idity, either at law or * in equity. (a) A promise to do a * 466 thing may be merely gratuitous, and not binding; yet, if the person promising enters upon the execution of the business, and does it negligently or amiss, so as to produce injury to the other party, an action will lie for this misfeasance. (b) The consideration must not only be valuable; but it must be a lawful consideration, and not repugnant to law, or sound policy, or good morals. Ex turpi contractu actio non oritur; and no person, even

debtor to pay a debt existing before his discharge, creates a valid contract, the previous indebtedness being a sufficient consideration, and the promise is a revival of the old debt. Earnest v. Parke, 4 Rawle, 452. Parke, B., in Smith v. Winter, 1 Horn & Hurlst. 389. Rogers v. Stevens, 2 Term Rep. 713. Gibbon v. Coggon, 2 Campb. 188. Hawkes v. Saunders, Cowp. 290. Cook v. Bradley, 7 Conn. 57.6 The plaintiff may declare on the original promise, and insist on the new promise, by way of replication. Fitzgerald v. Alexander, 19 Wendell, 402. If a debtor compromises a debt by paying part, and afterwards promises to pay the balance when able, the promise is binding without any new consideration. Stafford v. Bacon, 25 Wendell, 384.

(a) Tate v. Hilbert, 2 Vesey, 111. Pennington v. Gittings, 2 Gill & Johns. 208. A court of equity will not specifically enforce or execute a voluntary contract, nor lend its assistance to a mere volunteer, who is not within the influence of the consideration of an executory agreement. Jefferys v. Jefferys, Cr. & Ph. 141. Holloway v. Headington, 8 Sim. 325. Colyear v. Countess of M., 2 Keen, 81. Matthews v. L-e, 1 Madd. Ch. 564. Neves v. Scott, U. S. C. C. for Georgia, Law Reporter, (ix. 67,) Boston, June, 1846. But if it be an executed trust, though without consideration, the court will give it effect. Collinson v. Pattrick, 2 Keen, 123. Ellison v. Ellison, 6 Vesey, 662. Bunn v. Winthrop, 1 Johns. Ch. 337. Minturn v. Seymour, 4 Ibid. 500. Acker v. Phenix 4 Paige, 305. Hayes v. Kershow, 1 Sandf. Ch. 261.

(b) Coggs v. Bernard. 2 Lord Raym. 909. Rutgers v. Lucet, 2 Johns. Ca. 92.

See, also, Brown v. Collier, 8 Humph. 510. Prewett v. Caruthers, 12 Smedes & Marsh. 491. Walbridge v. Haroon, 18 Vermont, 448. Franklin v. Beatty, 27 Miss. 347. Otis v. Gazlin, 31 Maine, 567. Patten v. Ellingwood, 32 Maine, 163. A usurious debt forms a sufficient consideration for an express promise to pay the money really advanced, made after the surrender of the usurious security. Kilbourn v. Boadley, 3 Day, 356. Rice v. Welling, 5 Wendell, 597. Hammond v. Hopping, 13 Wendell, 505.

1 A promise to an officer in consideration of forbearance to prosecute, is void as against public policy. Keir v. Leeman, 9 Ad. & El. (N. S.) 371. A promise in consideration of stopping a prosecution for felony, is void. Steuben Co. Bank v. Matthewson, 5 Hill (N. Y.) 249. An agreement to use one's supposed influence with a public officer to procure thereby a favorable settlement of accounts, is void; such a consideration is illegal. Devlin v. Brady, 32 Barb. (N. Y.) 518. So an agreement to induce creditors not to oppose an insolvent's discharge is void. Dexter v. Snow, 12 Cush. 594. A contract to break up a convenient and frequented line of travel for the mutual advantage of two railroad companies over other competing lines of travel, and thus to secure a monopoly of the traffic to the contracting roads, was held to be void. State v. Hart. & N. H. R. R. 29 Conn. 538. An agreement to resign a public office in order to procure another person to be appointed, or, being a voter, agreeing to use all one's influence in favor of a candidate, is illegal. Nichols v. Mudgett, 32 Vermont, 546. Meacham v. Dow, Ibid. 781. A contract to publish an advertisement in

so far back as the feudal ages, was permitted by law to stipulate for iniquity. (c) The reports in every period of the English jurisprudence, and our American reports equally abound with cases of contracts held illegal on account of the illegality of the consideration; and they contain striking illustrations of the general rule, that contracts are illegal when founded on a consideration, contra bonos mores, or against the principles of sound policy, or founded in fraud, or in contravention of the positive provisions of some statute law. (d) 2 If the contract grows immediately out of, or is

(c) Fitz. Abr. tit. Obligation, pl. 13. See also the same language in the civil law. Dig. 2, 14, 27, 4. Code, 6, 3, 6.

