That the principle stated in the preceding section is that upon which relief is denied is proved by the fact that if the plaintiff is wholly innocent recovery is allowed though the contract is illegal.21 Such a case arises where the illegality is due to a circumstance of which the plaintiff is justifiably ignorant.

The commonest illustration is that of a contract to marry made by one already married. It is well settled that an action for breach of promise will lie in favor of a plaintiff who was ignorant of the defendant's previous marriage.22

Penland, 125 N. C. 578, 580, 34 S. E. 683, 48 L. R. A. 441; McGuffin v. Coyle, 16 Okl. 648, 652, 85 Pac. 954, 86 Pac. 962; Hunt v. W. T. Rawleigh Medical Co. (Okl.), 176 Pac. 410; Teoli v. Nardolillo, 23 R. I. 87, 49 Atl. 489. Butsee4Encyc.Pl.&Pract.952; Milbank v. Jones, 127 N. Y. 370, 28 N. E. 31, 24 Am. St. Rep. 454.

18 In Metz Co. v. Boston & M. R., 227 Mass. 307, 116 N. E. 475, 476, the court said: "The doctrine of waiver is not applicable to any subject where the public policy has been authoritatively declared to be contrary to waiver of rights. Laws founded upon considerations of public policy cannot be evaded by the device of waiver. The absolute defence is allowed in such instances, not for the sake of the defendant, but because it is the established principle of the law. It stands on the same footing in law as things forbidden to be done on grounds of public policy. There can be no waiver of an express prohibition embodied in the law for the general welfare. There are numerous examples of this character as to which the law says there can be no waiver, as, for example, contracts with a public enemy, Coppell v. Hall, 7 Wall. 542,

558, 19 L. Ed. 244, contracts made on the Lord's day, Day v. McAllister, 15 Grey, 433, and others of like nature."

19 Day v. Hemings, 4 L. T. (N. S.) 443; O'Brien v. Shea, 208 Mass. 528, 95 N. E. 99, Ann. Cas. 1912 A. 1030; Silver v. Graves, 210 Mass. 26, 31, 95 N. E. 948; Raymond v. Phipps, 215 Mass.

559, 102 N. E. 905; Wilde v. Sawtelle (Mass.), 122 N. E. 167; Cox v. Cameron Lumber Co., 39 Wash. 562, 82 Pac. 116.

20 Clark v. Spencer, 14 Kan. 398, 404, 19 Am. Rep. 96; Boutelle v. Melendy, 19 N. H. 196, 49 Am. Dec. 152; Kneet-tle v. Newcomb, 22 N. Y. 249, 78 Am. Dec. 186. See also Decker v. Becker, 143 Wis. 542, 128 N. W. 67.

21 Gibbs & Sterrett Mfg. Co. p. Brucker, 111 U. S. 597, 601, 4 Sup. Ct. 572, 28 L. Ed. 534.

22 Millwood v. Littlewood, 5 Ex. 775; Wild v. Harris, 7 C. B. 999; Daniel

Similarly, though a promise to indemnify one from the consequences of doing an act which is necessarily illegal is unenforceable,23 where the legality of the act depends on extrinsic facts unknown to the promisee, the promise will be enforced.24 The same principle may be involved in the case of any contract where the illegality of the transaction is due to unknown facts.25 v. Bowles, 2 C. & P. 553; Paddock v. Robinson, 63 111. 99, 100, 14 Am. Rep. 112; Davis v. Pryor, 3 Ind. Terr. 396; Keiley v. Riley, 106 Mass. 339, 8 Am. Rep. 336; Waddell v. Wallace, 32 Okl. 140, 121 Pac. 245, Ann. Cas. 1914 A. 692; Stevenson v. Pettis, 12 Phila. 468; Coover v. Davenport, 1 Heisk. 368, 2 Am. Rep. 706. In Blattmacher v. Saal, 29 Barb. 22, and Pollock v. Sullivan, 53 Vt. 507,38 Am. Rep. 702, it was held that an action of tort for deceit would lie, but not an action for breach of contract. But the decisions allowing such an action seem correctly decided.

