plaintiff's agent had denied the existence of a nuisance, of which he, the agent, was ignorant, but which the plaintiff himself knew of; for though this was a misstatement, it was no fraud. Cornfoot v. Fowke, 6 M. & W. 358. But, generally, the fraud of the agent, in the course of his principal's business, is the fraud of the principal. Per Parke, B., Murray v. Mann, 2 Exch. 538; Barwick v. English Joint Stock Bank, L. R., 2 Ex. 259, Ex. Ch.; Mackay v. Commercial Bank of New Brunswick, L. R., 5 P. C. 394; Swire v. Francis, 3 Ap. Ca. 106, P. C. See also W. Bank of Scotland v. Addie, L. R., 1 H. L. Sc. 145, and Central Ry. Co. of Venezuela v. Kisch, L. R., 2 H. L. 99. Any surreptitious dealing between one principal to a contract and the agent of the other principal is a fraud. Panama, &c. Telegraph Co. v. India Rubber, &c. Co., L. R., 10 Ch. 515. It seems that a fraudulent misrepresentation as to the effect of a deed may be relied on as a defence to an action on the deed. Hirschfeld v. L. Brighton & S. C. Ry. Co., 2 Q. B. D. 1. See National Provincial Bank of England v. Jackson, 33 Ch. D. 1, C. A.

Fraud in this defence means moral fraud, and not merely an innocent misrepresentation. Moens v. Heyworth, 10 M. & W. 147 (dissentiente, Ld. Abinger); Panama, &c. Mail Co. v. Kennedy, ante, p. 586. But it should be observed, that where a contract is based on a statement made by the plaintiff innocently, but which is in fact untrue, specific performance will not be ordered; New Brunswick & Canada Ry. Co. v. Muggeridge, 4 Drew. 686; 30 L. J., Ch. 242; and the defendant is entitled to have the contract set aside. Redgrave v. Hurd, 20 Ch. D. 1, C. A. See further cases cited ante, pp. 317 et seq. If the plaintiff has fraudulently represented a fact to be true of which he knows nothing, and which is untrue, it will be a defence. Evans v. Edmonds, 13 C. B. 777; 22 L. J., C. P. 211; S. C. per Maule, J.; Behn v. Burness, 3 B. & S. 751; 32 L. J., Q. B. 204, Ex. Ch. See also Mostyn v. W. Mostyn Coal & Iron Co., 1 C. P. D. 145. See further generally, Action for Deceit, post, pp. 847 et seq. In an action by a vendee of a term against vendor for not assigning, it is a defence that the defendant's term was not assignable except by consent of the lessor, who was willing to accept a respectable assignee, and that defendant was induced to make the agreement by the false and fraudulent representation of the plaintiff that one J. M., for whose benefit the purchase was made, was a respectable person, whereas he was not respectable. Canham v. Barry, 15 C. B. 597; 24 L. J., C. P. 100.

The fraud may consist in permitting a party to labour under error. Thus, where the defendant erroneously supposed that a picture had been in the possession of an eminent collector, and purchased it from the agent of the plaintiff, who was aware of the defendant's error, but did not undeceive him, Ld. Ellenborough held that the sale was void, the price being probably enhanced by the error. Hill v. Gray, 1 Stark. 434. So where a vendor knowingly permits the vendee to buy under a false representation by a stranger. Pilmore v. Hood, 5 N. C. 97. But, mere concealment by the plaintiff of a defect in a chattel, will not avoid the contract, where he is under no obligation to divulge it. Smith v. Hughes, L. R., 6 Q. B.

597.

Where goods are falsely described as "the property of a gentleman deceased," or "to be sold by executors," it is fraud, for such property is likely to be sold without reserve. Per Ld. Mansfield; Bexwell v. Christie, Cowp. 395. So where, at a sale by auction, the owner of the goods employs puffers to bid for him, and the buyer has no notice of such employment, it is a fraud, and the seller cannot recover the price. Crowder v. Austin, 3 Bing. 368; Wheeler v. Collier, M. & M. 126. The employment of a single puffer when the sale is to be to the highest bidder, is

evidence of fraud. Green v. Baverstock, 14 C. B., N. S. 204; 32 L. J., C. P. 181. Now see 30 & 31 Vict. c. 48, ss. 4, 5, 6, ante, p. 319.

If the maker of a chattel make it with such a defect as to render it worthless, but the defect is patent, and the persons for whom it is made have an opportunity of inspecting it before it is delivered, the maker is not guilty of a fraud if he do not point out the defect. Horsfall v. Thomas, 1 H. & C. 90; 31 L. J., Ex. 322. See, however, observations on this case in Smith v. Hughes, L. R., 6 Q. B. 605, per Cockburn, C. J. Fraud will not avoid a contract whereby an estate in land has passed to the defendant, for the defendant must have disaffirmed the contract, in order to avail himself of the defence (see Dawes v. Harness, L. R., 10 C. P. 166), and he cannot by such disaffirmance revest the estate in the plaintiff. See Feret v. Hill, 15 C. B. 207; 23 L. J., C. P. 185.

