them to pay them or not as their sense of honor might dictate. Accordingly it was by the 18th section enacted in these words: "All contracts or agreements, whether by parol or in writing, by way of gaming or wagering, shall be null and void, and no suit shall be brought or maintained in any court of law or equity for recovering any sum of money or valuable thing alleged to be won upon any wager." There is nothing

"

in this language to affect the legality of wagering contracts, they are simply rendered null and void, and not enforceable by any process of law. A host of authorities have settled this to be the true effect of the statute. I will mention only one or two. In Fitch v. Jones, 5 E. & B. 238, it was expressly so decided, Erle, J. saying: I think that the defendant might without violating any law make a wager. If he lost he might without violating any law pay what he had lost." In Hill v. Fox, 4 H. & N. 359, the same learned judge said that the parties do not violate any law by making a bet; but the law will not assist the winner in enforcing payment of it. In Ex parte Pyke; Re Lister, 38 L. T. Rep., N. S. 923; 8 Ch. Div. 754, I observe the Master of the Rolls, at p. 757, is reported to have spoken of gaming or betting being illegal. I feel sure that the learned judge must have been misunderstood: and in his judgment in Lynch v. Goodwin, 26 Solicitor's Journal, 509, he expressly stated that a bet was void, but not illegal. But although the law will not compel the loser of a bet to pay it, he may lawfully do so if he please; and what he may lawfully do himself he may lawfully authorize any body else to do for him; and if by his request or authority another person pays his lost bets, the amount so paid can be recovered from him as so much money paid to his use. In Rosewarne v. Billing, 9 L. T. Rep., N. S. 441; 33 L. J., C. P. 55; 15 C. B., N. S. 316, the defendant had employed the plaintiff to make in his own name wagering contracts respecting mining shares, and the plaintiff accordingly made them and paid certain differences on such shares, and brought his action to recover from the defendant (his employer) the money so paid. In giving judgment for the plaintiff, Erle, C. J., said: "It is clear that though the defendant was not liable to pay the sums due under these wagering contracts, he might do so if he chose; and if a party loses a wager and requests another to pay it for him, he is liable to the party s0 paying it for money paid at his request." Oldham v. Ramsden, 44 L. J. 309, C. P., is to the same effect; so is Ex parte Pyke; Re Lister, ubi sup., in which an appeal by the trustee under Lister's bankruptcy against the registrar for allowing a proof by Barrett for money lent and paid by him at Lister's express request in discharge of lost bets at Tattersall's was dismissed by the Court of Appeal. The request or authority to make such payments may be either expressed, or implied from usage or from the nature of the dealings between the parties themselves. If a person authorizes another to bet for him in his own name, an implied request to pay if the bets are lost is involved in that authority. For this too there is abundance of legal sanction. In Bubb v. Yelverton, 24 L. T. Rep., N. S. 263; L. Rep., 9 Eq. 471; 19 W. R. 739, which was a suit for the administration of the estate of the Marquis of Hastings, deceased, Lord Charles Ker claimed a sum of 8501., for money paid for the marquis for bets made and lost on his account, it was held by Lord Romilly, M. R., that a request to bet implied an authority to pay the bet if lost, and that Lord Charles Ker was entitled to prove against the estate of the marquis for the amount paid; see also Oldham v. Ramsden, ubi sup., Rosewarne v. Billing, ubi sup., and lastly, Lynch v. Goodwin, ubi sup. I am not aware that this last case has been reported in any of the regular reports at present. In the present case I find as a fact, that at the time the defendant gave the author

