Sec 335

As is elsewhere shown,1 immorality and indictabil-ity are not convertible terms, since there are many immoral acts which are not indictable, and some indictable acts which are not immoral. We may also say that unlawfulness (meaning by unlawfulness exclusion from legal aid) and indictability are not convertible, since there are in this sense many unlawful acts which are not indictable. Cheats by false pretences, for instance, are not indictable at common law; yet no one would pretend to say that a person cheating another by false pretences could recover at common law the fruits of his fraud. So fornication is not indictable at common law, yet at common law no suit lies to recover the price of fornication. "A thing may be unlawful in the sense that the law will not aid it, and yet that the law will not immediately punish it."2 And as we will hereafter see more fully, it is not necessary to Unlawfulness and indictability are not convertible

1 Wh. Cr. L. 8th ed. sec 14 a.

2 Bramwell, B., Cowan v. Milbourne, make an act unlawful, that a penalty should be imposed on its commission.1.

L. R. 2 Ex. 236; adopted Pollock, 3d ed. 250.

Sec 336

A void contract is to be distinguished in this respect from an illegal contract. Money paid in furtherance of an illegal contract cannot be recovered back.2 But it is otherwise as to money paid in furtherance of a contract which by statute is void, but not illegal;3 as is the case with contracts void under the statute of frauds.4 An illegal contract may be repudiated by either party;5 though a court of equity may impose terms on a party seeking to set aside a contract on the ground of illegality.6 But as a rule, no case, either when presented by way of suit, or of set-off, or of defence, can be sustained on an illegal agreement.7

Sec 337

It is not to be supposed that the parties to a contract intend in making it to violate the law;8 and, hence, "where a contract is capable of two constructions, the one making it valid and the other void, it is clear law that the first ought to be adopted."9

Sec 338

When there are several stipulations in a particular agreement, the fact that one of these stipulations is illegal does not defeat a recovery on the other, when may be severed from legal.

Void contract is distinguished from illegal.

Where a contract is susceptible of an illegal and a legal construction, the second is to be adopted.

Illegal stipulations the stipulations are divisible, and the consideration is not as a whole illegal.1 In other words, "in cases where the consideration is tainted by no illegality, but some of the conditions or promises are illegal, the illegality of those which are bad does not communicate itself to or contaminate those which are good, except where, in consequence of some peculiarity in the contract, its parts are inseparable or dependent upon one another."2 A fortiori, when a transaction is separated by the parties into two agreements, one legal and the other illegal, the legal agreement can be enforced, and the transaction pro tanto sustained.3 It is otherwise where the stipulations, legal and illegal, are so interwoven that the legal cannot be sustained without sustaining the illegal.4 "The general rule is, that where you cannot sever the illegal from the legal part of a covenant, the contract is altogether void; but where you can sever them, whether the illegality be created by statute or by the common law, you may reject the bad part and retain the good."5 - So far as concerns the statute

1 Infra, sec 363. That agreements against public policy are void, see infra, sec 394 et seq.; Tracy v. Talmage, 14 N. Y. 162; Hull v. Ruggles, 56 N. Y. 424; Stropes v. Board, 72 Ind. 42.

2 Infra, sec 340, 741.

3 Leake, 2d ed. 763; Jessopp v. Lut-wyche, 10 Ex. 614; Rosewarne v. Billing, 15 C. B. N. S. 316. As to distinction between "void" and "voidable," see supra, sec 28.

4 Pawle v. Gunn, 4 Bing. N. C. 445.

5 Cowan v. Millbourn, L. R. 2 Ex. 230.

6 Cork, etc. R. R. in re, L. R. 4 Ch. 762; see infra, sec 340.

7 Leake, 2d ed. 771; Thomson v. Thomson, 7 Ves. 470; Fivaiz v. Nicholls, 2 C. B. 501; Begbie v. Phosphate Co., L. R. 10 Q. B. 491; Taylor v. Chester, L. R. 4 Q. B. 314; and cases cited infra, sec 340.

8 Infra, sec 655; Wh. on Ev. sec 1249; Lewis v. Davison, 4 M. & W. 654; Mittelholzer v. Fullerton, 61 Q. B. 989, 1022; Richards v. Bluck, 6 C. B. 441; Marsh v. Whitmore, 21 Wall. 178; Kellogg v. Miller, 2 McCrary, 395; Foster v. Rockwell, 104 Mass. 167; Loril-lard v. Clyde, 86 N. Y. 387; Bessent v. Harris, 63 N. C. 542.

9 Erle, J., Mayor of Norwich v. R. R., 4 E. & B. 397; Kenton Co. v. Bank Lick Co., 10 Bush, 529. See for other cases, infra, sec 655.

1 Green v. Price, 13 M. & W. 695; Price v. Green, 16 M. & W. 346; Bank of Australasia v. Breillat, 6 Mo. P. C. 152; Mayfield v. Wadsley, 3 B. & C. 361; 5 D. & R. 228; Kerrison v. Cole, 8 East, 231; M'Allen p. Churchill, 11 Moore, 483; Gelpke v. Dubuque, 1 Wallace, 175; Goodwin v. Clark, 65 Me. 280; Carleton v. Woods, 28 N. H. 290; Van Dyck v. Van Beuren, 1 Johns. 362; Leavitt v. Palmer, 3 N. Y. 19; Saratoga Bank v. King, 44 N. Y. 87; Hook v. Gray, 6 Barb. 398; Tracy v. Talmage, 14 N. Y. 162; Leavitt v. Blatchford, 5 Barb. 9; Lange v. Werk, 2 Ohio St. 519; Widoe v. Webb, 20 Ohio St. 431; Hynds v. Hayes, 25 Ind. 31; Kembrough v. Lane, 11 Bush, 556; Newberry Bank v. Stegall, 41 Miss. 142; Rosenblatt v. Townley, 73 Mo. 536; Valentine v. Stewart, 15 Cal. 387. See Mallan v. May, 11 M. & W. 653; Benj. on Sales, sec 505. That an illegal consideration vitiates see infra, sec 509; and see Carrigan v. Ins. Co., 53 Vt.

