
    Glidewell et al. v. Hite et al.
    
    Where slaves had been introduced into the state as merchandize, since 1833, contrary to the provisions of the revised Constitution, relief in chancery after judgment at law, was refused on the ground, that the defendant had neglected to mako his de-fence at law. This rule will not be departed from, for the reason that the contract was against public policy.
    APPEAL from the superior court of chancery.
    Hite & Fitzpatrick sold to Glidewell and Griffin, a tract of land, together with a number of slaves, for the aggregate sum of sixty-eight thousand dollars, payable in five equal annual instalments of thirteen thousand six hundred dollars each: To meet the first of these instalments, complainants, with Griffin since deceased, executed their bond, dated 20th March, 1837, and payable twelve months thereafter. An action of debt was commenced on the bond, in the circuit court of Warren county, against complainants, who filed to the action two special pleas, impeaching the consideration of the bond, on the ground that the slaves sold were unsound, and that this alledged unsoundness had been fraudulently concealed from the purchasers, Glidewell and Griffin. A trial was had and a verdict of thirteen thousand six hundred dollars and one cent found for Hite & Fitzpatrick, the jury having allowed complainants, for the alledged unsoundness of the slaves, all the interest then due upon the bond, amounting to about one thousand two hundred and eighty dollars. • Complainants exhibited their bill in chancery praying for a perpetual injunction upon this judgment, on two grounds: First. That the slaves sold were unsound and that this unsoundness was fraudulently concealed by' Hite & Fitzpatrick. Second. That the slaves had been introduced into this state, and as merchandize, since May, 1833, in violation of the Constitution, &c.
    The answers denied the unsoundness of the slaves and the fraud charged, admitted their introduction into this state for sale, &c.; but insisted that such introduction, if a defence at all, was strictly a legal one, and that complainants were bound to have defended themselves at law. The judgment at law was pleaded and relied upon as a conclusive bar to the relief now sought, &c. The injunction granted by a circuit judge was dissolved by the chancellor, and from this order of - dissolution the present appeal was prosecuted.
    W. Yerger, for appellants.
    First then. Was the note illegal and void by reason of its consideration ?
    The constitution of the state in the second section of the article on slaves, provides that “the introduction of slaves into the state as merchandise - or for sale, shall be prohibited, from and after the 1st day of May, 1833.5’ It is further provided that, the foregoing prohibition shall not be so construed as to prohibit actual settlers from introducing them lor their own use. The question then arises, what is the meaning of this prohibitory clause in the constitution? Was it thereby intended to prohibit the introduction of slaves into the state? Clearly not: for it provides against such a construction being placed upon it, by the proviso which authorizes settlers'to introduce them, as the mere introduction of slaves was not objectionable. What was intended by this clause to be prohibited ? It is well known that at that day there was a class of men who carried on a traffic in slaves; who brought them from other states into this, and drove a trade in them for the purpose, of gain, in like manner as they bought and sold any other commodity. As the mere introduction of slaves in itself was not objectionable, nor in fact the sale of them between citizens of the state for their own use, the only construction that can be given to that clause is, that the framers thereby intended to prohibit the traffic in slaves as an article of merchandise, in the state; in a word, the introduction and sale of slaves as merchandise, or in common language, “ negro-stealing” was intended to be prohibited by the foregoing clause of the constitution. This view of the case is strengthened by the fact that the Southampton insurrection had just occurred, and negro traders had brought large numbers of the slaves concerned in the insurrection into the state, and it was thought that the prohibition would prevent a recurrence of similar evils. While at the same time, actual settlers being permitted to import for their own use; would select none'but such as were honest and who had not been guilty of crimes, and that thus the slave population would be sufficiently increased, without the state being subjected to the evils which would necessarily result from an unlimited importation of slaves. Any person therefore, who did introduce slaves into this state as merchandise, and who in pursuance of such designs did sell them, has most clearly violated the spirit and letter of the constitution, has made a contract which was forbidden by the laws and policy of the state, as is manifest from the constitution of the state, and also by the act of 1837, passed a few days after this sale took place; which act clearly shows that the policy of the state upon this subject had remained unchanged, from the adoption of the constitution until that time.