ity to make the bets, he gave also an implied authority to pay them if they should be lost. The defendant however contended, that assuming wagering coutracts not to be illegal, and that a person who employs another to bet gives that other implied authority to pay, such authority may be revoked at any time before payment is actually made, and that it was in fact revoked in the present case. Upon the evidence before me, I am of opinion, and find as a fact, that the defendant did not revoke the authority to pay; on the contrary by settling the rest of the account, he seems to me to have confirmed that authority to pay whatever bets were honestly made and lost on his account, aud the correspondence satisfies me that he only desired to raise the question whether these particular bets were honestly made or not. Assuming however contrary to my opinion, that there was a revocation in fact, I am of opinion such revocation was inoperative in law. I am not aware that hitherto this point has been judicially decided, although it was shortly mooted in Rosewarne v. Billing, ubi sup. I think it right therefore to state my reasons for the conclusions to which I have arrived. As a general rule a principal is no doubt at liberty to revoke the authority of his agent at his mere pleasure. But there are exceptions to this rule, one of which is that when the authority conferred by the principal is coupled with an interest based on good consideration, it is in contemplation of law irrevocable; that is though it may be revoked in fact, that is to say by express words, such revocation is of no avail. In Smart v. Saunders, 5 C. B. 895, Wilde, C. J., said: "The result appears to be that where an agreement is entered into on a sufficient consideration, whereby an authority is given for the purpose of securing some benefit to the donee of the authority, such an authority is irrevocable." See also Story on Agency, §§ 476, 477. In the present case the authority to pay the bets if lost was coupled with an interest; it was the plaintiff's security against any loss by reason of the obligation he had personally incurred on the faith of that authority to pay the bets if lost; the consideration for that authority was the taking upon himself that responsibility at the defendant's request. Previous to the making of the bets the authority to bet might beyond all doubt have been revoked, but the instant the bets were made, and the obligation to pay them if lost incurred, the authority to pay be came, in my judgment, irrevocable in law. In other words the case may be stated thus: If a principal employs an agent to do a legal act, the doing of which may in the ordinary course of things put the agent under an absolute or contingent obligation to pay money to another, and at the same time gives him an authority if the obligation is incurred to discharge it at the principal's expense, the moment the agent on the faith of that authority does the act, and so incurs the liability, the authority ceases to be revocable. The cases of Hampden v. Walsh, 33 L. T. Rep. (N. S.), 852; 1 Q. B. Div. 189; 45 L. J. 238, Q. B., and Diggle v. Higgs, 37 L. T. Rep. (N. S.), 27; 2 Ex. Div. 422, were cited for the defendant in support of his contention that the authority to pay was revocable. These cases do not assist him; they were actions brought against stakeholders to recover back deposits on wagers, and the revocation of the authority to pay over to the winner was before the money was paid over; in each of those cases the stakeholders must be taken to have received the deposits subject to the legal obligation to return them to the depositors if demanded back before payment over. The stakeholder's authority in those cases was coupled with no interest, and his position was unaffected by the revocation. Those cases are therefore not like the present, and do not fall within the exception to the rule I have referred to. The opinion I have expressed as to the irrevocability

of the authority to pay lost bets applies only to cases where the agent by the principal's authority makes the bets in his own name so as to be personally responsible for them. If an agent were simply to make bets in the name of his principal, I am far from saying that the principal might not repudiate authority to pay at any time before payment was actually made, for his non-payment of bets made for him, and in his name, would not render his agent liable as a defaulter or subject such agent to loss or obloquy. It is not necessary however to decide this point now. The plaintiff's case may also, as it seems to me, be supported on this ground, that if one man employs another to do a legal act, which in the ordinary course of things will involve the agent in obligations pecuniary or otherwise, a contract on the part of the employer to indemnify his agent is implied by law. See Story on Agency, $$ 337-340, and I think it signifies nothing that such obligation is not enforceable in a court of justice if the non-fulfillment of it would entail serious inconvenience or loss upon the agent, for he is not bound to submit to these things for his employer, if by doing that which was in contemplation of both at the time of the employment, he can avoid them, as he can in the case of bets lost, by paying them; and he is not bound, in my opinion, to incur the odium and consequences of repudiating his honorable engagements. As a matter of fact, I find that when the plaintiff in this case was employed to bet there was a tacit agreement on the part of the defendant to indemnify him against all the ordinary consequences of his so doing. In pleading, such a contract of indemnity might in substance be thus described: In consideration that the plaintiff as a turf commission agent would at the request of the defendant, and as his agent, make for him in his, the plaintiff's own name, certain bets, subject to and according to the usage of Tattersall's, the defendant promised that he would indemnify the plaintiff against all the consequences of making such bets according to such usages, etc. Many cases might be cited to show that such a contract, though made with reference to and in contemplation of wagering contracts, is not in itself a wagering contract. See Bubb v. Yelverton, ubi supra; Johnson v. Lansley, 19 L. T. Rep. (O. S.), 158 and 168; 12 C. B. 468; Beeston v. Beeston, 33 L. T. Rep. (N. S.), 700; 1 Ex. Div. 13; 45 L. J. 230, Ex. The result is that if a person employs another to bet for him in the agent's own name, an authority to pay the bets if lost is coupled with the employment, and although before the bet is made the employment and authority are both revocable, the moment the employment is fulfilled by the making of the bet the authority to pay it if lost becomes irrevocable. For the reasons I have stated I am of opinion that the plaintiff is entitled to my judgment for the amount he claims, and I give judgment accordingly. On full consideration I have determined to allow such amendments (if any) in the pleadings as may be necessary to raise all the legal questions involved in the case, in order that it may be determined upon its true legal merits. The costs will follow the event of the action.

