3 T. R. 418; Aubert v. Maze, 2 Bos. & Pul. 371; Farmer v. Russell, 1 Bos. & Pul. 296; Tenant v. Elliott, 1 Bos. & Pul. 3; Armstrong v. Toler, 11 Wheat. 271; Cannan v. Bryce, 3 B. & Ad. 179; McKinnell v. Robinson, 3 M. & W. 434. The late case of Pearce v. Brooks, Law R. 1 Ex. 213 (1866), goes the length of holding that mere knowledge that the subject of the contract is to be put to an immoral or illegal use is sufficient to invalidate the agreement; but this case has been denied to be law. See Hill v. Spear, 50 N. H. 253, 273 (1870); Michael v. Bacon, 49 Mo. 474, 476 (1872); Thedford v. McClintock, 47 Ala. 647 (1872); Oxford Iron Co. v. Quinchett, 44 Ala. 487; Bowery v. Bennett, 1 Camp. 343.
§ 763. An illustration of this doctrine will be found in cases where goods are sold to be smuggled, where the rule is, that if the vendor do any act in furtherance of the smuggling; or if he assume any risk for the importation; or be implicated in the illegality,- the contract will be void.3 Thus, if he pack them in a particular manner, by the order of the buyer, with the knowledge that they are to be smuggled, and for the purpose of affording facility for smuggling;4 or if he agree to deliver them at their place of destination, so that the contract is not complete before the smuggling,5 - the contract is wholly void. But the mere fact of knowledge that they are to be smuggled afterwards would not alone invalidate the sale, if the contract were completed before the goods were smuggled, and if the vendor do no act to assist the vendee, or further his illegal plans.6
§ 764. Again, where goods are prohibited from importation, the same rule applies. If the vendor connive at, or assist the importation, the contract is void. Thus, if the vendor should make out false invoices of goods, to enable the vendee to import them; or should, after receiving a bill of exchange for the price, state the goods in the invoice at a lower and false price, to enable the vendee to avoid paying the legal duty, - in both cases he could not recover.1
1 M'Intyre v. Parks, 3 Met. 207.
2 Gas Light Co. v. Turner, 5 Bing. N. C. 666; s. c. in error, 6 Bing. N. C. 324; Langton v. Hughes, 1 M. & S. 593; Cannan v. Bryce, 3 B. & Al. 179.
3 Armstrong v. Toler, 11 Wheat. 279. See Brown on Sales, § 189,190, 191; Holman v. Johnson, 1 Cowp. 341; Clarke v. Shee, 1 Cowp. 197; s. c. 2 Doug. 698, n.; Waymell v. Reed, 5 T. R. 599; Bernard v. Reed, 1 Esp. 91; Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R. 466; Pellecat v. Angell, 2 C. M. & R. 311; Catlin v. Bell, 4 Camp. 183; Brown on Sales, § 187, 188.
4 Waymell v. Reed, 5 T. R. 599; Bernard v. Reed, 1 Esp. 91; Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R. 466.
5 Clarke v. Shee, 1 Cowp. 197; s. c. 2 Doug. 698, n. See Cork Distilleries Co. v. Great Southern Railway Co., Irish R. 5 C. L. 177 (1871).
6 Holman v. Johnson, 1 Cowp. 341; Pellecat v. Angell, 2 C. M. & R. 311; s. c. 1 Gale, 187; Brown on Sales, § 182. The same rule obtains in the law of Scotland. Walker v. Falconer, Mor. Diet. 9543 (1757); More v. Steven, ib. 9545 (1765); Cullen v. Philp, ib. 9554 (1793).
§ 765. We have already seen that wherever there are two considerations to a promise, if either of them be unlawful, the promise is void, but if one of them be only void, the other will support a promise.2 But where the contract is to do two or more acts for a sufficient and legal consideration, and one of them is void, and capable of separation from the other acts, the contract is binding in relation to the lawful acts, and void as to the remainder. The reason of this distinction is, that, inasmuch as the entire consideration forms the basis of every portion of the promise,- in the one case, if a part of the consideration be illegal, it vitiates the whole; while, if a part be merely void, it has no legal effect, being mere surplusage. Where, therefore, the contract is severable, and there are different acts to be done, some of which are void, and others binding, the agreement may be treated as if it were composed of several distinct contracts, with the same consideration, and enforced as far as it is lawful, and rejected as to the residue.3
1 Pellecat v. Angell, 2 C. M. & R. 311; s. c. 1 Gale, 187; 5 Tyrw. 945. Professor Bell, in his Treatise on the Contract of Sale, p. 22, 23, says:
"The result of all the cases on this subject [smuggling] seems to be, (1.) That no contract for importing or exporting goods in order to defeat the revenue laws can be enforced, whether the person so acting be a native or a foreigner. (2.) That the mere sale by a merchant abroad, whether a native of this country or a foreigner, of goods which the buyer afterwards smuggles into this country, is not illegal, nor is an action denied upon the contract to the seller. (3.) That every one participant in the attempt to evade the revenue laws, by furnishing the means of facilitating the intention to smuggle, is. to be held a party to the illegal contract, and action is denied to him. (4.) That, in the balancing of evidence, the circumstance of the seller being a native, gives a bias against him. (5.) That, on a sale of goods prohibited to be imported, or known to be smuggled, action will not be sustained for the price on the one hand, or for the delivery of the goods on the other. (6.) That the purchasing, bonA Fide, of goods not prohibited, but which have been smuggled, is effectual."
2 Deering v. Chapman, 22 Me. 488.
3 Ley, 79; Mayfield v. Wadsley, 3 B. & C. 361; s. c. 5 Dowl. & Ryl. 228,
Thus, if the condition of a bond consist of several distinct parts, some of which are void, and some good, it is void only for the insufficient part, and good for the rest. So, also, if a bond be given for the performance of covenants contained in a separate instrument, some of which are lawful, and others unlawful, the same rule prevails.1 This doctrine is equally applicable to contracts not under seal. Where, however, the binding part of a promise cannot be separated from the void part, as would be the case if the contract were an entirety, the whole is void.2 If, therefore, any part of the entire consideration for a promise, or any part of the promise itself, incapable of separation from the rest, be void, the whole agreement is void.3 If part of a contract is illegal, no separation of the good from the illegal will be attempted, if the party seeking to enforce the contract is a wrong-doer.4