tor; (k) but he may, if the factor sell the goods as his own, with a right to do so, and the buyer does not know that they are not his own. (1) But he cannot set off a debt due to him from the principal, if the factor has a lien on the goods, even if the principal be mentioned at the sale. (m) And if, before they are delivered, or any payment made, the buyer is notified that they belong to a third person, he cannot set off against an action by that person, a debt due to him from the factor. (n) A broker, being one to whom goods are not intrusted, and who usually and properly sells in the name of his principal, and who is understood to be only an agent, whether he sells in his own name or not, stands only on the footing. of an agent. (0) And if an action be brought by an agent in his own name, for a debt due to his principal, the defendant may set off a debt due from such principal. (p) In general, if an agent be permitted by his (k) Browne v. Robinson, 2 Caines' Cas. 341; Gordon v. Church, 2 Caines' 299; Fish Kempton, 7 C. B. 687; Jarvis v. Chapple, 2 Chitty, 387. (1) Carre Hinchliff, 4 B. & C. 547; Stracey v. Deey, 7 T. R. 361, note; Purchell. Salter, Q. B. 197. And see George Clagett, 7 T. R. 359; Rabone v. Williams, id. 360, note; Pigeon v. Osborn, 12 A. & E. 715; Parker v. Donaldson, 2 Watts & S. 9; Gardner v. Allen, 6 Ala. 187, Sims v. Bond, 5 B. & Ad. 389; Waring v. Favenck, 1 Camp. 85; Westwood& Bell, Holt, N. P. 124. See also chapter on Agency. (m) Hudson v. Granger, 5 B. & Ald. 27, Drinkwater v. Goodwin, Cowp. 251 But if the factor has parted with the goods and lost his lien, the purchaser may set off his debt against the principal. Coppin v. Craig, 7 Taunt. 243; Coppin v. Walker, id. 237. (n) 1 Harrison & Edwards, N. P. 356, Barbour on Set-off, 136; Rabone v. Williains, 8 T. R. 360, n. (0) Wilson v. Codman, 3 Cranch, 193; Atkinson v. Teasdale, 1 Bay, 299; Godfrey v. Forrest, id. 300. That (p) Royce v. Barnes, 11 Met. 276. This doctrine, however, is repudiated by the late English case of Isberg v. Bowden, 8 Exch. 852, 22 Eng L. & Eq. 551. was an action for freight due under a char ter-party. Plea, that the plaintiff entered into the charter-party as master of the ship, and for, and on behalf of, and as agent for M. the owner; that the plaintiff never had any beneficial interest in the charter, or any lien on the freight, and that he brought the action solely as agent and trustee for M., and that M was indebted to the defendant in a certain amount, which the defendant offered to set off. Held, on demurrer, that the statute of set-off did not apply. Martin, B., in delivering the judgment of the court, said "It was contended, on behalf of the plaintiff, in support of the demurrer, that the plea was bad at common law, and could only be supported by virtue of the statute of set-off, and that inasmuch as the plaintiff in the action was not the 1 And although the agent agreed with the principal not to sell in his own name. Er parte Dixon, 4 Ch. D. 133. So where the principal consented to a sale in the agent's name. Borries Imperial Ottoman Bank, L. R. 9 Ĉ. P. 38. But not if the action is for unliquidated damages for not accepting goods "to arrive." Turner v Thomas, L. R. 6 C. P. 610. It is not necessary for the buyer to aver that he had "no means of knowing" that the goods did not belong to the agent. Borries v. Imperial Ottoman Bank, L. R. 9 C. P. 38. But a buyer acting under a misapprehension, not brought about by the principal, that the agent owned the goods, cannot set off a claim against the agent. Brown v. Morris, 83 N. C. 251. If an agent is known to act as such and as principal, and the buyer neglects, in the particular transaction, to find out in what character he made the sale, the buyer will have no right of set-off, where he purchased merely to avail himself of such right as against a solvent principal. Miller v. Lea, 35 Md. 396. See Stewart v. Woodward, 50 Vt. 78. — K. VOL. II. 55 865 * 744 principal to act as if he were the principal and not an agent, one dealing with him, and supposing him to be a *745 principal, * acquires the same rights, and among these the right of set-off, which he would have if the agent were a principal; nor can he be subsequently deprived of these rights debtor to the defendant, the case was not within the statute. It was admitted, on the other hand, that the plea was bad at common law; but contended that the statute had received a construction, in several cases which were cited, and to which we shall presently refer, and that upon such construction the plea could be maintained. The statute enacts, 'that where there are mutual debts between the plaintiff and the defendant, one debt may be set against the other.' This is the whole enactment as applicable to the present case, and upon its true construction the question depends. If the words of the