such an agreement; they merely prove that the freight was paid in advance. Indeed it will be seen at once, that if the payment of freight thus proved were to be construed into a stipulation that it should not be recovered back, the whole doctrine of the marine law on this subject would be useless. The maxim is, that freight paid in advance, if the goods be not carried, shall be returned, unless there be a stipulation to the contrary. Now if the mere payment proved such stipulation there would be no case for the rule to operate upon. So that when Mr. Justice BAYLEY says, that where there is an express stipulation to pay freight in advance, there must also be an express stipulation to pay it back in order to entitle the shipper to recover, he means something more than the mere payment of the freight, which may be equivocal. He means undoubtedly an express stipulation in the contract, because it might be inferred from such a stipulation that the parties had calculated hazards, and that an equivalent had been obtained in some form for the advance of money which otherwise would be due only on a contingency. And he was there reasoning upon a case which might fairly sustain such an argument.

It is said that the rate of exchange between this country and England gave an advantage to the plaintiffs which may have been the consideration for paying freight in advance. That fact does not appear in the report, and if it did it could not affect our decision. If the intent of the parties had been submitted to the jury, as was done by Chief Justice GIBBS in the case cited from 5 Taunt. 435, it might have been material, but we do not find that the fact was offered to be proved at the trial, so that we do not see that any use can now be made of it.

Judgment for the plaintiffs.1

BOSWORTH, J., IN PHELPS v. WILLIAMSON.

5 SANDF. (N. Y.) 578, 584.—1852.

It is undoubtedly competent for the parties to contract upon any terms they may think proper; and the shipper may agree to pay freight in advance in consideration of the carrier's promise to receive the goods on board, and to undertake to carry and safely deliver them at some other port. In such a case the carrier is entitled to the freight according to the contract, and if the performance of the promise on his part becomes impossible by the act of God, he is excused from non-performance and the loss falls upon the shipper. This would be so on general principles applicable to all contracts

1Accord, Emery v. Dunbar, 1 Daly (N. Y. C. P.) 408 (1865). The same rule applies to passage money paid in advance. Brown v. Harris, 2 Gray 359 (1854).

where the thing done or money paid by the one party is the consideration of a promise of the other party to do something on his part. If performance becomes impossible through some overruling necessity, and without the fault of the party promising, the other party cannot recover back the money paid, nor for the thing done. It is also a well-settled principle of law, that where money is paid, or a promise made by one party in contemplation of some act to be done by the other, and the doing of which is the sole consideration of the right to receive payment or require a performance of the promise, and the thing stipulated to be done is not performed, the money may be recovered back, or the promise founded on such consideration may be avoided between the parties to the contract.

In this case, by the settled principles of law, and the legal effect of the contract as evidenced by the bill of lading, the right to freight depended on the performance of the voyage and a delivery of the goods at San Francisco. The goods were not carried to that port. It was no fault of the shipper. After the contract had been made, and the legal rights and liabilities of the parties had become fixed, the shipper advanced the freight. The act, the doing of which entitled the defendants to it, has not been done. The defendants have not performed the acts, the performance of which was a condition precedent to their right to require payment. The consideration for the advance has failed, and the defendants must refund the money. STORY, J., in Pitman v. Hooper, 3 Sumner 66, comments on the case in 2 Shower R. 283, as one loosely reported, and not easily reconcilable with the strict principle, and declares his opinion of the law to be, that in the ordinary case of freight paid in advance, if the voyage is not performed, the shipper may recover it back, unless it was paid under an express agreement to the contrary. Ch. J. KENT, in Watson v. Duykinck, 3 J. R. 335, and in his Com., vol. 3, p. 226, lays down the rule of law applicable to this subject, as it was decided to be, in Griggs v. Austin, 3 Pick. 20; Mashiter v. Buller, I Camp. 84, is to the same effect.

ANONYMOUS.

2 SHOWER 283.-1683.

THIS was ruled by SAUNDERS, Chief Justice, on evidence in a trial at Guildhall.

