The rule that courts will respect the purpose of legislation, in the enforcement or refusal to give relief in matters of contract, where legislative action has been had on the subject matter of the contract, is illustrated in the decisions of the courts under the homestead laws of the United States. The homestead is a gift from the government to the homesteader, conditioned upon his occupation for five years and upon his making no disposition or alienation during such term; the affidavit of non-alienation is as clear an expression of the legislative intent as a direct prohibition; the whole policy of government in this respect would be thwarted if the homesteader were permitted to alienate prior to the expiration of the five years. A successful alienation could be accomplished only by perjury, and an attempted alienation would only offer a constant inducement to the homesteader to abandon his occupation, and thus deprive the purchaser of any possibility of acquiring title to the land; a contract whose consummation necessarily rests on perjury is illegal; both purchaser and vendor are parties to the wrong, and courts refuse to enforce such a contract, not from any regard to the vendor, but from motives of public policy; and courts of equity have always exercised a discretion in enforcing the specific performance of contracts to convey, and it would be strange indeed if a court of equity lent its aid to enforce the performance of a contract founded upon perjury and entered into in defiance of a clearly expressed will of the government. Whether the contract be absolutely void or not, it is so clearly against the will and policy of the government, and so necessarily resting upon perjury, that a court of equity will have nothing to do with it.' Similar views were expressed by the Supreme Court of Nebraska in the case of Dawson v. Merrille, 2 Neb. 119, in which it was held that "the policy of the Act of Congress granting homesteads on the public lands, as disclosed by its requirement of affidavit and other provisions, is adverse to the right of a party availing himself of it to convey, or agree to convey the land, before he receives the patent therefor;" and that "the court will not lend its aid to the enforcement of a contract which is against public 1 Anderson v. Corkins, 135 U. S. 483, 34 L. ed. 272; Mellison v. Allen, 30 Kan. 382-384. policy." And the judgment of the trial court, denying specific performance of a contract for the sale of lands, made by the homesteader before he had acquired the legal title to the premises, was affirmed.' An agreement between a person since deceased and others, for the purpose of locating as mineral land a tract larger than they were entitled to under U. S. Rev. Stat. § 2331, the names of others being used who subsequently conveyed to the parties to the agreement without consideration, is void and cannot be the basis of any relief.' When conditions are presented by statute for the management of any particular business or profession, and such conditions are not observed, agreements made in the course of such business or profession are void if it appears by the context that the object of the legislature in imposing the conditions was the maintenance of public order or safety, or the protection of the persons dealing with those on whom the condition is imposed." A contract in violation of the statute imposing a penalty for the sale of goods by unsealed scales or measure is void.‘ A judgment obtained for services in hulling clover will be reversed where the evidence shows that the plaintiff refused to comply with the statute in regard to the protection of tumbling rods." But if no specific penalty is affixed by the statute to the particular transaction and the context shows that while the statute does not in terms declare the transaction void, the condition was simply imposed for administrative purposes, that is, to aid in the collection of the revenue or like result, the effect of the statute will not 1Oaks v. Heaton, 44 Iowa, 116; Nichols v. Council, 51 Ark. 26. Mitchell v. Cline, 84 Cal. 409. Miller v. Post, 1 Allen, 434; Smith v. Arnold, 106 Mass. 269; Prescott v. Battersby, 119 Mass. 285; Woods v. Armstrong, 54 Ala. 150; Buxton v. Hamblen, 32 Me. 448; Dolson v. Hope, 7 Kan. 161; Lewis v. Welch, 14 N. H. 294; Taylor v. Crowland Gas Co. 10 Exch. 293; Johnson v. Hulings, 103 Pa. 498; Solomon v. Dreschler, 4 Minn. 278; Hamilton v. Grainger, 5 Hurlst. & N. 40; Griffith v. Wells, 3 Denio, 226. Bisbee v. McAllen, 39 Minn. 143. Hill v. Bell, 29 Ill. App. 136. Niemeyer v. Wright, 75 Va. 239; Aiken v. Blaisdell, 41 Vt. 655; Mandlebaum v. Gregovich, 17 Nev. 87; Larned v. Andrews, 106 Mass. 435; Pangborn v. Westlake, 36 Iowa, 546; Ruckman v. Bergholz, 37 N. J. L. 437; Lindsey v. Rutherford, 17 B. Mon. 245. be to avoid the act.' Before the rule can be applied in any case of a statute prohibiting or enjoining things to be done, with a prohibition and a penalty or a penalty, only for doing a thing which it forbids, the statute must be examined as a whole to find out whether or not the makers of it meant that a contract in contravention of it should be void, or that it was not to be so. If the statute, although it forbids a contract, declares it shall not be void if made, the court must give it effect.' b. Penalty for Performing Marriage Ceremony. Where a statute imposes a penalty on an officer for solemnizing a marriage under certain circumstances, but does not declare the marriage void, the marriage is valid, but the penalty attaches to the officer who did the prohibited act. 4 c. Usury Laws.