(r) Forster v. Taylor, 5 B. & Ad. (27 E. C. L. R.) 887. (s) Forster v. Taylor, 5 B. & Ad. (27 E. C. L. R.) 887; Taylor v. Crowland Gas. Co., 23 L. J. (Ex.) 254; 10 Ex. 293. (t) Cope v Rowlands, 2 M. & W. 149.

1 See Buxton v. Hamblen, 32 Me. 448; Boutwell v. Foster, 24 Vt. 485; Beman v. Tugnot, 5 Sand. 153.-s.

See also Woods v. Armstrong, 54 Ala. 150; Commonwealth v. Shattuck, 4 Cush. 141; Smith v. Arnold, 106 Mass. 435; Prescott v. Battersly, 119 Mass. 285; People v. Albany, 11 Wend. 539; Griffith v. Wells, 3 Den. 226; Roby v. West, 4 N. H. 289; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. St. 173; Fowler v. Scully, 72 lb. 456; Thorne v. Ins. Co., 80 lb. 15; Elkins v. Parkhurst, 17 Vt. 105. 18 273

Now the general principle upon which all cases of statutable illegality depend, being as above laid down, it is necessary that you should bear in mind a practical distinction which exists between this class of contracts-contracts I mean, forbidden by the express or implied enactment of some statute-and another class, in which the contract itself does not violate the statute, hut some incidental illegality occurs in carrying it into effect. In these latter cases the contract is good, and may be made the subject-matter of an action, notwithstanding the breach of the law which has occurred in carrying it into effect.1

(u) Smith v. Mawhood, 14 M. & W. 452.

The best mode of explaining this is by an example. In Wetherell v. Jones {x), a rectifier of spirits brought an action against a confectioner to recover the price of spirits sold and delivered to *him. The defence relied upon was illegality. It appears, that, under the Excise Acts, a rectifier or distiller, when he sends out spirits, is bound to send with them a permit truly specifying their strength. The plaintiff had sent a permit but it did not specify the true strength; and the defendant relied on this violation of the statute as an avoidance of the contract. But the Court held that the illegality was not in the contract to sell the spirits, but in the subsequent act of removing them without a proper permit, and, therefore, that an action was maintainable upon the contract; and Lord Tenterden's judgment sets the distinction in a very clear light: "We are of opinion," said his lordship, "that the irregularity of the permit, though it arises from the plaintiff's own fault, and is a violation of the law by him, does not deprive him of the right of suing upon a contract, which is in itself perfectly legal (y), there having been no agreement, express or implied, in that contract, that the law should be violated by such improper delivery. Where a contract which a plaintiff seeks to enforce is expressly, or by implication, forbidden by the statute or common law, no Court will lend its assistance to give it effect; and there are numerous cases in the books in which an action on a contract has failed, because either the consideration for the *promise or the act to be done was illegal, as being against the express provisions of the law or contrary to justice, morality, and sound policy. But where the consideration and the matter to be performed are both legal, we are not aware that a plaintiff has ever been precluded from recovering by an infringement of the law not contemplated by the contract in the performance of something to be done on his part."

(x) 3 B. & Ad. (23 E. C. L. R.) 221. See also Smith v. Mawhood, supra.

1 The mere knowledge on the part of the lender, that the borrower of the legal currency of another State intended to use it in the State of New York, where its circulation was prohibited, would not so far vitiate a contract made in the State where it would be valid, as to authorize the courts of the latter State to refuse to enforce it: Merchants' Bank v. Spalding, 12 Barb. 302. A., not owning any Canton stock, employed B., a broker, who owned some, to sell for him two hundred shares at sixty-six dollars a share, deliverable at B.'s option, at any time within thirty days, and deposited with B. $750 to protect him against loss. The broker contracted to sell at that rate, and notified A., and within the term limited, bought and delivered stock in execution of the contract. Held, that the money was advanced to be used for an illegal pur pose, and could not be recovered back : Staples v. Gould, 5 Sand. 411.-s.

Where, moreover, a contract is to do a thing which cannot be performed without a violation of the law, it is void whether the parties knew the law or not. But in order to avoid a contract which can be legally performed, on the ground that there was an intention to perform it in an illegal manner, it is necessary to show that there was the wicked intention to break the law (z). And a foreigner who sold and delivered goods abroad to a British subject, knowing at the time the buyer intended to smuggle them into this country, was allowed to recover the price here; not merely on the ground that the subject of a foreign country is not bound to pay allegiance or respect to the revenue laws of this, but also because the plaintiff took no actual part in the illegal act, and it was not a contract of which the smuggling was an essential part, for the buyer might have changed his mind the next day (a).

(y) It seems, that, by a subsequent statute, he would in this case be deprived of the right of suing: 2 Will. 4, c. 16, ss. 11, 12.

(z) Waugh v. Morris, L. E. 8 Q. B. 202,42 L. J. (Q. B.) 57.

*With regard to the distinction of which I have been speaking [viz., where an incidental illegality occurs], I will make but one further observation, namely, that it would apply to cases of common law as well as statutable illegality; but I have spoken of it under the head of statutable illegality, because I do not remember any decided case arising upon a question as to illegality at common law which would aptly illustrate it. I can, however, put such a case without difficulty. Suppose, for instance, A. employs B., a builder, to repair the front of his house, and B., in so doing, erects an indictable nuisance in the public street, still, as the contract to repair the house is legal, and the erection of the nuisance in so doing was not contemplated by the agreement, B. might recover for the repairs which he had executed. But it would be otherwise if it had been made part of the agreement, that the repairs should be performed by means of the erection of the nuisance; for there the illegality would have entered into and formed part of the contract (b).1