illegal : but it is illegal, not because the agreement is itself im- moral, but because the law denies the corporation power to enter into the agreement. It is malum prohibitum and not malum in se. It is therefore important to distinguish between "illegal prohibited contracts" and "illegal immoral contracts," which Judge Thompson seems to group together. The learned author would doubtless be ready to admit that, where the contract is prohibited merely, a plaintiff in default may recover at common law from the defendant (provided the contract is not wholly executed) to the extent that may be necessary to restore both parties to the status quo.[1] Again, where the defendant is in default and the plaintiff is not, the plaintiff, speaking generally, may recover in all cases in which the parties are not in pari delicto.[2] Indeed, Judge Thompson refers in another connection to these rights of recovery in quasi contract,[3] and he cites Lord Mansfield's decision in Moses v. Macferlan.[4] It follows, therefore, that the learned author speaks inadvertently when he assimilates to "any other prohibited contract" the case in which, for example, a railroad purchases and uses a steamboat and is absolved from all obligation to pay for it, and the further case in which an insurance company has made a prohibited loan and is cut off from all right to recover on the evidence of indebtedness.[5] If, as the learned author necessarily implies, the defendants retained there ill-gotten gains in these cases, they did so under the operation of a principle peculiar to the law of corporations, and altogether different from that which is applicable to other prohibited contracts at the common law. With these observations we pass to the first of the several questions proposed for discussion,— the question, that is, whether the "ancient doctrine" outlined by Judge Thompson ever did claim the allegiance of a court of common law. The two cases which have just been stated are used by Judge Thompson as the two leading illustrations of the doctrine under consideration. They are Pearce v. R. R. Co.[6] and Insurance Co. v. Lawrence.[7] In the former case the plaintiff, as indorsee of a promissory note, sued the corporation which had given the note to evidence an indebtedness for a steamboat made and delivered by the payee at the request of the corporation. The
plaintiff could recover, if at all, only upon the contract, and the
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