William M. Lacy James Kent.

Commentaries on American law, Volume 2 online

. (page 77 of 108)
Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 77 of 108)
Font size
QR-code for this ebook

cient (a)" Though the consideration of natural love and affec-

(a) Smith t?. Ware, 13 Johnnmi, 267. Edwards tJ. Davis, 16 Id. 281. Millg
r. Wyman, 3 Pick. Rtp. 207. Cook r. Bradley, 7 Conn. Rep. 57. The ques-
tion/ how far a mere moral obligation was snflicient to raise and snpport an
assumpsit, is learnedly and clearly stated and discussed, in the note to 3 Bos. A
PhU. 249, and the note to 16 Johm. Rep. 283; and the conclusion to which the
lesimed editor arrived, seems to have been adopted in the cases referred to.
And yet, in one of the cases, (Lee r. Muggeridge, 5 Taunt Rep. 36.) Gibbs,
J., obser\'ed, that it could not now be disputed, that wherever there is a moral
obligation to pay a debt, or perform a duty, a promise to pay that debt, or

" A mere moral obligation arising from a past benefit not conferred at the
request of the defendant is not a good consideration. Eastwood v. Kenyon.
11 Ad. <& £. 438, 446; Dodge v. Adams, 19 Pick. 429; Nine r. Starr, Oregon,
49; McElvan v. Sloan, 56 Ga. 2()8; Ehle r. Judson, 24 Wend. 97; Updykei?.
Titus, 2 Beasley, 151. See, also, Edwards v. Nelson, 51 Mich. 12] ; Stebbins
r. Crawford, 11 Norris (Pa.), 289.

A moral obligation may become legally binding through an express promise,
which, though generally received at one period in England and the United'
States, is now generally repudiated, except in Pennsylvania. Hare on Con-
tracts, 253; Cornell v. Vanartsdalen, 4 Barr, !^4; Kbscorla v. Thomas, 3 Q.
B. 234. A mere voluntary curtesy will not uphold an assumpsit, but a
curtesy moved by a previous request will. Labor, though unsuccessful, is a
good consideration. Lampleigh r. Brathwait, 1 8. L. C. *67. And damage
to another or suspension or forbearance of his right is a foundation for his
undertaking, and will make it binding, though no actual benefit accrues to
the party undertaking. Pillana v. Van Microp, 3 Burr, 1664; Clark v. Kus-
sel, 3 Watts, 213.

As to whether a past benefit is in any case a good consideration for a sub-
sequent promise, see Snow v. Hix, 54 Vt. 478; Tomlinson r. Smith, 2 Iowa,
39; Loomis v. Newhall, 15 Pick. 159; Young r. Hill, 67 N. Y. 162; Shealey
r. Toole, 56 Ga. 210. If a thing is done at the request of the promissor it will
sustain the promise. See Allen r. Woodward, 2 Fost. (N. H.) 544; Bishop
on Cont. sec 91; and see Pollock on Conts. *170.

Although courts of law will not, iii the absence of fraud, inquire into the
question of adequacy of consideration, yet a curtesy, when there was a pre-
vious request, is not merely voluntary, nor is the promise nii<ittm pactum, but
couples itself with and relates back to the previous request, and the merits
of the party which were produced by that request, and is therefore a good
consideration. Pawie r. Gunn, 4 Bing. N. C. 448. Such request may be
either express or implied. If not in express terms, it will be implied in the
following circumstances: Ist. Where the plaintiff has been compelled to do
that which the defendant was legally compellable to do. Dranghn v. Bunt-
ing, 9 Ired. 10. 2d. Where the defendant has adopted and enjoyed the bene-
fit of the consideration. Doty p. Wilson, 14 Johns. 378; Kenan v. HoUoway,
16 Ala. 54; Guerard v. Jenkins, 1 Strobhart, 171. 3d. When the plaintiff
does that which the defendant was legally compellable; and the defendant
afterwards, in consideration thereof, expressly promiseH. 4th. In some cases
when the plaintiff voluntarily does that which the defendant is morally,
though not legally compellable and the defendant aAerwards, in considera-
tion thereof, expressly promises. Lee v. Muggeridge, 5 Taunt. 36; Watson p.
Turner, B. N. P. 129.