Judgment for the plaintiff.

RELIGIOUS SOCIETY-EXPULSION FROM

CONSTITUTIONAL LAW.

KENTUCKY COURT OF APPEALS. FEB. 28, 1883.

HITTER V. ST ALOYSIUS SOCIETY. Where one has been expelled from a religious society for non-performance of the religious duties required of him by the society's constitution, he is not entitled to restoration, although he may have always paid his dues, on the ground that his civil rights have been diminished on account of his religion, contrary to the Constitution; nor can he recover back the dues so paid.

RICHARDS, J. Appellant commenced an action against the appellee, alleging its incorporation by an act of the general assembly of Kentucky, and that he became a member thereof, "whereby the said society and the plaintiff entered into a mutual contract, the terms of which will be found in the constitution of the said society," a copy of which was filed as part of the petition. He further stated that he had paid his monthly dues and assessments, as provided by the constitution, which in turn required the corporation to pay to him, in case of sickness or injury, four dollars per week so long as he might be unable to work for a living, and to pay to his family, after his death, fifty cents from each member of the society, and in the event he should survive his wife, to pay to him fifty cents for each member; but it is not specifically alleged that he had a wife. As a breach it is stated that "the said defendant refused to receive from plaintiff his regular monthly dues, declaring that he was no longer a member of said society, nor any longer entitled to the benefits accruing, or likely to accrue under the said constitution, and that the defendant still refuses to receive plaintiff into fellowship as a member of the said society, or as entitled to the benefits thereof." He prayed that the defendant be either compelled to restore him to fellowship, or refund the money paid as dues, assessments, etc.

The defendant in its answer, as amended, relied upon its constitution that was in force when the plaintiff became a member, and alleged that he had been expelled, by virtue of the power reserved in said constitution, for the violation of certain of its provisions.

The articles of the constitution, which he is accused of violating, are as follows:

"Every member is bound to do his duty as a Catholic Christian, especially not to neglect his Easter communion and confession."

"All members are * * bound to attend general communion on the fourth Sunday after Easter, in the church to be chosen by the society."

"All members of this society are bound to join with this society during general communion, on this same day to appear with their respective societies."

The answer alleges that the plaintiff "did not attend to his said confession and communion in the year 1879;" and also "failed and neglected to perform his duty and obligation of attending the annual festival or general communion, required by the constitution of said society, for the said year; "that the constitution provided that for a neglect of these duties a member must positively be expelled; " that plaintiff had been charged with a violation of the constitution in this respect, and cited to appear and defend himself; that he was present when the society considered the charges, and made no defense, "but on the contrary, stated that he no longer desired to be a member of said society;" and that therefore he had been duly expelled; and that under the constitution "members who for any reason have been expelled, have no claim whatever on the money of said society."

The plaintiff conceiving that this answer presented no defense, submitted the case on the pleadings, without filing a reply, and a judgment having been rendered dismissing his petition, he prosecutes this appeal.

It is urged in his behalf that he had the right to disregard the provisions of the constitution, for which

he was expelled, because they were unconstitutional and void. In support of this position we are referred to the Constitutions of the United States and of Kentucky. The former only provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The provision of the latter relied on in argument is: "That the civil rights, privileges, or capacities of any citizen shall in nowise be diminished or enlarged on account of his religion."