statute had been, that where there were mutual debts the one might be set against the other' the argument for the defendant would have had more weight; but these are not the only words, for the debts are to be mutual debts between the plaintiff and the defendant, and there is no debt here due from the plaintiff at all: and except the words 'between the plaintiff and the defendant' can be excluded, the plea cannot be maintained. In support of his view, the defendant's counsel cited the case of Coppin v. Craig, where a plea, in substance the same as the present, was pleaded. The plea was not demurred to, and its validity or non-valid ity in point of law seems never to have been considered at all, and the matter decided by the court was quite collateral to the present question; so also a case of Jarvis". Chapple, where a similar plea was pleaded, was also relied on. This was an action by an auctioneer, for goods sold and delivered, and the defendant pleaded that the plaintiff sold as agent for one Tappinger, who was indebted to the defendant, which debt was pleaded as a set-off. The plaintiff replied, that the goods were not the goods of Tappinger, and were not sold by the plaintiff as his agent, upon which issue was joined. The plaintiff was nonsuited at the trial, and the application to the court was to set aside this nonsuit. It is at once, therefore, obvious, that the present ques tion could not, by possibility, have arisen under such circumstances. The case of Carr v. Hinchliff, and several other cases decided on the same principle, were also cited. It is quite true that there are expressions in the judgment of the learned judges in that case which seem to sup port the argument for the defendant; but the real ground upon which that and the other cases decided on the same point proceeded is, that where a principal permits an agent to sell as apparent principal, and afterwards intervenes, the buyer is entitled to be placed in the same situation at the time of the disclosure of the real principal, as if the agent had been the real contracting party, and is entitled to the same defence, whether it be by common law or by statute, payment or set-off, as he was entitled to at that time against the agent, the apparent principal. The cases of Carr v. Hinchliff, George v. Clagett, 7 T. R. 359, and Rabone r. Williams, id. 360, n., are all explained on that principle in Tucker . Tucker. By this case, and that of Wake v. Tinkler, and Lane v. Chandler, referred to in 7 East, 154, the cases of Bottomley v. Brooke, and Rudge v. Birch, must be considered as entirely overruled; and the case of Tucker v. Tucker goes far to show that the statute of set-off is confined to the legal debts between the parties, the sole object of the statute being to prevent cross-actions between the same parties. The case of Stackwood v. Dunn was cited on behalf of the defendant. It is enough to say, that this case goes much beyond that. In that case it seems to have been ruled, that the demurrer having confessed the truth of the pleas, the set-off was to be allowed between the parties. The cases cited in Story on Agency, p. 361, § 409, as the authority for what is there said, are those already adverted to from 7 Taunton, 237 and 243, and shown not to support the general proposition. In this case the plaintiff was the party whom the defendant agreed to pay; and we think that, looking at the plain words of the statute, we best give effect to the true rule now adopted by all the courts at Westminster for its construction, by holding, that inasmuch as the debts are not mutual debts between the plaintiff and the defendant, the one cannot be set off against the other. This is acting upon the rule as to giving effect to all the words of the statute; a rule universally applicable to all writings, and which we think ought not to be departed from except upon very clear and strong grounds, which do not, in our opinion, exist in this case." by the coming in of a third party who was a stranger to him in the original transaction. When an action is brought by or against a trustee, in that capacity, money due to or from the cestui que trust may be set off; for it will be considered that the party in interest, and not merely the party of record, is the one by whom or against whom the set-off should be made. (9) Set-off, it has been said, is in the nature of a cross-action, which may be for a larger amount than was due on the original action. If, therefore, the defendant files and sustains his set-off, and the result is not only that he owes the plaintiff nothing, but that the plaintiff owes him a balance when the mutual and opposing claims are adjusted, the defendant may have judgment and execution against the plaintiff, in that action, for the balance or surplus due to him. (r) Of the notice of set-off, which must depend much on the several statutes