wicked deeds, they will brush away the cobweb varnish and shew the tranfactions in their true light. This is a contract to tempt a man to tranfgrefs the law, to do that which is injurious to the communi ty-it is void by the common law, and the reason why the common law fays fuch contracts are void is for the public good-you fhall not ftipulate for iniquity. All writers upon our law agree in this, no polluted hand fall touch the pure fountain of justice."The whole of the judgment, from which thefe extracts are made, may be strongly recommended to the perufal of all who are engaged in juridical inquiries. Many of the exceptions which fall within the fcope of this divifion are contrary to the immediate juftice which would prevail in a moral view between the contracting parties; but the public tribunals will not afford judicial affiftance to those whose object is to infringe the general policy of the law, or to prejudice the rights and interefts of others (a); and perhaps it is one of the greatest fecurities against tranfactions of this description, that the contracting parties can have no redress against each other, and that where they are equally guilty of an infraction of the law, the claims of either may be effectually refisted. Upon this fubject it can hardly be neceffary to state, that tranfactions which have for their object the encouragement of manifest crimes, fuch as murder, theft, perjury, and personal outrage, can never receive the fanction of a court of judicature; and any engagement of a reward to abstain from fuch crimes is equally dif countenanced, as it might effectively lead either to criminality or extortion. (a) In the cafe of Parsons v. Thompson, 1 H. B. 322., in which it was decided that an agreement by one perfon to pay a compensation to another for retiring from a public office, provided the former was appointed to fucceed him, was void; Lord Loughborough concluded his judgment as follows: "This agreement, refting on private contract and honour, may perhaps be fit to be executed by the parties, but can only be enforced by confiderations which apply to their feelings, and is not the subject of an action. The law encourages no man to be unfaithful to his promise; but legal obligations are, from their nature, more circumfcribed than moral duties." In another cafe, where the party to a contract objected to it as being a fraud on the revenue, Lord Mansfield said, the objection that a contract is immoral or illegal, as between plaintiff and defendant, founds at all times very ill in the mouth of the defendant. It is not for his fake however that the objection is ever allowed; but it is founded on general principles of policy which the defendant has the advantage of, contrary to the real justice between him and the plaintiff, by accident, if I may fo fay. The principle of public policy is this; Ex dola malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If from the plaintiff's own ftating or otherwife, the cause of action appears to arise ex turpi causa, or the transgression of a pofitive law of this country, there the Court fays he has no right to be affifted. It is upon that ground the Court goes, not for the fake of the defendant, but because they will not lend their aid to fuch a plaintiff. So if the plaintiff and defendant were to change fides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, potior eft conditio defendentis. Holman v. Johnson, Cowp. 341. There There is a tradition that a fuit was inftituted by a highwayman against his companion to account for his share of the plunder, and a copy of the proceedings has been published as found amongst the papers of a deceased attorney. It was a bill in the Exchequer, which avoided stating in direct terms the criminality of the engage ment, and is founded upon a fuppofed dealing as copartners in rings, watches, &c. but the mode of dealing may be manifeftly inferred. The tradition receives fome degree of authenticity, by the order of the court being fuch as would in all probability enfue from fuch an attempt. The order was, that the bill fhould be difmiffed with cofts for impertinence, and the folicitor fined 50l. The printed account is accompanied by a memorandum which states the particular times and places where the plaintiff and defendant were afterwards executed. Europ. Mag. 1787, vol. ii. p. 360. (a). Contracts with a view to future proftitution are illegal; but an engagement by way of reparation for paft feduction will be fupported, if it is not accompanied with any purpose of future cohabitation. Marchionefs of Annandale v. Harris, 2 P. Wms. 339. Lady Cox's cafe, 3 P. Wms. 339. Walker v. Perkins, 3 Bur. 1568. Prieft v. Parrott, 2 Vef. 160. (a) John Everet against Jofeph Williams. The bill ftated that the plaintiff was skilled in dealing in feveral commodities, such as plate, rings, watches, &c. that the defendant applied to him to become a partner; that they entered into partnership, and it was agreed that they fhould equally provide all forts of neceffaries, fuch as horíes, feddles, bridles, and equally bear all expences on the roads, and at inns, taverns, or ale-houfes, or at markets or fairs. "And your orator and the faid Joseph Williams proceeded jointly in the said business with good fuccefs on Hourflow-heath, where they dealt with a gen leman for a gold watch, and afterwards the said Joseph Williams told your orator that Finchley in the county of M ddlesex was a good and convenient place to deal in, and that commodities were very plenty at Finchley aforefaid, and it would be almost all clear gain to them: that they went accordingly, and dealt with several gentlemen for divers watches, rings, fwords, canes, hats, cloaks, horses, bridles, faddles, and other things: that about a month afterwards the faid Jofeph Williams informed your orator that there was gentleman at Blackheath who had a good horse, saddle, bridle, watch, fword, cane, and other things to dispose of, which he believed might be had for little or no money: that they accordingly went and met with the faid gentleman, and after fame small difcourfe they dealt for the faid horfe, &c. that your orator and the said Jofeph Williams continued their joint dealings together until Michaelmas, and dealt together in feveral places, viz. at Bagshot in Surry, Salisbury in Wiltshire, Hampstead in Middlesex, and elsewhere to the amount of 2000 and upwards."