
    Riggs vs. Shirley.
    Where a penal bond was exhibited by the plaintiff’s declaration by which the defendant bound himself to defend a suit prosecuted against plaintiff and save him harmless against costs and charges, it is held that the bond was not' necessarily void for maintenance, and therefore a demurrer to such declaration should not be sustained. If the fact of maintenance existed, it should have been disclosed by the plea of defendant.
    Riggs sued Shirley in the Circuit Court of Hamilton county on a penal bond for $520, the condition of which, exhibited on oyer, was that Shirley should defend a suit prosecuted against Riggs by George W. Mitchell and save Riggs harmless against all costs and damages. There was a demurrer to the declaration and at the November term, 1847, the demurrer was argued before Judge Keith. He was of the opinion that the covenant sued on was a covenant for maintainance and improper meddling with the suit of a third person, and therefore sustained the demurrer, and judgment was rendered for the defendant. The plaintiff appealed.
    
      Lyon, for the plaintiff.
    When a contract is clearly illegal on its face such as in restraint of trade or for an immoral or usurious consideration, &c., it would be fatal on demurrer. But not so when it is even doubtful.
    This contract is not illegal on the face of the covenant. It may be perfectly fair, legal and proper. Shirley may have been — probably was an agent for plaintiff to attend to . this suit and had funds placed in his hands, to discharge the costs and damages. The defendant should have raised his objection by plea when the facts could have been shown.
    Such a contract as this is shown in the case of Nashville Bank vs. Grundy & Hays. Meigs, 256. Also, in Chace vs. Hinman. 8 Wendall, 452.
    
      The Circuit Court clearly erred in this judgment, and it ought to be reversed and remanded for another trial.
    
      Trewhitt and Gaut, for defendant.
    In the covenant sued upon it is clearly shown that Shirley was not a party to the suit of Mitchell, administrator of Cattrell, against Higgs. But in said covenant Riggs and Shirley contracted and agreed, and Shirley bound himself, to defend said suit and to save Riggs, himself, from any judgment of costs and charges that might be rendered against him. It is clearly a contract entered into by Riggs & Shirley, by which Shirley covenanted and agreed to defeat the said administrator in collecting his judgment against Riggs. It was an officious intermeddling by Shirley in the suit of Cattrell, Adm’r., vs. Riggs, to assist and defend the suit for Riggs; and he bound himself to pay the cost and charges, if a judgment should be rendered against Riggs. Thereby Shirley & Riggs made it the interest and contract of Shirley to defeat the plaintiff in the collection of his debt in that suit. It was an offence to public justice, as it brought to the assistance of the defendant, the wealth and influence of Shirley, to help defeat the plaintiff in the recovery of a just claim. See 4 Blackstone’s Commentaries, 125, and 2 Story’s Equity, sec. 1048, and note 3.
    If a party plaintiff brings into a court of law or equity an illegal contract that it may be enforced, and that illegality be set forth and shown by himself, and not by the plea or allegation of the defendant, it is the duty of either court to refuse the enforcement of such contract. See Isler, Adm’r., vs. Brunson, 6 Hump. R. 277.
   GREEN, J.

delivered the opinion of the court.

This is an action of covenant. The defendant craved oyer of the covenant sued on and demurred to the declaration. The court sustained the demurrer and the plaintiff appealed to this court. The writing sued on is a bond for >$250 dollars with the following condition under written: “Condition of the above obligation is such that whereas George W. Mitchell, administrator of George Catire! 1* deceased, has a judgment against the said Riggs for ninety-two dollars and fifteen cents, before T. M. Spicer, Esquire, and the said Riggs has taken it to court by certiorari, now,if the said Shirley do stand the said suit and in case judgment shall be taken against the said Riggs, then said Shirley is to pay all costs and damages and keep the said Riggs harmless — then and in that case, the above obligation to be void, otherwise to remain in full force and virtue, the day and date above written.”

Thomas Shirley.” [seat,.]

It is insisted for the defendant that this contract is illegal on its face, being an unlawful undertaking to maintain a suit in which the party had no interest. ‘We do not think that this contract is necessarily an unlawful one. It may possibly have been the interest and duty of Shirley to save Riggs harmless in the suit then pending and to pay the costs and damages that might be recovered against him. We cannot know but that Riggs’s liability in the case may have arisen in consequence of a suretyship for Shirley, in which case he would have been bound in duty to stand the suit and discharge the judgment. We cannot know but that Riggs may have stood in such relation to Shirley as by law Shirley might assist him in his defence of the suit. Without stating other facts in illustration that may possibly have existed and which would have rendered the contract lawful, these are sufficient to show that the demurrer was not well taken- If the defence relied on exists in fact U must be made by plea. The judgment must be reversed and the cause remanded.  