SHARPE, J.
The agreement declared on in the first-count of the complaint is violative -of our statute Iuav -and is therefore void. Section 4219 of the Code expressly prohibits the issuance of bills of lading before actual receipt of the goods ¡by the carrier. For so doing the carrier is, by -a separate section (4223), made liable for resulting damages to any person who may be thereby injured." The provision is intended for the protection of the publi-c as against the deceptions use which might be made of false bills of lading in misleading persons deal*383ing with 'the holder into the belief that the goods are in fact in the carrier’s possession. Its intent and prohibitive force is indicated by the title of the act of February 28, 1881, in which the Code provision originated. See “An act to prevent the issue of false receipts and to punish the fraudulent transfer of property by warehouse-men, wharfingers and others,” Acts 1880-81, p. 133. By the act as first passed its violation was made punishable by fine and imprisonment in the penitentiary and by subjecting the offender for liability for damages to any person injured by the carrier’s transgression. As modified and adopted into the Code, the criminal feature is omitted, but the civil liability is retained. In Jasper Trust Co. v. K. C. M. & B. R. R. Co. 99 Ala. 416, the clause imposing the civil liability was construed as punitive and intended “to punish and prevent the giving of bills of lading Avhen the property or thing avus not in fact received for transportation-” It is not necessary that a prohibited evil should be made criminal or eAreh subject to a penalty in order to Adtiate a contract made in furtherance of the evil. The laAV Avill not alloAV a right to-spring from its oaati deliberate violation. — Moog v. Hannon, 93 Ala. 503; Shippey v. Eastwood, 9 Ala. 200; McGehee v. Lindsay, 6 Ala. 16. “Where the only road to recovery is by Avav of an illegal contract, the court Avill not assist the parties to the contract in traveling it.”— W. U. Tel. Co. v. Yopst, 3 L. R. A. (In-d.), 244.
It is immaterial that performance on the defendant’s part does not invohm illegality. To be enforceable the agreement must he mutually binding. The only consideration for the defendant’s alleged promise to deliver cotton or to pay on account of shortages in delivery, was the plaintiff’s promise to issue the bills of lading for cotton in advance of its actual receipt. Recovery cannot be had Avhen, to -show the defendant’s breach of the agreement sued -on, the plaintiff is compelled to proA'e performance of an illegal act. — Walker v. Gregory, 36 Ala. 100; Gunter v. Leckey, 30 Ala. 590; Wood v. Armstrong, 54 Ala. 150; The State for use, etc. v. Metcalf, 75 Ala. 42; McGehee v. Lindsay, supra.
As a declaration on the contract of bailment, the sec*384«nd count is insufficient, if for no other .reason than because of its 'silence as to the mode of the alleged transfer of- the warehouse receipt. To authorize an action in the name of a transferee of a.contract.for the performance of an act or duty, the transfer must be by indorsement.- — -Code, § 876. This statute has several times been construed as applicable to warehouse receipts.— Ala. State Bank v. Barnes, 82 Ala. 607; Allen, Bethune & Co. v. Maury & Co., 66 Ala. 10; Lehman, Durr & Co. v. Marshall, 47 Ala. 362.
The count is also defective in not averring a refusal on the part of the defendant to deliver the cotton. The ■plaintiff does not claim to have stated an action in tort, nor has it done so. No breach of duty, -legal or -contractual is averred in the second count, which should have been sustained.
The judgment will be reversed and the cause remanded. i