and the rules of court, it is only necessary * to say, that it must be very precise and certain. For * 746 set-off is in effect, as has been often said, in the nature of a cross-action, of which the notice takes the place and performs the office of the declaration, and it should be in fact and substance, if not in form, as full and as clear and definite as a declaration, in order that the plaintiff may have the same oppor (q) Campbell v. Hamilton, 4 Wash. C. C. 92; Sheldon v. Kendall, 7 Cush. 217. See Barrett v. Barrett, 8 Pick. 342. But see Wheeler v. Raymond, 5 Cowen, 231, 9 Cowen, 295; Beale v. Coon, 2 Watts, 183; Porter v. Morris, 2 Harring. (Del) 509; President, &c. v. Ogle, Wright, 281; Tucker v. Tucker, 4 B. & Ad. 745. In this case S. gave a bond, conditioned for the payment of money. The obligee made C. his executrix and residuary legatee, and died. C. proved the will, assented to the bequest, and died, not having fully administered, leaving E. executrix of the executrix C., in trust for her (E.'s) own benefit. A sum due on the bond in the first testator's time remained unpaid. C., during her lifetime, in consideration of a marriage about to take place between her and the father of S., gave a bond to a trustee, conditioned for a payment of a sum of money to the use of S., if C. should marry and survive her intended husband. She did marry and survive him, and the money not having been paid in her lifetime, the trustee's executor sued E., the executrix of C., upon the bond. Held, that in this action the claim of E. upon S.'s bond could not be set off. See Isberg v. Bowden, ante, and the remarks of Martin, B. In Hurlbert v. Pacific Ins. Co. 2 Sumner, 471, where the subject was fully discussed, it was decided, that where an insurance was effected by an agent, for the benefit of whom it concerned, and the agent brought an action in his own name, the insurance company could not set off a debt due them from the agent in his own right. Williams v. Ocean Ins. Co. 2 Met. 303, is to the same effect. (r) In England this cannot be done, but the defendant must bring his action for the surplus. Hennell v. Fairlamb, 3 Esp. 104. But in America such a course is common. Good v. Good, 9 Watts, 567; Cowser v. Wade, 2 Brev. 291. And the plaintiff cannot file any counter set-off: Hall v. Cook, 1 Ala. 629; nor discontinue his action: Riley v. Carter, 3 Humph. 230. A defendant cannot file the same account in set-off to two separate actions by the same plaintiff. 15 N. H. 535. Chase v. Strain, tunity of knowing precisely what claim is made against him, that he would have if it were made by an original action. (s) A defendant has a right to withdraw his account in set-off, although this may expose the plaintiff's claim to the statute of limitations, by the absence of all other evidence of any mutual and open accounts. (t) A tort cannot be pleaded as set-off in an action for a tort. (tt) SECTION XI. OF ILLEGAL CONTRACTS. We have already spoken of illegal contracts, in connection with other subjects, and especially of an illegal consideration, in our first volume, and in a preceding section of this chapter. We would add here, that as all contracts which provide that anything shall be done which is distinctly prohibited by law, or morality, or public policy, are void; (u) so he who advances money in 304; Belding v Pitkin, 2 Caines, 149; Springfield Bank v. Merrick, 14 Mass. 322; Russell v. De Grand, 15 Mass. 39; Wheeler v. Russell, 17 Mass. 281; Allen v. Rescous, 2 Lev. 174; Fletcher v. Harcott, Hutton, 56; Holman v. Johnson, Cowp. 343; Gaslight Co. v. Turner, 7 Scott, 779; Wetherell v. Jones, 3 B. & Ad. 221; Fivaz v. Nicholls, 2 C. B. 501; Simp son v. Bloss, 7 Taunt. 246. The following contracts have been held illegal and unenforceable: An agreement to pay money to a person in the employ of another, to induce him to act contrary to his employer's interests, although the employer is not actually injured, Harrington ». Victoria Graving Dock Co. 3 Q. B. D. 549; a contract to insure a woman against the risk of her dying under or in consequence of an illegal operation for abortion, Hatch v. Mutual Life Ins. Co. 120 Mass. 550; an agreement not to bid or to influence any one else to bid for the service or labor of the inmates of a house of correction, even if the party letting the services sustains no injury by reason of the making of the agreement, Gibbs v. Smith, 115 Mass. 592; and an agreement by A. to give B., who was the lowest bidder at the public letting of the construction of a public road, a portion of certain public lands, to be received for the performance thereof, as the price of his being substituted for B. in such performance, is void as against public policy, Hannah e. Fife, 27 Mich. 172. O'Hara v. Carpenter, 23 Mich. 410, decided that a contract “to procure for "the plaintiff, who was liable to be