It is commonly said that illegal contracts and agreements are void. This statement, however, is clearly not generally accurate. It is true that a court could only under very exceptional circumstances enforce specifically an illegal agreement,12 but the rule of public policy that forbids an action for damages for breach of such an agreement is not based on the impropriety of compelling the defendant to pay the damages; in itself that would generally be a desirable thing. When relief is denied it is because the plaintiff is a wrongdoer, and to such a person the law denies relief. In a statement of Lord Mansfield frequently quoted in. this connection, the matter is correctly put: "The principle of public policy is this: Ex dolo male 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 causa 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 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 est conditio defendentis" 13 It will be observed that Lord Mansfield rests the denial of recovery on an illegal agreement upon the illegality of the plaintiff's conduct, not the nature of the transaction.14

8 [1917] 1 K. B. 305. 9 [1894] A. C. 535.

10 [1913] A. C. 781, 809, 810. See also the judgment of Lord Haldane in North-Western Salt Go. v. Electrolytic Alkali Co. [1914] A. C. 461, 469, 471.

117 Bing. 735, 743.

12 In Seattle Electric Co. v. Snoqual-mie Falls Power Co., 40 Wash. 380, 82 Pac. 713, 1 L. R. A. (N. S.) 1032, the court for a brief period specifically enforced a contract which was held illegal as designed to create a monopoly. A refusal to enforce the contract would bave involved the sudden cutting off of the supply of electricity upon which the transportation and lighting systems of the city of Seattle were dependent. The court held that the public interest required that the contract be performed until such time as an adequate supply of electricity could be otherwise procured.

To deny such persons damages, though an equally guilty defendant thereby escapes punishment will tend to diminish the number of illegal agreements. To go farther and assert that all unlawful agreements are ipso facto no contracts and void is opposed to many decisions and unfortunate in its consequences, for it may protect a guilty defendant from paying damages to an innocent plaintiff. Doubtless a statute may and sometimes does make an agreement absolutely void, but even though a statute so states in terms, void has sometimes been held to mean voidable,16 and unless no other conclusion is possible from the words of a statute it should not be held to make agreements contravening it totally void.16

13 Holman v. Johnson, Cowp. 341, 343. So in Gibtw A; Sterrett Mfg. Co. v. Brucker, 111 U. S. 597, 601, 4 Sup. Ct. 572, 28 L. Ed. 634, the Supreme Court of the United States refers to "the elementary principle that one who has himself participated in a violation of law cannot be permitted to assert in a court of justice any right founded upon or growing out of the illegal transaction."

14 See also, e. g., Levinson v. Boas, 150 Gal. 185; s. c., sub nam., Levison v. Boas, 88 Pac. 825, 12 L. R. A. (N. 8.) 575; Leightman v. Kadetska, 58 la. 676,12 N. W. 736,43 Am. Rep. 129; Gooch v. Gooch, 178 la. 902, 160 N. W. 333; Third Nat. Exch. Bank v. Smith, 17 N. Mex. 166,125 Pac. 632.