From fraud a right of action does not arise.
An action cannot be maintained by any of the parties or privies to it, upon an illegal, immoral, or fraudulent contract, whether by parol or by deed, nor in respect of any matter arising directly out of it ; as, where the consideration for an agreement to pay money is a compromise of felony, or other obstruction or interference with the administration of public justice. In such cases the contracts are null and void, as being contrary to the policy of the law.
In reference to this maxim Lord Mansfield says : The objection that a contract is immoral or illegal, as between the plaintiff and defendant, sounds at all times ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed ; but it is founded in general principles of policy which the defendant has the advantage of ; contrary to the real justice, as between himself and the plaintiff ; by accident, as it were. The principle of public policy is this : — “ Ex dolo malo non oritur actio.” No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If, from the plaintiff's own statement or otherwise, the cause of action appears to arise ex turpa causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes ; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, the now plaintiff would then have the advantage ; for where both are equally in fault, “potior est conditio defendentis.”
In an action for the price of goods sold abroad for shipment into England, the import of which into England was prohibited, and which the vendor at the time of sale knew, but in effecting which shipment he rendered no assistance ; he was held entitled to recover. But, where the vendor of goods sold abroad, to be smuggled into this country, knowingly assists in the design to smuggle ; as by packing them up in a particular way, or in any other manner aids in the illegal act ; he will not be allowed to sue in this country upon a contract for the value of the goods.
A bond given as an indemnity against a note given by the obligee to induce the prosecutor in an indictment for perjury to withhold his evidence, is void ab initio.
The plaintiff in an action upon a bill of exchange given to him to compromise a felony cannot recover ; nor yet can a plaintiff recover in an action for conspiracy by the defendant and another to obtain payment from him of a bill accepted by him in consideration that the defendant would abstain from prosecuting such third party for embezzlement. Nor, again, upon a contract to indemnify an officer of justice against refraining from doing his duty ; as a sheriff or his officer, or other officer of justice, to permit a prisoner to escape, or to violate or neglect his duty in any manner ; or to protect him from the consequences of his misconduct ; or to indemnify one against doing any unlawful act, as to assault another. All contracts against public policy ; as of bribery, champerty, stifling evidence, and other interference with the due administration of the law, are void.
The illegality of an instrument may either appear upon the face of it or be proved by extrinsic evidence. When it appears upon the face of it, it is at once fatal to an action upon it ; otherwise, it will be presumed to be legal until the contrary is shown, as illegality is never to be presumed.
Cowp. 341 ; 1 Co. 234, 256, 633; 4 Burr. 2300 ; 2 Rose, 351 ; Plowd. 88; Biggs v. Lawrence, 3 T. R. 454 ; Petrie v. Hannay, 3 T. R. 422 ; Collins v. Blantern, 2 Wils. 341 ; Keir v. Leeman, 6 Q. B. 308 ; Bennett v. Clough, 1 B. & Aid. 463 ; Cundell v. Dawson, 4 C. B. 376 ; Murray v. Reeves, 8 B. & C. 425 ; Featherston v. Hutchinson, X!ro. Eliz. 199 ; Paxton v. Pop- ham, 9 East, 408 ; Earle v. Hopwood, 30 L. J. 217, C. P.