seem to support such a declaration;1 especially as applicable to the sale of articles innocent in themselves."

But the proposition is certainly of limited application, and the courts are careful not to extend it. If the articles be sold with distinct knowledge that they are to be used for any illegal purpose, it is doubtful if the courts should allow a recovery of the purchase money for public morality and good government must condemn the furnishing of means to violate the law; and when the use contemplated involves a heinous crime, as when one sells arsenic with knowledge that the purchaser intends to poison his wife with it, or sells noxious drugs, knowing that the brewer who buys them intends to use them in his manufacture,* it is clear that the recovery should not be allowed. And it has been held, both in England and in this country, that money lent to a man to enable him to settle his losses on an illegal stock-jobbing transaction can not be recovered back.5 "No man ought to furnish another with the means of transgressing the law, knowing that he intended that use of them."

Following the principle of the text (but applying it to political circumstances which it is now needless to discuss), the United States Supreme Court has held that a due-bill for goods, sold to be used by the Confederate States in prosecuting the war against the United States, was void as upon an illegal consideration, and that an action could not be maintained by the seller or by any holder of the bill who

'Byles on Bills (Sharswood's ed.) [*132], 247, 1 Parsons N. & B., 215; Gardner v. Maxey, 9 B. Mon., 90; Clark v. Recker, 14 N. H., 44; McGavock v. Puryear, 6 Cold., 34; Puryear v. McGavock, 9 Heiskell, 461; Coppock v. Bower, 4 M. & W., 361.

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* Henderson v. Waggoner, 2 Lea. (Tenn.), 133; Benjamin on Sales, § 506. Lightfoot v. Tenant, 1 Bos. & Pul., 551.

ments an indorser may, as we shall hereafter see, be held liable to a bona fide holder without notice.

There are a very few cases in which the statute renders such instruments absolutely void; and the most important, if not the only instances now to be met with, are the statutes against usury and gaming.*

In England, the policy of declaring the instrument a nullity in the hands of a bona fide holder no longer prevails, the statute of 8 & 9 Victoria, ch. 109, having relaxed the ancient rule on the subject ; 8 and in some of the States similar statutes have been enacted. But the change has not become general, and in the States where contracts founded on gaming or usurious considerations are declared void; bills and notes given to secure them are held void in the hands of every holder.

§ 198. When the statute merely declares expressly or by implication that the consideration shall be deemed illegal, the bill or note founded upon such consideration will be valid in the hands of a bona fide holder without notice ; but the burden of proof will be upon the plaintiff, when the illegal consideration appears, •to show that he is a bona fide holder without notice. And if the statute in terms only forbids suit to be brought upon bills and notes founded on certain considerations, “except by a bona fide holder who has received the same upon a valuable and fair consid

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illegality of the consideration, they are void only in the hands of the original parties, or those who are chargeable with, or have had notice of, the consideration."

Glen v. Farmer's Bank, 70 N. C., 191 ; Town of Eagle v. Kohn, 84 Ill., 292; Hatch v. Burroughs, 1 Woods, 439; Woods v. Armstrong, 54 Ala., 150; Bacon v. Lee, 4 Clarke (Iowa), 49; Smith v. Columbus S. B., 9 Neb., 34. * See chapter XXI, sec. I, § 673 et seq.

3 Kent Com., 44; Story on Bills (Bennet's ed.), S 189. * See Parsons v. Alexander, 5 El. & Bl., 263, S. C. 30 Eng. L. & Eq., 299.

• Vallett v. Parker, 6 Wend., 615; Kendall v. Robertson, 12 Cush., 156 ; Wortendyke v. Mechan, 9 Neb., 221; Savings Bank v. Scott, 10 Neb., 83.

• Savings Bank v. Scott, 10 Neb., 83; Wortendyke v. Mechan, 9 Neb., 221; Paton v. Coit, 5 Mich., 505; Sistermans v. Field, 9 Gray, 331 ; Wyatt v. Bulmer, 2 Esp., 538. See chapter XXIV, on Rights of a bona fide Holder or Purchaser, § 815, et seq.

eration, without notice or knowledge, etc.,” they will be good in the hands of such holder ; but the burden of proof will be devolved upon him in like manner, if it appear that the instrument originated in such a consideration. But want or failure of consideration do not require such proof of the holder.?

Where a statute provided that wherever, in an action brought on a contract for the payment of money, it shall appear that unlawful interest has been taken, the plaintiff shall forfeit threefold the amount of the unlawful interest so taken, etc., it was held to apply to the innocent indorsee of a note who received it in due course of trade ;8 and as a general rule all contracts founded on considerations which embrace an act which the law prohibits under a penalty, are void.*

$ 199. Where a statute declared that all payments made for spirituous liquors sold contrary to law “ should be held and considered to have been received in violation of law, without consideration, and against law, equity, and good conscience,” it was held that a bill given for liquors so sold was valid in the hands of a bona fide holder without notice.” A bill accepted to secure payment of money taken in at an unlicensed theatre is void in the hands of all knowing the consideration for which it was given.