A bribe given to an agent to induce him to enter into a contract on behalf of his principal, will render the contract so entered into voidable at the option of the principal. Smith v. Sorby, 3 Q. B. D. 552, n. See also Harrington v. Victoria Graving Dock Co., Id., 549, cited ante, p. 566.

See further post, sub tit. Action for deceit and misrepresentation, post, pp. 847 et seq.

See as to concealment in the case of insurance, ante, pp. 432 et seq., 438; in the case of a guarantee, ante, p. 465. And see as to frauds by vendors, pp. 317 et seq.

As to frauds by companies or their directors, whereby persons have been induced to take shares, being a defence to an action for calls, see post, Part III., Actions by and against Companies.

Frauds, Statute of.

The Rules, 1883, O. xix. r. 20, ante, p. 302, now require that the insufficiency of any contract by reason of the Stat. of Frauds, should be pleaded specially. Clarke v. Callow, 46 L. J., Q. B. 53, C. A. As to when such defence is admissible, vide ante, pp. 303 et seq., and pp. 502

et seq.

Illegality.

Where a contract is illegal or immoral, it cannot be enforced: but such defence must be specially pleaded. Potts v. Sparrow, 1 N. C. 594. So a defence that the contract was a wagering one, and void by 8 & 9 Vict. c. 109, s. 18, ante, p. 589, must be pleaded specially. Varney v. Hickman, 5 C. B. 271. And see Rules, 1883, O. xix. r. 15, ante, p. 301. A contract cannot be enforced where the consideration is, even in part only, illegal. Featherston v. Hutchinson, Cro. Eliz. 199; Lound v. Grimwade, 39 Ch. D. 605.

The maxim, "In pari delicto potior est conditio defendentis," is important to be observed when the defence or reply raises a question of illegality. The true test for determining whether or not the plaintiff and the defendant were in pari delicto, is by considering whether the plaintiff could make out his case, otherwise than through the medium and by the aid of the illegal transaction, to which he was himself a party. Taylor v. Chester, L. R., 4 Q. B. 309, 314; Herman v. Jeuchner, 15 Q. B. D. 561, 564, C. A. Some cases of illegality have been already noticed under the head of Action for money had and received, ante, pp. 590, 591. The facts must be stated specially on the record, and the issues joined sufficiently point out the required evidence. Rules, 1883, O. xix. r. 15, ante, p. 301.

In an action for work and labour, the illegality of the transaction will be a defence. Thus, where a surveyor of highways employed his own

horses for team work on the highways, for which he was liable to a penalty under 5 & 6 Will. 4, c. 50, s. 46, it was held he could not recover for the value of the work. Barton v. Piggott, L. R., 10 Q. B. 86. So officers and servants of local boards of health are prohibited from contracting with the board by the Public Health Act, 1875, s. 193, and if they so contract they cannot recover on the contract. Melliss v. Shirley, &c. Board of Health, 16 Q. B. D. 446, C. A. A party will not be permitted to recover either for work and labour done, or materials provided, where the whole combined forms one entire subject-matter made in violation of the provisions of an Act of Parliament. Bensley v. Bignold, 5 B. & A. 335. Thus a printer, who made a false affidavit that he was sole proprietor of a paper, could not sue the real proprietors for the printing, or for any matter connected with its circulation. Stephens v. Robinson, 2 C. & J. 209; 38 Geo. 3, c. 78, s. 2. And the proprietor of a newspaper could not, before the filing of the affidavit directed by the statute, recover upon a contract for the printing of the paper. Houston v. Mills, 1 M. & Rob. 325. So the printer of an immoral and libellous book cannot maintain an action for his bill against the publisher who employed him. Poplett v. Stockdale, Ry. & M. 337; and see Coates v. Hatton, 3 Stark. 61, and Clay v. Yates, 1 H. & N. 73; 25 L. J., Ex. 237, ante, p. 558. A promise to indemnify the plaintiff, in consideration of the plaintiff having published a libel, and defended an action brought against him for that libel, at the defendant's request, is void. Shackell v. Rosier, 2 N. C. 634. A contract which amounts to maintenance is illegal, and cannot be enforced. S. C.; see Bradlaugh v. Newdegate, 11 Q. B. D. 1, and cases there cited. A promise by a director of a railway company, A., that the company would indemnify the promoters of another railway company if they failed in obtaining a bill in parliament is illegal, the company A. having no power by its Act so to apply their funds, and no action lies on such promise. Macgregor v. Deal & Dover Ry. Co., 18 Q. B. 618; 22 L. J., Q. B. 69, Ex. Ch. But an agreement by a railway company with a landowner to pay him a sum of money on the passing of a bill for extending the powers of the company, if he withdrew his opposition to it, is legal. Taylor v. Chichester & Midhurst Ry. Co., L. R., 4 H. L. 628. A person who has expended money for the purposes of an unlicensed theatre cannot recover against another at whose request he expended the money, and who participated in the profits. De Begnis v. Armistead, 10 Bing. 107. Where a contract with a company is ultra vires, it is absolutely void, whether the company be formed under the Companies Act, 1862; Riche v. Ashbury Ry. Carriage, &c. Co., L. R., 7 H. L. 653; or by statute. Wenlock, Ly. v. River Dee Co., 10 Ap. Ca. 354, D. P.

