61 Ala. 312 | Ala. | 1878
The bill of exceptions purports to set out all the evidence which was given to the jury, as well as that which was offered by the appellant and rejected, and that which was admitted against his objection. If on the-evidence admitted, and that which was rejected, excluding-that which was objected to, the Circuit Court could have-properly instructed the jury, that the appellant had established no just defense to the plaintiff’s action, it is unnecessary to decide whether its several rulings to which exceptions-were reserved, were erroneous or not; for if erroneous, they
Whether there was any, or what was the consideration, moving between the appellee and Walters, which induced the latter, to request and cause the bills of exchange to be made payable to the former, is not material. The appellant is not entitled to inquire into, or dispute that consideration. The bills of exchange import that the intestate owed the money expressed in them, and it is unimportant to her, whether her creditor gave it away, appropriated it to the discharge of illegal contracts into which she had entered, or to the payment of her just debts. Authority for payment to the appellee was given, which if revocable, there has been no attempt to revoke, and from the duty of payment, the intestate can not be absolved, by assailing the consideration of the transaction between her creditor and the appellee. The principle is thus stated by Parsons: “ If a note be given for a consideration passing between one of the parties to the note and a third person, and the payee sue the maker, it seems to be held immaterial in that action whether this consideration, as affecting the third party has failed or not.” 1 Pars. Notes and Bills, 200; Railroad v. Chamberlain, 44 N. H. 494; Horn v. Fuller, 6 N. H. 512.
The single question the case presents, is, whether the contract between the intestate and Walters, was so tainted with illegality, that as between them it can not be enforced. All contracts, for the doing of that, which the law forbids, or of that which is contra bonos mores, or violative of public policy, are void, and the law will not generally interfere to enforce or rescind them. It leaves the parties severely alone, to abide the consequences of their illegal and immoral conduct. Falling within the contracts, condemned by law, are all “ encouraging prostitution, or auxiliary to the keeping of a bawdy house,” — or, in the language of POLLOCK, C. B,, “ supplying a thing with the knowledge that it is going to-
It may be admitted the original contracts between the intestate of the appellant and Walters were void, because of the knowledge of the intestate, of the evil intent and purpose moving Walters to the purchase of the property, and of the immoral use to which she intended devoting it. Nevertheless these contracts the parties could rescind, and if rescinded voluntarily, the rescission is a new and independent agreement, founded on a new consideration, the mutual agreement of the parties, and it is removed from, not a part of the original scheme, unaffected by its illegality, and the courts will enforce it. It is often said that the test whether a contract or demand connected with an illegal transaction is capable of being enforced, is, whether the plaintiff requires any aid from the illegal transaction to establish his case. It is probably true, as is said by the Supreme Court of the United States, this test is too narrow in its terms and ex-
It is insisted however that Walters at the time of the rescission knew that the purpose of the intestate in agreeing to rescind, was to obtain possession of the property and appropriate it to the keeping of a house of prostitution, and the agreement of rescission is as illegal, as was the contract rescinded, and consequently no action can be maintained on any promise express or implied of the intestate, which forms part of, or grows out of the agreement of rescission. The answer is, there was no evidence indicating the purpose of' the intestate in agreeing to the rescission, was to obtain possession of the property for such purposes. It may have been inferrible from her past conduct, and from the use she had formerly made of the property, that she would devote it to the same uses. But the evidence justifies no other legal inference, than that the moving consideration with the intestate in the rescission, was restoration to the title and possession of property, she had lost by illegal contract, and a release from liability for any breach of the bonds given by her in the course of the suits she had instituted for its recovery. Money lent to a gambler expressly for the purposes of gaming, is not recoverable. But the gambler can not prove his bad character, to raise an inference of guilty knowledge against all who may lend him money — that he borrowed for the purpose of gaming, and consequently they aided him in the gaming at which he risked the money borrowed. The knowledge on the part of the lender which will strip him of
We are of the opinion after this examination of the case as it is shown by the bill of exceptions, the Circuit Court could well have instructed the jury to find for the plaintiff, and the appellant could not therefore have been wronged by .any of the rulings to which exceptions were reserved.
Affirmed.