by Google


tioQ be sufficieDt in a deed, yet such a coDsideration is'iiot suffi-
cient to support an executory contract, and give it

[ * 466 ] validity, either at law or *in equity (a)." A promise to
do a thing may be merely gratuitous, and not binding,

perform that duty, would be supported by the previous moral obligation.
There is a strong instanoe in Fairchild v. Bell. Brevard^s M. S. Jtep, cited in

1 Rice's S. C. Dig. p. 60, in support of the implied contract to pay for a meri-
torious service, founded on a moral obligation. The same doctrine is laid
down by Bailies, J., in Barlow v. Smith, 4 VermoTil Rep. 144, and in Glass r.
Beach, 5 J bid. l^S; but the promise must be exprem and not implied. Lord
Tenderden, in Littlefield v. Shee, 2 Barn. <& Ad.SW^ admitted the doctrine
that a moral obligation was a sufficient consideration for an express promise
though he said that it must be received with some limitation. It is difficult
to surmount the case stated by Lord Holt, in 1 Lord Raym. 389, that a promise
to pay a debt contracted in infancy is valid. There is a distinction between
promises which are void, or only voidable, and the foimer are held not a
sufficient consideration to support a subsequent promise, Cpckshot v, Ben-
nett, 2 Tenn, 763. In Hatchell t. Odom, 2 Dev. <& BatUe, 302, it was ob-
served, that it was not every moral obligation that was sufficient in law to
raise an implied promise or to support an express one; and that such only
were available considerations, which would originally have been good, but
for the intervention of some rule of policy. A promise to pay after the inter-
dict is removed, will be valid and may be enforced. The case of a promise
to pay a debt barred by the statute of limitations, or a promise by a widow
or an adult, to refund a loan of money made during coverture or infancy,
are given as instances by Judge Gaston, in his clear and able opinion in the
case last cited. So, a promise by an insolvent debtor to pay a debt existing
before his dischai^e, creates a valid contract, the previous indebtedness b?-
ing a sufficient consideration, and the promise is a revival of the old debt.
Earnest v. Parke, 4 Ratcle^ 452. Parke, B.. in Smith v, Winter, I Home <fc
Ifurlstone, 389. The plaintiff may declare on the original promi.se, and in-
sist on the new promise, by way of replication. Fitzgerald p. Alexaudei, 19

WTiealoti, 402.

(a) Tate v. Hilbert, 2 Vcsey.Jun. 111. Pennington v. Gittings, 2 Gilf. «fr
Johns. 2i)8.

'* See last note and the following cases as to the adequacy of the considera-
tion: Schnell r. Nell, 17 lud. 29; Catesp. Bales, 78 Ind. 285; Perkins r. Clay.
54 N. H. 518; Williams v. Jensen, 75 Mo. 681; Worth r. Case, 42 N. Y. :«>2;
Giddings v. Giddings' Adm., 51 Vt. 227; Haines v. Haines, 6 Md. 435; Mer-
riman r. Lacefield, 4 Heisk, (Tcun.) 209; George v. Richardson. Gilm. (Va^.
230; Knobb r. Lindsey, 5 Ohio, 471; Talbot r. Hoover, 12 Bush. (Ky.) 408.
'* It is enough that there is actually a consideration; that such consideration
is legal, and that it is of some value." C. J. Tindall, in Hitchcock r. Coker,

2 A. & £. 438. And there is no difference in the rule as to consideration be-
tween an oral and written contract. Thatcher?;. Dinsmore, 5 Mass. 301;
Doehler v. Waters, 30 Ga. 344; Cutler v. Everett, 33 Me. 201; Bailey r. Free-
man, 4 Johns. 2tf0.

