against the claim of a subsequent purchaser who bought the same chattel from the vendor so holding as bailee.1

$992. Who are purchasers.-The subsequent purchaser whom the law protects, in the cases now under consideration, is one who, in good faith, by negotiation, acquires interests in or liens upon the property for some valuable consideration then parted with and in ignorance of any outstanding claims or titles. One acquiring title by operation of law through his own wrong, as, for example, the defendant in an action of trover who pays the judgment, would not be protected. In such a case it was said that the words "subsequent purchaser" "mean one who becomes the buyer of the goods by contract by the mutual assent of the parties express or implied; who of his own desire negotiates for them and pays a price agreed upon, and receives a transfer of them from one who of his own will sells and delivers them; and that they do not mean a wrongdoer upon the property, who against his will is cast in judg ment for the value of it and takes title unwillingly by operation of law upon payment of the judgment."

1 Hight v. Harris (1892), 56 Ark. 98, 19 S. W. R. 235. See also Hagins v. Combs, 102 Ky. 165, 43 S. W. R. 222. And in several other cases it has been held that where the best delivery practicable under the circumstances has taken place, it suffices as against a subsequent purchaser,

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even though the article is then left with the seller as bailee for the purchaser. See ante, § 984, note; Thorndike v. Bath (1873), 114 Mass. 116, 19 Am. R. 318; Ropes v. Allen (1866), 11 Allen (Mass.), 591.

2 Marsden v. Cornell, 62 N. Y. 215.

§ 993. In general.-The right or power to avoid the contract of sale may also be claimed because such contract was illegal. The question may arise under an almost infinite variety of circumstances, but the particular ground of the objection will ordinarily be either that the subject-matter of the sale is a thing not lawful to be sold, or that the purpose to be effected by the sale is one which the law does not countenance or permit, or that the contract was made at a time or place or under circumstances which the law forbids. The unlawful knowledge or purpose may have been confined to one of the parties only or may have been shared in by both. The forbidden incidents or circumstances attending the sale may have attached to the situation or performance of one party only or may have extended to that of both. The question of illegality may have arisen before the contract had been executed by either, or not until one or both had performed it. The alleged infirmity may attach to the whole contract or to a part of it only. Finally, the law which is violated or which gives rise to the alleged infirmity may be either an express statutory enactment or some rule or maxim of the common law.

§ 994. General principles of law applicable.-The fundamental principle which lies at the foundation of the whole subject is that the law will not lend its aid to parties who seek to accomplish that which the letter or the spirit of the law forbids. The law will at least remain passive. It may, of course, in many cases, do more: it may take active steps to avoid or punish the unlawful act, but when the parties themselves apply to it for aid it will withhold its hand. And not only may it withhold its aid from parties who are seeking to enforce illegal dealings, but it may also refuse to assist one or both of the parties in undoing the unlawful act.

Following out these principles into more specific statement

It may

§ 995. Courts will not enforce illegal contract. be said to be the general principle of the law that the courts will not lend their aid to enforce an unlawful agreement. As

stated by Lord Mansfield in a leading case,1 "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 immoral or an illegal act. If, from the plaintiff's own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So if the plaintiff and defendant were to change sides, and the defendant were to bring his action against the plaintiff, the latter would then have the advantage of it; for, where both are equally in fault, potior est conditio defendentis." § 996. Executory or executed. While, therefore, the contract remains wholly executory, neither party having performed on his part, its illegality is a sufficient bar to prevent its enforcement by either party. If it has been performed by one party but not by the other, the former cannot compel the latter to perform his stipulated portion; for here again the illegality of the undertaking prevents the courts from interfering. If the seller, for example, has delivered his goods but has not received his pay, he is helpless, for the law will not

1 Holman v. Johnson (1775), 1 Cowp. 341. In Scott v. Brown (1892), 2 Q. B. 724, Lindley, L. J., said: "Ex turpi causa non oritur actio. This old and well-known legal maxim is founded in good sense, and expresses a clear and well-recognized legal principle, which is not confined to indictable offenses. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegal

ity. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him. If authority is wanted for this proposition, it will be found in the well-known judgment of Lord Mansfield in Holman v. Johnson."

2 Materne v. Horwitz, 50 N. Y. Super. Ct. 41; affirmed, 101 N. Y. 469, 5 N. E. Rep. 331; Skeels v. Phillips, 54 Ill. 309; Frost v. Gage, 3 Allen (Mass.), 560; Miller v. Ammon, 145 U. S. 421; Church v. Proctor, 66 Fed. R. 240, 13 C. C. A. 426.

compel payment. If the buyer has paid the price but has not received the goods, he also is helpless, for the law will not compel delivery. In either case, potior est conditio defendentis.1 The law helps neither party, but it leaves them where they have put themselves. It may happen that this course may permit one party to defraud the other, but it is the result of the latter's own folly and misconduct and not the act of the law.

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§ 997. Reasons. It is not from any tenderness for the defendant that this result is permitted but from regard for the law. As was said by Lord Mansfield in the case already referred to, "The objection that a contract is immoral or illegal, 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 the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice as between him and the plaintiff by accident, if I may so say."

§ 998. Law will not compel rescission. The policy of the law being to refuse its aid to those who have sought to violate it, it does so not only when the parties are seeking to enforce their illegal contracts, but also when they are seeking to escape them. It will not, therefore, as a general rule, aid either party in his efforts to regain his former position. If, therefore, the seller has delivered the goods but has not received his pay, he not only cannot collect the price, but he cannot, as a rule, regain his goods. If the buyer has paid his money before he received the goods, he can, in general, recover neither the goods nor his money. And if the goods have been delivered and the money paid, neither, as a rule, can tender back what he received and regain that which he has parted with. In these cases, also,

1 Bugg v. Towner, 41 Ga. 315; Tompkins v. Compton, 93 Ga. 520, 21 S. E. R. 79; Storz v. Finkelstein, 46 Neb. 577, 65 N. W. R. 195; Rocco v. Frapoli, 50 Neb. 665, 70 N. W. R. 236. 2 Holman v. Johnson, supra.

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3 See post, § 1054; Thompson v. Williams, 58 N. H. 248.

4 See post, § 1054; Thompson v. Williams, supra.

5 Block v. McMurry, 56 Miss. 217, 31 Am. R. 357; Myers v. Meinrath,, 101