It is well settled that in reference to all acts or contracts, which are unlawful on account of their immorality or their tendency to promote it, or because they are hostile to public policy, the parties thereto are in pari delicto. So,
(a) 2 Wils. 341, 1 Smith, L. C. 387, 8th ed. See ante, p. *18, where this subject is partially treated of.
When money due on an illegal contract is paid to an agent of one of the parties, such agent being no party in interest to the illegal contract, cannot set up the illegality as against the claim of his principal: Evans v. Trenton, 24 N. J. 764. Where an obligor sued on his bond, which exhibits no evidence of fraud, interposes, by way of defence, a fraudulent agreement between himself and the obligee, he becomes the actor; and the maxim in pari delicto melior est conditio possidentis aut defendentis, is applied against him and not in his favor: Hendrickson v. Evans, 25 Pa. St. 441. A party to an illegal contract will not be permitted to avail himself of its illegality, until he restores to the other party all that had been received from him on such illegal contract: Hunt v. Turner, 9 Tex. 385. And see also Jones v. Davidson, 2 Sneed, 447; Gibson v. Pearsall, 1 E. D. Sm 90; Bates v. Watson, 1 Sneed, 376; Schermer-horn v. Talman, 14 N. Y. 93; Tracy v. Talmage, lb. 162.-s.
1 Where an entire agreement contains an element which is legal and one 15 225
If the consideration be legal, a promise to do several acts, some illegal and some legal, renders *the contract void as to the illegal acts; but if any part of the consideration be illegal, the whole contract fails (b).1
Now illegality is of two sorts: it exists at common law, or is created by some statute.
A contract illegal at common law is so on one of three grounds : either because it violates morality; or because it is opposed to the policy of the law; or because it is tainted with fraud.
Of the first class,-those, namely, which are void because they violate the principles of morality-you will find an example in the case of Fores v. Johnes (c), in which Mr. Justice Lawrence held, that a printseller could not recover the price of libellous publications which he had sold and delivered to the defendant. "For prints," said his Lordship, " whose objects are which is against public policy and therefore void, the legal consideration cannot be separated from that which is illegal so as to found an action on it: Boss v. Truax, 21 Barb. 361; Pettit v. Pettit, 32 Ala. 288; Collins v. Merrell, 2 Metc. (Ky.) 163; Valentine v. Stewart, 15 Cal. 387; Gelpcke v. Dubuque, 1 Wall.
(b) Ante, p. *20. See also Harrington v. Victoria Graving Dock Co., 3 Q. B. D. 549; 47 L. J. (Q. B.) 594.
(c) 4 Esp. 97.
*See ante, p. *20, note 1. When the consideration is indivisible, and is illegal, the contract is void. But when the Court can divide the consideration, it may be possible to reject what is illegal, and yet to support the promise upon that part which is valid. As, for example, where a part of the consideration failed as falling within the Statute of Frauds, but the remainder was held sufficient to uphold the contract: Mayfield v. Wadsley, 3 B. & C. (10 E. C. L. R.) 361. Where there are several considerations, and some are illegal, these may be disregarded as merely cumulative grounds for the promise, which rests upon the valid considerations: Jones v. Waite, 1 Bing. N. C. (27 E. C. L. R.) 341; Shackell v. Rosier, 2 Bing. N. C. (29 E. C. L. R.) 646; King v. Sears, 2 C. M. & R. 48; Crookshank v. Rose, 5 C. & P. (24 E. C. L. R.) 19, Andrews v. Ives, 3 Conn. 368; Loomis v. Newhall, 15 Pick. 159; Treadwell v. Davis, 34 Cal. 601; Goodwin v. Clark, 65 Me. 280. 226 general satire or ridicule of prevailing fashions or manners, I think the plaintiff may recover; but I cannot permit him to do so for such whose tendency is immoral, nor for such as are libels on individuals, and for which the plaintiff might be rendered criminally answerable for a libel."1
For this reason the printer of an immoral and libellous work cannot maintain an action for the price of his labour against the publisher who employed him. "I have no hesitation," said Best, *C. J., "in declaring that no person who has contributed his assistance to the publication of such a work can recover in a Court of Justice any compensation for the labour so bestowed. The person who lends himself to the violation of the public morals and laws of the country, shall not have the assistance of those laws to carry into execution such a purpose. It would be strange if a man could maintain an action at law for doing that for which he could be fined and imprisoned. Every one who gives his aid to such a work, though as a servant, is responsible for the mischief of it "(d). Upon these and similar reasonings, it has been held, that the first publisher of a libellous or immoral work cannot maintain an action against any person for publishing a pirated edition (e). Nor will an injunction be granted to restrain the piracy on the application of the author or publisher, the general rule of Equity having been not to give relief of this kind except where a Court of Law gave damages (f). And where the plaintiff, a printer, having agreed to print for the defendant a work which was to contain a dedication to be thereafter sent him, printed the work and also the dedication, but on the latter being returned to him revised, discovered for the first time that it contained libellous matter, whereupon he refused to continue the printing of it: it was held, *that the dedication being libellous, the plaintiff was justified in refusing to publish it, and was entitled to recover the expense of printing the body of the work from the defendant, who had refused to accept or pay for the work without the dedica(d) Poplett v. Stockdale, R & M. 337.
1 So it was held that the printer of the "Memoirs of Harriet Wilson" could not recover the price of printing them, the work being immoral and libellous: Poplett v. Stockdale, 2 C. & P. (12 E. C. L. R.) 198.