It was evidently the intention of the framers of the constitution of the defendant to limit its membership to those who adhered to the religious denomination known as the Roman Catholic. This is made manifest by many provisions scattered throughout that instrument. Adherence to that faith was made a pre-requisite to membership, and a departure therefrom was to result inevitably in expulsion. Appellant knew what would be required of him when he joined the society. His petition alleges that in becoming a member, a "mutual contract" was entered into between them, by which each undertook to perform the duties required of them respectively by the constitution. Appellant admitting that he has violated his part of the contract, nevertheless asks the chancellor to compel the society to perform its agreements, asserting that the provisions of the contract that he has broken are unconstitutional and void. Does the society propose to diminish any of his "civil rights, privileges or capacities, on account of his religion?" It does not appear that defendant had accumulated any property whatever. On the contrary it was only provided with the means of raising money for the assistance of its members and their families when misfortune overtook them. It had no source of revenue, except the dues, assessments, and contributions of its members. Out of these it was to furnish four dollars a week to those who were so sick or injured as not to be able to labor. And in case of death, each member was to contribute fifty cents as a special fund for the family. Moreover there is a standing committee, whose duty it is to look up the sick, and visit them twice a week, and in case of severe illness, to watch by their bedside at night, and at the approach of death to see that the member receives the last rites of the Roman Catholic church." If he dies, this same committee is to " engage the pall-bearers and see to procuring the carriages and the mass, and pay for the same."

Plaintiff wants to be restored to his membership, so so that the society, when the emergency arises, shall be compelled to discharge these religious and charitable duties for him and his family.

It was decided in Louisiana that a suit by an expelled member to compel restoration to a church membership on the ground that such restoration was necessary to enable him to enjoy the right of sepul ture acquired by him as a member, was premature. State v. Hebrew Congregation Dispersed of Judah, 31 La. Ann, 205; S. C., 33 Am. Rep. 217. And the same might well be said of the appellant's complaint, for it will be observed that he does not allege he is now entitled to any of the pecuniary benefits of the society.

But apart from this, we cannot see that appellee's rules are in any way inconsistent with the Constitution of Kentucky. The plaintiff never acquired the right to be thus watched and cared for in sickness, and to have his family provided for after his death, except upon the condition that he performed certain religious duties required of members of the Roman Catholic church. Those duties were to be performed every year during his membership in order to keep alive the corresponding obligations of his fellow members. This right was at most but a conditional one, and has never been "diminished" by any act of the society. If this court should order his

restoration, it would thereby be converting a conditional right into one that is absolute. This could not be done without infringing upon the religious liberties of the other members. This is a religious organization under the auspices of the Roman Catholic church. One of its objects was: "The promotion of Catholic life, through brotherly coherence in faith and love." The answer alleges that plaintiff, by joining a secret society, has rendered it impossible for him consistently to discharge the religious duties required of him by the defendant, and that he has announced to them that he no longer desired to be a member. To attempt to compel those who have remained faithful to the tenets of this religious society to restore plaintiff to "full fellowship," would be an arbitrary effort of "human authority to control or interfere with the rights of conscience" guaranteed to the other members, an injustice prohibited by the Constitution of Kentucky; to compel them to watch and care for plaintiff in times of sickness, and contribute to the support of his family after death, when they have only agreed to do this for those who remain true to their church, would be to disregard and trample upon that mutuality which lies at the foundation of all contracts; to demand of them that they shall "see that he receives the last rites of the Roman Catholic church," and when death has claimed him, that the solemn ceremony of "Mass" be said for the repose of his soul, would be to require of them what would be impossible, except by au utter disregard of the liberty of conscience of all those who worship God according to the doctrines of that church. The religious liberty of every denomination in this land demands that no such principle as this be declared as the law of Kentucky.

