an obligation which it prohibits every one from assuming or dis charging. This illegality may consist, first, in the violation of some positive statute law. As that prohibiting gaming, or issuing of private bills or notes as currency, in some of the States, or work on Sunday. As to this last, it may be observed that the English and the prevailing American rule always was, that contracts made in breach of the Sunday law were void.(t) But in Massachusetts the rule formerly was, that the contract, or instrument, -a note of hand, for example, was valid, but the party was punishable for the offence of making it.(u) Now, however, the law in Massachusetts is the same as that above stated. (v) So, a contract in violation of the statutes for the prevention of intemperance cannot be enforced,(w) or a contract for smuggling, or for compounding felonies. It is an illegality, which avoids a contract, if it violates the requirements or prohibitions of a statute, although these are not so expressed, if they are certainly implied; and the general doctrine now is, that an act to which a penalty is annexed is prohibited.(x) We do not think it desirable to go into details upon this head, for they must depend upon the fluctuating and very various provisions of the statutes of the several States. Usury, one of the most important among them, we shall discuss in connection with interest. It may be well to remark here, as particularly applicable to illegalities of this kind, although by no means confined to them, that a contract which is intended to lead to and facilitate a means of such representation as aforesaid induced, the defendant to deliver to him the note in the first count mentioned." It was proved, and found by the jury, that the note was obtained by a false representation by the plaintiff that £32 6s. 10d. was due, but that such representation had been made without fraud. Held, that the evidence sustained the plea; for that the words "fraudulently and deceitfully" might be rejected, and that the plea was in substance a plea of partial want of consideration. Cresswell, J. said: "The decision the court now come to does not in any degree interfere with the doctrine, that a small consideration may sustain a larger promise. Where there is a promise to pay a certain sum, all being, as in this case, supposed to be due, each part of the money expressed to be due is the consideration for each part of the promise and the consideration as to any part failing, the promise is, pro tanto, nudum pactum.” (t) See 2 Parsons on Cont., 2d ed., p. 262, et seq. (u) Geer v. Putnam, 10 Mass. 312. (v) Pattee ». Greely, 13 Met. 284. See Barrett v. Hyde, 7 Gray, 160. (w) Doe v. Burnham, 11 Fost. 426. (x) See 1 Parsons on Cont., pp. 381, 382. breach of law, is also void for illegality, unless it produces this effect indirectly and remotely. Thus, if money be lent to a man expressly to game with, and the borrower give his note for it, the note cannot be enforced. (y) But it would not be defence enough, that the borrower was known to be a gambler, and that any one lending him money might expect that it would go to the gamingtable, and that this money did go there. Secondly, the illegality may consist in the violation of the laws of religion, morality, or decency; for the general and fundamental principles of these may be considered as incorporated into the common law. For example, a note for future illicit cohabitation is void.(z) So it would be void if for rent of lodgings for the purpose of prostitution. (a) A note given for past illegal cohabitation is not void for illegality; for the law does not prohibit any one who has done a great wrong from offering some indemnity for it. But such a note, being a simple contract, cannot be enforced, for the reason that the consideration is entirely passed and executed, such a consideration not being sufficient to support a simple contract. It would be otherwise, if a bond or other contract under seal were given, instead of a note.