(a) Paxton v. Popham, 9 East, 421.
(b) See Collins v. Blantern, 2 Wils. 341; 1 Smith, L. C. 387, 8th ed.
(c) Bartlett v. Vinor.Carth. 251; Cundell v. Dawson, 4 C. B. (56 E. C. L. R.) 376; Ritchie v. Smith, 6 C. B. (60 E. C. L. R.) 462; Cope v. Rowlands, 2 M. & W. 149; M'Kinnel v. Robinson, 3 M. & W. 434.
(d) 4 m. & W. 361.
(e) 6B.&C. (13 E. C. L. E.) 200.
(f) See Jones v. Waite, 5 Bing. N. C. (35 E. C. L. E.) 341, 4 M. & Gr. (43 E. C. L. E.) 1104, in Dom. Proc; Wilson v. Wilson, 23 L. J. (Ch.) 697.
(g) Colborne v. Stockdale, Str. 493; Mazzinghi v. Stephenson, 1 Camp. 291. See M'Kinnel v. Robinson, 3 M. & W. 434, which, however, was a simple contract.
(h) Levy v. Yates, 8A.&E (35 E. C. L. E.) 129. See De Begnis v. Armi-Btead, 10 Bing. (25 E. C. L. E.) 110, per Tindal, C. J.
(i) Cope v. Eowlands, 2 M. & W. 149.
1 And see the notes to that case in 1 Smith's Leading Cases, 8th Am. ed.-s.
2 " Every contract," said Lord Holt, in Bartlett v. Viner, Carth. 252, " made for or about any matter or thing which is prohibited and made unlawful by any statute, is a void contract, though the statute itself does not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, though there are no prohibitory words in the statute;" and although attempts have been at times made to consider these words as mere dicta, yet the rule thus stated has been repeatedly enforced: Nerot v. Wallace, 3 T. R. 17; Mitchell v. Smith, 1 Binn. 110; Foster v. Taylor, 5 B. & Ad. (27 E. C. L. R.) 887; Cope v. Rowlands, 2 M. & W. 158; though with respect to cases depending upon the English revenue laws, there appears to be a little discrepancy of decision as to whether those acts intended to vitiate the contract, or to impose a penalty, for the purposes of the revenue, on the party offending: Johnson v. Hudson, 11 East, 180; Brown v. Duncan, 10 B. & C. (21 E. C. L. R.) 93; Wetherell v. Jones, 3 B. & Ad. (5 E. C. L. R.) 221; Cope v. Rowlands, 2 M. & Wels. 149; Smith v. Mawhood, 14 lb. 461. Some of these decisions are referred to in a case in the Supreme Court of the United States (Harris v. Runnels, 12 How. 79), where, as a defence to the given, but these are sufficient to establish the principle that, though a man cannot defend himself from liability upon his contract made by deed, by saying that there was no consideration for it,1 he may by saying that there was an illegal one.2 And it must be observed, that a purchase-money of certain slaves, it was set up that no certificate had been obtained previous to the bringing the slaves into the State of Mississippi, that they had not been guilty of any crime, etc, as was required by a law of that State, which imposed a penalty of $100 for every slave so purchased and brought in; and the Court, in holding the contract itself not vitiated by this statute, said, "We have concluded, before the rule can be applied in any case of a statute prohibiting or enjoining things to be done, with a prohibition and a penalty, or a penalty only for doing a thing which it forbids, that the statute must be examined as a whole, to find out whether or not the makers of it meant that a contract in contravention of it should be void, or that it was not to be so. In other words, whatever may be the structure of the statute in respect to prohibition and penalty, or penalty alone, that it is not to be taken for granted that the legislature meant that contracts in contravention of it were to be void, in the sense that they were not to be enforced in a court of justice. In this way the principle of the rule is admitted, without at all lessening its force, though its absolute and unconditional application to every case is denied. It is true that a statute, containing a prohibition and a penalty, makes the act which it punishes unlawful, and the same may be implied from a penalty without a prohibition; but it does not follow that the unlawfulness of the act was meant by the legislature to avoid a contract made in contravention of it. When the statute is silent, and contains nothing from which the contrary can be properly inferred, a contract in contravention of it is void."-R.
To determine whether a contract made contrary to the provisions of a penal statute is illegal and void, the statute must be considered as a whole to ascertain whether it was intended to have that effect: Vining v. Bricker, 14 Ohio St. 331. Such intent will be presumed unless the contrary can be fairly inferred: Bemis v. Becker, 1 Kans. 226. Courts will not, even with consent of the parties, enforce a contract which is in violation of a statute, though not therein declared void: Fowler v. Scully, 72 Pa. St. 456.-s.
1 Nor at common law would fraud be a defence to an action on a specialty, unless, indeed, the fraud related to the execution of the instrument: Vrooman v. Phelps, 2 Johns. 177; Eogers v. Colt, 21 N. J. 704; but in many of our States, the common law rule as to the solemnity of a seal estopping the obligor from any defence except those named, has been relaxed by statutory provisions, so as to entitle the obligor of a bond, under some restrictions, to show, by way of defence, its failure, as he formerly could have done its illegality of consideration.-R.
2 The often-quoted remarks of Lord Mansfield upon this rule may bear repetition here. "The objection," said he, "that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the contract, although not expressly prohibited by a statute, may be illegal, if opposed to the general policy and intent thereof, as if made to insure to one creditor of a bankrupt a greater share of his debt than the others can have (k); or a contract made in order to enable another to infringe that policy and intent (I). These contracts are invalid, and cannot be sued upon, although *under seal. Even if there were several considerations, and any one of them was illegal, it avoids the whole instrument; for it is impossible to say how much or how little weight the illegal portion may have had in inducing the execution of the entire contract (m). Though it is just the reverse where the consideration is good, and there are several covenants, some legal, some illegal: for then the illegal promises alone will be void, and the legal valid (n).1 As when, upon a dissolution mouth of the defendant. It is not for his sake, however, that the objection is ever allowed, but it is founded in general principles of policy, which the defendant lias the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this: ex dolo malo non oritur actio. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own stating, or otherwise, the cause of action appears to arise, ex turpi causa, or the transgression of a positive law of this country, then the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it; for where both are equally in fault, 'potior est conditio defendentis;' Holman v. Johnson, 1 Cowp. 343; Gray v. Hook, 4 N. Y. 449.-r.