First. Freight is the mother of wages, and wheresoever freight is due, wages is so.

Secondly. If a ship be lost before it come to a delivering port, no freight nor wages is due; if lost afterwards it is due to the last delivering port.

Thirdly. Advance-money paid before, if in part of freight, and named so in the charter-party, although the ship be lost before it

come to a delivering port, yet wages are due according to the proportion of the freight paid before; for the freighters cannot have their money.1

e. ILLEGAL CONTRACTS.

i. In General.

WHITE v. FRANKLIN BANK.

22 PICK. (MASS.) 181.-1839.

By an agreed statement of facts, it appeared, that on the 10th of February, 1837, the plaintiff deposited with the defendants the sum of $2,000, and received from them a book containing the following words and figures, to wit:

"Dr. Franklin Bank in account with B. F. White, Cr. 1837, Feb. 10th. To cash deposited, $2,000. The above deposit to remain until the 10th day of August. E. F. Bunnell, Cashier."

It further appeared, that on the 7th of July, 1837, the plaintiff brought this action against the bank to recover the money so deposited by him, declaring on the money counts, and on an account stated. If the court should be of opinion, that the action could be maintained, the defendants were to be defaulted and judgment rendered for the sum of $2,000, with interest; otherwise the plaintiff was to become non-suit.

WILDE, J—The first ground of the defense is, that the action was prematurely commenced. The entry in the book given to the plaintiff by the cashier of the bank, is undoubtedly good evidence of a promise to pay the amount of the deposit on the 10th day of August; and if this was a valid and legal promise, this action cannot be maintained. But it is very clear, that this promise or agreement that the deposit should remain in the bank for the time limited, is void by virtue of the Revised Stat. c. 36, sec. 57, which provides that no bank shall make or issue any note, bill, check, draft, acceptance, cer

In Byrne v. Schiller, L. R. 6 Exch. 319 (1871), the court says (pp. 325, 326): "It is settled by the authorities referred to in the course of the argument, that by the law of England a payment made in advance on account of freight cannot be recovered back in the event of the goods being lost, and the freight therefore not becoming payable. I regret that the law is so. I think it founded on an erroneous principle and anything but satisfactory; and I am emboldened to say this by finding that the American authorities have settled the law upon directly opposite principles, and that the law of every European country is in conformity with the American doctrine and contrary to ours. In France and Germany the rule has been settled for long time. * * * But whatever may be the true principle, I quite agree that the authorities founded on the ill-digested case in Shower (Anon., 2 Show. 283) are too strong to be overcome; and if the law is to be altered, it must be done by the legislature and not by contrary decisions."

WOODRUFF'S CASES-15

tificate or contract, in any form whatever, for the payment of money, at any future day certain, or with interest, excepting for money that may be borrowed of the Commonwealth, with other exceptions not material in the present case. The agreement that the deposit should remain until the 10th day of August amounts in law, by the obvious construction and meaning of it, to a promise to pay on that day. This therefore was an illegal contract and a direct contravention of the statute. Such a promise is void; and no court will lend its aid to enforce it. This is a well-settled principle of law. It was fully discussed and considered in the case of Wheeler v. Russell, 17 Mass. R. 281; and the late Chief Justice, in delivering the opinion of the court, remarked, "that no principle of law is better settled, than that no action will lie upon a contract made in violation of a statute, or of a principle of the common law." The same principle is laid down in Springfield Bank v. Merrick, 14 Mass. R. 322, and in Russell v. DeGrand, 15 Mass. R. 39. In Belding v. Pitkin, 2 Caines's R. 149, THOMPSON, J., said "it is a first principle, and not to be touched, that a contract, in order to be binding, must be lawful." The same principle is fully established by the English authorities. In Shiffner v. Gordon, 12 East 304, Lord ELLENBOROUGH laid it down as a settled rule, "that where a contract which is illegal, remains to be executed, the court will not assist either party, in an action to recover for the non-execution of it." It is therefore very clear, we think, that no action can be maintained on the defendant's express promise, and that if the plaintiff be entitled to recover in any form of action, it must be founded on an implied promise.

