difficult to see how the act of the agent in obtaining the orders is not inseparably connected with the illegal contract of sale.

Illegal Restrictions upon Agent, No Defense.-The fact that restrictions imposed upon agents for the sale of goods are in restraint of trade will not give the agent the right to retain money in his hands, which he has collected as the agent of the owner of the goods, and which belongs to the latter: Alvord v. Latham, 31 Barb. 294.

Surety. If the principal in a bond given for an illegal consideration deliver the money due upon it to his surety, to be paid to the payee, and he agrees to pay it over, this is a new contract and undertaking on his part, and though a party to the original contract, he is as much bound to pay the money as a stranger to the illegal contract would have been: Barker v. Parker, 23 Ark. 39.

Municipal Officers. - A town treasurer who receives the proceeds of taxes raised under an illegal vote cannot retain the money, but must pay it over to the town: Holderness v. Baker, 44 N. H. 414; Johnson v. Goodridge, 15 Me. 29 (tax-collector); Evans v. City of Trenton, 24 N. J. L. 764, 773; see State v. Phares, 24 W. Va. 657; Mayor v. Draper, 23 Barb. 425.

MONEY COLLECTED CANNOT BE RECOVERED WHERE PERSON COLLECTING IT WAS PRIVY to or participated in the illegal contract, or where the contract of agency subsisting between the plaintiff and defendant is an illegal or immoral one, for in this case the cause of action cannot be made out without the aid of an illegal contract; and the parties being in pari delicto, the court will not lend its aid to either: Daniels v. Barney, 22 Ind. 207, 213; Root v. Stevenson, 24 Id. 115; Comstock v. Draper, 1 Mich. 481; S. C., 53 Am. Dec. 78; Howell v. Fountain, 3 Ga. 176; S. C., 46 Am. Dec. 415; Thalimer v. Brinckerhoff, 20 Johns. 386-397; Fales v. Mayberry, 2 Gall. 563, 564; Mabin v. Coulon, 4 Dall. 298. "The sentiment of 'honor among thieves' cannot be enforced in courts of justice": Per Church, C. J., in Woodworth v. Bennett, 43 N. Y. 277. And an agent “may insist, as a matter of defense, that the subject-matter of the agency is an illegal or an immoral transaction, or is founded in fraud, or against public policy; in all which cases the principal will not be allowed to maintain any suit for redress of any sort against the agent touching that transaction": Story on Agency, sec. 235.

Partnership-Slaves. Thus where a joint agreement or contract of partnership is illegal, and money is paid to one of the associates upon an illegal contract, a fellow-associate cannot recover his share of the money, because, in order to do so, he must rely upon the illegal contract of partnership: Woodworth v. Bennett, 43 N. Y. 273. Therefore no action can be maintained against a master and part owner of a ship engaged in the slave trade, by his partners in the joint concern; nor against an agent, who is party to the original illegal traffic, and has the proceeds in his hands. And if the ship be sold in a foreign port to evade a forfeiture incurred to the United States, no action will lie for the proceeds: Fales v. Mayberry, 2 Gall. 560; seo Maybin v. Coulon, 4 Dall. 298. A and B entered into a partnership with C, who was an assistant-quartermaster of the United States, by which they were to furnish forage for the use of the army, which was to be purchased of the firm, and inspected and received by C, as such quartermaster. At a settlement of the business, B, in whose hands all the profits were, paid over to C A's share, to be delivered by him to A. A sued C for the money, alleging a conversion, and it was held that the contract, being against public policy, was void, and that A could not maintain his action: Root v. Stevenson, 24 Ind. 115. So where the attorney of a water-works company, and a member of its local

AM. DEC. VOL. XCIX-5

board, having power to make contracts, agreed with a contractor, without the knowledge of the company, to share with him the profits of a contract, he could not recover from the contractor: Green v. Corriyan, 87 Mo. 359. But if the partnership is not in itself illegal, and a partnership contract confessedly against public policy has been carried out, and money contributed by one of the partners has passed into other forms, and become the "results" of the completed operation, a partner, in whose hands the profits are, cannot refuse to account for and divide them on the ground of the illegal character of the original contract: Brooks v. Martin, 2 Wall. 70. A person who sells slaves for another, contrary to law, cannot be compelled to account: Wooten v. Miller, 7 Smedes & M. 380.

Smuggled Goods. — So the proceeds of goods put into the hands of an agent, to be smuggled and sold, are not recoverable from the agent: Edgar v. Fowler, 3 East, 222; Story on Agency, sec. 235.

Contracts with Alien Enemies. - Where A employed B to buy up cotton for him in the South, and gave him money to buy it, A being a unionist and B a confederate, A could not maintain a bill against B for an accounting: Overby v. Overby, 21 La. Ann. 493; Juillard v. Royay, 21 Id. 259; Cousin v. Abat, 21 Id. 705; Campbell v. Anderson, 2 Dav. 384; contra, Gilliam v. Brown, 43 Miss. 642 (refusal to pay over money obtained from trading with alien enemies). And so where a master of a ship was given a cargo to dispose of in South America, and his vessel was sailing with a British license on board, though war was then prevailing between England and this country, he was not liable for the proceeds accruing upon a sale of the cargo; though the result would have been different if the principal had not known that the license was on board: Chappell v. Wysham, 4 Hayes & J. 560.

