refuse relief to either party, and leave them in precisely the position in which they have placed themselves.'

One who, in order to keep his creditors from reaching land owned by him, allows the title to stand in the name of another, cannot ask equity to aid him in recovering the land.'

A grantor in a conveyance fraudulent as against his creditors can have no relief against the deed, although he may have since paid his creditors."

The heirs of a fraudulent grantor have no more right than the grantor himself would have to enforce a reconveyance of the property.*

A judgment debtor cannot defeat his own fraudulent conveyance by purchasing the property conveyed, through another, under a subsequent judgment against himself."

An agreement between grantor and grantee, made upon the conveyance of property, and which reserves to the grantor the enjoyment of the rents and profits of the property conveyed, to which the creditors of the grantor have a right of immediate appropriation to their debts, and which involves a secret trust for a return to the grantor of property of which such creditors have the immediate right of sale,-will not be enforced; but the parties will be left in the position where they have placed themselves, although the grantee refuses to perform his part of the fraudulent. agreement with the grantor."

b. Illegal in Part-Individuals may Release Damages.Courts of justice, even with the consent of the opposite party, will not enforce a right or contract in violation of a statute, although not expressly declared void by the enactment."

While a court cannot enforce an agreement, any part of the

'Beadle v. Beadle, 40 Fed. Rep. 315; Barnes v. Gill, 21 Ill. App. 129; Tyler v. Tyler, 126 Ill. 525, 9 Am. St. Rep. 642; Dent v. Ferguson, 132 U. S. 50, 33 L. ed. 242.

Catoe v. Catoe, 32 S. C. 595; Weatherbee v. Cockrell, 44 Kan. 380.

4McElroy v. Hiner, 133 Ill. 156.

Eisner v. Heileman, 9 L. R. A. 96, 52 N. J. L. 378.

"Dent v. Ferguson, 132 U. S. 50, 33 L. ed. 242.

'Bank of United States v. Owens, 27 U. S. 2 Pet. 527, 7 L. ed. 508; Coppell v. Hall, 74 U. S. 7 Wall. 542, 19 L. ed. 244.

entire consideration of which is illegal,' yet where the illegality is not in the consideration as an entirety, but the things to be done are distinct acts, and are some of them legal and some illegal, the court may enforce the performance of the legal acts. A contract which would be lawful under ordinary conditions, may be rendered illegal where both parties intend to accomplish an unlawful object. Thus, the owner of a building, who willfully suffers it to be used for the illegal sale of spirituous liquors, cannot recover for its use and occupation. Or where one has such intent and the other is informed thereof, but if such unlawful intention of the one is unknown to the other, the latter may disaffirm or carry out the contract on his discovery of the illegal intent pending the final execution of the contract.* But unless the use intended to be made of property purchased is for an immoral purpose, or constitutes a felony, the mere suspicion or even knowledge of the seller will not defeat a recovery of the price."

Although an act is in itself illegal, and such as any member of the general public may claim reparation for damages occasioned thereby, yet an individual member of the public may, by contract, waive his particular claim on that account."

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c. Courts will not Enforce against Public Policy. The power of a court of equity cannot be invoked where there is an

2

Waite v. Jones, 1 Bing. N. C. 656, 662; Foley v. Speir, 1 Cent. Rep. 716, 100 N. Y. 552; James v. Jellison, 94 Ind. 292; Bixby v. Moor, 51 N. H. 402; Perkins v. Cummings, 2 Gray, 258; McQuade v. Rosecrans, 36 Ohio St. 442; Filson v. Himes, 5 Pa. 452; Covington v. Theadgill, 88 N. C. 186; Chandler v. Johnson, 39 Ga. 85; Pueblo & A. V. Co. v. Taylor, 6 Colo. 1; Widoe v. Webb, 20 Ohio St. 431; Pacific Guano Co. v. Mullen, 66 Ala. 582; Cotten v. McKenzie, 57 Miss. 418; Wilson v. Rankin, L. R. 1 Q. B. 163.

* State v. Board of Education, 35 Ohio St. 519, 527; Erie R. Co. v. Union L. & Exp. Co. 35 N. J. L. 240; Pennsylvania Co. v. Wentz, 37 Ohio St. 333, 339; Gelpcke v. Dubuque, 68 U. S. 1 Wall. 221, 17 L. ed. 531; Western U. Teleg. Co. v. Burlington & S. W. R. Co. 3 McCrary, 130.

3 Mitchell v. Scott, 62 N. H. 596.

Pearce v. Brookes, L. R. 1 Exch. 213; Armstrong v. Toler, 24 U. S. 11 Wheat. 272, 6 L. ed. 472; Hanauer v. Doane, 79 Ŭ. S. 12 Wall. 342, 346, 20 L. ed. 439, 440; Lewis v. Latham, 74 N. C. 283; Smitherman v. Sanders, 64 N. C. 522; Oxford Iron Co. v. Quinchett, 44 Ala. 487; Roquemore v. Alloway, 33 Tex. 461.

Bickel v. Sheets, 24 Ind. 1; Armfield v. Tate, 29 N. C. 258; Tracy v. Talmage, 14 N. Y. 162; Cheney v. Duke, 10 Gill & J. 11; Rose v. Mitchell, 6 Colo. 102; Bishop v. Honey, 34 Tex. 245; McKinney v. Andrews, 41 Tex. 363; Steele v. Curle, 4 Dana, 381.