Gross inadequacy of consideration is, however, looked upon as a suspicions
element suggestive of fraud, and will, when shown to exist along with fnrtid,
vitiate the contract. Haines r. Haines, 6 Md. 435; Comstock r. Purple, 49
III. 158; Hallett r. Collins, 10 How. (U. S.) 174; W^hite r. Flora, 2Tenn. 426;
Osgood V. Franklin, 2 Johns. Ch, 1; Odnieal v. Barry, 24 Miss. 9.

Forbearance to sue, if definite and ascertainable in point of time, is a good
consideration. Olderehaw o. King, (Ex. Ch.) 2 H. & N. 517; 27 L. J. Ex.
120; Alliance Bank r. Bixwm, 2 Dr. & Sni. 289; King r. Upton, 4 Greenl.
387; Allen r. Pryor, 3 A. K. Marsh, 305; Mantor o. Churchill, 127 Mass. 31;
Boyd V. Freize, 5 Gray, 553.



by Google


yet, if the person promising enters upon the execution of the busi -
ness, and does it negligently, or amiss, so as to produce injury to
the other party, an action will lie for this misfeasance (a). 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 so far back as the feudal ages, was permitted by law to
stipulate for iniquity (b). 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 con-
sideration contra bonos morea^ or one against the principles of sound
policy, or founded in fraud, or in contravention of the positive
provisions of some statute law (c). If the contract grows immedi^
ately out of, or is 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 (d)." The *courts of justice will allow the objertiuu, [ * 467]

(a) Coggs r. Bernard, 2 Lard Raym. 909.

(b) FHtz, Abr. tit. Obligation, pi. 13. See also the same language in the
civil law. Dig. 2, 14, 27, 4. Ow/c. 6, 3, 6.

(c) In the American Jurist for January, 1840, 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 bear-
ing on the subject referred to, and the leading ones sufficiently examined.

{(l) Hodgson V. Temple, 5 Tauni. Rep. 181. Toler v. Armstrong, 4 Watih,
Cir. Rep. 297. 11 Wheaton, 2)8, S. C. Story's Comm. on the Conflict of Lnw.%
p. 205 — 209. 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. Kandall, Oowp. 39. Bryan v. Lewis, Ry. <fc ^foo. 38(3.
In Richardson r. Mellish, 2 Ring. Rep. 229. Ch. J. Best thought that the

*• Scse, hereon. White v. Buss, 3 Cnsh. 448; Fergu.son v. Norman, 5 Bing. (N;
C.) 76; Cook r. Phillips, 66 N. Y. 301; Bern is t>. Becker. 1 Kans. 226; Dil-
lon V. Allen, 46 Iowa, 299; Lord v. Chadboume, 42 Maine, 429; Stanley v.
Nelson, 28 Ala, 514; Yeates v, Williams, 5 Pike, 684.

Any act which is forbidden, either by the common or statute law, cannot
be trie foundation of a valid contract; nor can anything auxiliary to, or pro-
motive of such act. Bancroft r. Dumas, 21 Vt. 456; Armstrong r. Toler, 11
Wheat. 258; Cumraings r. Saux, .30 La. An. 207; Seidenbender v. Charles, 4
S. & R. 151: Siter r. Sheets, 7 Ind. 132; Farrer r. Barton, 5 Mass. 395; Carle-
ton t>. Wicher, 5 N. H. 196; Hale r. Hendei-son, 4 Humph. 199.

Any contract contra bonos mores, to commit an immoral act is void. Forsythe
r. State, 6 Ohio, 19; Dumont v. Dufore, 27 Ind. 263; Menick v. Bank of the
Metropolis, 8 Gill, 59. For prominent among the interests which the law'
protects, are the public morals. 1 Bishop Crim. Law, sec. 550. Audit will



by Google


Ihat the consideration of the contract wad immoral or illegal, to
be made even by the guilty party to the contract ; for the allow-

courts had gone too far in setting aside contracts, on the ground that they
were in contravention of 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 settlMl
by legislative discretion. In the Scots law contracts are deemed inconsistent
with public policy and void, 1. when made against the policy of the domes-

not suffer the accomplishment by indirect means of what it directly forbids.
Wells r. People, 71 111. 532. In re Macleay L. R. 20 Eq. 186.