drafted into military service, if drafted within a certain time, "a substitute, or otherwise clear him from said draft, and thus save him harmless from any cost or expense in consequence of the same," and a note given in consideration of such contract, are against public policy and void. A contract to influence a corporation exercising a public franchise to use its power improperly is void. Thus a contract by which a stockholder, director, or other person engages to endeavor to induce improperly a railroad corporation to locate a station in a particular place, or to run its line in a particular way, is void. Woodstock Iron Co. c. consideration of a promise or undertaking to do such a thing, may, at any time before it is done, rescind the contract, and prevent the thing from being done, and recover back his money. (v) But it would seem obvious that if he delays * rescinding until his rescission is inoperative, and the *747 thing will still be done, although the contract, at the time of the rescission, was in form executory, it should come under the same rule as an executed contract for unlawful purposes; and here the law, in general, refuses to interfere, but leaves both parties as they were; (w) unless the case shows that there is a sub (v) See Begbie v. Phosphate Sewage Co. L. R. 10 Q. B. 491; 1 Q. B. D. 679; Bredin's Appeal, 92 Pa. 241. Thus, in White. The Franklin Bank, 22 Pick. 181, where, upon the deposit of money in a bank, the depositor received a book containing the cashier's certificate thereof, in which it was stated that the money was to remain in deposit for a certain time, it was held, that such agreement was illegal and void, under the Revised Statutes, c. 36, § 57, as being a contract by the bank for the payment of money at a future day certain; and that no action could be maintained by the depositor against the bank upon such express contract; but that he might recover back the money in an action commenced before the expiration of the time for which it was to remain in deposit, the parties not being in pari delicto, and the action being in disaffirmance of the illegal contract; and that such action might be maintained without a previous demand. And the following cases were relied upon as showing that money advanced upon an illegal contract may be recovered back: Bartlett v. Vinor, Carth. 252; De Begnis v. Armistead, 10 Bing 110; Langton v. Hughes, 1 M. & S. 596; Gallini v. Laborie, 5 T. R. 242, Springfield Bank v. Merrick, 14 Mass. 322; Wheeler v. Russell, 17 Mass. 258; Lacaussade v. White, 7 T. R. 535; Cotton v. Thurland, 5 id. 405; Smith v. Bickmore, 4 Taunt. 474; Scott . Nesbit, 2 Cox, 183; Parker v. Rochester, 4 Johns. Ch. 330; Wheaton v. Hibbard, 20 Johns. 290; Fitzroy v. Gwillim, 1 T. R. 153; Robinson v. Bland, 2 Burr. 1077; Tenant v. Elliott, 1 B. & P. 3; Utica Ins. Co. v. Scott, 19 Johns. 1; Utica Ins. Co. v. Bloodgood, 4 Wend. 652; Utica Ins. Co. v. Kip, 8 Cowen, 20; Utica Ins. Co. v. Cadwell, 3 Wend. 296. (w) Foote v. Emerson, 10 Vt. 338; Dixon v. Olmstead, 9 Vt. 310; Pepper v. Richmond, &c. Co. 129 U. S. 648. And an agreement of a railroad company to locate or not to locate stations at particular points is also void. Mobile, &c. R. R. Co. v. People, 132 Ill. 559. No recovery can be had for services rendered in endeavoring to bring about illegal action by corporations, as for endeavoring to procure a consolidation of gas companies, where such consolidation was against the express policy of the law. Gibbs v. Consolidated Gas Co. 130 U. S. 396 Agreements by which influence is to be improperly exerted upon a corporation to secure the employment of a particular person at a fixed salary are void. West v. Camden, 135 U. S. 507; Guernsey v. Cook, 120 Mass. 501. So an agreement to secure the appointment of a certain person as administrator of an estate, and obtain sureties on his bond. Aycock v. Braun, 66 Tex. 201. An agreement not to set up a defence to any of the plaintiff's patents is void. Pope Mfg. Co. v. Gormully, 144 U. S. 238. 1 Thus, one who conveys his property to another for the purpose of defrauding his creditors, may, before the purpose is carried out, repudiate the transaction and recover the property from the latter or his assignee, who took it with notice of the fraud. Taylor v. Bowers, 1 Q. B. D. 291. See Symes v. Hughes, L. R. 9 Eq. 475. A payment of "margins" cannot be recovered back in case of a decrease in the price of goods, where the vendor and purchaser contemplated a merely gambling contract; nor can they be recovered to the extent of any loss, where both intended an actual sale; but if the purchaser alone acted in good faith, while the vendor received margins without obtaining goods for delivery, the purchaser can repudiate the contract and recover back the money advanced. Gregory v. Wendell, 39 Mich. 337. See Taylor v. Bowers, 1 Q. B. D. 291.- K. |