Egan v. Russ, 39 La. Ann. 967.

adequate remedy, or full compensation can be obtained, in an action at law; and a court of equity is equally adverse to exercise its authority by way of injunction, to compel one, even under an express contract, to work for another at a stipulated price. Equity will not use its special power against the general policy of the law, which favors entire freedom of the laborer in selecting his field of employment, and his employer, and this policy forbids a court of equity to interfere even when he has bound himself by contract as to both. This is illustrated in two cases decided December 10th, 1891, not yet reported, in which, at Memphis, Tenn., Judge Hammond, in the United States Circuit Court, refused the application of the Louisville and Nashville Railroad Company, for an injunction to compel the Memphis Cotton Compress Company to comply with its contract to compress cotton bales at 10 cents per 100 pounds. The compress company has a monopoly of compressing cotton, having bought or driven out all competitors, and it has a contract with all the railroad companies to compress cotton for five years at 10 cents per hundred. However, to make up recent heavy losses by fire, or for other reasons, it has notified all the railroad companies that they must pay 12 cents per hundred for compression, and it refuses to perform the contract.

There being no other compress company available, this leaves the railroads no alternative but to pay the extra price, unless the compress company could be compelled by injunction to perform its contract. As soon as the notice was given the Newport News and Mississippi Valley Company filed a bill to compel the compress company to take 10 cents, but Judge Hammond refused the injunction because it did not appear that the contract had been actually violated. Only a proposition had been made to charge more for compression.

The Louisville and Nashville Railroad Company also filed a bill, which alleged the tender of cotton for compression, and the refusal to do the work for less than 12 cents; also that the compress company was ignoring the stipulation to compress only for the railroads and was working for shippers direct, and demanding 12 cents.

The injunction was refused on the ground that a court of equity

will not compel anyone to work for another at a stipulated price, but it leaves the injured party to bring an action for damages at law. This being an adequate remedy, the jurisdiction of equity is forbidden to United States courts by an Act of Congress.

The railroad company contended that the public interest was affected by the disturbance of freight rates and disastrous competition with points where compression of cotton could be done for less price than demanded at Memphis, but Judge Hammond ruled that the public policy which forbids unnecessary interference by courts with the conduct of business under contracts, and forbids a jurisdiction that would restrict by such orders the freedom of the economic laws of trade and commerce, was as important as the other consideration urged in favor of the injunction, and denied the application.

8 24. Relief from Illegal Contracts.

a. In Pari Delicto-Ultra Vires.-It is a rule of law, well recognized, that where parties to a contract are in pari delicto, one of them shall not avail himself of fraud in the contract to prevent the other from recovering on his share of the profits, after the contract is executed, if the other can make out his case otherwise than through the medium or by the aid of the illegal transaction to which he himself was a party; but in cases where both parties are in delicto, concurring in the illegal act, it does not always follow that they stand in pari delicto, for there may be and very often are very different degrees in their guilt.'

The maxim "In pari delicto potior est conditio defendentis et possidentis" is not of universal prevalence. An exception arises where the parties to the transaction, although concurring in the illegal act, are regarded as not equally guilty in consequence of fraud, imposition or hardship practiced by one party against the other, thereby obtaining an unconscionable advantage.*

'But see Deming v. Merchants Cotton Press & 8. Co. (Tenn.) 13 L. R. A. 518.

*Broom, Legal Maxims, 645; Hunt v. Whitehead, 42 Mo. 524.

"Taylor, "Jurisprudence," § 300.

Kitchen v. Greenabaum, 61 Mo. 116; Green v. Corrigan, 3 West. Rep. 627, 87 Mo. 359.

Where the defendant has been from beginning to end the prin cipal law-breaker, the party taking advantage of its relations with the plaintiff, and the power thereby acquired and maintained by it over the plaintiff, to promote its own schemes and enterprises, the two parties are not in pari delicto, whatever meaning be given to the word delictum.'

The fact that a transaction is against public policy in law will not prevent a remedy against one party, who is guilty of fraud by means of his persuasive or other influence over the other party, in favor of the latter, who is not consciously wrong, but who is actually deceived by the fraud and misrepresentations of the former party."

When an innocent member of a firm established for the conduct of lawful and moral business calls upon his partner for a share of profits made in partnership transactions, the partner will not be absolved from the duty of dividing, on showing that he realized the profits by cheating the customers of the firm.'

A railroad company which continues to operate a rival and competing line under a prior contract, after the passage of a statute prohibiting such contracts and making the company which operates a rival line subject to penalty, although such continuation was illegal, cannot retain the money acquired by such operation when called upon by the owner of the road for an accounting, but the latter, not being in pari delicto, is entitled to an equitable share of the earnings.*

The plea of ultra vires should not prevail, whether interposed for or against a corporation, when it would not advance justice, but would perpetrate a wrong.*

'Smith v. Cuff, 6 Maule & 8. 165; Smith v. Bromley, 2 Doug. 296, note; White v. Franklin Bank, 22 Pick. 181; Worcester v. Eaton, 11 Mass. 368; Schermerhorn v. Talman, 14 N. Y. 93; Tracy v. Talmage, 14 N. Y. 162; Jacques v. Golightly, 2 W. Bl. 1073; Browning v. Morris, Cowp. 790; Wiliams v. Hedley, 8 East, 378; Ford v. Harrington, 16 N. Y. 285; Osborne v. Williams, 18 Ves. Jr. 379; Harrington v. Grant, 54 Vt. 236.

Hess v. Culver, 6 L. R. A. 498, 77 Mich. 598.

Pennington v. Todd (N. J.) 11 L. R. A. 589.

Manchester & L. R. Co. v. Concord R. Co. (N. H.) 9 L. R. A. 689, 3 Inters. Com. Rep. 319.

'Chicago & A. R. Co. v. Derkes, 1 West. Rep. 555, 103 Ind. 520; Whitney Arms Co. v. Barlow, 63 N. Y. 62.