All private attempts io influence official conduct, however honest and fair
in themselves, are detrimental to the public interests, and contracts founded
thereon are void. For instance, lobbying. Tristr. Child, 21 Wallace, 441;
Frost ». Belmont, 6 Allen, 152; Clippenger v. Hepbaugh, 5 W. & S. 315; Gil
«). Williams, 12 La. An. 219. And contracts to employ private influence
with public officers. Dudley r. Butler, 10 N. H. 281; Cooke r. Shipman, 51
111. 316; Maguire v. Smock, 1 Wils. (Ind. \ 92; Devlin v. Brady, 36 N. Y.
531. A promise of a bribe is also void. Smith v. Stotesbnry, 1 W. Bl. 204;
see, also, Gulick v. Ward, 5 Halstead, 87; Weld v. Lancaster, 56 Me. 453;
Caton V. Stewart, 76 N. C. 357; Lucas v. Allen, 80 Ky. 681; Stout r. Ennis,
88 Kan. 706; Fawcet v. Eberly, 58 Iowa, 644.

Where there is a combination to defraud, the court will not entertain the
suit of any of the conspirators against his or their co-conspirators. Horn «.
Star Foundry, 28 W. Va. 522; Toley v. Robinson, 99 111. 22-2.

Marriages within the prohibited degrees. Hathaway f. Moran, 44 Me. 67;
Gaslight Co. V. Turner, 8 Scott, 609; Cook v. Phillips, 56 N. Y. 310.

Sometimes statutes make contracts unlawful that were lawful before, and
if by a statute of this sort the fultilment of what was a valid agreement is
rendered illegal, things already done under it remain valid. Bradford o.
Jcukias, 41 Miss. 328; Bennett r. Woolfolk, 15 Ga. 213.

A contnu;t executed in consideration of a previous illegal one, or in com-
promise of differences growing out of it. is incapable of being enforced. Ever-
ingham r. Meigham, 55 Wis. 354; Wilson v. Bozeman, 48 Ala. 71; Pierce v,
Kibbee, 51 Vt. 559; Cate v, Blair, 6 Coldw. 639; King v. Wiuants, 71 N. C.

If a promissory note be given for money lost on a wager, the consideration
for such note is not at common law illegal, independent of statute, but merely
no consideration at all. For if that for which the promise is made proves a
nullity, the contract becomes void. House v. Kendall. 55 Texas, 40: Snvder
V. Kurtz, 61 Iowa, 693; Sorells r. McHenry, 38 Ark. 127; Dodge r. Oatis, 27
Kan. 762; Stockmeyer r. Weidner, 32 La. An. 106; Powell v. Subers, 67 Ga.
448; Jeff'vies ». Lamb, 73 Ind. 202.

In Savin r. Hoylake Ry. Co., L. R. 1 Ex. 9, parties to private acts may
make agreements between themselves to contravene the terms of such acts.
All bargains for the purchase and sale ot things, where there is an express
understanding between the parties that the commodities or stock are not to be
delivered, but at an agreed time the *' difference " between the market values
at the two periods are to he adjusted, are illegal, or against public policy .sf>
that the courts will nob enforce them. Melchert v. Amer. Union Telegraph
Co., 3 McCreary. 521 ; Irwin r. Williams, 110 U. S. 499; Kirkpatrick r. Adams,
20 Fed. Rep. 287; Hentz r. .Jewell, 4 Woods. 656. Bargains, options, or any-
thing of the kind are gambling contracts which disturb the course of trade
and are not tolerated by the law. North r. Phillips, 8 Norris (Pa.\ 250;
Dickson v. Thomas, 1 Outerbridge, 278; Verkes r. Salomon, 11 Hun. 471;
Rumsey v. Berry, 65 Me. 570; Barnard r. Backhaus, 52 Wis, 197; Pickering
V. Cease, 79 111. 328; Rudolph v. Winters, 7 Neb. 125: Waterman r. Bnck-
laud, 1 Mo. A pp. 45.