Lottery Tickets. - No action will lie against an agent for the sale of lottery tickets to recover the proceeds thereof, where the sale of lottery tickets is unlawful; for the agent is a participant in the unlawful act, and the plaintiff must rely upon the illegal contract of agency: The principal case; Hunt v. Knickerbocker, 5 Johns. 326; Rolfe v. Delmar, 7 Rob. (N. Y.) 80; Udall v. Metcalf, 5 N. H. 396; see Roby v. West, 4 Id. 285; Phalen v. Clark, 19 Conn. 421; S. C., 50 Am. Dec. 253. So a contract of purchase of a lottery ticket, the sale of which was prohibited by law, cannot be enforced by action. Nor will the purchaser be entitled to recover in an action for money had and received upon proof that the seller of the ticket received the amount of the prize-money drawn by the ticket: Eberman v. Reitzel, 1 Watts & S. 181. If, however, the obligation to pay over the proceeds of the sale of lottery tickets can be separated from the illegal contract to sell them, as in the principal case, where one agent received from another agent the proceeds of the latter's sales, an action will lie.

Liquor. Where the plaintiff and his book-keeper shared the gains from illegal sales of whisky, the fact that the book-keeper was the more immediate participant in the fraud will not enable his principal to sue for his own share of the illicit gains: Curran v. Downs, 7 Mo. App. 329.

Sale of Stolen Bond.— Where A places a bond in the hands of B, for sale or collection, both understanding that it had been stolen from the owner, and B sells it, and refuses to pay over the proceeds, A cannot recover them from him: Kirk v. Morrow, 6 Heisk. 445. But see Pointer v. Smith, 7 Id. 137.

AGENTS OF UNLAWFUL CORPORATIONS, ETC.- An agent who does business for a foreign insurance company, when neither he nor the company have complied with the statutory requirement regarding foreign companies, is not liable to account to the company: Thorne v. Travellers' Ins. Co., 80 Pa. St. 15.

But see contra, Berkshire v. Evans, 4 Leigh, 223, which was an action by an unincorporated bank, doing business contrary to law, against a defaulting agent; and Norton v. Blinn, 39 Ohio St. 145 (action to recover profits from dealing in options). See also Newbold v. Sims, 2 Serg. & R. 317. So insurance brokers who act in behalf of two persons, who are jointly issuing risks in the name of one of them alone, contrary to the provisions of a statute which prohibits two or more individuals to engage in the insurance business jointly, are not liable for premiums received on policies effected by them: Booth v. Hodgson, 6 Term Rep. 405. And so where a banker filed a bill against his trustee, for an account of some shares in a mercantile establishment owned by the plaintiff, his bill was dismissed, on the ground that the statute prohibited a banker from engaging or being interested in trading: Ottley v. Browne, 1 Ball & B. 360; see Joy v. Cambell, 1 Schoales & L. 328, 339.

Marriage Licenses.— Where an ordinary issues marriage licenses in blank, to a person who is unauthorized to dispose of them, or to determine the rights of parties to receive them, his action is illegal, and he cannot recover the amounts received by such person for licenses so disposed of by him under a contract express or implied: Brewer v. Kingsberry, 69 Ga. 754.

Contrary Decisions. — In a matter of the kind under discussion, where a consistent adherence to the law is at times productive of apparent injustice, since it may be said that an innocent defendant cannot set up the illegality of the contract under which the money was received, while a guilty defendant, who has participated in the illegal act, may avail himself of the defense, we should expect to meet with some conflict of authority. These cases are, however, fewer in number than might reasonably be expected, and in view of the great majority which maintain the distinction above shown, they cannot be considered as authoritative. These cases take the ground that, as against his principal, an agent cannot set up the illegality of his agency. Thus in Pointer v. Smith, 7 Heisk. 137, it was held that a confederate, employed by a unionist during the war to let slaves in the South, was liable in an ac tion for the proceeds of his contracts of hiring. Gilliam v. Brown, 43 Miss. 642, is to a like effect. And see also Baldwin v. Porter, 46 Vt. 402; Lestapies v. Ingraham, 5 Penr. & W. 71; Mayor v. Draper, 23 Barb. 425. In Snell v. Pells, 113 l. 145, it is held, rather abruptly, and without due regard to authority, that an agent who has received money of his principal upon a contract which he procured to be executed cannot defend upon the illegality of the contract, if the contract is merely contrary to public policy, and there is nothing immoral or criminal in it. The contract in question consisted of subscriptions obtained by the director of a railroad, acting as agent for the contractors, from interested parties, for the purpose of having a station located at a certain town on the line of the road. The court also contended that the contract was valid, but placed its decision upon the ground above stated. The distinction is supported, however, neither by reason nor authority. It should be added that two members of the court, justices Walker and Scott, did not concur "either in the reasoning or conclusion in this case,” and that Justice Mulkey was not present.

