are introduced in a legislative body than amendments to existing Codes, we shall have a set of laws as nearly perfect as mankind can make them. When that time comes the Codes will have covered the whole field of legislation.

Mr. Doyle complains that the Legislature, by amending one section of a given Code, may do great injury by reason of the Legislature not having knowledge of other provisions of the same Code. If this objection can be urged against a Code system, it is overwhelming when urged against. the system which existed in California prior to the adoption of the Codes. Thousands of statutes and the whole body of the common law of England, so far as it was applicable, were in force in California, and the average member of the Legislature was then utterly at a loss to determine what the effect upon that immense body of laws any given legislative act would have.

The political Code of California contains about 4,500 sections, and covers almost every subject of legislation relating to governmental affairs. California, in territorial extent, is an empire; its Legislature deals with every interest known to other States in the Union, and with many that are elsewhere unknown.

The political Code treats of the sovereignity of the people of the State, of their political rights, of the persous subject to its jurisdiction, political divisions, seat of government, legal distances, the public officers, their duties, of elections, of education, State militia, of the public institutions for the insane, deaf, dumb and blind, State library, Supreme Court library, and various other public institutions, of the public ways, of immigration, preservation of the public health, registries of birth and marriage, of dissection, of cemeteries, lost and unclaimed property, marks and brands, weights and measures, hours of labor, time, money of account, auctions, fires and firemen, licenses, the public lands of the State, Yosemite Valley, and Big Tree Grove, State burying ground, of revenue in every form, the government of cities and the duties of officers thereof.

Every change made in the revenue system, every change relating to the duties of a public officer in the State, every change relating to our great commercial interests, must be by way of an amendment to the political Code. Taxes are levied every two years and and the levy is made by an amendment of a given section of the Code. It follows therefore that a vast field of legislation is covered by that Code, and that when amendments to it become unnecessary we shall have no further use for the legislative bodies. This it seems to me, is an argument in favor of rather than against the Code system.

The Civil Code of California, although a new Constitution, has been adopted, stands about as it did when the work of the last commission was completed, and as an evidence of the satisfaction of the people with it I can point to the fact that at the last session of the legislature but one single amendment to that Code was adopted, and that amendment related to religious, social and benevolent corporations.

You were well acquainted with the late Judge Delos Lake, one of the ablest lawyers of our State, one of the most violent opponents of a Code system. Prior to his death he had materially changed his views upon

the subject, and this change of view was the result of his observations of the working of the Codes.

It is unusual now to hear any one object to the system; on the contrary, there is a very strong feeling in the profession, growing every day, that there should be a constitutional amendment passed, under which a permanent Law commission should be established, the members of which should hold office for long terms, and be disqualified from holding any other office, and to which commission all bills introduced into the Legislature should be referred for form and style. That by the commission such bills should be placed in the form of amendments to the Codes. I am satisfied that but a short time will elapse before something of this kind will be introduced into the fundamental law of California.

If you desire it, I think I could get a concurrence in these views from nearly all the leading members of the profession in this State.

With kind regards, I am very truly,

Your friend,

CREED HAYMOND.

}

THE ARLINGTON,
WASHINGTON, D. C., Feb. 2, 1883.

HON. DAVID DUDLEY FIELD, New York.

MY DEAR SIR-I have seen and read the letter of the Hon. Creed Haymond to you, under date December 21, 1882, in relation to the Codes of California and the estimation in which they are held by the legal profession and the people of that State. I take occasion to say that I concur fully in all that Mr. Haymond has said. The adoption of the Code system in California has been a step in advance which the people of California will never retrace. Yours truly,

S. W. SANDERSON.

AGENT LIABLE TO PRINCIPAL FOR PROCEEDS OF ILLEGAL CONTRACT.

OHIO SUPREME COURT, JANUARY TERM, 1883.

NORTON V. BLINN.*

While courts will not enforce an illegal contract between the parties, yet if an agent of one of the parties has, in the prosecution of the illegal enterprise for his principal, received money or other property belonging to his principal, he is bound to turn it over to him, and cannot shield himself from liability therefor upon the ground of the illegality of the original transaction.

A

CTION to recover moneys advanced to make purchases and profits on purchases made. The facts were these:

About the first of May, 1872, Chester Blinn placed in the hands of Jesse S. Norton, at Toledo, Ohio, the sum of $500 to be by him invested as agent for Blinn in options on wheat at Milwaukee, Wisconsin, or Chicago, Illinois, with instructions to invest the money as he would his own. Norton, through his brokers, James Keller & Co., immediately purchased in his own name, but for the sole benefit of Blinu, five thousand bushels of wheat at seller's option for June delivery at $1.42% per bushel, and deposited the money of Blinn as a margin of ten cents per bushel. At the date for delivery the price of wheat had advanced so that a profit of $325 was realized on the transaction. This money, principal and profit, was reinvested by Norton in subsequent transaction of like nature for Blinn's benefit, but by reason of a decline in the market price of wheat in the latter part of June, the whole amount was lost.

* Appearing in 39 Ohio State Reports.

These transactions were mere speculations or ventures on the future price of wheat, without any intention that the wheat would be either paid for or delivered, but with the intention that settlement between the buyer and seller would be made on the difference between the price stated in the contract and the market price at the date named for delivery. Such transactions were unlawful in the States of Illinois and Wisconsin, as well as in the State of Ohio.

