Perkins

V.

Hart.

1826. luded to is the paper just referred to; but whether it be so or not is by no means certain. If it be the bill intended, the difficulty still remains, as the general account is not stated, or referred to, so as to enable the Court to decide whether it does, or does not, include the two items which it is supposed cannot be recovered in this ac

count no bar.

tion.

If we look through this record in order to obtain information respecting this matter, we meet with two accounts containing charges for advances made by Perkins, in the years 1814 and 1815, for taxes due by Hart, and in discharge of other expenses connected with his agency, The stated ac- both which accounts were discharged. But it surely cannot be contended, that the settlement and discharge of an account for money lent and advanced for the use of the testator, is a bar to a claim for commissions, or of any other demand not included in the settled account. If, to a bill for an account, the defendant plead, or, in his answer rely, upon a settled account, the plaintiff may surcharge, by alleging and proving omissions in the account, or may falsify, by showing errors in some of the items stated in it.

The rule is the same in principle at law; a settled account is only prima facie evidence of its correctness. It may be impeached by proof of unfairness, or mistake, in law, or in fact; and if it be confined to particular items of account, it concludes nothing in relation to other items not stated in it.

Perkins

V.

Hart.

The legal conclusion, therefore, insisted upon 1826. by the defendant, that the plaintiff is precluded from recovering in this action for the two items claimed to have been due before the two accounts spoken of were rendered, is not correctly drawn, unless it appeared, from the point reserved, that those two items were included in what is styled the account stated.

It may further be remarked, that even if it appeared that the plaintiff was precluded by the settlement and discharge from recovering the amount of the two items referred to, it would not follow that the law is for the defendant upon the whole verdict, although it might be sufficient to induce the Court below to grant a new trial, if it had been applied for, upon the ground that the verdict was for too much.

Were this cause before the Court upon a writ of error, the imperfections in the points reserved which have been noticed, would render it proper to reverse the judgment, and to direct a venire de novo to be awarded. Being an adjourned case, it would be improper for this Court to give such direction to the Court below.

any

CERTIFICATE. This cause came on to be argued on the certificate of division in opinion of the Judges of the Circuit Court for the District of Ohio. On consideration whereof, this Court is of opinion, that the points reserved, upon which the opinions of the Judges of that Court were opposed, are too imperfectly stated to enable this Court to pronounce any opinion upon them.

[ILLEGAL CONTRACT.]

ARMSTRONG, Plaintiff in Error,
against

TOLER, Defendant in Error.

Where a contract grows immediately out of, and is connected with, an illegal or immoral act, a Court of justice will not lend its aid to enforce it.

So, if the contract be in part only connected with the illegal consi-
deration, and growing immediately out of it, though it be, in fact,
a new contract, it is equally tainted by it.

But if the promise be entirely disconnected with the illegal act, and
is founded on a new consideration, it is not affected by the act, al-
though it was known to the party to whom the promise was made,
and although he was the contriver and conductor of the illegal act.
Thus, where A., during a war, contrived a plau for importing goods
on his own account from the enemy's country, and goods were sent
to B. by the same vessel: A., at the request of B., became surety
for the payment of the duties on B.'s goods, and became responsi-
ble for the expenses on a prosecution for the illegal importation
of the goods, and was compelled to pay them: Held, that A. might
maintain an action on the promise of B. to refund the money.
But if the importation is the result of a scheme between the plain-
tiff and defendant, or if the plaintiff has any interest in the goods,
or if they are consigned to him with his privity, in order that he
may protect them for the owner, a promise to repay any advances
made under such understanding or agreement is utterly void.

This was an action of assumpsit, brought by the defendant in error, Toler, against the plaintiff in error, Armstrong, to recover a sum of

Armstrong

V.

Toler.

money paid by Toler, on account of goods, 1826. the property of Armstrong and others, consigned to Toler, which had been seized and libelled in the District Court of Maine in the year 1814, as having been imported contrary to law. The goods were shipped during the late war with Great Britain, at St. Johns, in the province of New-Brunswick, for Armstrong and other citizens and residents of the United States, and consigned to Toler, also a domiciled citizen of the United States. The goods were delivered to the agent of the claimants on stipulation to abide the event of the suit, Toler becoming liable for the appraised value; and Armstrong's part of the goods were afterwards delivered to him, on his promise to pay Toler his proportion of any sum for which Toler might be liable, should the goods be condemned. The goods having been condemned, Toler paid their appraised value, and brought this action to recover back from Armstrong his proportion of the amount. At the trial of the cause, the defendant below resisted the demand, on the principle that the contract was void, as having been made on an illegal consideration. When the testimony on the part of the plaintiff below was concluded, the counsel for the defendant insisted, on his behalf, to the Court, that the several matters propounded and given in evidence on the part of the plaintiff were not sufficient, and ought not to be allowed, as decisive evidence to entitle the plaintiff to maintain the issue, and to recover against the defendant. The judge

1826. thereupon delivered the following charge to the jury, which is spread at large upon the record.

Armstrong

V.

Toler.

"The rule of law under which the defendant seeks to shelter himself against a compliance with his contract, to indemnify the plaintiff for all sums which he might have to pay on account of the goods shipped from New-Brunswick for the defendant, and consigned to the plaintiff, is a salutary one, founded in morality and good policy, and which recommends itself to the good sense of every man as soon as it is stated. The principle of the rule is, that no man ought to be heard in a Court of justice, who seeks to enforce a contract founded in or arising out of moral or political turpitude. The rule itself has sometimes been carried to inconvenient lengths; the difficulty being, not in any unsoundness in the rule itself, but in its fitness to the particular cases to which it has been applied. Does the taint in the original transaction infect and vitiate every contract growing out of it, however remotely connected with it? This would be to extend the rule beyond the policy which produced it, and would lead to the most inconvenient consequences; carried out to such an extent, it would deserve to be entitled a rule to encourage and protect fraud. So far as the rule operates to discourage the perpetration of an immoral or illegal act, it is founded in the strongest reason, but it cannot safely be pushed farther. If, for example, the man who imports goods for another, by means of a violation of the laws of his country, is disqualified from