We have already spoken of illegal contracts, in connection with other subjects, and especially of an illegal consideration, in our first volume, and in a preceding section of this chapter. We would add here, that as all contracts which provide that anything shall be done which is distinctly prohibited by law, or morality, or public policy, are void; (u) l so he who advances money in consideration of a promise or undertaking to do such a thing, may, at any time before it is done, rescind the contract, and prevent the thing from being done, and recover back his money. (v) 2 But it would seem obvious that if he delays

(u) This principle is embodied in the maxim, ex turpi causa, non oritur actio. No principle is better settled in the law, as the following among many other authorities show: Sniffner v. Gordon, 12 East, 804; Belding v. Pitkin, 2 Caines, 149; Springfield Bank v. Merrick, 14 Mass. 322; Russell v. De Grand, 15 Mass. 39; Wheeler v. Russell, 17 Mass 281; Allen v. Rescous, 2 Lev. 174; Fletcher v. Harcot, Hutton, 56; Holman v. Johnson, Cowp. 343; Gaslight Co. v. Turner, 7 Scott, 779; Wetherell v. Jones, 3 B. & Ad. 221; Fivaz v. Nicholls, 2 C. B. 501; Simpson v. Bloss, 7 Taunt. 246.

(v) Thus, in White v. The Franklin Bank, 22 Pick. 181, where, upon the deposit of money in a bank, the depositor received a book containing the cashier's certificate thereof, in which it was stated

1 See Begbie v. Phosphate Sewage Co. L. R. 10 Q. B. 491; 1 Q. B. D. 679; Bredin's Appeal, 92 Penn. St. 241. The following contracts have been held illegal and unenforceable: An agreement to pay money to a person in the employ of another, to induce him to act contrary to his employer's interests, although the employer is not actually injured, Harrington v. Victoria Graving Dock Co. 3 Q. B. D. 549; a contract to insure a woman against the risk of her dying under or in consequence of an illegal operation for abortion, Hatch v. Mutual" Life Ins. Co. 120 Mass. 550; an agreement not to bid or to influence any one else to bid for the service or labor of the inmates of a house of correction, even if the party letting the services sustains no injury by reason of the making of the agreement, Gibbs v. Smith, 115 Mass. 592; and an agreement by A. to give B., who was the lowest bidder at the public letting of the construction of a public road, a portion of certain public lands, to be received for the performance thereof, as the price of his being substituted for B. in such performance, is void as against public policy, Hannah v. Fife, 27 Mich. 172. O'Hara v. Carpenter, 23 Mich. 410, decided that a contract "to procure for" the plaintiff, who was liable to be drafted into military service, if drafted within a certain time, "a substitute, or otherwise clear him from said draft, and thus save him harmless from any cost or expense in consequence of the same," and a note given in consideration of such contract, are against public policy and void.

2 Thus, one who conveys his property to another for the purpose of defrauding his creditors, may, before the purpose is carried out, repudiate the transaction and recover the property from the latter or his assignee, who took it with notice of the fraud. Taylor v. Bowers, 1 Q. B. D. 291. See Symese v. Hughes, L. R. 9 Eq. 475. A payment of "margins" cannot be recovered back in case of a decrease in the price of goods, where the vendor and purchaser contemplated a merely gambling contract; nor can they be recovered to the extent of any loss, where both intended an actual sale; but if the purchaser alone acted in good faith, while the vendor received margins without obtaining goods for delivery, the purchaser can repudiate the contract and recover back the money advanced. Gregory v. Wendell, 39 Mich. 337. See Taylor v. Bowers, 1 Q. B. D. 291.

* rescinding until his rescission is inoperative, and the thing will still be done, although the contract, at the time of the rescission, was in form executory, it should come under the same rule as an executed contract for unlawful purposes; and here the law, in general, refuses to interfere, but leaves both parties as they were; (w)1 unless the case shows that there is a substantial difference between them; the one doing and the other suffering the wrong. And in this case the sufferer may have a remedy, but not the wrong-doer. (x)

The more important classes of contracts in which the question of illegality has arisen, are contracts in restraint of marriage, contracts in restraint of trade, contracts which violate the revenue laws of foreign countries, contracts which tend to corrupt legislation, wagering contracts, contracts in violation of the Sunday law, and champerty and maintenance. Contracts in restraint of marriage we have already noticed. (y) The others we shall consider in this place.