had been put on each article, if a note were given for the entire amount no recovery could be had upon the note, for that is "a single and entire promise," though the plaintiff might still recover for the lawful items upon the original account if he were in a situation enabling him thus to sue.2 1 See Clark on Contracts, 473; Wadsworth v. Dunnam (1897), 117 Ala. 661, 23 S. R. 699. Thus in Allen v. Pearce (1890), 84 Ga. 606, 10 S. E. R. 1015, where fifteen tons of guano had been sold and a note given for the price, it was held that, because part of the guano had not been branded as required by law, there could be no recovery on the note. In Deering v. Chapman (1843), 22 Me. 488, 39 Am. Dec. 592, it was held that a note given in settlement of account was void where the account included charges for liquor unlawfully sold. To same effect: Coburn v. Odell (1855), 30 N. H. 540 [citing Hinds v. Chamberlain, 6 N. H. 225; Clark v. Ricker, 14 N. H. 44; Shaw v. Spooner, 9 N. H. 197: Carlton v. Whitcher, 5 N. H. 196]; Kidder v. Blake (1864), 45 N. H. 530; Cotten v. McKenzie (1880). 57 Miss. 418; Braitch v. Guelick (1873), 37 Iowa, 212; Widoe v. Webb (1870). 20 Ohio St. 431, 5 Am. R. 664 (overruling Doty v. Knox County Bank, 16 Ohio St. 133). But that the lawful part may be recovered in an action based upon the note was held in Clopton v. Elkin (1873), 49 Miss. 95; Yundt v. Roberts (1819), 5 Serg. & R. (Pa.) 139; Frazier v. Thompson (1841), 2 Watts & Serg. (Pa.) 235 (see also Duchman v. Hagerty (1837), 6 Watts, 65); Hynds v. Hays (1865), 25 Ind. 31; Graves v. Safford (1891), 41 Ill. App. 659. It is no defense to an action on a note given in part payment of an account that part of the account is for 1 goods sold in violation of law, if the amount of the items for goods lawfully sold exceeds the amount of the note. Warren v. Chapman (1870), 105 Mass. 87. 2 Thus, in Allen v. Pearce, supra, it was said that "if the suit had been on an account for so many tons of guano, then the contract would have been severable, and the plaintiff could have recovered for that part of the guano which had been branded, and therefore had a good consideration, while the defendant could have defeated a recovery for that part of the guano which had not been branded, and which made the consideration illegal." And in Cotten v. McKenzie, supra, the court say that. "while recovery cannot be had on the security [a note], a recovery may be had, under proper pleadings, on so much of the consideration for which the note was given as without it was recoverable. The illegal note has no effect on the valid dues embraced in it. They are as if the note had not been given." To like effect: Shaw v. Carpenter (1881), 54 Vt. 155, 41 Am. R. 837. So in Widoe v. Webb, supra, where a note had been given for an account made up of lawful and unlawful items, the court said: "With respect to the items of the plaintiff's account which were unconnected with the illegal sales, he might well have maintained an action on the original contracts of sale, even after the giving of the note. For, being utterly § 1005. Forms of the law creating or declaring illegality. Passing now from the general rules governing the subject of illegality in the contract, a more specific treatment of the forms of the law operating to create the infirmity and of the manner and extent of their application seems to be desirable. It is sometimes said that the rule of law which is violated in the contract may be either (1) some rule of the common law, (2) some maxim of public policy, or (3) some express statutory enactment. The first two may be not inappropriately grouped under one head, and the subject may be considered under the two subdivisions: I. Illegality at common law, and II. Illegality by statute. I. ILLEGALITY AT COMMON LAW. § 1006. What the common law prohibits.-The common law forbids that which is indecent or immoral, as well as that which is in violation of positive law or which is opposed to sound public policy. A consideration or a purpose falling within any of the classes must therefore infect the contract with the taint of illegality. Hence § 1007. Contract for sale of indecent or immoral thing invalid. A contract for the sale of that which is indecent or immoral in itself is void, and no action for its enforcement can be maintained in the courts. Thus in an action to recover the price of a quantity of pictures sold, it was shown that some of them were immoral and indecent in their character, and Lawrence, J., said: "For prints whose objects are general satire or void, it discharged none of the just indebtedness of the defendant. But he chose to sue upon the note, which was prima facie evidence of indebtedness to the extent of the whole sum promised to be paid, and thus attempted to throw upon the defendant the burden of showing how much of it was given upon an illegal con sideration, and upon the court the task of separating the sound from the unsound. If this effort should result in his losing what was justly due him, we can but repeat what was said in a similar case: 'It is but a reasonable punishment for includ ing with his just due that which he had no right to take.'" ridicule of prevailing fashions or manners, I think the plaintiff may recover; but I cannot permit him to do so for such whose tendency is immoral or obscene; nor for such as are libels on individuals and for which the plaintiff might have been rendered criminally answerable for a libel."1 § 1008. Knowledge presumed. In cases of this nature, the actual knowledge or intention of the parties, in respect of the illegal object, is of no consequence. They are presumed to know the law.2 1009. Contract of sale for immoral or illegal purpose.Where, however, the thing sold is in itself innocent, but may be put to an illegal or immoral purpose, other considerations appear. It may be the intention of the buyer in making the purchase to apply the goods to a purpose which is immoral, illegal or opposed to public policy; and in reference to that intention the seller, at the time of the sale, may be in one of three attitudes: (1) He may be ignorant of it; (2) he may have knowledge of it, but have no desire or intention to participate in or further it; and (3) he may have such knowledge and may make the sale with the direct intention of enabling the buyer to put his wrongful purpose into execution. § 1010. Seller innocent. In the first case, there can be no question that the seller, being ignorant of the wrongful purpose at the time and remaining so up to the time that he has performed on his part, may recover upon the contract, though the guilty buyer could not enforce it. If, however, before he had performed, the seller learned of the buyer's intention, he might doubtless withdraw from the contract; whether he could thereafter enforce it would depend upon the considerations to be next discussed. 