    Decisions made by the courts of almost every state in the union, and cases decided almost without number by the judicial tribunals of that country from which our laws and language alike have sprung, have settled the rule of law to be “ that every contract made in violation of the laws of the land, or which grows out of, or is in connection with an illegal or immoral act, or which is made in contravention of the state or common law, or of public policy, is absolutely void, and cannot be enforced in law or in equity.” See 1 Leigh’s Nisi Prius and pages there cited from page 6 to 13. 2 Peter’s Reports, 53-9, and authorities there cited. 2 Carr and Payne, 472. 4 Term, 466, 3 lb. 454, 5 lb. 599. Cowp. 191. 2 Douglass, 698. 1 M. and S. 593. 1 Bos. and P. 264 — 551. 3 B. and A. 179. 5. B. and A. 887. McC. and Young, 119. 4 P’eter’s Reps. 410. 7 Eng. C. L. Reps. 121. 2 Camp. 147. 11'East 300. 8 Taunton, 142. 2 Moore, 14. 1 Camp. 550. 9 B and C. 192. 27 Eng. C. L. Reps, 230. 17 Mass. 258. 4 Cond. P. R. 235. 4 Wash. C. L. Reps, 297. 2 lb. 98. 5 Johns. 320. 1 Rand. 76. 3 Peere Williams, 391. Cowp. 341. 3 Randolph, 214. 1 Binney, 110. Carth. 252.
    The above authorities, which might be multipled without number, all establish the principle as laid down above; and they establish conclusively this other point, that the contract is equally void or not, provided it be made in contravention of public policy, in-viotation óf the common or statutory] lawor if the party making it fail to comply with the requisitions of the statute, in reference to such contract, nor does the affixing of a penalty to the failure of compliance with the statute, or for its violation, alter the nature of the contract; in either case it is absolutely void. This well established rule being applied to the case before the court, the illegality of the note on which the judgment was founded is clearly established, and it is therefore certain that no recovery upon it should ever have been made. It has been urged heretofore, and may perhaps be insisted upon in this case, that as the constitution prohibited the introduction of slaves for sale, that the offence was complete upon their being brought into the state, and that a subsequent sale of them is not void. To me, I must confess this a strange reasoning. Here, according to the party’s own admission, he. has violated the laws, he has brought an article into the state for a purpose that is prohibited; and yet he says, because I had the hardihood to violate your laws, because I dared bring slaves into the state for the very purpose which the laws say I shall not, I am at liberty to use them for that purpose, and have a right to gain by my bold violation of the law. Surely no such argument is tolerable for an instant in any court. This point, however, has been settled in England by many adjudged cases, in which it has been repeatedly decided; that if a statute prohibit any thing to be made for sale, unless made in a particular way, or of a certain size or shape, that a vender who makes the article without complying with the requisitions of the statute, and who afterwards sells it thus made, cannot recover of the purchaser the price for. which the thing sold, although the, statute only prohibited the making of them for sale, and did not declare the sale of them to be void, nor in other words directly prohibiting their being sold. These decisions were made upon the ground, that the legislature by prohibiting an article to be made for sale, unless made in a particular way, evidently intended to prevent the sale of it unless so made. They were made also upon this other principle, as stated by Lord Ellenborough in the case of Law v. Hodgson, 2 Camp. 147, that the best way to enforce the observance of a statute is to prevent the violation from being profitable. See the authorities above cited, and particularly, 2 Camp. 147, 7 Eng. C. L. R. 121, 17 do. 355, 27 do. 230, 11 East, 300.
    Indeed so anxious have the English courts been to prevent any infraction of the law being rendered profitable, and so careful have they been to discourage any violation of the laws, by declaring such contracts to be void, that in the case of Billard v. Hogden, 12 Eng. C. L. R. 222, Chief Justice Abbott laid down the rule to be “that if the importation of certain goods be prohibited, and the plaintiff in England sell such goods to A, who endorses to him a bill of exchange in payment, the plaintiff cannot recover on the bill against the acceptor, although there be no evidence that the plaintiff was the importer of the prohibited goods.”