-The rest of the bill is in the ordinary form for a partnership account. 3d October 1725, on the motion of Serjeant Girdler the bill referred for scandal and impertinence. 29th November, Report of the bill as fcandalous and impertinent confirmed; and order to attach White and Wreathcock the folicitors. 6th December, The folicitors brought into court and fined col, each; and ordered that Jonathan Collins Efq. the counfel who figned the bill, should pay the costs. The plaintiff was executed at Tyburn in 1730, the defendant at Maidstone in 1735. Wreathcock the folicitor was convicted of robbing Dr. Lancaster, in 1935, but reprieved and tranfported. Lord Kenyon in the cafe of Riddley v. Moore, Appendix to Clifford's Report of Southwark Election, has referred to this cafe. But, upon examining the office, the account is not fupported. Taking the cafe as a fuppofititious one it sufficiently illuftrates the general principle. B 2 Every Every tranfaction the object of which is the violation of a public or private duty, is alfo void; fuch are bribes for appointing to offices of truft, private engagements that an office shall be held in truft for a perfon by whofe intereft it was procured, agreements to ftifle a profecution for any crime of a public nature, bonds to recompenfe the procuring a marriage (a). See Parfons v. Thompson, 2 H. B. 322.; Garforth v. Fearon, id. 327.; Blachford v. Preston, 8 T. R. 89.; Collins v. Blantern, 2 Wilf. 347. A perfon who contracted to keep horses for government, agreed with another who was under contract to supply him with forage, to commute a part of the forage for money; this was holden to be void as a fraud upon the public. Wallis v. Baldwin, Doug. 450. For the fame reafon the law will not fupport a promise to indemnify an officer for acting contrary to his duty, or in short any other engagement which falls within the fcope of the general principle. Upon the examination of a bankrupt respecting particular fums which hew as charged with, having received, a person promised that if the affignees would forbear to proceed in having that examination taken, he would pay a fum of money for the benefit of the estate. This promife was ruled to be void, as it was the intention of the legiflature that the creditors fhould have the full examination of the bankrupt, as to the state of his effects and the difpofition of them, and the promife was to induce the affignees and commiffioners to forbear doing their duty. Nerot v. Wallace, 3 T. R. 17. An intention to defraud the public revenue is a frequent caufe. of vitiating contracts; but the law of one country does not interpofe to protect the revenue of another; and therefore an engagement, valid in other refpects, is not defeated by any contrivance to evade the revenue laws or fpecial commercial regulations of a foreign country (b). And even where goods were purchased abroad with an intention by the buyer to smuggle them into England; it was held that an action might be maintained for the price, although the feller was acquainted (4) The cases respecting marriage-brokage are collected in Mr. Fonblanque's notes to the Treatife of Equity, book i. ch. iv. f. 10. See alfo the cases of Scribblebill v. Brett, in the laft edition of Brown's Parl. Cafes, iv. 144.; Booth v. Warrington (E) ib. iv. 163. and Merifone v. Arubthnot (Vifc.) ibid. viii. 247. Appendix II. (b) Pothier in his treatife on Infurance makes fome obfervations in oppofition to this principle, which are apparently very judicious. Having cited a judgment from Valin, in which it was held that, it was not forbidden to a Frenchman to carry on in a foreign country, a commerce prohibited by the laws of fuch country, and that therefore the risk of confifcation might be insured like other perils of the sea; he observes that this principle appears false; for that those who carry on commerce in any country, are obliged by the law of nations, and alfo by the law of nature, to conform, in respect to such commerce, to the laws of the country where they carry it on. Every fovereign has empire and jurisdiction over what= acquainted at the time with the illegal intention of the purchaser. But it was faid that if the feller had any concern in running the goods into England, he would have been an offender against the laws of this country. Holman v. Johnson, Cowp. 341. (a). It is clearly fettled that if any engagement is entered into for giving a fortune preparatory to an intended marriage, no private tranfaction to defeat the effect of it can prevail even as between the immediate parties. Were it otherwise there would be a constant opportunity of delufion, and confents to marriage might be obtained under the fallacious appearance of property which in fact didnot exist. The creditors of an infolvent perfon having agreed to accept a compofition of their debts, one creditor refufed to fign the deed of compofition without having a note