(d) In the American Jurist for January, 1840, (xxii. 249,) the law concerning unlawful contracts, which violate either the common or statute law, is discussed with much learning, order, and perspicuity, and the numerous adjudged cases bearing on the subject referred to, and the leading ones sufficiently examined.

a Sunday paper, is illegal. Smith v. Wilcox, 24 N. Y. 353. The withdrawing of a bid under a public contract and aiding the next bidder, is an illegal consideration. Sharp v. Wright, 35 Barb. (N. Y.) 236. A sale of milk in cans, not sealed as required by statute, is illegal, and void as a consideration. Miller v. Post, 1 Allen, 434. A contract by a bankrupt to give an advantage to one creditor over others, is illegal. Marl v. Sandford, 1 Giff. 288. And see 3 Giff. 100, 108, and Pfleger v. Browne, 28 Beavan, 391, where a policy of life insur ance given to a creditor as an advantage to him over other creditors, on a composition of the debts, was held to enure to the benefit of the debtor's representatives only. One who has hired a horse to another on Sunday, contrary to the statute, cannot maintain an action for its injury by over-driving. Way v. Forster, 1 Allen, 408. So an agreement to use one's influence with the Common Council of New York, to procure a lease, was held void as against public policy. Wall v. Charlick, New York (S. C.) N. Y. Leg. Obs'r, July, 1850, p. 230. A contract for the sale of an office is void as against the policy of the law. Eddy v. Capron, 4 R. I. 394. The employment of an agent or attorney to advocate claims before a legislative body, or committee thereof, is legal, and compensation for such services may be recovered. Sedgwick v. Stanton, 4 Kernan (14 N. Y.) 289. Bryan v. Reynolds, 5 Wis. 200. An agreement to attend as a witness without subpœna is valid. Yeatman v. Dempsey, 7 C. B. (N. S.) 628. Affirmed, 9 Ibid. 881, in Exch. Ch. An agreement by a beneficiary under a will to pay the heirs at law for abandoning opposition to the proof of the will, is not illegal. Palmer v. North, 35 Barb. (N. Y.) 282. A contract between two that one only shall bid at public auction, and that the property bought shall be divided, is legal. In re Carew, 26 Beav. 187. A note given as a reparation for seduction is valid. Smith v. Richards, 29 Conn.

232.

2 Courts will not sustain an action for the recovery of property which the owner had prepared to use in violation of the law: as for pieces of German silver, of the dimension of Mexican dollars, which were seized in transitu to a place to be milled. Spalding v. Preston, 21 Vermont, 1.

The court declared this to be the first case of the kind to be found on the records of any

court.

The law, as settled by the English cases, as to provisions in wills restraining marriage, is admitted by the English judges to be contradictory and unreasonable. "If (says L. J. Knight Bruce) a man give a single woman an annuity until she be married, and the legates

connected with an illegal or immoral act, a court of justice will not enforce it. But if it be unconnected with the illegal act, and founded on a new consideration, it may be enforced, although the illegal act was known to the party to whom the promise was made, and he was the contriver of the illegal act. (e) 5

(e) Hodgson v. Temple, 5 Taunt. 181. Toler v. Armstrong, 4 Wash. C. C. 297. 11 Wheaton, 258, S. C. Story's Com. on the Conflict of Laws, §§ 246-259. That a contract of sale, not prohibited by any positive law, nor against good morals, may still be void as being against principles of sound policy, see Jones v. Randal, Cowp. 39. Bryan v. Lewis, Ry. & Moo. 386. In Richardson v. Mellish, 2 Bing. 229, C. J. Best thought that the courts had gone too far in setting aside contracts, on the ground that they were in contravention of the public policy, and that the objection in such cases ought to be founded on some clear and unquestionable principle, and never applied to doubtful questions of policy. These should be left to be settled by legislative discretion. In the Scots law, contracts are deemed inconsistent with public policy and void; 1. When made against the policy of the domestic relations; 2. In restraint of personal liberty; 3. Tending to impede the course of justice; 4. Defeating the revenue laws; 5. Inconsistent with national war policy. Bell's Principles of the Law of Scotland, pp. 16-18. Mr. Justice Story, in his Commentaries on Equity Jurisprudence, vol. i. pp. 262–304, has clearly and fully stated the cases in which contracts have been set aside as against public policy. Such, for instance, are, (1.) Marriage brokerage contracts, by which a party engages to give another compensation if he will negotiate an advantageous match for him; (2.) A reward promised for using influence and power over another person, to induce him to make a will in his favor; (3.) Secret conveyances and settlements in contemplation of marriage; (4.) Contracts in general restraint of marriage; (5.) Contracts in general restraint of trade; (6.) Agreements founded upon violation of public trust or confidence, or duty, or for the violation of public law. These and other less striking cases are all enforced and illustrated by numerous authorities, in the masterly treatise to which I have referred. The cases are uniform in declaring the principle, that if a note or other contract be made in consideration of an act forbidden by law, it is absolutely void. 14 Mass. 322. 5 Johns. 327. 3 Wheaton, 204. 4 Peters U. S. 410. 11 East,

