Ham v. Smith

Mr. Justice Gordon delivered the opinion of the court, The rule to open the judgment in this case, was made absolute by consent of the parties, and no conditions were imposed upon the defendants. The plaintiff must therefore prove his case as on a new trial: Carron v. Coulter, 2 Grant 131. Hence, the court erred in holding the judgment itself to be an important fact in the issue trying. The order opening the judgment vacated it, except for the purposes of lien, and whether the plaintiff was ever again to recover it depended upon the case which should be presented to the court and jury. The only question we have before us is, whether the consideration of the note of Ham et al. to Smith, could be made the subject of judicial inquiry? That that consideration was in fact illegal is not doubtful. According to Smith’s own testimony, it was proposed by a committee of his party, that he, as the nominee for representative, should withdraw in order that Nelson might be substituted. This he agreed to do, if they would pay him the sum [66] of $500, at the same time threatening if his terms were not complied with, to run at all events. The result was the note in controversy. Now it matters not that he had spent this amount or more in securing his nomination, it was nevertheless the price to be paid for his withdrawal, and the price to be paid in order to remove a competitor from the way of Nelson; in other words, it was so much to be paid in order to secure Nelson’s election. Furthermore, the committee had no choice; his expenses, as he chose to term them, might have been $500, or they might have been nothing; that was Smith’s price, and they must agree to pay it or run the risk of having Nelson defeated. That this whole transaction was, therefore, corrupt, immoral and within the prohibition of the act of 18th of April 1874, is not doubtful. To cite authority to prove that courts should not lend their aid to enforce contracts, such as this, would be spending time to no purpose, since no one doubts it. But it is said the contract has been executed, and, therefore, the courts will not interfere. The law is, undoubtedly, well stated if the fact were so. But the contract has not been .executed, and the court is now required to lend its aid for the purpose of its execution. Judgment is asked upon the note, and the proof shows the note to be part of an illegal and void contract; how, then, can the court enforce it ? As was said by Mr. Justice Agnew, in answer to an argument similar to the above, in the case of The Morris Coal Co. v. The Barclay Coal Co., 18 P. F. Smith 188, “ When a bill, note or bond is but-an instrument to execute an illegal contract, it is tainted by the illegality and cannot be recovered. The illegal consideration enters directly into the instrument, and is followed up because the law will not permit itself to be violated by mere indirection.” Were the doctrine otherwise, every illegal contract, however much opposed it might be to public morality or even to common decency, might be readily and securely covered from judicial inquiry by the mere interposition of a note or bond. Were it only a question between the parties we might leave them to the consequences of their own contracts, but it is not so; it extends further and involves the public welfare, and we certainly know that the best way to suppress any public vice is to make it unprofitable. Judgment reversed, and a venire facias de novo awarded.