Treatise on the Law OF SALE OF PERSONAL PROPERTY WITH REFERENCES TO THE AMERICAN DECISIONS. THIRD ENGLISH EDITION. WITH THE AUTHOR'S SANCTION AND REVISION. BY ARTHUR BEILBY PEARSON, B. A., and HUGH FENWICK BOYD, OF THE INNER TEMPLE, BARRISTERS-AT-LAW. FOURTH AMERICAN EDITION. BY CHARLES L. CORBIN, IN TWO VOLUMES. VOL. II. JERSEY CITY: FREDERICK D. LINN & CO. Sale void when illegal purpose. § 786. The contract of sale, like all other contracts, is void when entered into for an illegal consideration or for entered into for purposes violative of good morals or prohibited by the lawgiver. The thing sold may be such as in its nature cannot form the subject of a valid contract of sale, as an obscene book or an indecent picture, which are deemed by the common law to be evil and noxious things. The article sold may be in its nature an innocent and proper subject of commercial dealings, as a drug, but may be know ingly sold for the purpose, prohibited by law, of adulterating food or drink. Or the sale may be prohibited by statute for revenue purposes, or other motive of public policy. In all these cases the law permits neither party to maintain an action on such a sale. Where the un lawful agreement is executory only, money or able. ers. v. § 787. [It is important, however, to observe that although the courts will not entertain an action either to enforce an unlawful agreement or to have an unlawful agreement set aside after it has been executed, yet if money has been goods reclaim paid, or goods have been delivered under an unlawful agreement, which remains in other respects executory, the party paying the money or delivering the goods may repudiate the transaction, and recover back his money or goods. The action is then founded, not upon the unlawful agreement, but upon its disaffirmance. Taylor . Bow. Thus, in Taylor v. Bowers, (a) the plaintiff had assigned and delivered goods to one Alcock for the purpose of defrauding his (the plaintiff's) creditors. Alcock, without the plaintiff's assent, executed a bill of sale of the goods to the defendant, who was aware of the illegal transaction. It was held that the plaintiff was entitled to repudiate the transaction, and recover his goods from the defendant. Mellish, L. J., said, "If money is paid, or goods delivered, for an illegal purpose, the person who had so paid the money or delivered the goods may recover them back before the illegal purpose is carried out; but if he waits till the illegal purpose is carried out, or if he seeks to enforce the illegal transaction, in neither case can he maintain an action." Law same in The law has very recently been laid down to the same effect by the Supreme Court of the United States. (b) 1 (a) 1 Q. B. D. 291, C. A., and see ing that the sale was illegal. Burkholder Symons v. Hughes, 2 Eq. 475, 479. (b) Spring Co. v. Knowlton, 13 Otto 49. 1. An Unlawful Agreement may be Disaffirmed Before Execution.--Knowlton v. Congress and Empire Spring Co., 57 N. Y. 518. See dissenting opinion (p. 540) of Dwight, Comm'r, which was followed by United States Supreme Court in same case, 103 U. S. 49. Merritt v. Millard, 4 Keyes 208; White v. Franklin Bank, 22 Pick. 181; Lowell v. Boston, &c., R. R., 23 Pick. 24. So, also, the buyer may avoid the sale and recover back the price or discovery of facts show v. Beetem, 65 Penna. 496; Stanley v. Chamberlin, 39 N. J. L. 565. The Law Aids Neither Party to an Illegal Contract.—After the contract has been executed, a party who knew of the illegality cannot be aided in disaffirming it. Thus in Myers v. Meinrath, 101 Mass. 366, a coat was exchanged for jewelry. The jewelry was returned and suit was brought for the price of the coat, but failed because of the illegality of the contract, which was made on Sunday. Thereupon the coat was demanded and trover brought. But Wells, J., said: § 788. The subject will be considered in two parts: 1st, with reference to the common law; 2nd, the acts of parliament. At common law the rule is invariable: Ex turpi causa non oritur actio. And this rule is as applicable to a statement of de- Illegal act unfence as to a statement of claim; for, as was said by Lord Mansfield in Montefiori v. Montefiori, (c) "no man shall available for defence as well as for action. set up his own iniquity as a defence any more than as a cause of action." (d) 2 Sales are therefore void, and neither party can maintain "The illegality is inseparably connected with the origin of the cause of action, and it is immaterial which party discloses it to the court. The ends of justice are found to be best secured by permitting it to be thus administered upon one of two offending parties at the instigation of the other." (But Sunday contracts in some states are an exception to this rule. See post notes 34 and 35.) See Horton v. Buffinton, 105 Mass. 399; McWilliams v. Phillips, 51 Miss. 196; Ratcliffe v. Smith, 13 Bush 172; Penn v. Bornmann, 102 Ill. 523; Banking Co. v. Kantenberg, 103 Ill. 460. No action can be brought for fraud in an illegal contract. See post note 36. Smith v. Bean, 15 N. H. 577; Gunderson v. Richardson, 56 Iowa 56; Robeson v. French, 12 Metc. 24; Way v. Foster, 1 Allen 408; Gregg v. Wyman, 4 Cush. 322. Otherwise if the unlawful contract is not essential to the case of plaintiff. Welch v. Wesson, 6 Gray 505. In Block v. McMurry, 56 Miss. 217,-it was held that if a man induced to make a contract on Sunday was intoxicated to a degree that he was not competent to make a contract, he might avoid it. And so where cattle were obtained on Sunday through previous fraudulent representations, and a subsequent promise to pay was made, a suit was sustained. Winchell v. Carey, 115 Mass.560. As to ratification of Sunday contracts, see post note 39. (c) 1 Wm. Bl. 363; and see, also, Doe d. Roberts v. Roberts, 2 B. & Ald. 367. (d) See the authorities collected in the notes to the leading case of Collins v. Blantern, in 1 Sm. L. C. (8th ed.) 387. 2. The Test is Whether the Case or Detence is Made out Through the Aid of the Illegal Contract.-If so it must fail. Taylor v. Chester, L. R., 4 Q. B. 309, 314; Swan v. Scott, 11 S. & R. 155; Hipple v. Rice, 28 Penna. 406; Fowler v. Scully, 72 Penna. 456, 468; Gilliam v. Brown, 45 Miss. 641, 660; Roby v. West, 4 N. H. 290; Welch v. Wesson, 6 Gray 505; Phalen v. Clark, 19 Conn. 421. But this is said to be too narrow in Hanauer v. Woodruff, 15 Wall. 439, 443, as not including the case of goods sold with knowledge of intent to use them to further crime. It is immaterial whether plaintiff or defendant first urges the illegality. When disclosed, the party relying on it for relief will fail. Sampson v. Shaw, 101 Mass. 145, 151; Myers v. Meinrath, 101 Mass. 366; Hanauer v. Woodruff, 15 Wall. 439, 443; Laing v. McCall, 50 Vt. 657. Dealings With Property Illegally Acquired.-Although the illegal contract is void, yet, after it has been executed, legal contracts with respect to the subject matter will be sustained. In Lestapies v. Ingraham, 5 Penna. 81, Gibson, C. J., said: "True it is that an illegal contract will not be executed, but where it has been executed by the parties the money or thing which was the product of it may be a legal consideration among themselves for a promise either express or implied, and the court will not unravel the transaction to discover its origin." Fox v. Cash, 11 Penna. 207. In Randon v. Toby, 11 How. 493, 520, the suit was on a note given for the price of slaves. It |