binding, the plaintiff should have acted at the request of the defendant (k); as, where it appeared from the whole declaration taken together, that, at the same moment, by a simultaneous act, a promise was made, that, on the plaintiff's accepting bills drawn by one of the parties then present, the defendants should deliver certain deeds to the plaintiff when the bills were paid, it was held, that a good consideration was disclosed for the defendants' promise (7). So, where the promise of the plaintiff and that of the defendant are simultaneous, the one will be a good consideration for the other, provided they are reciprocally binding; as, where two parties, upon the same occasion, and at the same time, mutually promise to perform a certain agreement not then actually entered into, the consideration moving from the one party is sufficient to support the promise by the other (m).

Again, where, by one and the same instrument, a sum of money is agreed to be paid by one of the contracting parties, and a conveyance of an estate to be at the same time executed by the other, the payment of the money and the execution of the conveyance may very properly be considered concurrent acts; and, in this case, no action can be maintained by the vendor to recover the money until he executes, or offers to execute, a conveyance (n). It may, indeed, be stated generally, that neither party can sue on such a contract without shewing a performance of, or an offer, or, at least, a readiness to perform, his part of the agreement, or a wrongful discharge or prevention of such performance by the other party (o); in which latter case the party guilty

(*) Per Tindal, C. J., 3 B. N. C. 715.

(1) Tipper v. Bicknell, Id. 710. (m) Thornton v. Jenyns, 1 Scott, N. R., 52. See Chit. Contr., 3rd ed., 46, 47.

(n) Per Lord Tenterden, C. J., Spiller v. Westlake, 2 B. & Ad. 157.

(0) Chit. Contr., 3rd ed., 738; 1 Selw., N. P., 10th ed., 111, 112. See per Lord Kenyon, C. J., Rawson v. Johnson, 1 East, 208.

Continuing consideration.

Executory consideration.

of the wrongful act shall not, in accordance with a maxim already considered, be allowed to take advantage of it, and thereby to relieve himself from liability for breach of contract (p).

In addition to cases in which the consideration is concurrent, or is altogether past and executed, others occur wherein the consideration is continuing at the time of making the promise; thus, it has been held, that the mere relation of landlord and tenant is a sufficient consideration for the tenant's promise to manage a farm in a husbandlike manner (q). Among promises made on a continuing consideration, may also be noticed that class which are founded on legal liabilities; as where, in consideration of a sum of money being legally due, the debtor makes an express promise to pay. This, it may be observed, has no immediate reference to any reciprocal act done, or to be done, by the other party, or consideration strictly so called; yet it is not a nudum pactum, the legal duty being in the nature of a consideration: indeed, it is a promise which (even where nothing is expressed between the parties) the law will imply(r).

"Whenever the consideration of a promise is executory, there must," it has been observed (s), "ex necessitate rei, have been a request on the part of the person promising; for if A. promise to remunerate B., in consideration that

(p) Ante, p. 317, 119. "If a party does all he can to perform the act which he has stipulated to do, but is prevented by the wrongful act of the other party, he is in the same situation as if the performance had been perfected."-Per Holroyd, J., Studdy v. Sanders, 5 B. & C. 639.

(q) Powley v. Walker, 5 T. R., 373; recognised, Beale v. Sanders,

3 B. N. C. 850.

(r) 2 Steph. Com. 114. In Bac. Abr.," Assumpsit" (D.), which treats of considerations executed and continuing, and in Chit. Contr., 3rd ed., 64, will be found other cases illustrating this species of consideration. See, also, Jackson v. Cobbin, 8 M. & W. 790, 797.

(8) 1 Smith, L. C. 70.

B. will perform something specified, that amounts to a request to B. to perform the act for which he is to be remunerated." Here the consideration constitutes a condition precedent to be performed by B. before his right of action accrues; and such performance must be laid in the declaration with certainty, and proved at the trial (t); but whether or not, in any given case, one promise be the consideration of another, or whether the performance, and not the mere promise, be the consideration, must be gathered from, and depends entirely upon, the words and nature of the agreement, and the intention of the parties (u).

EX DOLO MALO NON ORITUR ACTIO. (Cowp. 343).—A right of action cannot arise out of fraud.

Dolus malus is defined to be craft, guile, or machination, Definition. employed for the purpose of deception or circumvention. This term was used in the Roman law in contradistinction to dolus bonus, which signified that degree of allowable dexterity which a person may employ to advance his own interests (x).

The rule of our law is, that no contract can arise out of a fraud; and an action brought upon a supposed contract, which is shewn to have arisen from fraud, may be resisted (y). It is, moreover, a general proposition, that an agreement to do an unlawful act cannot be supported at law,—that no

(t) 1 Chit. Plead., 6th ed., 296; Chit. Contr., 3rd ed., 63; Selw., N. P., 10th ed., 107.

