1 Fonbl. Eq. B. 1, ch. 4, § 4, and notes; 1 Story, Eq. Jur. § 296; Walker v. Perkins, 3 Burr. 1568; s. c. 1 W. Bl. 517; Franco v. Bolton, 3 Ves. 368; Gray v. Mathias, 5 Ves. 286; Matthews v. L-e, 1 Madd. 558; Clarke v. Periam, 2 Atk. 333; Binnington v. Wallis, 4 B. & Al. 650; 1 Pothier on Obligations, 23; 2 ib. 2; Co. Litt. 206 b; Coolidge v. Blake, 15 Mass. 429; Hall v. Palmer, 3 Hare, 532.
2 See Binnington v. Wallis, 4 B. & Aid. 650, 652.
3 Beaumont v. Reeve, 8 Q. B. 483; Fisher v. Bridges, 3 El. & B. 642, 649. In Beaumont v. Reeve, the decision was based on the broad ground that the consideration alleged was only a moral one, not that it was illegal. See Fisher v. Bridges, ut supra. Patterson, J., said: " This declaration appears to be framed on a view suggested by some expressions in Binnington v. Wallis [supra], which point to a distinction between that case and cases where the defendant is the seducer of the plaintiff. Bat looking at Eastwood v. Kenyon [11 A. & E. 438], and Jennings v. Brown [9 M. & W. 496], it is clear that that circumstance is of no consequence as to the legal right. The seduction could give the plaintiff no direct right of action, and can therefore create no liability of any kind from which a consideration can arise." In Fisher v. Bridges, Jervis, C. J., said: "It is clear that past cohabitation and previous seduction are not good considerations for a parol promise; but they are not therefore illegal considerations. They are no considerations at all." legally sufficient; but because a specialty imports a consideration, which, if not unlawful, both parties thereto are estopped from denying.1 And a promise to support a bastard child is a sufficient consideration to support an assumpsit.2 The reason why a different rule obtains in the last two mentioned classes of cases seems to be, that, in the former class, the contract is executory, or continuing, and to permit it would be to offer a premium for future unchastity; but in the latter class, the contract being executed, the injury is done, and may otherwise be remediless; and there is no principle of law which forbids a party to redress a past injury, or atone for a wrong which he has already committed.3 If the consideration be illegal, the contract may be avoided by a proper plea, even though it be a specialty, and the illegality be not apparent on the face of the instrument.4 A parol contract, however, made upon the consideration of past illicit intercourse, is void;5 for the consideration is merely moral, and is executed.
§ 671. So, also, a lease of lodgings for the purposes of prostitution is void.6 And the same rule governs in cases of contracts for clothes, or board and lodging, the price of which is to be paid out of the profits of prostitution. But the mere fact that the person to whom board and lodging, or any articles are
1 Whaley v. Norton, 1 Vera. 483; Matthew v. Hanbury, 2 Vera. 187; Spieer v. Hayward, Pr. Ch. 114; Annandale v. Harris, 2 P. Wms. 432; Cray v. Rooke, Cas. t. Talb. 153; Turner v. Vaughan, 2 Wils. 339. It is finally settled in England that a promise made in contemplation of past illicit intercourse is void for want of consideration. 2 Kent, Comm. 618, n. 1. See Beaumont v. Reeve, 8 Q. B. 483; Jennings c. Brown, 9 M. & W. 496. See ante, § 427, 465, and notes.
2 Jennings v. Brown, 9 M. & W. 496; Holcomb v. Stimpson, 8 Vt. 141; Haven v. Hobbs, 1 Vt. 238.
3 Binnington v. Wallis, 4 B. & Al. 650.
4 Collins v. Blantern, 2 Wils. 341, 347; Com. Dig. Pleader, 2 W. 18, 23, 25, 26, 27.
5 Matthews v. L-e, 1 Madd. 558; Binnington v. Wallis, 4 B. & Al. 650; Beaumont v. Reeve, 8 Q. B. 483; Jennings v. Brown, 9 M. & W. 496; Eastwood v. Kenyon, 11 Ad. & El. 438.