    Such have been the adjudications of the English and American courts upon this subject; and from them, and -the utter impossibility to reconcile any other opinion with the common and well settled maxim of every court, that it is the duty of a court to construe a statute so as to give effect to the intention of the Legislature. I am well satisfied that the note sued upon was absolutely void, and that no recovery should have been had upon the same. It has been argued, too, and therefore I notice it, that the clause in the constitution to which 1 have referred, was merely directory to the legislature, and did not contain within itself an inoperative prohibition of the importation of slaves for sale. I must confess that I have never yet been able to see the force or validity of this argument. The constitution has named a day certain and specific, from and after which time the prohibition should commence. It does not refer to the future action of any other body upon the subject; and if it were competent, which I presume no one will deny, for the convention to incorporate within the constitution a prohibition of this kind, without reference to legislative action upon it, I am well satisfied that words more appropriate than those used, could not have been selected for that purpose. Aside from this, however, the constitution contains within itself such indisputable evidence, that no further action of the Legislature was intended upon the subject, that I am astonished that there has. ever been a moment’s doubt in the mind of any man in reference to it. The 1st day of May, 1833, is fixed, as the time at which the prohibition shall cojnmenee; and the first day of November, thereafter, is fixed as the day on which the first session of the legislature under the constitution shall coipmence. I contend, however, that if this elapse were only directory to the legislature, and not a prohibition in itself directly and in words, still that a contract, made in contravention of it, would nevertheless be void, because this clause in the constitution already shows what the policy of the state is upon that subject; and as I have heretofore had occasion to.remark, that a contract which is made in violation of public policy, is void, and cannot be enforced. See authorities before referred to, and the case of Bass v. Mayor of Nashville, Meigs’ R. 421, where the supreme court of Tennessee decide, “ that where -the constitution of the state directed the legislature to pass laws to prohibit the drawing of lotteries in the state, the constitution itself is a prohibition of such lotteries, without any legislative action upon the subject.”'
    But admitting that the clause was merely directory, and that without legislative action upon the subject, it contained no prohibition; the act of 1822 Avas then still in force, and the sale is admitted to have been made without a compliance with the requisitions of that statute. The contract according .to the authorities I have cited was void, because of a non-compliance with these requisitions.
    The foregoing reasons and authorities will satisfy the court, I hope, that the note sued upon in this case, being founded upon an illegal consideration, was void, and should not have been enforced, if so. We come to the second subject of our inquiry: Will this court now grant relief, or are the complainants estopped by their failure to defend at law, from seeking the aid of this court?
    I admit the rule of law to be, that where a party has a defence purely legal and does not avail himself of it at law, that it is too late afterwards for him to come into a court of equity for relief, without showing some particular reasons for his not defending at law; such as fraud, accident, &c. &c. 1 Sch. & Lef. 205. 3 Atk. 223.
    1 also admit that where law and equity have concurrent jurisdiction, and a party attempts to defend at law, that he cannot after having failed in his defence at law, come into equity for relief upon the same ground. This rule I think is based on reason, and is well sustained by the principle laid down by Chief Justice Marshall why equity would not interfere, to wit; “That a court of equity would otherwise act as an appellate court, and that no party shall so trifle with the courts as to test the strength of his case in one court, and after having failed there, come into another court urging the same grounds of relief.” See 5 Cond. P. R. 664, 8 Cond. Eng. Ch. Rep. 66. Though as I before remarked, there are some cases of high authority which have held a different rule.
    I insist too that the principle is equally clear, that where courts of equity have a concurrent power to grant relief, a defendant who does not attempt a defence at law, may after a judgment against him come into a court of equity and insist upon his grounds of defence, without being at all prejudiced by his failure to defend at law.
    I am aware indeed that there are some cases, and those decided by courts of high repute, in which the rule has been held to be different; but it will be found upon an examination of those cases, that in most instances there was an attempt to defend at law, which proved unsuccessful; and those cases where a different rule was held, where no such attempt was made, with due deference to the courts that made them, all seem to me, to have been made without a due regard to the distinction between a failure to defend at law, where the remedy was entirely at law, and the defence strictly legal, and a failure to make a defence where the party had a right to relief at law or in equity, or where the two jurisdictions had concurrent power to grant relief.