for the remainder of his debt, and the note was held to be void as being a fraud upon all the other creditors; for it prevented the debtor's being put in that fituation which was the inducement to them to sign the deed and relinquish a part of their demands. Cocksbott v. Bennet, 2 T. R. 763. And upon the fame principle, where a person who could not raise money to purchase the goods in a house which he had taken, prevailed upon a friend to give for them what was represented to be the full price; but a promiffory note was privately given for a further fum; this was held to be a grofs fraud upon the person who was induced to advance his money under the fuppofition that it was the complete purchase money for the goods, and the note was therefore adjudged to be void. Jackson v. Durham, 3 T. R. 551. But where a compofition was agreed to be taken by instalments, the infifting upon an additional security for the payment of those inftalments was not deemed fraudulent, as there was no intention of exacting any greater fatisfaction than was generally agreed upon. Fiefe ever is done in the country where he has a right to command, and confequently he has a right to make laws refpecting the commerce that takes place in his country, which shall be obligatory upon foreigners as well as upon his own fubjects. It cannot be difpured that a fovereign has a right to retain in his territories cèrtain merchandizes which are here, and to prohibit their exportation. To export them then without his orders, is to infringe his right of retaining them, and is confequently an injustice. (4) See the extract from Lord Mansfield's opinion in this cafe, ante, p. 2. n. (a). See alfo the cafe of Biggs v. Lawrence, 3 T. R 454. in which it was held, that no action could be maintained by four partners, three of whom lived in England and the other in Guernfry, upon a fale of goods made by the latter, and shipped in a manner adapted for smuggling. It has been fince held, that even a foreigner could not recover in our courts the price of goods fold with a knowledge that they were intended to be fmuggled into this country, and packed by him in a particular manner for that purpose. Waymell v. Reed, 5 T. R. 599. See also the cafe of Lightfoot v. Tenant, 1 Bof. & Pull. 551. in which it was held to be a good plea in an action upon a bond, that it was given by the defendant to the plaintiff for the price of goods fold by the latter to the former, to be by him shipped in London for Oftend, to be there shipped for the East Indies, in which cafe Lord Ch. Juftice Eyre confidered with fome particularity the degree of participation by the feller in the illegal conduct of the buyer, which might affect the validity of the contract, B 3 dall, dall, 6 T. R. 146. But fee the cafe of Leicefler v. Rofe, 4. Eaft. 172. In which (fubfequent to this work going to the press), the obtaining fuch an additional fecurity was under the circumstances ruled to be fraudulent, and the fecurity confequently adjudged to be void. Puffing at auctions is a fraud upon the purchasers, and therefore a person cannot have any legal assistance in recovering a fatisfaction for his attendance for that purpose. Treatife of Equity, 24. and fee Walker v. Nightingale, Bro. Parl. Ca. iv. 193. And it was held upon very full confideration that a perfon who employed an auctioneer could not maintain an action against him for felling the property under a certain price (the argument, taking the intention that there fhould be a private bidder forgranted). Bexwell v. Christie, Cowp. 395. An engagement founded upon the oppreffion of a third perfon is equally deftitute of legal efficacy, as if founded upon fraud. Such was the cafe where a sheriff's officer received a fum of money from a defendant for admitting him to bail, and agreed to pay the bail part of the money which was fo exacted. Slotefbury v. Smith, 2 Bur. 924. As the public are interested in the freedom of trade, any agreement for the unlimited restraint of a person in following his lawful occupation is utterly void; but an agreement not to follow an occupation within particular limits may be good, provided it is founded upon an adequate confideration. In a recent cafe it was decided that taking a person as an assistant in the business as a furgeon was a fufficient confideration for a bond not to exercise the same profeffion afterwards within a certain distance of the employer's place of refidence. Davis v. Mafon, 5 T. R. 118. It is the policy of the law to reprefs agreements in reftraint of marriage; therefore a bond from a woman to a man to pay a fum of money if she married any other person was holden to be void, being effentially different from the legal contract of mutual promises to marry. Low v. Peers, 4 Bur. 2224. Without entering into a more particular enumeration of the feveral grounds which affect the validity of contracts, whether by virtue of the general principles of rectitude, or by the particular policy and institutions of our own country (a), it will be proper to keep it in view as a leading propofition, that an illegality in the object of a contract will frustrate the strictest regularity in form and expreffion. A fale at an exorbitant price of fome article of trifling value is a common cover to a bribe. A wager is also frequently (a) Mr. Fonblanque gives an accurate fummary of the law upon this subject, when he obferves that confiderations against the policy of the common law, or against the provifions of a ftatute, or against the policy of juftice, or the rules and claims of decency, or the dictates of morality, are void in law and equity. Treatife of Equity, b. 1. c. 4. f. 4. the |