In the case of the People v. Saint Franciscus Benevo lent Society, 24 How. Pr. 216, relied on by appellant, it does not appear whether the by-law under which the member was expelled was in force at the time of his initiation. Moreover the society was organized under a general statute for the incorporation of charitable and benevolent institutions, and the court seem to place great stress upon that fact. They were careful "this position will of course have no relation to any rules and regulations, or articles of faith adopted by any religious denomination or society, and for a departure from which the member is liable to punishment or removal."

to say,

CONGRESS FOR IMPROVEMENT.- (1) The Chicago river lies wholly within the boundaries of the State of Illinois, and is within the limits of the city of Chicago, a place of 600,000 inhabitants. Streets cross it over which there is a large amount of traffic. Those streets pass over it by meams of draw-bridges. The river is navigated by vessels of large size. The city of Chicago, under authority from the Illinois Legislature, passed an ordinance that for a designated hour each morning and each evening the draw-bridges should not be opened for the passage of vessels, and when opened at other times they should be kept open only ten minutes upon each occasion. The purpose of such ordinance was to secure uninterrupted traffic along the streets. Held, that the river was navigable waters of the United States, over which Congress under its

nature of the subject or the sphere of its operation, the case is local and limited, special regulations, adapted to the immediate locality, could only have been contemplated. State action upon such subjects can constitute no interference with the commercial power of Congress, for when that acts the State authority is superseded. Inaction of Congress upon these subjects of a local nature or operation, unike its inaction upon matters affecting all the States and requiring uniformity of regulation, is not to be taken as a declaration that nothing shall be done in respect to them, but is rather to be deemed a declaration that for the time being and until it sees fit to act they may be regulated by State authority." 102 U. S. 699. Bridges over navigable streams, which are entirely within the limits of a State, are of the latter class. The local authority can better appreciate their necessity and can better direct the manner in which they shall be used and regulated than a government at a distance. It is therefore a matter of good sense and practical wisdom to leave their control and management with the States, Congress having the power at all times to interfere and supersede their authority whenever they act arbitrarily and to the injury of commerce. (2) Held also, that the provision of the ordinance of 1787 for the government of the territory of the United States north-west of the Ohio river, that, "The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between them, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty therefor" did not constitute an interference by Congress with the navigation of Chicago river. Whatever limitation there was upon the powers of Illinois as a territory by the ordinance of 1787 or the legislation of Congress, it ceased to have any operative force, except as voluntarily adopted by her, after she became a State of the Union. On her admission she at once became entitled to and possessed of all the rights of dominion and sovereignty which belonged to the original States. She was admitted, and could be admitted, only on the same footing with them. The language of the act of admission is "on an equal footing with the original States in all respects whatever." 3 Stats. 536. Equality of constitutional right and power is the condition of all the States of the Union, old and new. Illinois therefore could afterward exercise the same power over rivers within her limits that Delaware exercised over Blackbird Creek, and Pennsylvania over the Schuylkill river. Pollard's Lessee v. Hagan, 3 How. 212; Permoli v. First Municipality, id. 589; Strader v. Graham, 10 id. 82.

commercial power may exercise control to the extent necessary to protect, preserve, and improve their free navigation, but that until Congress interfered, the State of Illinois had full power to regulate bridges over the river. Held also, that the rights of commerce by vessels upon the river were not paramount to the rights of commerce upon the streets, and that the ordinance in question was a just and reasonable regu. lation. The power vested in the general government to regulate inter-State and foreign commerce involves the control of the waters of the United States which are navigable, in fact so far as it may be necessary to insure their free navigation, when by themselves or their connection with other waters they form a continuous channel for commerce among the States or with foreign countries. The Daniel Ball, 10 Wall. 557. Such is the case with the Chicago river and its branches. The common-law test of the navigability of waters, that they are subject to the ebb and flow of the tide, grew out of the fact that in England there are no waters navigable in fact, or to any great extent, which are not also affected by the tide. That test has long since been discarded in this country. Vessels larger than any which existed in England, when that test was established, now navigate rivers and inland lakes for more than a thousand miles beyond the reach of any tide. That test only becomes important when considering the rights of riparian owners to the bed of the stream, as in some States it governs in that matter. But the States have full power to regulate within their limits matters of internal police, includiug in that general designation whatever will promote the peace, comfort, convenience, and prosperity of their people. This power embraces the construction of roads, canals, and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the States than by a distant authority. They are the first to see the importance of such means of internal communication, and are more deeply concerned than others in their wise management. When its power is exercised, so as to unnecessarily obstruct the navigation of the river or its branches, Congress may interfere and remove the obstruction. If the power of the State and that of the Federal government come in conflict, the latter must control and the former yield. This necessarily follows from the position given by the Constitution to legislation in pursuance of it, as the supreme law of the land. But until Congress acts on the subject, the power of the State over bridges across its navigable streams is plenary. See Wilson v. Blackbird Creek Co.. 2 Pet 245; Gilman v. Philadelphia, 3 Wall. 713; Pound v. Truck, 95 U. S. 459. The doctrine declared in these several decisions is in accordance with the more gen. eral doctrine now firmly established, that the commer. cial power of Congress is exclusive of State authority only when the subjects upon which it is exercised are national in their character, and admit and require uniformity of regulation affecting alike all the States. Upon such subjects only that authority can act which can speak for the whole country. Its non-action is therefore a declaration that they shall remain free from all regulation. Welton v. Missouri, 91 U. S. 275; Henderson v. New York, 92 id. 259; County of Mobile Kimball, 102 id. 691. On the other hand, where the subjects on which the power may be exercised are local in their nature or operation, or constitute mere aids to commerce, the authority of the State may be exerted for their regulation and management until Congress interferes and supersedes it. As said in the County of Mobile v. Kimball: "The uniformity of commercial regulations, which the grant to Congress was designed to secure against conflicting State provisions, was necessarily intended only for cases where such uniformity is practicable. Where from the