23 See infro, Sec. 1751.

24Arundel v. Gardiner, Cro. Jac. 652; Fletcher v. Harcot, Winch, 48; Merryweather v. Nixan, 8 T. R. 186; Betts v. Gibbins, 2 A. & E. 57; Elliston v. Berryman, 15 Q. B. 205; Moore v. Appleton, 26 Ala. 633; Stark v. Raney, 18 Cal. 622; Lerch v. Gallup, 67 Cal. 595, 8 Pac. 322; Marcy v. Crawford, 16 Conn. 549, 41 Am. Dec. 158; Higans v. Russo, 72 Conn. 238, 43 Atl. 1050, 77 Am. St. Rep. 307; Wolfe v. McClure, 79 HI. 564; Marsh v. Gold, 2 Pick. 284; Train v. Gold, 5 Pick. 379; Avery v. Halsey, 14 Pick. 174; C. F. Jewett Co. v. Butler, 159 Mass. 517, 34 N. E. 1087, 22 L. R. A. 253; Shotwell v. Hamblin, 23 Miss. 156, 55 Am. Dec. 83; Forniquet v. Tegarden, 24 Mi$s. 96; Moore v. Allen, 25 Miss. 363; McCartney v. Shepard, 21 Mo. 573, 64 Am. Dec. 250; Harrington's Adm. v. Crawford, 136 Mo. 467, 472, 38 S. W. 80, 35 L. R. A. 477, 58 Am'. St. Rep. 653; Allaire v. Ouland, 2 Johns. Cas. 54; Coventry v. Barton, 17 Johns. 142, 8 Am. Dec. 376; Trustees v.

Galatian, 4 Cow. 340; Chamberlain v. Beller, 18 N. Y. 115; Ives v. Jones, 3 Ired. 538, 40 Am. Dec. 421; Miller v. Rhoades, 20 Ohio St. 494; Mays v. Joseph, 34 Ohio St. 22; Commonwealth v. Vandyke, 57 Pa. 34; Jameison v. Calhoun, 2 Speers, 19; Davis v. Arledge, 3 Hill L. (S. Car.) 170 30 Am. Dec. 360; Hunter v. Agee, 5 Humph. 57; Ballard v. Pope, 3 U. C. Q. B. 317; Robertson v. Broadfoot, 11 U. C Q. B. 407. This is by implication enacted by Calif. Civ. Code, Sec.2773, which provides that the contract of indemnity shall be void if the act was known to be unlawful. The provision is copied in N. Dak. Comp. L. (1913), Sec.6642; Okla. Rev. L. (1910), Sec. 1075; S. Dak. Civ. Code, Sec. 1960. See also Vandiver v. Pollak, 97 Ala. 467, 12 So. 473, 19 L. R. A. 628, 107 Ala. 547, 19 So. 180, 54 Am. St. Rep. 118; Union Stave Co. v. Smith, 116 Ala. 416, 22 So. 275, 67 Am. St. Rep. 140; Griffiths v. Harden-bergh, 41 N. Y. 464. See also supra, Sec.1026.

25 Waugh v, Morris, L. R. 8 Q. B. 202. In this case there was a contract to ship a cargo of hay, and a term of the bargain was that "all cargoes should be brought and taken from the ship alongside." By an order in council this was illegal at the time. The contract was made in France under the assumption that it could be legally performed. It was held that the illegality did not prevent the enforcement of the contract; and generally where the illegality of a contract results from facts of which the plaintiff is excusably ignorant, he is allowed relief. Hotchkis v. Dick-

The right of a holder in due course to recover on a negotiable instrument originally given as part of an illegal transaction 26 should be explained in the same way.

