(r) It seems, however, not to be illustrated in the case of a debt released by a discharge in bankruptcy; for it has been held on the construction of s. 49 of the now repealed Bankruptcy Act of 18C9 (32 & 33 Vict. c. 71), that, when a debt has been released by an order of discharge under that section, a subsequent promise to pay cannot be enforced (Heather v. Webb, 2 C. P. D. 1; 46 L. J. (Q. B. etc.) 89;; unless it is founded on a new and valuable consideration (Jakeman v. Cook, 4 Ex. Div. 26; 48 L.J. (Q. B., etc.) 165); and this would seem to be still the law under the corresponding section of the Bankruptcy Act of 1883 (46 & 47 Vict. c. 52), viz., s. 30, which in this respect seems undistinguishable from s. 49 of the old Act.
151; Shepard v. Rhodes, 7 R. 1.470. The moral obligation of the original contract is a sufficient consideration for a promise to perform it made within the time limited by the statute, and such a promise will remove the bar of the Statute of Limitations: Pritchard v. Howell, 1 Wis. 131. Where there is a precedent duty, which would create a sufficient legal or equitable right if there had been an express promise at the time, or where there is a precedent consideration which is capable of being enforced, and is not extinguished, unless at the option of the party, founded upon some defence which the law justities but does not require him to assert, an express promise will create or revive a just cause of action. So if a contract is voidable, but founded on a consideration otherwise valuable, an express promise will support it: but not if it is originally void. A promise by a woman who is sole to pay a debt contracted while she was covert will not be valid, because such contract is ab origine void, and not voidable: Porterfield v. Butler, 47 Miss. 165; and see Shepard v. Rhodes, 7 R. I. 470; Musser v. Ferguson, 55 Pa. St. 475; Cobb v. Cowdery, 40 Vt. 25; Seymour v. Marlboro, lb. 171.-s.
(s) Ante, p. *176
(t) Elderson v. Emmens, 6 C. B. (60 E. C. L. E.) 160, in Exchequer Chamber.
Another instance of the same principle, drawn from a different class of cases, is afforded by the case of
(u) Hopkins v. Logan, 5 M. & W. 241; Granger v. Collins, 6 M. & W. 458; Roscorla v. Thomas, 3 Q. B. (43 E. C. L. E.) 234. See Walker v. Rostron, 9 M. & \V. 411; and 1 Smith, L. C. 163, 8th ed.
(v) Lord Abinger, C. B., and Parke, Alderson, and Maule, B.B., in Hopkins v. Logan, supra,
(x) Brown v. Crump, 1 Marsh. 567.
(y) Granger v. Collins, 6 M. & W. 458; Jackson v. Cobbin, 8 M. & W. 790.
Roscorla v. Thomas (z), in which the declaration alleged that, in consideration that the plaintiff had bought a horse of the defendant at a certain price, the defendant promised that it did not exceed five years old, and was sound and free from vice; and the plaintiff having obtained a verdict, the Court arrested the judgment, because the only promise which could be implied from the consideration was to deliver the horse upon request; and, therefore, however expressly the promise alleged might have been made, the consideration would not support it. Proceeding in the order in which I stated to you that it was my intention to proceed, the next subject at which we arrive is, the effect of illegality upon the contract. And, upon this subject, I have *already said generally, that every contract, be it by deed, or be it without deed, is void if. it stipulate for the performance of an illegal act, or if it be founded upon an illegal consideration. Ex turpi causa non oritur actio is the maxim of our law, as well as of the civil.1 A deed, for the purpose of charging the maker, requires, as we have seen, no consideration at all to support it; but an illegal consideration is worse than none, and if it be founded upon such an one, it will be void, nor will the rules relating to estoppel prevent the party from setting that defence up. A simple contract requires, as we have seen, a consideration to support it. If the consideration be illegal, it is a fortiori void; nor will the rules which I endeavoured to explain regarding the inadmissibility of parol evidence to contradict a writing, prevent that defence from being set up where the illegality does not appear on the face of the instrument, any more than the doctrine of estoppel will avail to prevent inquiry into the true consideration for a deed. Parties cannot deceive the law by the form of their contracts; and, as an illegality in the consideration is fatal, so, and upon the very same grounds, is one in the promise. "You shall not" says the L. C. J., in Collins v. Blantern (a), "stipulate for iniquity."1
(s) 3 Q. B. (43 E. C. L. R.) 234.
1 [Note by Mr. J. C. Symons.] It is immaterial whether the illegality be part of or only intoductory to the cause of action; if the plaintiff requires any aid from an illegal transaction to make out his case, he cannot maintain it: Simpson v. Bloss, 7 Taunt. (2 E. C. L. E.) 246; [Scott v. Duffy, 15 Pa. St. 18; Deering v. Chapman, 22 Me. 448.] This rule was upheld in the very recent case of Fivaz v. Nicholls, 15 L. J. 125, C. P. [2 C. B. (52 E. C. L. E.) 500,] where the plaintiff brought an action on the case against the defendant for having corruptly conspired to cheat the plaintiff, and deprive him of his costs in a previous action on a bill of exchange, in which the plaintiff obtained judgment on the ground that it was given for an illegal consideration; but it having appeared that the bill had been originally endorsed by the plaintiff to the defendant to compromise a felony, this illegality being the foundation of the subsequent action, was held to invalidate it. [And to the same effect are Bridge v. Hubbard, 15 Mass. 96; Tuthill v. Davis, 20 Johns. 287; Edwards v. Skirving, 1 Brev. 548; Coulter v. Robertson, 14 Sm. & M. 29, where the illegality of the original consideration was held to taint all the subsequent securities flowing from it.-R.]
Money paid or land conveyed on an immoral contract, cannot be recovered back : White v. Hunter, 23 N. H. 128. Every new agreement entered into for the purpose of carrying into effect any of the unexecuted provisions of a previous illegal contract is void: Gray v. Hook, 4 N. Y. 449.