A company of more than 20 members, formed after Nov. 1st, 1862, having for its object the acquisition of gain by the company or its members, is illegal, unless registered under the Companies Act, 1862, or unless formed under some other statute or letters patent, or it be a mining company, under the jurisdiction of the Stannaries; see sect. 4; and no action will lie in respect of services rendered in forming or carrying out the objects of such company if unregistered. In re S. Wales Atlantic

Steamship Co., 2 Ch. D. 763, C. A. And a promissory note given to such a company as security for a loan made by it in the course of carrying on its business, is given for illegal consideration. Shaw v. Benson, 11 Q. B. D. 563, C. A. A mutual marine insurance company, of which persons become members by effecting a mutual policy of insurance, is within this section. In re Padstow, &c. Assur. Assoc., 20 Ch. D. 137, C. A. So a mutual loan society. Shaw v. Benson, supra. See further hereon Smith v. Anderson, 15 Ch. D. 247, C. A.; In re Siddall, 29 Ch. D. 1, C. A.

A money club formed with less than 20 members becomes illegal when the number exceeds 20. Ex pte. Poppleton, 14 Q. B. D. 379. As to the effect of registration on prior transactions, vide S. C. An unregistered association constituted before Nov. 1st, 1862, in which there was a continuous change of members, was held not to be formed on each such change, within sect. 4. Shaw v. Simmons, 12 Q. B. D. 117. As to the illegality of a contract by a company in liquidation by reason of sect. 131, see Hire Purchase Furnishing Co. v. Richens, 20 Q. B. D. 387, C. A., cited ante, p. 94.

Money paid by the plaintiff as the price of a patent right, which he knew did not exist, but bought for the purpose of reselling to a company to be formed by him, cannot be recovered. Begbie v. Phosphate Sewage Co., L. R., 10 Q. B. 491; 1 Q. B. D. 679, C. A. So money deposited with an agent, and expended by him in illegal disbursements, cannot be recovered from him by his principal, if the principal was at the time aware of the illegal disbursements, or assented to them. Bayntun v. Cattle, 1 M. & Rob. 265. Payments made by an election agent or sub-agent, other than the expense agent of a parliamentary candidate, A., cannot be recovered from A., such payments being illegal under stat. 26 & 27 Vict. c. 29, s. 2. In re Parker, 21 Ch. D. 408, C. A. A London broker could not maintain an action for commission for buying and selling stock, &c., unless duly licensed by the mayor, &c., of the city of London, pursuant to 6 Anne, c. 68 (c. 16, Ruff.), until the repeal of sect. 4 by 50 & 51 Vict. c. 59; Cope v. Rowlands, 2 M. & W. 149; nor for sale of shares in a company, British or foreign. Smith v. Lindo, 4 C. B., N. S. 395; 5 C. B., N. S. 587; 27 L. J., C. P. 335, Ex. Ch. But he might recover money paid by him to the seller on account of his principal, for which the broker is, by usage, liable as a principal. S. C. Money lent for the express purpose of playing at an illegal game, such as hazard; M'Kinnell v. Robinson, 3 M. & W. 434; or for illegally settling stockjobbing transactions; Cannan v. Bryce, 3 B. & A. 179; cannot be recovered back. See, however, Pearce v. Brooks, L. R., 1 Ex. 213, 219, per Martin, B.; and Bagot v. Arnott, I. R., 1 C. L. 1, C. P. But money lent to enable the borrower to pay a bet already lost, is not lent on an illegal consideration within the stat. 5 & 6 Will. 4, c. 41. Ex pte. Pyke, 8 Ch. D. 754, C. A. Money paid at the request of the defendant in fulfilment of a wagering or other void contract may be recovered. Rosewarne v. Billing, 15 C. B., N. S. 316; 33 L. J., C. P. 55; Read v. Anderson, 10 Q. B. Ď. 100; 13 Q. B. D. 779, C. A.; Seymour v. Bridge, 14 Q. B. D. 460, cited ante, p. 567. A broker or agent cannot sue for commission in respect of a sale mentioned in an instrument made by him, and not duly stamped as required by the Stamp Act, 1870, s. 69, ante, p. 245; nor can an insurance broker recover brokerage or premiums in respect of an unstamped policy, ante, p. 262. As to wagers, see now 8 & 9 Vict. c. 109, s. 18, vide ante, p. 589, and with reference to sales of stock, vide ante, p. 555. As to the validity of a bond given for racing debts, see Bubb v. Yelverton, L. R., 9 Ex. 471. By the stat. 51 & 52 Vict. c. 8, s. 20, ante, p. 219, conditions of sale avoiding stamp objections, and contracts for assuring or indemnifying against liability on the ground of absence of stamp on any instrument executed after May 16th, 1888, are void.