(b) Thirdly, the illegality may consist in an opposition to public policy; for this the law must always protect. As a contract in restraint of trade, without reasonable limitation of place or time; (c) or any contract restraining or preventing marriage, even for a time; or one of that kind known in English law as a contract of marriage brokerage, or brokage; that is, a contract wherein one promises to assist another in accomplishing a marriage, where the promisor has no right of interference, or does interfere or may be supposed to interfere corruptly. (d) Contracts to procure offices or votes, or for bribes of any kind, which in some States are expressly forbidden, are void everywhere.(e) So (y) Cannan v. Bryce, 3 B. & Ald. 179; M'Kinnell v. Robinson, 3 M. & W. 434; Mordecai v. Dawkins, 9, Rich. 262. (z) Walker v. Perkins, 3 Burr. 1568; Friend v. Harrison, 2 C. & P. 584. (a) Girarday v. Richardson, 1 Esp. 13; Jennings v. Throgmorton, Ryan & M. 251. (b) See Binnington v. Wallis, 4 B. & Ald. 651; Gibson v. Dickie, 3 Maule & S. 463; Nye v. Moseley, 6 B. & C. 133; Beaumont v. Reeve, 8 Q. B. 483. (c) Alger v. Thatcher, 19 Pick. 51. See 2 Parsons on Cont. 253, et seq. See 1 Parsons on Cont. 555, 556. (e) Marshall v. Baltimore & Ohio R. R. Co., 16 How. 314, 334-336; Clippinger v. Hephaugh, 5 Watts & S. 315; Harris v. Roof, 10 Barb. 489; Rose . Truax, 21 Barb. 361. See Horn v. Tontz, 4 Calif. 321. are those to suppress evidence, or to interfere in any way with the course of justice, whether within the terms of any statute or not. (f) But a note for compounding a strictly private misdemeanor is good at common law; (g) and in some of the States this kind of composition is favored and regulated by statute. So a note, after conviction, for the legal costs and expenses of the prosecution, may be good. (h) And it is said, that if one sells goods, with the distinct knowledge that an illegal use is to be made of them, but without the promise or purpose of rendering personal aid, a note founded on this contract will be good.(i) But this rule cannot be universal, and we should indeed regard it as exceptional, if not doubtful. So if one receives a good bill in substitution for one that is forged, at the request of the forger, it is said to be valid, if there were no stipulation to stifle prosccution for the forgery; (j) but the new bill would not be given unless the forged bill were surrendered, and if this were done, such a stipulation would seem to be a necessary implication, for the principal evidence is destroyed. Wagers generally, now indeed almost universally, are not enforceable contracts; nor could a note in payment of a mere wager be enforced between the parties.(k) But they are not illegal, and money paid on them with full knowledge of the facts, although with ignorance of the law, which prevented any legal obligation, could not be recovered back. If, however, the bet or wager was one which itself violated decency, or public policy, as a wager about the sex of any person; or as to their marriage, or having children; or on the result of an election; or of a criminal or perhaps of any trial; —in these cases, not only would the note be void between the parties to it, but, if discharged by payment, the money should be recoverable, unless where this was prevented by the rule that, both (f) Nerot v. Wallace, 3 T. R. 17; Edgcombe v. Rodd, 5 East, 294; Coppock v. Bower, 4 M. & W. 361; Swan v. Chandler, 8 B. Mon. 97; Clark v. Ricker, 14 N. H. 44; Commonwealth v. Johnson, 3 Cush. 454; Gardner v. Maxey, 9 B. Mon. 90; Hinesburgh v. Sumner, 9 Vt. 23. (9) Drage v. Ibberson, 2 Esp. 643; Fallowes v. Taylor, 7 T. R. 475. (h) Beeley v. Wingfield, 11 East, 46; Keir v. Leeman, 9 Q. B. 394; Kirk v. Strick wood, 4 B. & Ad. 421; Baker v. Townshend 1 J. B. Moore, `≤0. (i) Hodgson v. Temple, 5 Taunt. 181. (j) Wallace v. Hardacre, 1 Camp. 45. (k) See 2 Parsons on Cont., 261, 262. parties being in pari delicto, neither could have a remedy against the other. Under this head of public policy comes that class of cases in which a fraud is committed or attempted against creditors. Thus, if one creditor secures any advantage over the others, which is concealed from them, and then enters into a composi tion or arrangement, in which they seem to stand on the same ground; or if he has anything given him as an inducement to accede to the composition, and so bring others in; or if there be a bankruptcy, and the consideration be withdrawing or suppressing objection to a certificate or discharge of the debtor; in any of these cases a note given for such a consideration would be void. (1) And if a note be given by a third person, who is indemnified by the debtor, it cannot be enforced against the maker, because it is void from the beginning.