6 Girardy v. Richardson, 1 Esp. 13; Dyett v. Pendleton, 8 Cow. 727, 737; Lloyd v. Johnson, 1 Bos. & Pul. 340; Appleton v. Campbell, 2 C. & P. 347; Jennings v. Throgmorton, Ry. & Mood. 251; Bowry v. Bennet, 1 Camp. 348, and note. See Commonwealth v. Harrington, 3 Pick. 29, 30; Pearce v. Brooks, Law R. 1 Exch. 213 (1866); s. c. 4 H. & C. 358.» furnished, is a prostitute, does not invalidate the contract therefor, unless the very object of the agreement be to pander to her prostitution.1 So a contract to pay an annuity to the mother of the defendant's illegitimate children is not void, if there be no inducement for future cohabitation;2 or, as stated elsewhere, a contract by a father of illegitimate children to pay their mother an annuity for taking charge of and rearing the children, is founded upon a sufficient legal consideration.3 But a contract for the printing or sale of obscene or libellous books and prints is void.4 And if such books or prints be seized in compliance with an order therefor, the seller cannot recover the price.5 So, also, it is a good defence to an action for not supplying manuscript according to agreement, that the matter of the work is libellous and immoral.6 And no action lies for pirating a book which professes to contain the amours of a courtezan; and it is no answer to the objection that the defendant is also a wrong-doer in publishing them, and that he therefore ought not to set up their immorality as a defence.7 Contracts for the sale of slaves, being against sound morals and natural right, have no validity except by positive law, and can be enforced only so long as that law exists; and if repealed, no action lies to enforce a contract made prior thereto.8
§ 672. Yet where a contract, founded upon an immoral consideration, has been executed, neither law nor equity will interfere to set it aside, if both persons have been equally in fault. In such cases the legal maxim, In pari delicto, potior est conditio defendcntis, applies. Thus, where money has been paid in consideration of an immoral act, as for instance, of past illicit intercourse, it cannot be recovered, if both parties were equally criminal.1 So if an illegal contract has been fully executed, and the money paid under it remains in the hands of a mere depositary, the party for whose use he holds the money may recover it of him.2 But if a party pays another a sum of money to prevent exposure of a violation of law by the party paying, he cannot recover it back.3 And so, if a party advances money to aid another in violating the law, he cannot recover it.4
1 Bowry v. Bennet, 1 Camp. 348; Williamson v. Watts, 1 Camp. 553; Lloyd v. Johnson, 1 Bos. & Pul. 340; Crisp v. Churchill,. 1 Bos. & Pul. 340.
2 Adams v. Reade, 2 Irish Jur. (n. s.) 197 (1856).
3 Smith v. Roche, 6 C. B. (n. s.) 223 (1859), disapproving any intimation to the contrary in Crowhurst v. Laverack, 8 Exch. 208. See also Jennings v. Brown, 9 M. & W. 496; Linnegar v. Hodd, 5 C. B. 437; Hicks v. Gregory, 8 C. B. 378.
4 Fores v. Johnes, 4 Esp. 97; Poplett v. Stockdale, Ry. & Mood. 337; S. c. 2 C. & P. 198; Stockdale v. Onwhyn, 2 C. & P. 163.
5 Ibid. 6 Gale v. Leckie, 2 Stark. 107.
7 Stockdale v. Onwhyn, 2 C. & P. 163.
8 Buckner v. Street, 1 Dillon, 248 (1871), in which the subject is elaborately examined. See also Osborn v. Nicholson, ib. 219.
§ 673. A distinction, however, is to be made between those cases in which one of the parties has, by an illegal act, taken advantage of the other, or imposed upon him, and those cases in which both parties have been equally in fault. This distinction obtains in cases of usurious contracts, wherein it is considered that the lender has availed himself of the necessities or urgencies of the borrower, to extort from him an unlawful rate of interest; and an action for money had and received will therefore lie for the excess paid beyond principal and lawful interest.5
1 This doctrine, though well established in law long veered about with the opinions of the various equity judges, and relief was often afforded upon no very well considered ground. The modern rule, however, leaves the parties where it finds them, and affords no relief upon any contracts, tainted with immorality. 1 Story, Eq. Jur. § 296-295, 303, and cases cited; Smith v. Bromley, 2 Doug. 697; Vandyck v. Hewitt, 1 East, 96; Howsou v. Hancock, 8 T. R. 575; Tomkins v. Bernet, 1 Salk. 22; Collins v. Blan-tern, 2 Wils. 347; Lowry v. Bourdieu, 2 Doug. 468. See also Worcester v. Eaton, 11 Mass. 375; Phelps v. Decker, 10 Mass. 267, 274; Bull. N. P. 131, 133. See Immoral Consideration, ante, § 670; Morgan v. Groff, 4 Barb. 524.
2 Woodworth v. Bennett, 43 N. Y. 273 (1870). 3 Arter v. Byington, 44 111. 468 (1867).
4 Hall v. Costello, 48 N. H. 176 (1868).
5 1 Story, Eq. Jur. § 296 to 303. Lord Mansfield, in Smith v. Bromley, 2 Doug. 696, says: "If the act is in itself immoral, or a violation of the general laws of public policy, there the party paying shall not have this action [to recover back the money]; for where both parties are equally criminal against such general laws, the rule is, potior est conditio defendentis. But there are other laws which are calculated for the protection of the subject against oppression, extortion, deceit, etc. If such laws are violated,