1 Fores v. Johnes (1802), 4 Esp. (Eng. N. P.) 97. To same effect, of an indecent book. Poplett v. Stockdale, 2 Car. & P. 198; Stockdale v. Onwhyn, 7 D. & R. 625, 5 B. & C. 173, 2 C. & P. 163. 2 See Waugh v. Morris, L. R. 8 Q. B. 202. 3 See Cowan v. Milbourn, L. R. 2 Exch. 230. § 1011. Seller cognizant of purpose or participat ing. In respect of the second and third cases, there can likewise be no question that where the seller knows of and directly participates in and aids the buyer's wrongful purpose, the contract is illegal as to both and will be enforced at the suit of neither. But whether mere knowledge on the part of the seller that the buyer intends to put the goods to a wrongful purpose is sufficient to invalidate the contract as to him and prevent him from recovering the price of the goods, is a question upon which the authorities are in conflict. § 1012.. It is said to be the modern English rule-departing in this respect from certain of the earlier cases-that the contract is illegal where the seller supplies the goods with knowledge that the buyer is purchasing for the purpose and with the intention of applying them to an illegal use.1 1 Mr. Benjamin, in his work on Sale, § 506 (6th Am. ed.), says: "The sale of a thing in itself an innocent and proper article of commerce is void when the vendor sells it knowing that it is intended to be used for an immoral or illegal purpose. In several of the earlier cases something more than this mere knowledge was held necessary, and evidence was required of an intention on the vendor's part to aid in the illegal purpose or profit by the immoral act. The later decisions overrule this doctrine." The case chiefly relied upon by Mr. Benjamin for the latter statement is Pearce v. Brooks (1866), L. R. 1 Exch. 213, but it seems that there may be room for doubt as to whether this is the true effect of this decision. See post, § 1021. Mr. Benjamin gives the following résumé of the English cases: "In Faikney v. Reynous, 4 Burr. 2069, which came before the king's bench in 1767, a party had paid, at the re quest of another, money on a contract which was illegal, and sued for its recovery. Judgment was given for the plaintiff, Lord Mansfield saying: 'One of these two persons has paid money for the other, and on his account, and he gives him his bond to secure the repayment of it. This is not prohibited. He is not concerned in the use which the other makes of the money.' "The case was followed, in 1789, by the judges in Petrie v. Hannay, 3 T. R. 418, but with evident reluctance, and many expressions of hesitation, especially by Lord Kenyon. Much stress was laid in both decisions upon a supposed distinction between the law applicable to the case of a contract which was malum in se and one which was malum prohibitum. "These two cases were repeatedly questioned and disapproved, as will be seen by reference to Booth v. Hodgson, 6 T. R. 405; Aubert v. Maze, 2 Bos. & P. 371; Mitchell v. Cock § 1013. By the weight of authority in the United States, however, it is clear that mere knowledge of the buyer's wrongful purpose is not enough to defeat the seller's recovery: there must be something more; something to show that the seller was to actively participate in the illegal transaction, or burne, 2 H. Bl. 379; Webb v. Brooke, 3 Taunt. 6, and Langton v. Hughes, 1 M. & S. 593; and in these, as well as in many subsequent cases, the distinction drawn between a thing malum in se and malum prohibitum was overruled. "In 1803 the case of Bowry v. Bennet, 1 Camp. 348, was tried before Lord Ellenborough. A prostitute was sued for the value of clothes furnished, and pleaded that the plaintiff well knew her to be a woman of the town, and that the clothes in question were for the purpose of enabling her to pursue her calling. His lordship said: 'It must not only be shown that he had notice of this, but that he expected to be paid from the profits of the defendant's prostitution, and that he sold the clothes to enable her to carry it on, so that he might appear to have done something in furtherance of it.' "In 1813 Hodgson v. Temple, 5 Taunt. 181, was decided. There the action was for the price of spirits sold with the knowledge that defendant intended to use them illegally. There was a verdict for plaint iff, and a motion for a new trial was refused by the court, Sir James Mansfield saying: 'This would be carrying the law much farther than it has ever yet been carried. The merely selling goods, knowing that the buyer will make an illegal use of them, is not sufficient to deprive the vendor of his just right of payment, but to effect that it is necessary that the vendor should be a sharer in the illegal transaction.' "This decision was given in November, 1813, and is the more remarkable because the case of Langton v. Hughes, 1 M. & S. 593, had been decided exactly to the contrary in the king's bench in the month of June in the same year, and was not noticed by the counsel or the court in Hodgson v. Temple. Langton v. Hughes was first tried before Lord Ellenborough at nisi prius. It was an action for the price of drugs sold to the defendants, who were brewers, the plaintiffs knowing that defendants intended to use the drugs for mixing with beer-a use prohibited by statute. His lordship charged the jury that the plaintiffs, in selling drugs to the defendants, knowing that they were to be used contrary to the statute, were aiding them in a breach of that act, and therefore not entitled to recover. He, however, reserved the point. The ruling was maintained by all the judges, and it was distinctly asserted as the true principle, that parties who seek to enforce a contract for the sale of articles which in themselves are perfectly innocent, but which were sold with a knowledge that they were to be used for a purpose which is prohibited by law, are not entitled to recover.' "The leading case of Cannan v. Bryce, 3 B. & Ald. 179, was decided in the king's bench in 1819. The question was whether money lent for the purpose of enabling a party |