V.

Besides the provision of the ordinance of 1787 is not violated by the action of the city of Chicago. The navigation of the Illinois river is free from any tax, impost, or duty, and its character as a common highway is not affected by the fact that it is crossed by bridges. All highways, whether by land or water, are subject to such crossings as the public necessities and convenience may require, and their character as such is not changed, if the crossings are allowed under reasonable conditions, and not so as to needlessly obstruct the use of the highways. In the sense in which the terms are used by publicists and statesmen, free navigation is consistent with ferries and bridges across a river for the transit of persons and merchandise as the necessities and convenience of the community may require. In Palmer v. Commissioners of Cuyahoga, 3 McLean, 226, application was made to the Circuit Court of the United States in Ohio for an injunction to restrain the erection of a draw-bridge over a river in that State on the ground that it would obstruct the navigation of the stream and injure the

property of the plaintiff. The application was founded on the provision of the fourth article of the ordinance mentioned. The court refused the injunction, observing that "This provision does not prevent a State from improving the navigableness of these waters, by removing obstructions, or by dams and locks, so increasing the depth of the water as to extend the line of navigation. Nor does the ordinance prohibit the construction of any work on the river which the State may consider important to commercial intercourse. A dam may be thrown over the river, provided a lock is so constructed as to permit boats to pass with little or no delay, and without charge. A temporary delay, such as passing a lock, could not be considered as an obstruction prohibited by the ordinance.” And again: "A draw-bridge across a navigable water is not an obstruction. As this would not be a work connected with the navigation of the river, no toll it is supposed could be charged for the passage of boats. But the obstruction would be only momentary to raise the draw; and as such a work may be very important in a general intercourse of a community, no doubt is entertained as to the power of the State to make the bridge." The same observations may be made of the subsequent legislation of Congress declaring that navigable rivers within the territories of the United States shall be deemed public highways. 1 Stats. 468, § 9; 2 id. 279, § 6. (3) Appropriations by Congress for the improvement of the stream, held not an interference with the State power as to bridges over it. To render the action of the State invalid in constructing or authorizing the construction of bridges over one of its navigable streams the general government must directly interfere so as to supersede its authority and annul what it has done in the matter. Escanaba and Lake Michigan Transportation Co. v. City of Chicago. Opinion by Field, J.

[Decided March 5, 1883.]