Sec. 1632. Illustrations of recovery where plaintiff not innocent. In some cases where a refusal to enforce an agreement would produce the very effect which the law seeks to guard against, a corporation is allowed to enforce it, although it was particularly prohibited and made illegal. Thus, for the security of depositors and others, banks are prohibited from entering into certain kinds of loans or purchases. When a contract of this sort has been entered into, however, should the corporation be refused a right of recovery the result would be the impairment of the assets of the bank - the very result which the law seeks to prevent, and, therefore, the bank is allowed to recover.27 It son, 2 Bligh, 305, 348; Spring Go. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347; Pullman Palace. Car Go. v. Central Transportation Co., 65 Fed. 158; In re Monongahela Distillery Co., 186 Fed. 220; Compagionette v. McArmick, 91 Ark. 69, 120 S. W. 400; Michener v. Watts, 176 Ind. 376, 96 N. E. 127, 36 L. R. A. (N. S.) 142; Musson v. Fales, 16 Mass. 332; Emery v. Kempton, 2 Gray, 257; Cashin v. Pliter, 168 Mich. 386,134 N. W. 482, Ann. Cas. 1913 C. 697; Beram v. Kruscal, 18 N. Y. Misc. Rep. 479; Burkholder v. Beetem's Adm., 65 Pa. St. 496. See also Harse v. Pearl life Assur. Co., [1903] 2 K. B. 92; Mobile, etc., R. R. Co, v. Dis-mukee, 94 Ala. 131, 10 So. 289, 17 L. R. A. 113 (but see Gulf, etc., Ry. Co. v. Hefley, 158 U. 8. 98, 39 L. Ed. 910; Southern Ry. Go. v. Harrison, 119 Ala. 539, 24 So. 552, 43 L. R. A. 385, 72 Am. St. Rep. 936; Gerber v. Wabash R. R. Co., 63 Mo. App. 145; Wyrick v. Missouri, etc., Ry. Co., 74 Mo. App. 406); (Hanson v. Goes, 107 Mass. 439, 9 Am. Rep. 45; Small v. Lowrey, 166 Mo. App. 108, 148 S. W. 132; Miller v. Hirschberg, 27 Or. 522, 40 Pac. 506. Compare Webster v. Sanborn, 47 Me. 471.

26 See infra, Sec. 1676.

27 Such contracts were enforced 'under various bank laws in Gold-Mining Co. v. National Bank, 96 U. S. 640, 24 L. Ed. 648; National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; National Bank v. Whitney, 103 U. S. 99, 26 L. Ed. 443; Reynolds v. Crawfordsville Nat. Bank, 112 U. S. 405, 5 S. Ct. 213, 28 L. Ed. 733; Hanover Bank v. First Nat. Bank of Burlingame, 109 Fed. 421, 48 C. C. A. 482, 487; England v. Commercial Bank, 242 Fed. 813, 155 C. C. A. 401; Holden v. Upton, 134 Mass. 177. And see Savings Bank v. Burns, 104 Cal. 473, 38 Pac. 102; Union Mining Co. v. Rocky Mountain Nat. Bank, 1 Colo. 531; Volts v. National Bank, 158 111. 532,42 N. E. 69; Benton County Bank v. Boddicker, 105 Iowa, 548, 75 N. W. 632, 45 L. R. A. 321, 67 Am. St. Rep. 310; Lester v. Howard Bank, 33,Md. 558, 3 Am. Rep. 211; Allen v. First Nat. Bank, 23 Ohio St. 97; First Nat. Bank v. Smith, 8 S. Dak. 7, 66 N. W. 437; Wroten's Assignee v. Armat, 31 Gratt. 228. A similar decision under Insurance Laws is Bowditch v. New England Mutual Ins Co., 141 Mass. 292, 4 N. E. 798 may be observed here also that even a guilty party if not thought to be in pari delicto,28 and if public policy demands it even an equal participant in the illegality,29 is often allowed relief by way of restitution, though not on the contract. It should also be noticed that an executed illegal transaction though based on agreement is effectual.30 If illegality made contracts void in a literal sense it is hard to see how a transfer based on an illegal agreement could stand. Doubtless a statute may make an attempted contract or sale absolutely void, and instances of such statutes may be found,31 but such a construction .will not be adopted unless plainly required by express language or public necessity. Generally the same result is reached when it is said that a guilty party to an illegal bargain cannot enforce it as when it is said that the illegal agreement itself is void, but it is believed that the true reason for the decisions is that which has just been suggested, and that this reason cannot safely be disregarded. Various kinds of illegal contracts may now be considered in detail.