-Where a bank is limited by its charter to a specified rate of interest, but no penal consequence is denounced for taking more, it has been held that a contract for more is not wholly void. ' Where usurious contracts are forbidden under a penalty of forfeiture of three times the interest taken, the act of making such a contract is illegal, but to hold the contract wholly void would be to add another penalty to that imposed. d. Internal Revenue Laws.-That a wholesale dealer failed to comply with the provision of the internal revenue laws of the United States prohibiting any person from carrying on the business of wholesale dealers in merchandise until they had paid the special tax, did not invalidate the sales made by him or prevent his recovery for the goods sold. e. Excessive Loans by Banks or Insurance Companies.Where officers of a savings bank or insurance company invest money in a manner forbidden by statute, or loan money in contra 1Harris v. Runnels, 53 U. S. 12 How. 79, 84, 13 L. ed. 901, 903; Pratt v. Short, 79 N. Y. 437; Smith v. Lindo, 14 C. B. N. S. 395; Smith v. Mawhood, 14 Mees. & W. 452. McMahon v. Boden, 39 Conn. 316; Lewis v. Bright, 4 El. & Bl. 917; Vining v. Bricker, 14 Ohio St. 331. 3 Rex v. Birmingham, 8 Barn. & C. 29; State v. Walker, 36 Kan. 297; Parton v. Hervey, 1 Gray, 119; Milford v. Worcester, 7 Mass. 48. ▲ Planters Bank v. Sharp, 4 Smedes & M. 75; Grand Gulf Bank v. Archer, 8 Smedes & M. 151; Rock River Bank v. Sherwood, 10 Wis. 230. Merrill v. McIntire, 13 Gray, 157. • Aiken v. Blaisdell, 41 Vt. 655; Larned v. Andrews, 106 Mass. 435. 1 vention of the statute, such illegal action does not render the investment worthless. The requirement that a national bank shall limit its loans to any one person, firm or corporation to one tenth part of its paid capital and forbidding the taking of real estate as collateral security for original debts, does not render securities taken in violation of this statute void." A loan of school funds upon personal security, in a larger amount than is prescribed by statute, will not render void a note given therefor.❜ f. Offering Unbranded Goods. So it has been held that a statute declaring that all shingles offered for sale without being surveyed and marked shall be forfeited to the use of the town where offered, did not invalidate an actual sale of shingles not so surveyed or marked. So a statute which punished an "offer" to sell unbranded hay, did not render a sale of such hay invalid." 6 g. Unlicensed Peddler, Commercial Fertilizers.-Sales by a peddler were not made illegal by reason of a penalty imposed upon him for his failure to take out a license. Where statutes required of sellers of commercial manures the observance of certain conditions, under penalty, but did not declare contracts for sale void for non-observance, it was held the non-complying seller might recover upon the contract. ' An action to recover for services rendered with a threshingmachine is not defeated by the Illinois statute by the fact that the tumbling rods and boxes of the machine were not boxed, unless the machine was run by horse-power." 1 Holden v. Upton, 134 Mass. 180: Bowditch v. New England Mut. L. Ins. Co. 2 New Eng. Rep. 238, 141 Mass. 292; Lester v. Howard Bank, 33 Md. 558. National Bank of Genesee v. Whitney, 103 U. S. 99, 26 L. ed. 443; Union Nat. Bank of St. Louis v. Matthews, 98 U. S. 621, 25 L. ed. 188; Fleekner v. Bank of United States, 11 U. S. 8 Wheat. 338-358, 5 L. ed. 631-636; Reynolds v. Crawfordsville First Nat. Bank, 112 U. S. 405, 28 L. ed. 733; Union Gold Min. Co. v. Rocky Mountain Nat. Bank, 96 U. S. 640, 24 L. ed. 648; Swope v. Liffingwell, 105 U. S. 3, 26 L. ed. 939. Edwards v. Trustees of Schools, 30 Ill. App. 528. • Williams v. Tappan, 23 N. H. 385. ' Brackett v. Hoyt, 29 N. H. 264. • Jones v. Berry, 33 N. H. 209. "Niemeyer v. Wright, 75 Va. 239, 40 Am. Rep. 720. See Larned v. Andrews, 106 Mass. 435; Smith v. Mawhood, 14 Mees. & W. 452. Heustis v. Kennedy, 28 Ill. App. 42. CHAPTER III. MALUM IN SE AND MALUM PROHIBITUM-FOREIGN STATUTE. § 9. Rule Declaring Contracts Concerning Matter" Malum in Se. and Malum Prohibitum" Void, Applies when. 10. The Local Policy or Statute Determines the Question of Enforcement of Foreign Contracts-State Comity. 11. Enforcement of Foreign Assignments for the Benefit of Credi tors. 12. Questions of Commercial Law, Rule in United States Supreme Court. 9. Rule Declaring Contracts Concerning Matter "Malum in Se and Malum Prohibitum" Void, Applies when.-The rule that a contract made for the purpose of furthering any matter or thing prohibited by the statute, or to aid or assist any party therein, is void, applies to every contract founded on a transaction malum in se, or which is prohibited by statute on the ground of public policy.' Illegal contracts are not such only as stipulate for something that is unlawful, but where the intention of one of the parties is to enable the other to violate the law, it is corrupted by such illegal intention and is void." The distinction between malum in se and malum prohibitum has long since been exploded, and as "there can be no civil right where there can be no legal remedy, and there can be no legal remedy for that which is itself illegal," it is clear that contracts in direct violation of statutes expressly forbidding their execution cannot be enforced.* 3 "The rule of law," said Parker, Ch. J. in Russell v. De Grand, 'Gardner v. Tatum, 81 Cal. 370. Tatum v. Kelley, 25 Ark. 211; Branch Bank v. Crocheron, 5 Ala. 250; |