(m) In England, it was held that, if the creditor of a bankrupt act as commissioner, and take a note for his debt while the commission is going forward, he cannot enforce it, because the maker could not then be considered as a free agent. (n) So if a third person pay money for such illegal purpose, and the debtor give him a note therefor, the note cannot be enforced.(o) Trading with an enemy, as we have seen, is illegal, and therefore notes and bills given in the course of such trading should be held void; but a distinction has been taken, and it is said that a bill drawn on an alien enemy is justified by practice, and is legal.(p) Certainly it would be if drawn for payment of supplies which it was legal to furnish, as to a cartel or licensed ship.(7) The sale of a license, which was once held to be legal,(r) was afterwards, by the Supreme Court of the United States, held to be illegal; and a note given for it would be void.(s) (1) Cockshott v. Bennett, 2 T. R. 763; Knight v. Hunt, 5 Bing. 432; Bryant v. Christie, 1 Stark. 329; Sumner v. Brady, 1 H. Bl. 647; Rice v.. Maxwell, 13 S. & M. 289; Sharp v. Teese, 4 Halst. 352. (m) Bryant v. Christie, 1 Stark. 329. (n) Haywood v. Chambers, 5 B. & Ald. 753 (0) Bryant v. Christie, 1 Stark. 329. (p) United States v. Barker, 1 Paine, C. C. 156. (q) Suckley v. Furse, 15 Johns. 338. (r) Coolidge v. Inglee, 13 Mass. 26. (s) Patton v. Nicholson, 3 Wheat. 204. If the consideration be in part illegal, and in part not, it seems that the rule in case of partial failure of consideration does not apply; but the whole contract is tainted and avoided by that part of the consideration which is in violation of law. (t) Still, however, although a note on such mingled consideration would be void, the fact of its nullity would leave the parties where they were before, or would be without it. And if any good and legal consideration passed between the parties, a proper action, as for money lent, for example, if that were suitable, might be maintained thereon.(u) If a note or bill be given for a consideration which is in part illegal, a new note for the same, or in renewal of the first, is equally void.(v) But a new note for that part of the consideration which is legal, is good and valid. And if several new notes are given for the old one, some of the new ones may be taken to be for the legal part, and so valid; especially if they are only adequate to this part, or if the deduction be otherwise favored by circumstances.(w) If a debtor assigns and transfers to a bona fide creditor a debt founded upon an illegal consideration, and this illegal debtor gives his note accordingly to the assignee of his creditor, and is discharged by his creditor, the note will be enforced against him; for though the consideration between him and the assignor is illegal, that between him and his promisee is not illegal.(x) Whether, if a note be good in its inception, and afterwards, by sundry transfers, it reaches a bona fide and innocent holder for value, he is prevented from enforcing it against the maker, in consequence of one of the intervening transfers being for an illegal consideration, may not be quite certain. It has been said, that if the indorsements are blank, the holder may fill an earlier one to himself, and so recover; but if they are in full, or he is for any reason obliged to derive his title through the illegal transfer, he cannot sue. (y) We think, that in either case, and equally, this illegal transfer is no bar or defence whatever. Indeed, it (t) Scott v. Gillmore, 3 Taunt. 226. (u) Utica Ins. Co. v. Kip, 8 Cowen, 20; Robinson v. Bland, 2 Burr. 1077. (v) Chapman v. Black, 2 B. & Ald. 588; Wynne v. Callander, 1 Russ. 293; Preston . Jackson, 2 Stark. 237. (w) Hubner v. Richardson, Bayley on Bills, 2d Am. ed., 570; Crookshank v. Rose 6 C. & P. 19. (x) Bowen v. Doggett, 2 Nott & McC. 127. (y) See Story on Prom. Notes, § 193. |