At other times these expressions indicate a principle of law, which holds that no subject can lawfully do that which has a tendency to be injurious to the public, or against the public good (/). If this be understood as the public good, recognized and protected by the most general maxims of the law and of the constitution, it furnishes a rule much more general than the first class, yet definite in its terms, and clearly distinguishable from that class of public policy or political expediency which would comprise such questions, as, whether it is wise to have a sinking fund or a paper circulation, and *which would properly guide the Legislature or the executive government in determining any question which they might have to deal with. It is evident that Courts of Law cannot decide upon these considerations.
It would seem that all the cases which have been decided upon the ground of public policy are referable to one or other of the two classes above mentioned, and perhaps this section of law cannot be summed up in a way more satisfactory to the reader than by quoting the words of Parker, C. J., in the famous case of Mitchell v. Reynolds (m) : "All the instances of a condition against law in a proper sense are reducible under one of these heads: 1st, either to do something that is malum in se or malum prohibitum; 2ndly, to omit the doing of something that is a duty; 3rdly, to encourage such crimes and omissions. Such conditions as these, the law will always, and without regard to circumstances, defeat, being concerned to remove all temptations and inducements to those crimes." For when the letter of the law forbids to do anything which is malum in se or malum prohibitum, and prescribes the performance of all which it considers as a duty, it may well be thought that public policy or the policy of the law forbids to do anything which may encourage the wrong or deter from the duty.1
(j) 4 H. L. C. 87, per Cresswell, J.; Coles v. Strick, 15 Q. B. (69 E. C. L. R.) 2. (k) Egerton v. Brownlow, at p. 107, per Alderson, B. (I) lb. 196, per Lord Truro. 260
*The instances which I have mentioned are those in which illegality at common law is most frequently set up for the purpose of invalidating a contract. To these must be added the third class of cases which I specified; those, namely, in which the contract is avoided on the ground of fraud; that is, deceit practised upon the contracting party in order to induce him to enter into it (n). This is so well known a point and one of such continual recurrence in practice, that it is useless to multiply examples of its application. As to the deceit, it may be of an active kind, as falsehood and misrepresentation (0) actually used by one party for the purpose of deceiving the other; or it may be passive, as where a vendor knows that a purchaser labours under a delusion, which he also knows is influencing his judgment in favour of purchasing, and suffers him to complete his purchase under that delusion (p).1 The plaintiffs prepared an agreement of guaranty in which they recited a prior agreement, by which it appeared that they *had already trusted the debtor on the guaranty of A. B., that the debtor had been sometime salesman to them, on the terms that he was to be answerable for the price of the articles sold by him, and to pay for them monthly, and that in order to induce them to continue the arrangement defendant had agreed to give a guaranty as after-mentioned. The agreement then went on to provide that defendant should give a continuing guaranty to plaintiffs for three years, to secure the amount of any balance that might at any time during those years be due to them. But it did not recite, as was the fact, that any debt was then due to them, nor did defendant know it. This agreement was executed by defendant, without making any inquiry. The Exchequer Chamber considered that there was evidence that plaintiffs had intentionally made a fraudulent misrepresentation to defendant to induce him to sign the agreement (q). But that a vendor may go a considerable way towards dishonesty without rendering himself liable to lose the benefit of the contract he has made, is shown by the recent case of Ward v. Hobbs (r). There the defendant sent for sale to a public market pigs which, according to the finding of the jury, he knew to be infected with a contagious disease; they were exposed for sale subject to a condition that no warranty would be given and no compensation *would be made in respect of any fault. No verbal representation was made by or on behalf of the defendant as to the condition of the pigs. The plaintiff having bought the pigs, put them with other pigs, which became infected; some of the pigs bought from the defendant and also some of those with which they were put died of the contagious disease. The plaintiff having sued to recover damages for the loss which he had sustained, the Court of Appeal held (reversing the judgment of the Queen's Bench Division), that, although the defendant might have been guilty of an offense against the Contagious Diseases (Animals) Act, 1869 (32 & 33 Vict. c. 78), s. 57, yet he was not liable to the plaintiff, for that his conduct in exposing his pigs for sale in the market did not amount to a representation that they were free from disease. This judgment of the Court of Appeal was subsequently affirmed by the House of Lords (s).
(m) 1 P. Wms. 189; 1 Smith, L. C. 424, 8th ed.
(n) Evans v. Edmonds, 22 L. J. (C. P.) 211; 13 C. B. (76 E. C. L. R.) 777; Bwlch y Plwnihead Mining Co. v. Baynes, 3(5 L. J. (Ex.) 183; Central Railway Company of Venezuela v. Kisch, 36 L. J. (Ch.) 849; Boss v. Estates Investment Society, 36 L. J. (Ch.) 54.
1 Debts contracted for supplies used in carrying out an illegal contract may be recovered notwithstanding the knowledge of the creditor that the supplies were to be used for such a purpose; but the creditor cannot recover if he did any act in aid of the illegal purpose: Kottwitz v. Alexander, 34 Tex. 689. Money loaned to be wagered on a horse-race cannot be recovered: Alfriend v. Hughes, 4 Bush, 40; M'Gavock v. Puryear, 6 Cold, 34; Tatum v. Kelley, 25 Ark. 209.-s.