CONTRACT TROLLED BY EXTRINSIC FACTS.-Proposals for bids for 4,400,000 pounds of oats for army purposes were advertised by the United States. M. made several bids for 1,600,000 bushels at varying prices. H. also made bids. One bid of M. was accepted for 1,600,000 pounds, and one bid of H. for 2,600,000 pounds was ac cepted, and contracts were made with the parties identical in form. Each contract contained a clause by which in addition to the specific quantity of oats therein mentioned, the contractor agreed to supply such other quantity, more or less as might be required for the wants of the station where the oats were to be delivered. Held, that the government was not obliged to receive from M. oats beyond the amount for which his bid was accepted, even though the government had use for a greater quantity of oats, and M. was able to and offered to supply such oats. It is a fundamental rule that in the construction of contracts the courts may look not only to the language employed, but to the subject-matter and the surrounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made. Nash v. Towne, 5 Wall. 689; Barreda v. Silsbee, 21 How. 161; Shaw v. Wilson, 9 Cl. & Fin. 555; McDonald v. Longbottom, 1 El. & El. 987; Munford v. Gething, 29 L. J., C. P. 110; Carr v. Montefiore, 5 But. & S. 408; Bradley v. United States, 98 U. S. 168. Thus in the case of Doe v Burt, 1 T. R. 703, where a lease had been made by the plaintiff to the defendant of part of a messuage, together with a piece of ground thereunto adjoining, which piece of ground was used as a yard, and beneath the yard was a cellar, occupied by a third party under a lease previously granted to him by the plaintiff, and the occupant of the cellar continued to reside in it, and to pay rent to

CONSTRUCTION OF WRITTEN CON

the plaintiff for three or four years after the latter had demised the yard to the defendant, but his lease haying expired, and he having quitted the cellar, the defendant took possession of it, contending that the cel lar had passed to him by the demise of the yard, the court held that parol evidence of the surrounding circumstances was admissible to show that it did not pass. Merríord v. United States. Opinion by Woods, J.

[Decided April 9, 1883.]

EQUITABLE ACTION-TO RESCIND CONVEYANCE TO

CITY WHEN MODE OF PAYMENT NOT AUTHORIZED PRO

VIDED MUNICIPAL CORPORATION.-Complainant sold land to a county at a specified price, and conveyed the same to the county, the county commissioners executing back to him a mortgage for a part of the purchase price payable at a fixed date. The county took possession of and occupied the land. The commissioners had power to purchase the land, but had no authority to bind the county by the mortgage. The county having failed to pay the mortgage, complainant brought action to compel the county to reconvey to him or to pay the mortgage. Held, that the complainant was entitled to equitable relief, and that the defense of illegality of contract would not avail to deprive him of the right to such relicf. As the agreement between the parties has failed by reason of the legal disability of the county to perform its part according to its conditions, the right of the vendor to rescind the contract and to a restitution of his title would seem to be as clear as it would be just, unless some valid reason to the contrary can be shown. As was said by this court in Marsh v. Fulton County, 10 Wall. 676, and repeated in Louisiana v. Wood, 102 U. S. 294, "the obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law independent of any statute will compel restitution or compensation." And see also Miltenberger v. Cook, 18 Wall. 421. The illegality in the contract related, not to its substance, but only to a specific mode of performance, and does not bring it within that class mentioned in Thomas v. Richmond, 12 Wall. 349. The purchase itself as we have seen was expressly authorized. The agreement for definite times of payment and for security alone was not authorized. It was not illegal in the sense of being prohibited as an offense; the power in that form was simply withheld. The policy of the law extends no further than merely to defeat what it does not permit, and imposes upon the parties no penalty. It thus falls within the rule, as stated by Mr. Pollock, in his Principles of Contract, 264: "When no penalty is imposed, and the intention of the legislature appears to be simply that the agreement is not to be enforced, then neither the agreement itself nor the performance of it is to be treated as unlawful for any other purpose." Johnson v. Meeker, 1 Wis. 436. The principle was applied in Morville v. JAmerican Tract Society, 123 Mass. 129, where it was said: "The money of the plaintiff was taken and is still held by the defendant under an agreement which it is contended it had no power to make, and which if it had power to make it has wholly failed on its part to perform. It was money of the plaintiff, now in possession of the defendant, which in equity and good conscience it ought now to pay over, and which may be recovered back in an action for money had and received. The illegality is not that which arises where the contract is in viola tion of public policy or of sound morals, and under which the law will give no aid to either party. The plaintiff himself is chargeable with no illegal act, and the corporation is the only one at fault in exceeding its corporate powers by making the express contract.