In conclusion, it may be not improper to reiterate what has already been indicated above, that it is mere sentiment, and not real justice, that will consider the rights of two parties who are both participants in an illegal contract. "Honor among thieves" is a sentiment partaking much of idealism; and material courts will not assist "thieves" by enforcing any of their alleged rights against each other. It is true, as Lord Mansfield has said, that the

defense of illegality always sounds ill in the mouth of the defendant; but it is not with the demeanor of any particular defendant that a court of justice is concerned, but with a wise principle of jurisprudence which discountenances illegal contracts by refusing to enforce them, or to rescind them after they are executed.

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CITATION OF PRINCIPAL CASE. — In Hardy v. Stonebraker, 31 Wis. 647, it was held, citing the principal case, that an agreement between A and B, that if B will procure a purchaser of certain land belonging to A, at the price of eight thousand dollars, A will pay B three thousand dollars thereof, was not illegal and void; and after such purchase by C, and payment of the money to A, the latter could not be heard to deny his liability to B for the three thousand dollars (C not seeking any relief against the transaction), on the ground that B effected the sale by fraudulently concealing from C the fact that he was acting as A's agent in the negotiation, and fraudulently advising C as a friend that the property was well worth eight thousand dollars, and could not be obtained for less, while in fact A was willing to part with it for five thousand dollars.

MECKLEM V. BLAKE.

[22 WISCONSIN, 495.]

COVENANT OF SEISIN IS COVENANT OF INDEMNITY AGAINST ACTUAL DAMAGE arising from want of lawful title; and it runs with the land until such damage has actually arisen to the party holding possession under the deed.

GRANTEE CAN RECOVER FOR BREACH OF COVENANT OF SEISIN NO MORE THAN NOMINAL DAMAGES, if at all, where there has been no eviction or other actual injury.

GRANTEE DESIRING TO RESCIND FOR WANT OF TITLE AND TO RECOVER PURCHASE-MONEY paid, and interest, must first tender his grantor a reconveyance and the possession.

STATUTE PROVIDING THAT TEN YEARS' ADVERSE POSSESSION UNDER TAX DEED shall bar title of original owner applies to such possession commencing before the passage of the statute, if a reasonable portion of the term remained after its passage in which he might have commenced sait; otherwise the former limitation of twenty years applies.

Judgment for DEFENDANT WILL NOT BE REVERSED where plaintiff would be entitled to no more than nominal damages.

ACTION for breach of covenants of seisin and against encumbrances. The opinion states the case.

Hugh Cunning, for the appellant.

A. M. Blair, for the respondent.

By Court, DIXON, C. J. This case presents the vexed question of the measure of damages in an action for a breach of the covenant of seisin, where the covenantee has entered and held possession of the land under the deed without ouster or eviction by paramount title, and without having sustained

any real injury in consequence of the alleged breach. In this country there is an irreconcilable conflict of decisions upon the question. In some, perhaps most, of the states, no distinction is taken between a nominal and a substantial breach of the covenant, - a breach by which the covenantee sustains no injury, and one where he is actually injured; and it is held that the covenant is broken as soon as made, and becomes at once a chose in action, not assignable at common law, and not passing by descent or conveyance of the land; and that on such merely nominal breach, the covenantee, though still possessed of the land, may sue for and recover back the purchasemoney paid, and interest upon the same for such length of time as he himself may be liable for the use and occupation of the premises to the rightful owner. Several decisions to this effect are cited by Judge Downer in his opinion in Noonan v. Ilsley, 21 Wis. 138, and others may be found in the note to Spencer's Case, 1 Smith's Lead. Cas. 164, 165. This doctrine has been carried so far as to hold that full damages may be recovered on a covenant for seisin or against encumbrances, even when the land has been conveyed by the covenantee before action brought without warranting the title, and for as much or even more than he originally gave: Davis v. Lyman, 6 Conn. 249; Cornell v. Jackson, 3 Cush. 509; Bickford v. Page, 2 Mass. 455; Bennett v. Irwin, 3 Johns. 363. On the other hand, the English courts, and with them the courts of several of the states, make a distinction between a mere formal breach, from which no real damage results, and a final or complete breach, by which the possession of the land is lost, or other actual injury ensues. These courts hold that where the covenantor is in possession, claiming title, and delivers the possession to the covenantee, the covenant of seisin is not a mere present engagement, made for the sole benefit of a covenantee, but that it is a covenant of indemnity entered into in respect of the land conveyed and intended for the security of all subsequent grantees, until the covenant is finally and completely broken; and they consequently hold that no such right of action accrues to the covenantee on the mere nominal breach, which always happens the moment the covenant is executed, as is sufficient to merge or arrest the covenant in the hands of the covenantee, or to deprive it of the capacity of running with the land for the benefit of the person holding under the deed when an eviction takes place, or other real injury is actually sustained. The possession of the land, or seisin in fact, under