The second objection, and that on which the defendant's counsel principally rely, proceeds on the admission that the contract is illegal; and they insist that where money has been paid by one of two parties to the other, on an illegal contract, both being participes criminis, no action can be maintained to recover it back. The rule of law is so laid down by Lord KENYON, in Howson v. Hancock, 8 T. R. 577, and in other cases. This rule may be correctly stated in respect to contracts involving any moral turpitude, but when a contract is merely malum prohibitum, the rule must be taken with some. qualifications and exceptions, without which it cannot be reconciled with many decided cases. The rule as stated by CoмYNS, in his treatise on contracts, will reconcile most of the cases which are apparently conflicting. "When money has been paid upon an illegal contract, it is a general rule, that if the contract be executed, and both parties are in pari delicto, neither of them can recover from the other the money so paid; but if the contract continues executory, and the party paying the money be desirous of rescinding it, he may do so, and recover back his deposit by action of indebitatus assumpsit for money had and received. And this distinction is taken in the books, namely, where the action is in affirmance of an illegal contract, the object of which is to enforce the performance of an engagement prohibited by law, clearly such an action can in no case be maintained; but where the action proceeds in disaffirmance of

such a contract, and, instead of endeavoring to enforce it, presumes it to be void and seeks to prevent the defendant from retaining the benefit which he derived from an unlawful act, there it is consonant to the spirit and policy of the law, that the plaintiff should recover. 2 Com. on Contr. 109. The rule, with these qualifications and distinctions, is well supported by the cases collected in Comyns and by later decisions. The question then is, whether, in conformity with these principles, upon the facts agreed, this action can be maintained. The first ground on which the plaintiff's counsel rely, in answer to the defendants' objection is, that there was no illegality in making the deposit, and that the illegality of the transaction is confined to the promise of the bank, and the security given for the repayment, that alone being prohibited by the statute. The leading case on this point is that of Robinson v. Bland, 2 Burr. 1077. That was an action on a bill of exchange given for money lent and for money won at play. By the St. 9 Anne, c. 14, it was enacted that all notes, bills, bonds, judgments, mortgages or other securities for money won or lent at play, should be utterly void. The court held, that the plaintiff was not entitled to recover on a bill of exchange, but that he might recover on the money counts for the money lent, although it was lent at the same time and place that the other money for which the bill was given, was won. The same principle was laid down in the cases of Utica Ins. Co. v. Scott, 19 Johns. R. 1; Utica Ins. Co. v. Caldwell, 3 Wendell 296; and Utica Ins. Co. v. Bloodgood, 4 Wendell 652. In these cases the decisions were, that although the notes were illegal and void as securities, yet that the money lent, for which the notes were given, might be recovered back. The principle of law established by these decisions is applicable to the present case. The only doubt arises from the meaning of the word "contract," in the prohibitory statute. But taking that word in connection with the other words of prohibition, we think it equivalent to the promise of the bank, and that the intention of the legislature was, to prohibit the making or issuing of any security in any form whatever, for the payment of money at any future day.

The next answer to the objection of the defendants' is, that although the plaintiff may be considered as being particeps criminis with the defendants, they are not in pari delicto. It is not universally true that a party who pays money as the consideration of an illegal contract, cannot recover it back. Where the parties are not in pari delicto, the rule potior est conditio defendentis, is not applicable. In Lacaussade v. White, 7 T. R. 535, the court says, "that it was more consonant to the principles of sound policy and justice, that wherever money has been paid upon an illegal consideration it may be recovered back again by the party who has thus improperly paid it, than, by denying the remedy, to give effect to the illegal contract." This principle, however, is not by law allowed to operate in favor of either party, where the illegality of the contract arises from any moral turpitude. In such cases the court will