(k) Staines v. Wainewright, 6 Bing. N. C. (37 E. C. L. R.) 174. See Ex parte Oliver, re Hodgson, 4 De G. &. S. 354.
(I) M Kinnel v. Robinson, 3 M. & W. 434; De Begnis v. Armistead, 10 Bing. (25 E. C L. R.) 110.
(m) Waite v. Jones, 1 Bing. N. C. (27 E. C. L. R.) 662, per Tindal, C. J.; Shackell v Rosier, 2 Bing. N. C. (29 E. C. L. R.) 634; Howden v. Haigh, 11 A. & E. (39 E. C. L. R.) 1033.
(n) Gaskell v. King, 11 East, 165; How v. Synge, 15 East, 440.
1 Where covenants, illegal as against public policy, enter into and form a part of the entire consideration of a contract and both parties are in fault, the of partnership, one partner purchased the other's moiety, and the latter covenanted not to carry on a similar trade within the cities of London and Westminster, or within Goo miles thereof, the Exchequer Chamber held that the covenant was void as to the 600 miles, as an unreasonable restraint of trade; but good as to the cities of London and Westminster (o).
The next quality of a contract by deed is its operation by way of estoppel; the meaning of which is, that the person executing it is not permitted to contravene or disprove what he has there asserted, though he may do so where the assertion is in a contract not under seal.
A good example *of this is the case of a receipt.
A creditor who has given a receipt not under seal is nevertheless permitted to prove that he has not received the money (p); but it is otherwise if the receipt be by deed, for then the law admits no evidence to the contrary (q).1 Such is the nature of what we call contract is wholly void. A separation of the good consideration from that which is illegal will be attempted only in those cases in which the party seeking to enforce the contract is not the wrongdoer: Saratoga County Bank v. King, 44 N. Y. 87; Marsh v. Russell, 2 Lans. 340 [reversed 66 N. Y. 288]. A contract based in part upon an illegal transaction is void in toto; but if based in part on a void transaction is void only pro tanto: Doty v. Knox Bank, 16 Ohio St. 133; Bank v. Stegall, 41 Miss. 142. If part of a single consideration is illegal the whole promise fails: Chandler v. Johnson, 39 Ga. 85, and see Gelpcke v. Dubuque, 1 Wall. U. S. 221; Decker v. Morton, 1 Redf. Surr. 477; Kottwitz v. Alexander, 34 Tex. 689.-s.
(o) Price v. Green, 16 M. & W. 346; Nicholls v. Stretton, 10 Q. B. (59 E. C. L. R.) 346. See also Robinson v. Ommaney, 21 Ch. Div. 780; 23 lb. 285; 51 L.J. (Ch.) 894; 52 lb. 440.
(p) Graves v. Key, 3 B. & Ad. (23 E. C. L. E.) 313; Stratton v. Rastall, 2 T. R. 366; Farrer v. Hutchinson, 9 A. & E. (36 E. C. L. R.) 641; Bowes v. Foster, 27 L. J. (Ex.) 262; 2H.&N. 779; Lee v. Lancashire and Yorkshire Rail. Co., L. R. 6 Ch. 527.
(q) See the judgment of the Court in Fitch v. Sutton, 5 East, 230.
1 The current of authority, however, on this side of the Atlantic, has much relaxed the strictness of the English cases on this subject. Thus it may be considered as settled, notwithstanding some early cases to the contrary, that evidence is admissible, either on the part of the grantor or the grantee, to an estoppel created by deed (r), the principle of which, is explained by Taunton, J., in Bowman v. Taylor (s). "The principle," said his Lordship, "is not so unjust or absurd as it has been too much the custom to represent. The principle is, that, where a man has entered into a solemn engagement by and under his hand and seal as to certain facts, he shall not be permitted to deny any matter he has so asserted." Therefore, for example, if a distinct statement of a particular fact is made in the recital of a bond or other instrument under seal, and a contract is made with reference to that recital, it is unquestionably true, that, as between the parties to that show that the consideration named in the deed was really greater or less than is there expressed: Bullard v Briggs, 7 Pick. 533; Wade v. Merwin, 11 Jo. 288; Clapp v. Tirrell, 20 lb. 247; McCrea v. Purmort, 16 Wend. 460 (where many authorities are cited and commented on); Burbank v. Gould, 15 Me. 118; Belden v. Seymour, 8 Conn. 310; Meeker v. Meeker, 16 lb. 383; Beach v. Packard, 10 Vt. 96; Bingham v. Weiderwax, 1 N. Y. 509; Watson v. Blaine, 12 S. & R. 131; Jack v. Dougherty, 3 Watts, 158; Bolton v. Johns, 5 Pa. St. 145; Harvey v. Alexander, 1 Rand. 219; Wilson v. Shelton, 9 Leigh. 342; Curry v. Lyles, 2 Hill (S. C.) 404; Moore v. McKie, 5 Sra. & M. 238; unless such evidence is introduced, either directly or indirectly, for the purpose of defeating the operation of the instrument as a conveyance, as by showing it void for want of a sufficient consideration: Wilt v. Franklin, 1 Binn. 502; Hum v. Soper, 6 Harr. & J. 276. Thus a grantee may prove the expressed consideration to be greater, for the purpose of increasing his damages on the covenants in the deed: Belden v. Seymour, 8 Conn. 310; while on the other hand the grantor may prove it less for the purpose of diminishing them: Morse v. Shattuck, 4 N. H. 229; Harlow v. Thomas, 15 Pick. 70.-k.
(r) Shelley v. Wright, Willes, 9; Hill v. Manchester and Salford Waterworks, 2 B. & Ad. (22 E. C. L. R.) 544. (s) 2 A. & E. (29 E. C. L. R. ) 278.
See Murphy v. Branch Bank of Mobile, 16 Ala. 90; Den. v. Shotwell, 23 N.J. 465; In re Young's Estate, 3 Md. Ch. D. 461; Hammond v. Wroodman, 41 Me. 177; Harwell v. Fitts, 20 Ga. 723; Farrington v. Barr, 36 N. H. 86; Thompson v. Allen, 12 Ind. 539. The consideration clause in a deed estops the grantor from denying that a consideration has been received. In all other respects, it is open to explanation or correction by parol evidence, and it may be shown that the consideration has not been actually paid, or that it has been overpaid by fraud or mistake: Goodspeed v. Fuller, 46 Me. 141; Irvine v. McKeon, 23 Cal.472; and see Carbreyv. Willis, 7 Allen, 364; Allen v. Allen, 45 Pa. St. 468; Dodge v. Walley, 22 Cal. 224; Simson v. Eckstein, lb. 580.-S.