The original suit was brought in the Court of Common Pleas of Lucas county by Blinn against Norton to recover the sum of $825 (the sum advanced and profit on the first venture), with interest.

On the trial testimony was offered by the plaintiff tending to prove that defendant had no authority to invest plaintiff's money save in a single purchase, namely, the purchase of 5,000 bushels as above stated, whereupon the plaintiff requested the court to instruct the jury as follows:

"If the jury shall find from the testimony, that on or about the time stated in the petition, the defendant received from the plaintiff the sum of $500 of the money of the latter, under an arrangement that the same should be invested by the defendant in wheat transactions, of the illegal character mentioned in the answer, for the benefit of the plaintiff; that said money was so invested by the defendant, and a profit realized thereon; and that before the commencement of this action said sum of $500, and the profits so made, came into and are still in the hands of the defendant; or that he received credit therefor in the final settlement of his accounts with the brokers through whom said business was transacted, then the plaintiff is entitled to recover said money from the defendant; nor in such case, can the defendant avoid his liability to account for said moneys by showing that by the understanding between the plaintiff and himself, said money was to be employed in illegal transactions in wheat of the nature stated in his auswer; and that said money was employed, and said profits realized in such transactions."

Which charge the court refused to give, and to such refusal the plaintiff excepted.

The verdict of the jury was in favor of the defendant, and judgment was rendered accordingly. This judgment on petition in error was reversed by the District Court, and this proceeding is to reverse the judgment of the District Court.

Haynes & Potter, for plaintiff in error.

C. H. Scribner and J. M. Ritchie, for defendant in

error.

MCILVAINE, J. While it has ever been the policy of the law to leave the parties to an illegal transaction where it finds them by refusing relief to either in respect thereto, it has on the other hand never regarded property or money employed therein or produced thereby as common plunder to be seized or retained by others in no way interested in such business.

The question however in this case, arising on the refusal of the Court of Common Pleas to charge the jury as requested by the plaintiff is: May an agent who has transacted illegal business for his principal and has received money belonging to his principal and accruing from such business, defend himself, in a court of law, against liability to account therefor, by showing such unlawful business and his connection therewith as such agent?

If the agent receiving such money had not been employed in conducting such business, it would seem to be quite plain, upon principles of purest morality, that he should account to his principal therefor; but where the sole employment of the agent was to manage and conduct the unlawful transactions, it seems to me, a much more difficult question arises. In the latter case

the agent is a particeps criminis. In offenses against trade, and the like, the law, regulating the administration of penal justice, does not recognize the relation of principal and agent, unless the agent be an innocent instrument merely. In such cases the guilty offenders against the law are all principals; hence as between such, with some show of reason it might be said, that the law will afford no redress by civil remedies.

The rulings upon this question however have been so uniformly the other way, it becomes our duty to follow them, unless we find them totally repugnant to public policy and morality. Upon a careful examination of the authorities, we find no such repugnancy -indeed they commend themselves to our judg

ment.

In the first place the rule which denies civil remedies in such cases applies only to the parties to the illegal transaction. Public policy does not require that one engaged in an unlawful enterprise should, by pleading it, shield himself from liability for the wages of his employees, agents or servants. It is enough that the rule should be enforced as between those who have some interest in the enterprise as principals.

In the second place, it is contrary to public policy and good morals, to permit employees, agents, or servants to seize or retain the property of their principal, although it may be employed in illegal business and under their control. No consideration of public policy can justify a lowering of the standard of moral honesty required of persons in these relations.

And again if parties to an illegal contract waive the illegality, and honestly account as between themselves, no other person can be heard to complain of such accounting. Hence we think, that if in making such settlement one of the guilty parties should deliver property or money to an agent of another to be delivered by the agent to his principal, such agent is bound to account therefor to his principal.

A leading case on this question is Tenant v. Elliott, 1 Bos. & Pul. 2, where the defendant, a broker, affected an illegal insurance for the plaintiff on a ship, and after a loss the underwriters paid the amount of the insurance to the defendant, who refused to pay the same over to plaintiff, on the ground that the insurance contract was illegal. Judgment for the plaintiff. Eyre, C. J., said: "The defendant is not like a stockholder. Whether he who has received money to another's use on an illegal contract, can be allowed to retain it, and that not even at the desire of those who paid it to him? I think he cannot."

In Brooks v. Martin, 2 Wall. 70, it was held by the Supreme Court of the United States, that "After a partnership contract confessedly against public policy has been carried out, and money contributed by one of the partners was passed into other forms-the results of the contemplated operation completed, a partner in whose hands the profits are, cannot refuse to account for and divide them on the ground of the illegal character of the original contract."

In Baldwin v. Potter, 46 Vt. 402, it was held that "an agent is bound to account to his principal for money received in the course of his agency, for goods sold by his principal on orders obtained by him as such agent on commission, although such sales as between the principal and purchaser be illegal and void.”

In Evans v. Trenton, 4 Zab. 764, it was held "the mere agent of a party to an illegal transaction cannot set up the illegality of the transaction in a suit by his principal to recover money that has been paid to such agent for his principal on account of the illegal transaction. This defense can be set up only by a party to the illegal transaction." In this case the illegal transaction was accomplished through the agent.