418, cited infra. As to divisibility in other cases see supra, sec 233; infra, sec 511, 552, 899.

2 Smith's L. C. 7th Am. ed. 681.

3 Odessa Co. v. Mendel, L. R. 8 Ch. D. 235.

4 1 Wms. Saund. 66, n. (4); Waite v. Jones, 1 Scott, 59; Neuman v. Neu-man, 4 M. & S. 66; Gaskell v. King, 11 East, 165; Wigg v. Shuttleworth, 13 East, 87; Ladd v. Dillingham, 34 Me. 316; Woodruff v. Hinman, 11 Vt. 592; Saratoga Bank v. King, 44 N. Y. 87; Rose v. Truax, 21 Barb. 361; Donallen v. Lenox, 6 Dana, 91; Langdon v. Gray, 52 How. N. Y. Pr. 387; Frazier v. Thompson, 2 Watts & S. 235; Tobey v. Robinson, 99 111. 222. That when the consideration is illegal this vitiates the contract, see infra, sec 509.

5 Willes, J., in Pickering v. R. R., L. R. 3 C. P. 250 (adopted in Leake, 2d ed. 781), citing Maleverer p. Red-shaw, 1 Mod. 35; Collins v. Blantern, 2 Wils. 351; Gelpke v. Dubuque, 1 of frauds the same test is applied. When part of a contract is invalidated by that statute, and the contract is severable, then the invalidation is only pro tanto; though it is otherwise when the contract cannot be severed.1 Thus, where C, having contracted to do certain work for E., but the work being suspended on account of failure on E.'s part to pay, and T. having asked C. to finish the work promising to pay him in full, it was held that C. could recover from T. for the work done after the promise, but not for that done before the promise.2 And generally the fact that a deed contains powers or conditions that are illegal, does not avoid the deed unless these powers or conditions qualify the whole conveyance. If they are independent, and can be severed without injuring the contract, their illegality does not vitiate the other portions of the deed.3 - It is said by Mr. Pollock,4 that where any part of the consideration for a promise or set of promises is unlawful, the whole agreement is void. This undoubtedly holds good in cases in which the unlawful consideration permeated the whole contract, as where, for instance, as in the case put in the next section, the consideration of a promise (or a series of promises) is (1) illicit cohabitation, and (2) the securing the services of a housekeeper. But it is otherwise where the illegal consideration does not permeate the whole contract. Supposing, for instance, A. agrees to pay B. $100 for goods sold, part being sold on Sunday and part on a Monday. Now, for the Monday sale the vendee could have a decree of specific performance; and if so, the fact that the transaction was turned into a common account with the Sunday sale, is no reason why the vendor, who would be liable in this suit for specific performance, should not be entitled to his remedy for the Monday sale.

Wall. 221; U. S. v. Bradley, 10 Pet. 343; Deering v. Chapman, 22 Me. 488; Roby v. West, 4 N. H. 285; Coburn v. Odell, 30 N. H. 540; Woodruff v. Hin-man, 11 Vt. 592; S. P. Frazier v. Thompson, 2 Watts & S. 235; Raguet v. Roll, 7 Ohio, 76; Everhart v. Puckett, 73 Ind. 409; Anderson v. Powell, 44 Iowa, 20; McBratney v. Chandler, 22 Kan. 692.

1 Mayfield v. Wadsley, 3 B. & C. 361; S. C, 5 D. & R. 228; Lexington v. Clarke, 2 Vern. 223.

2 Rand v. Mather, 11 Cush. 1.

3 Pickering v. R. R., L. R. 3 C. P. 235; Payne v. Brecon, 3 H. & N. 572; Greenwood v. Bp. of London, 5 Taunt. 727.

4 3d ed. 338.

against the vendee. And it is hard, also, to see why this right to recover for the Monday sale should be affected by the fact that the vendor took for both transactions, embracing the Sunday sale and the Monday sale, a single note. Undoubtedly, part of the consideration is illegal; but if the vendee, on the untainted part of the transaction, could sue the vendor, so can the vendor sue the vendee. And there is high authority to this effect. Thus, in Pennsylvania, no action, by statute, can be sustained upon a note given for a tavern reckoning exceeding twenty shillings; but if a note beyond that amount covers other items of lawful indebtedness, there can be a recovery for the latter items.1 And when a note is founded on several considerations, each fixed by a separate contract, the note is valid to the extent of the lawful consideration.2 And when a note has been given in part payment of an account, it is no defence that part of the account was illegal, if the amount of the note is less than the amount of the legal part of the account.3 - A contract may be fraudulent or otherwise illegal as to the parties, yet bind as to third persons innocently taking title under it.4 And a contract may be divisible so as to be bad as to the parties, but good as to strangers acting bona fide on it.5