marry, the annuity will thereupon cease. But when a man gave an annuity to a single woman, and declared that if she should marry, the annuity should be forfeited, the proviso was void, and she might marry and retain her annuity." This absurd verbal distinction turns on the difference between a limitation and a condition. Heath v. Lewis, 17 E. L. & Eq. 41. Lloyd v. Lloyd, 10 E. L. & Eq. 139. See, also, Scott v. Tyler, 2 Bro. C. C. 431. Holtz's Estate, 38 Penn. 422.

3 Contracts cannot be enforced, when the consideration consists of services in obtaining, by secret means, the passage of a law, Marshall v. B. & O. R. R. Co. 16 How. U. S. 314, or the performance in a particular way of public duty, Brown v. Brown, 34 Barb. (N. Y.) 533; Sedgwick v. Stanton, 14 N. Y. 289; Fuller v. Dame, 18 Pick. 472. So a contract, waiving the benefit of exemption laws is void as against public policy, such laws being founded on the public utility of preserving families. Kneetle v. Newcomb, 22 N. Y. 249. Or a nolle prosequi from the executive. Widley v. Collins, 7 Md. 273. Where the defendant agreed to purchase, and the plaintiff to sell wrappers, bearing the trade-mark of the latter, the agree ment was held void as a fraud upon the public. Bloss v. Bloomer, 23 Barb. (N. Y.) 604. 5 Jack v. Nichols, 5 Barb. (N. Y.) 38.

* 467 The courts of justice will allow the objection, that the consideration of the contract was immoral or illegal to be

502. 1 Binney, 110. 2 Gallison, 560. Vide also ante, vol. i. p. 468. If the consid eration of a bond or covenant be illegal, that illegality will constitute a good defence at law, as well as in equity. Smith v. Aykwell, 3 Atk. 566. Collins v. Blantern, 2 Wils. 347. Paxton v. Popham, 9 East, 408. Greville v. Atkins, 9 Barn. & Cress. 462. Fytche v. Bishop of London, 1 East. 487. Vauxhall Bridge Company v. Earl of Spencer, 1 Jacob, 64. Westmeath v. Westmeath, 1 Dow & Clarke, 519. First Cong. Church v. Henderson, 4 Rob. Louis. 209. Overman v. Clemmons, 2 Dev. & Batt. 185. In this last case all the authorities are reviewed, and the doctrine clearly established. Though the result of many of the decisions is, that the mere knowledge of the illegal purpose for which goods are purchased, will not affect the validity of the contract, if there be no participation or interest in the act itself, as selling goods by a foreign merchant, he knowing that they were intended to be smuggled in England. Holman v. Johnson, Cowp. 341. Waynell v. Reed, 5 Term, Rep. 599. Hodgson v. Temple, 5 Taunt. 181. Bell on the Contract of Sale, Edin. 1844, pp. 22. Cheney v. Duke, 10 Gill & Johns. 11. Lord Abinger, in Pellecat v. Angell, 2 Cr. & M. 311; yet C. J. Eyre, in Lightfoot v. Tenant, 1 Bos. & Pull. 551, 556, held otherwise, and that the consideration must be meritorious. A sale of arsenic, knowing it to be intended to commit murder, would not support an action. And Mr. Justice Story, (Conflict of Laws, § 253,) considers that this doctrine contains such wholesome morality and enlarged policy as to be almost irresistible to the judgment. This has now become the prevailing law in the English courts. Langton v. Hughes, 1 Maule & Selw. 593. Cannan v. Bryce, 3 B. & Ald. 179. In Steele v. Curle, 4 Dana, (Ken.) 385, C. J. Robertson, after an examination of the authorities on this vexed question, and without giving any definite