by Google


ance is not for the sake of the party who raises the ohjection,

•tic relati<ins, 2, in restraint of personal liberty, 3. tending to impede the
course of justice, 4. for def<^ating the revenue laws, 5. inconsistent with na-
tional war policy. BeWa Principles of Die Law of Scotland, p. 16 — 18. Mr.
Justice Story, in his Commentaries on Equity Jur'vtprudenct, vol. i. p. 262 —
'{04, has clearly and fully stated the cases in which contracts have been set
aside, as against public policy. Such, for instance, are, (1.) Marriage brok-
age contracts, by which a party engages to give another a compensation, it
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 favour. (3.) Secret conveyances and settlemeuts in contempla-
tion of marriage. (4.) Contracts in general restrain t of marriage. (5. ) Con-
tracts in general restraint of trade. (6.) Agreements founded upon viola-
tions of public trqst or confidence, or duty, or for the violation of public law.
These, and other less striking cases, are all enforced and illustrated by nu-
merous 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. Rep. 322. 6 Johns, Rep: 327. 3 Wheaton, 204. 4 PHers' U. S.
Rep. 410. 11 East's Rep. 502. 1 Binncy's Rep. 110. 2 GatiiHon's Rep. 560.
Vide, also, ante, vol. i. p. 468. If the consideration of a bond or covenant
be illegal, that illegality will constitute a good defence at law, as well as in
equity. Smith v. Aykewell, 3 Atk. 566. Collins v. Blantern, 2 Wilson, 347.
Paxton ». Popham, 9 Easl, 408. Greville r. Atkins, 9 B. d- Cress, 462. Fytche
V. Bishop of London, 1 East, 487. Vauxhali Bridge Company v. Spencer, 1
Jacob, 64. Westmeath v. Westmeath, 1 1)ow'» N. S! 519. Overman v. Clem-
mons, 2 Dev. <£- B<Utle, 185. If this last case all the authorities are reviewed
and the doctrine clearly established. Though the result of many of the de-
cisions is, that the mere knowledge of the illegal purpose fur which goods
are purchased, will not affect the validity of the contract, if there be no par-
ticipation or interest in the act itself, as selling goods by a foreign merchant,
he knowing that they were intended to be smuggled into England. Hol-
man v. Johnson, Coicper, 341. Maxwell i;. Reid. 5 Term, 599. Hodgson v.
Temple, 5 Taunton, 181. Lord Abinger, in Pellecat v, Angell, 2 O. M. <& R.
311; yet Ch. J. Eyre, in Lightfoot v. Tenant 1 Bos. <& Pull. 351, 356, 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, p. 209, 210.) consider that this doc-
trine 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 IHaule dt Sclw. 593. Can nan v. Bryce,
3 Barnw. <& Aid. 179. In Steele r. Curie, 4 Dana's K. Rep. 385. Ch. J. Robert-
son, after an examination of the authoritien on this vexed question, and
without giving any definitive opinion thereon, suggesU?d that the validity ot
the contract in the given case might depend upon the degree of turpitude
evinced by the contemplated tran.^gression 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
hft business in a particular place, or within certain limits, are valid, pro-
vided they ^ere entered into for some good reason, independent of the pecu-
niary consideration. Mitchel v. Reynolds, 1 P. Wtns, 181. Horner v. Graves,
7 Ring. 735. Chappel v. Brockway", 21 Wendell, 157. Ross v. Sadgbeer, Ih.
166. The opinion of Ch. J. 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 ot



by Google


but is grounded on general principles of policy (a)." A particepa
criminia has been held to be entitled, in equity, on his own ap-
plication, 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 (6).
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
ihai potior eat conditio defendentis will apply (c).** If, however,

(a) Holman r. Johnson, Cowp. Rep. 343. Mackey r. Brownfield, 13 Serg,
& Rawie, 241, 242. Griswold r. Waddington. 16 Johns. Rep. 486. I^ing-
ton V. Hughes, 1 Mnule & Selw. 593. Joseph v. Pebrer, 3 Bnrnto. <£• Cresa. 639.