(u) See Chit. Contr., 3rd ed., 737; Thorpe v. Thorpe, 1 Ld. Raym. 662;

S. C., 1 Salk. 171, is a leading case on this subject.

(x) Bell, Dict. and Dig. of Scotch Law, 319.

(y) Per Patteson, J., 1 A. & E. 42; per Holroyd, J., 4 B. & Ald. 34. See Pandect, by Pothier, lib. ii., tit. 14, De Pactis.

Rule as to contracts, &c.

fraudulent

Collins v.
Blantern.

right of action can spring out of an illegal contract (z);
and this rule applies not only where the contract is ex-
pressly illegal, but whenever it is opposed to public policy,
or founded on an immoral consideration (a), according to
the maxim, ex turpi causâ non oritur actio (b). A court
of law will not lend its aid to enforce the performance of a
contract which appears upon the face of the record to have
been entered into by both the contracting parties for the
express purpose of carrying into effect that which is pro-
hibited by the law of the land; and this objection to the
validity of a contract must, from authority and reason, be
allowed in all cases to prevail. No legal distinction can be
supported between the application of this objection to parol
contracts and to contracts under seal; it would be incon-
sistent with reason and principle to hold, that, by the mere
ceremony of putting a seal to an instrument, that is, by the
voluntary act of the parties themselves, a contract which
was void in itself, as being in violation of the law of the
land, should be deemed valid, and an action maintainable
thereon in a court of justice (c).

In Collins v. Blantern (d), which is a leading case to shew
that illegality may well be pleaded as a defence to an action

(2) Per Lord Abinger, C. B., 4 M. & W. 657; per Ashhurst, J., 8 T. R. 93. See Jones v. Waite, 5 Scott. N. R., 951; S. C., 5 B. N. C. 341, and 1 B. N. C. 656.

(a) Allen v. Rescous, 2 Lev. 174; Walker v. Perkins, 3 Burr. 1568. As to bonds and covenants in restraint of trade, see 1 Selw., N. P., 10th ed., 543; Hinde v. Gray, 1 Scott, N. R., 123; Mitchel v. Reynolds, 1 P. Williams, 181, and 1 Smith, L. C. 171, is the leading case on this subject; post, p. 353, (n).

(b) 1 Selw., N. P., 10th ed., 63.

(c) Judgment, Gas Light and Coke Company v. Turner, 5 B. N. C. 675. (d) 2 Wils. 341. See Ward v. Lloyd, 7 Scott, N. R., 499. The stamp acts do not apply where an instrument is used, not as evidence of an obligatory contract between the parties, but in order to shew that the transaction between them is of such a nature as to be void in law. Coppock v. Bower, 4 M. & W. 361, 366; per Lord Abinger, C. B., Williams v. Gerry, 10 M. & W. 304; Smart v. Nokes, 7 Scott,

N. R., 786. L.G. VOL 1/1326

on a bond; the bond was alleged to have been given to the obligee as an indemnity for a note entered into by him, for the purpose of inducing the prosecutor of an indictment for perjury to withhold his evidence; for the plaintiff, it was contended, that the bond was good and lawful, the condition being singly for the payment of a sum of money, and that no averment should be admitted, that the bond was given upon an unlawful consideration not appearing upon the face of it; but it was held, that the bond was void ab initio, and that the facts might be specially pleaded; and it was observed by Wilmot, C. J., delivering the judgment of the court, that "The manner of the transaction was to gild over and conceal the truth; and whenever courts of law see such attempts made to conceal such wicked deeds, they will brush away the cobweb varnish and shew the transactions in their true light." And again, "This is a contract to tempt a man to transgress the law, to do that which is injurious to the community; it is void by the common law, and the reason why the common law says such contracts are void, is for the public good: you shall not stipulate for iniquity. All writers upon our law agree in this—no polluted hand shall touch the pure fountains of justice" (e).

It is, then, a general rule, that an agreement cannot be made the subject of an action if it can be impeached on the grounds of dishonesty, or as being opposed to public policy,if it be either contra bonos mores, or forbidden by the law (ƒ). In answer to an action founded on such an agreement, the maxim may be urged, ex maleficio non oritur contractus (g) — a contract cannot arise out of an act radically vicious and illegal those who come into a court of justice to seek re

:

(e) See also Prole v. Wiggins, 3 B. N. C. 230; Paxton v. Popham, 9 East, 408; Pole v. Harrobin, Id. 417, n.; Gas Light and Coke Company v. Turner, 5 B. N. C. 666;

Cuthbert v. Haley, 8 T. R. 390.
(f) Per Lord Kenyon, C. J., 6
T. R. 16.

(g) Judgment, 1 T. R. 734; Parsons v. Thompson, 1 H. Bla. 322.