+ Where a person from New York made a contract in Vermont for the sale of liquor, to be retailed in the latter state, in violation of its statute laws, it was held, the vendor could maintain no action for the price in the courts of Vermont. The court will give no man a remedy on a contract made in contemplation of a violation of its laws. Territt v. Bartlett, 21 Vermont, 184. The same rule was applied in Wooten v. Miller, 7 Smedes & Marsh. 380. But where no part of the contract was made in the state, an action may be brought thereon though the plaintiff knew the illegal purpose of the purchase. McConihe v. McMann, 1 Wms. 95. Backman v. Wright, Ibid. 187. See, also, Gassett v. Godfrey, 6 Foster, 415. Smith v. Godfrey, 8 Foster, 379. Sortwell v. Hughes, 1 Curtis C. C. 244. Read v. Taft, 3 R. I. 175. In Kreiss v. Seligman, 8 Barb. (N. Y.) 439, it was held that even if the contract is wholly within the state, a bare knowledge by the vendor that the vendee intends to put the goods sold to an illegal use will not vitiate the sale. In this case Mr. Justice Selden delivered an able opinion, in which he denies the correctness of the decision in Langton v. Hughes, supra. In Tracy v. Talmage, 4 Kernan (14 N. Y.) 162, the Court of Appeals, (Selden J. delivering the opinion,) fully affirmed the principle of Kreiss v. Seligman, and denied the authority of Langton v. Hughes. The decision was made upon great consideration. It was argued in 1855, and the court ordered a re-argument in 1856. Subsequent to the decision the counsel for the defendant (three of the ablest counsel of the state,) moved for a re-argument, on the ground that the cases cited by Judge Selden in support of the doctrine were exceptional cases. The court, in an elaborate opinion delivered by Mr. Justice Comstock, refused a re-argument, holding the decision to be law. The doctrine of Kreiss v. Seligman may, therefore, be considered as settled law in the state of New York. See Kennett v. Chambers, 14 How. U. S. 38, which was the case of a contract, before the recognition of Texas by the United States, to assist a Texan officer in the war with Mexico and therefore the contract was illegal.

made even by the guilty party to the contract; for the allowance is not for the sake of the party who raises the objection, but is grounded on general principles of policy. (a) A particeps criminis has been held to be entitled, in equity, on his own application, to relief against his own contract, when the contract was illegal, or against the policy of the law, and relief became necessary to prevent injury to others. It was no objection that the plaintiff himself was a party to the illegal transaction. (b) But if a party, who may be entitled to resist a claim on account of its illegality, waives that privilege, and fulfils the contract, he cannot be permitted to recover the money back; and the rule that potior

opinion thereon suggested that the validity of the contract in the given case might depend upon the degree of turpitude evinced by the contemplated transgression of the law.

With respect to contracts in restraint of trade, if they totally prohibit the carrying on of a particular business at any place within the state, they are void, for such a general restraint is injurious to the public. But contracts for a limited restraint, as that a man will not exercise his trade, or carry on his business in a particular place, or within certain limits, are valid, provided they were entered into for some good reasons, independent of the pecuniary consideration. Mitchel v. Reynolds, 1 P. Wms. 181. Horner v. Graves, 7 Bing. 735. Proctor v. Sargent, 2 Mann. & Gr. 20. Mallan v. May, 11 Mees. & W. 653. Chappell v. Brockway, 21 Wendell, 157. Ross v. Sadgbeer, Ibid. 166. The opinion of L. Ch. Parker, in the case of Mitchel v. Reynolds, is very elaborate, and contains the principles of law on the subject, with just discrimination and great precision and accuracy. The opinion of Mr. Justice Bronson, in the New York cases, contains, also, well reasoned conclusions of law.

(a) Holman v. Johnson, Cowp. 343. Mackey v. Bromfield, 13 Serg. & Rawle, 241, 242. Griswold v. Waddington, 16 Johns. 486. Langton v. Hughes, 1 Maule & Selw. 593. Josephs v. Pebrer, 2 Barn. & Cress. 639. See infra, p. 487, n. d. (b) Estabrook v. Scott, 8 Vesey, 456. St. Jackman v. Mitchell, 13 Idem, 581.

John v. St. John, 11 Idem, 526, 535

• Agreements between the proprietors of boats running on the interior lakes of New York, regulating the price of freight and fare, and prohibiting the parties engaging in similar business out of the association, have been declared void, as conspiracies in restraint of trade, and to coerce the public, under the 2 Rev. St. 691, § 8, and at common law. Stanton v. Allen, 5 Denio, 434. Chappell v. Brockway, 21 Wendell, 157. Hooker v. Vandewater, 4 Denio, 349. In the case of Hilton v. Eckersley, 32 E. L. & Eq. 198, it was held by the Q. B. that a bond, entered into by the manufacturers of a certain district, to carry on their business, according to resolutions to be passed by a majority of the obligors, was void as against public policy and in restraint of trade.

Hartley v. Cummings, 5 M. G. & S. 247. Thomas v. Miles, 3 Ohio, 274. Kinsman v. Parkhurst, 18 How. U. S. 289. Van Marter v. Babcock, 23 Barb. (N. Y.) 633. Lawrence v. Kidder, 10 Barb. (N. Y.) 641. Mott v. Mott, 11 Idem, 127. Whitney v. Slayton, 40 Maine, 224. Alcock v. Giberton, 5 Duer (N. Y.) 76. Heichew v. Hamilton, 3 Iowa, 596. Beard v. Dennis, 6 Ind. 200. Jones v. Lees, 38 E. L. & Eq. 318. Hudson v. Coppard, 29 Beavan, 4. Mumford v. Gething, 7 C. B. (N. S.) 305.