It is an answer to an action for refusing to allow the plaintiff to use rooms pursuant to agreement that he intended to use them for the delivery of blasphemous lectures. Cowan v. Milbourn, L. R., 2 Ex. 230. The defendant is entitled to justify his refusal on this ground, although at the time of the breach, he assigned a different reason to the plaintiff. S. C.

No action lies for the value of goods knowingly sold for illegal purposes as brewers' drugs; Langton v. Hughes, 1 M. & S. 593; or, formerly, for bricks under statutable size; Law v. Hodson, 11 East, 300. See also Gaslight & Coke Co. v. Turner, 5 N. C. 666; 6 N. C. 324, Ex. Ch. A collateral security given for payment of the purchase-money of land, knowingly sold for the purpose of resale by lottery, is illegal; Fisher v. Bridges, 3 E. & B. 642; 22 L. J., Q. B. 270; and this though the security be by deed. Id.

The

Where the party seeking to enforce the contract has been guilty of contravening a law made for the purposes of the revenue only, it has been held that this is not such an illegality as will prevent him from recovering at law on the contract; as where several partners sued the defendant for the price of spirituous liquors sold, it was held that the omission of the name of one of them in the licence to carry on the business of distillers was no answer. Brown v. Duncan, 10 B. & C. 93, and cases there cited. question is, whether the legislature has either expressly or by implication prohibited the contract? If not, a breach of the law regulating the vendor's trade may expose the firm to penalties, but does not necessarily avoid a contract of sale by him. Smith v. Mawhood, 14 M. & W. 452; Bailey v. Harris, 12 Q. B. 905. Non-delivery of a ticket to the purchaser of coals in London, as required by 1 & 2 Vict. c. 101, s. 3, disables the vendor from recovering the price. Cundell v. Dawson, 4 C. B. 376. The Weights and Measures Act, 1889 (52 & 53 Vict. c. 21, s. 21), contains a similar provision which is general in its operation.

Any contract or engagement having a tendency, however slight, to affect the administration of justice is illegal and void." Egerton v. Earl Brownlow, 4 H. L. C. 1, 161; 23 L. J., Ch. 348, 386, per Ld. Lyndhurst; Lound v. Grimwade, 39 Ch. D. 605. Thus an agreement not to prosecute for a criminal offence is illegal. S. C.; Keir v. Leeman, 9 Q. B. 371, Ex. Ch.; Williams v. Bailey, L. R., 1 H. L. 200. The rule extends even to a nuisance occasioned by the obstruction of a highway; Windhill Local Board of Health v. Vint, 45 Ch. D. 351, C.A.; and the consent of the judge, who tried the case, to a compromise of the prosecution is immaterial. S. C.; Keir v. Leeman, supra. But securities given to a creditor, by a debtor whose debt has been contracted under circumstances that might have rendered him liable to a prosecution, may be enforced, unless they were given in pursuance of an agreement to stifle it. Flower v. Sadler, 10 Q. B. D. 572, C. A.

Where a contract is made for the performance of an illegal act, knowledge that the act is illegal is not material, and the contract is void; but where the contract is capable of being legally performed, it can only be avoided by showing a wicked intention to break the law; and for this purpose knowledge of what the law is becomes material. Waugh v. Morris, L. R., 8 Q. B. 202.

A foreigner selling and delivering goods abroad to a British subject may recover the price, although he knows at the time of the sale and delivery that the buyer intends to smuggle them into this country, provided he takes no actual part in the illegal adventure, as by packing, &c. Pellecat V. Angell, 2 C. M. & R. 311. A brewer delivering beer to an unlicensed keeper of the public-house, may maintain an action against him for the price. Brooker v. Wood, 5 B. & Ad. 1052. A municipal corporation may be sued for money lent, though for purposes which were ultra vires, and though secured by a covenant in a mortgage, which they had made without the consent of the treasury, as required by stat. 5 & 6 Will. 4, c. 76. Payne v. Brecon, Mayor of, 3 H. & N. 572; 27 L. J., Ex. 495. So if trustees lend their trust money to A. they may recover it from A.,