81 Ga. 158 | Ga. | 1888
The second plea, to-wit, “that the note was obtained by fraud, because the guano never was inspected and analyzed as required by law,” was good in substance. The fraud imputed was not upon the purchaser but upon the law, and thus construed the real import of the plea is that the sale was illegal for the reasons alleged. The code, in sections 1576(b), (d), makes it unlawful to sell or even offer for sale, without previous inspection and', analysis, and prescribes a penalty for so doing. There' can bo no bar or estoppel, by waiver, covenant or otherwise, against pleading the violation of a penal law in* defence to an executory contract, the very making of which, or attempt to make it, being the act, or a part of the act, of violation. The waiver or covenant relied upon is as much a part of the forbidden contract as is-the promise to pay for the goods. If the executory contract is void for illegality as to the promise, it must also> be void as to waiver and covenant. What consideration! was there for these latter, except the very same as for" the former, to-wit, the illegal sale ? Public policy forbids; that any executory stipulation based on an illegal transaction, and deriving no efficacy from any other, shall be' an obstacle to opening the transaction to inquiry at the instance of the innocent or less guilty party. The violator of a public law cannot shun the consequences, even the civil consequences, by making terms and conditions, with the other party concerned. He cannot entitle himself to notice that the requisites of law are not complied with by himself. "When they are omitted, he must know it, and forbear to trade till they are observed.
The plea may not be true, but if true it is quite snffi-
J udgmeht reversed.