(h) Eastabitwk v. Scott, 3 Vesey, 456. St John v. St. John, 11 Ibid. 526,
635. Jackman «?. Mitchell, 13 Ibid. 581.

(c) Howson V. Hancock, 8 Term Rep. 575 Burt «. Place, 6 Coiw/f « Rep. 431.

^ If a party has contracted to sell property and a/lerwards finds out that
it is to be used lor an unlawful purpose he may rescind the contract Cowau
V. Milboum, L. R. 2 Ex. 230. But a completely executed conveyance of pro-
perty, though made on an unlawful consideration, for an unlawful purpose,
known to both parties, \^ valid both at law and in equity and cannot be set
aside. Ayerst v. Jenkins, 16 Eq. 257. And an innocent party who discovers
the unlawful intention of the other after possession has been delivered under
the contract is not entitled to treat the transaction as void and resume pos-
session. Feret t;. Hill 15, C. B. 20*/, 23 L. J. C. P. 185, where an interest in
i-ealty had passed. See Myers v. Meinratli, 101 Mass. 366; Merwin v. Hunt^
Ington, 2 Conn. 209; Spalding r. Muskingum, 12 Ohio, 544; Greenwood r.
Curtis, 6 Mass. 358; Levit v. Creditors, 2*i Jji. An. 105; Hall v. Costello, 48
N. H. 176; Kerr v. Bitnie, 2.3 Ark. 225; Tvlerr. Smyth, 18 B. Monr. 793;
Jacobs r. Stokes, 12 Mich. 381; Morris v. Hall, 41 Ala. 510,

** Lord Mansfield says, "The objection that a contract is immoral or il-
legal as between- plaintiff and defendant sounds at all times very ill in tlie
mouth of the defendant. It is not for his sake however, that the objection
is ever allowed, but it is founded in general principles of policy, which the
defendant has the advantage of contrary to the real justice as between him
and the plaintiff, by accident, if I may say so. The principle of public
policy is this: ex dolo malo non oritur actio. No court will lend its aid to a
man who founds his cause of action upon an immoral or an illegal act. If
from the plaintiff's own stating or otherwise the cause of action appears to
arise ex turpi vausa^ or the transgression of a positive law of this country,
there the court says he has no right to be assisted. It is upon that ground
the court goes ; not for the sake of the defendant, but because they will not
lend their aid to such a plaintiff. So if the plaintiff and defendant were to
change sides and the defendant were to bring his action against the plaintilf,
the latter would then have the advantage of it j for where both are equally
in fault, potior est conditio defendentis.

The test of the rule is whether the plaintiff can mi>ke out his case other-
wise than through the medium and by the act of an illegal transaction to
which he was himself a party. Taylor v. Chester, L. K. 4 Q. B. :U)9, 314.
It is not confined to the ca.se of actual money payments, though this is the
most common. See Delhomme r. Duson, 28 La. An. 646; Tyler r. Smith,
18 B. Mon. 793; Boutelle r. Melendy, 19 N. H. 196; Merwin r. Huntington,
2 Conn. 209; Ingersoll r. Campbell, 46 Ala. 282,

If a party with full knowledge of the facts pays mouey upon a void con-



by Google


the money be not paid over, but remains, in its transit, in the
hands of the intermediate stakeholders, the law will not permit
a third person, who is thus incidentally connected with the trans-
action, to set up the claim of illegality in the contract between
the principal parties." An agent cannot shelter himself from
paying over the money by such a plea, and the money advanced
may be reclaimed (a). When the transaction is of such a nature
that the good part of the consideration can be separated from that
which is bad, the courts will make the distinction; for ^'the com-
mon law doth divide according to common reason; and
having made that void that is * against law, lets the rest [ * 468 ]
stand" (6). The general and more liberal principle now

Online LibraryWilliam M. Lacy James KentCommentaries on American law, Volume 2 → online text (page 77 of 108)