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* Paton v. Coit, 5 Mich., 505; Johnson v. Meeker, 1 Wis., 436; Doe v. Burnham, 11 Fost., 426; Story on Bills, $ 193; Bottomley v. Goldsmith, 36 Mich., 29.

* Ross v. Bedell, 5 Duer, 462; Wilson v. Lazier, u Grat., 478.

Kendall v. Robertson, 12 Cush., 156. Shaw, C. J., said: “The former law extended the entire forfeiture to any holder of the note, though an innocent indorsee ; the natural conclusion is, in the absence of express words changing the operation of the law, that it was the intention of the legislature to extend such partial forfeiture in like manner, and attach it as before to the note, although held by an innocent indorsee without notice. In both cases the intention of the legislature appears to have been the same, to suppress a mode of lending regarded as dangerous and injurious to society, by attainting the contract, and attaching the penal consequences to the contract itself, whenever set up as a proof of a debt.” As to rule in Nebraska, see Wortendyke v. Mechan, 9 Neb., 221; Savings Bank v. Scott, 1o Neb., 83. *Woods v. Armstrong, 54 Ala., 150.

Cazet v. Field, 9 Gray, 329. • De Bignis v. Armistead, 10 Bing., 107 (25 E. C. L. R.)

If the paper be susceptible of a legal and an illegal construction, the courts will enforce it according to the most favorable construction, ut res magis valeat quam pereat. Thus, where a due-bill was made payable in Confederate bonds, or Tennessee money, the first-named medium was deemed illegal, but payment in Tennessee money was enforced."

199a. The statement of consideration in a bill or note may be explained or contradicted in any case in which the consideration may be disputed between the parties; and it may be shown either that the consideration was different from that stated, or that there was none at all. In some of the States, notes given in purchase of patent rights are required by statute to have the fact written or printed on the face, under heavy penalties, the frauds arising out of such transactions being very frequent, and the legislatures seeking to suppress them, and such notes are open to the same defences in the hands of a bona fide holder as when held by the payee. But under such a statute, if the patent right consideration were not expressed in the note, a bona fide holder would be protected according to the general principles of the law merchant.*

$ 200. Effect of knowledge of illegal use of article sold.It is stated as a general principle, by some of the text writers, that if goods be sold by a trader with mere knowledge that the purchaser intends an illegal use of them, but without lending any aid to his unlawful purpose, he may sustain an action on the contract ; and a number of cases would

* Hanauer v. Gray, 25 Ark., 350.

* Abbott v. Hendricks, 1 Man. & G., 791; Foster v. Jolly, i Cromp. M. & R., 703 ; Smith v. Brooks, 18 Ga., 440; Litchfield v. Falconer, 2 Ala., 280; Matlock v. Livingstone, 9 Smedes & M., 489; Barker v. Prentiss, 6 Mass., 430.

* Pennsylvania, for instance. Questions arising out of these statutes are so peculiarly local that we deem their discussion beyond the scope of this treatise. See Haskell v. Jones, 86 Penn. St., 175.

* Palmer v. Minor, 15 N. Y. S. C. (8 Hun.), 342 (1876).

seem to support such a declaration ; especially as applicable to the sale of articles innocent in themselves."

But the proposition is certainly of limited application, and the courts are careful not to extend it. If the articles be sold with distinct knowledge that they are to be used for any illegal purpose, it is doubtful if the courts should allow a recovery of the purchase money : for public morality and good government must condemn the furnishing of means to violate the law; and when the use contemplated involves a heinous crime, as when one sells arsenic with knowledge that the purchaser intends to poison his wife with it,' or sells noxious drugs, knowing that the brewer who buys them intends to use them in his manufacture,* it is clear that the recovery should not be allowed. And it has been held, both in England and in this country, that money lent to a man to enable him to settle his losses on an illegal stock-jobbing transaction can not be recovered back. “No man ought to furnish another with the means of transgressing the law, knowing that he intended that use of them."

Following the principle of the text (but applying it to political circumstances which it is now needless to discuss), the United States Supreme Court has held that a due-bill for goods, sold to be used by the Confederate States in prosecuting the war against the United States, was void as upon an illegal consideration, and that an action could not be maintained by the seller or by any holder of the bill who

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* Byles on Bills (Sharswood's ed.) (*132), 247, i Parsons N. & B., 215; Gardner v. Maxey, 9 B. Mon., 90; Clark v. Recker, 14 N. H., 44; McGavock v. Puryear, 6 Cold., 34; Puryear v. McGavock, 9 Heiskell, 461 ; Coppock v. Bower, 4 M. & W., 361.

· Henderson v. Waggoner, 2 Lea. (Tenn.), 133; Benjamin on Sales, $ 506. * Lightfoot v. Tenant, i Bos. & Pul., 551. * Langton v. Hughes, i Maule & Sel., 593. • Canaan v. Bryce, 3 Barn. & Ald., 179, Abbott, C. J., saying: “If it be unlawful in one man to pay, how can it be lawful for another man to furnish him the means of payment.'

• De Groot v. Van Duzer, 20 Wend., 390,