    That 1 may not be deemed by the court as having made this assertion without reflection, I beg leave to call the attention of the court to one of the leading cases on this subject. 1-mean the case • of LeGuen v, Governeur & Kemble, reported in 1 John’s Cas. 436, sec. 492, in which the Chief Justice of the court, reversing the opinion of the chancellor, lays down the propositions “that a judgment of a court possessing competent jurisdiction shall be final as to the subject matter thereby determined, and also to every other matter, which the party might have litigated and had decided.” This principle when applied to a case of a purely legal defence, and where the party had no remedy but at law, is admitted to be true, and the cases cited by the learned Chief Justice to maintain his position, so far as I have been able to see them, were all cases in which a court of equity refused relief, because the defence which the party desired to make was entirely legal, and where equity had not originally any jurisdiction to grant relief, and in which no good reason was shown for a failure to make the defence at law. That I am not mistaken, I beg the attention of the court for a few moments to examine the cases referred to. The first case cited by the Chief Justice -is found in 3 Atk. 224. In this case the grounds on which relief was asked were two: First. That an action of trover had been brought against an executor for a legacy, which it was contended could not lie. Secondly. That the damages were excessive. The court decided that trover Avill lie after an assent to a legacy, and' that if excessive damages had been given, the remedy was entirely at law, by an application for a new trial. Thé court will see that this is a case in which the party had no original right to come into equity for any relief, and therefore that it does not sustain the Chief Justice in his opinion. The second case cited, and to which I will direct the attention of the court, is found in 2 Burrows, 1009. This case was an action for assumpsit, for money which the defendant had recovered of the plaintiffs, in an action in the court of conscience upon the endorsement of the plaintiff, which endorsement was made by the plaintiff to enable the defendant, to recover the money mentioned in the note of the maker, and with the express agreement, made in writing at the time, that the plaintiff was not to be liable upon his endorsement. This agreement the party offered as a defence, but the court of conscience refused to receive it, and judgment went against him, and the money was paid under the judgment. Lord Mansfield held that assumpsit would be to recover back the money. It was urged among objections to a recovery of the money “that where money has been recovered by the judgment of a court having competent jurisdiction, the matter can never be brought over again in a new action.” To which objection Lord Mansfield answered “ that it is most clear that the merits of a judgment can never be overhauled by an original suit, either at law or in equity.” This dictum of Lord Mansfield, for it is no more, is admitted to be law, for it means no more than that a court of law or equity will not by an original suit open those matters which have been once fully examined by a competent court, and that they will not say whether the judgment of such a court was right or wrong on the facts presented. Lord Mansfield, however, permitted the plaintiff to recover, because, he said “ his recovery was perfectly consistent with the judgment of the court of conscience/’ and so complainants say that a decree granting them relief would be perfectly consistent with the judgment of the court of law.
    No error is assigned as having taken place in that court: on the facts presented to that court, its judgment is admitted to be right, but new facts are presented, which were not before the court of law, and which make the complainant’s claim for relief in this court. There is no wish to arraign that judgment. That court made the judgment it did, without having any of the facts before it. There was no trial in the circuit court upon the merits, nor are the merits of that judgment attacked, and therefore this court may consistently with that judgment grant the relief asked. The dictum of Lord Mansfield would go the length to establish the principle that wherever there had not been a defence upon the merits, the party might afterwards apply for relief to a court of equity. This proposition, however, is somewhat broader than the law at this day would warrant; for if the defence were of a purely legal nature, and a case in which equity had not concurrent jurisdiction to grant relief, it is believed that the party would now be compelled to defend at law, without some special reason shown for not doing so; such is the case in Burrows, which I think is very far from sustaining the principle laid down by the Chief Justice..
    The case next cited is that of Marriat v. Hampton, 7 Term R. 265. This was an action of assumpsit brought to recover money which had been paid under a-judgment at law, after the rendition of which judgment a receipt for the money was found. The court said the action could not be maintained, because the party might have made his defence at law by filing a bill of discovery. It will be seen that this was a purely legal defence; namely, payment of money; and also that it overrules the case in Burrows, in which Lord Mansfield held that under such a state of facts, an. action of assumpsit would lie.
    
      The nest case is Barebone v. Brant, 1 Vern. 175, which was a bill filed for a discovery and relief after an action at law, upon the ground that the defendant at law, plaintiff in equity, had lost his receipt of payment, and therefore could not defend at law. The court said it was too late after the trial to seek for this discovery. Here again is a defence purely legal; namely, payment of money, and over which equity never had any cognizance, and could at no time have given relief. In the note to the case in Vernon, is collected a number of cases, by a reference to which, it will be found that there is much conflict among the authorities, whether a court of equity will or will not grant relief upon the discovery of a receipt which shows the judgment to be erroneous. Mr. Justice Story, if I am not mistaken, thinks it will, 2 Story, Í79. At any rate, I am persuaded that the foregoing cases do not conflict with the position which I have taken, nor can they be deemed as affording any precedent or establishing any rule as laid down by the Chief Justice in the case of LeGuen v. Governeur and Kemble, because they were all cases in which the defence was strictly legal, and over the subject matter of which equity at no time had cognizance.
    The Chief Justice also cited a case from 2 H. Blackstone’s R. 414; upon examining I find that to be an action brought by the assignees of a bankrupt to recover money, which one of the creditors had obtained by judgment in a foreign country, by an attachment levied on the bankrupt’s goods ; and the court held, that all the parties being English, and the debt contracted in England, that the action was well brought, and in the reasoning of the court, they say that the opinion of Lord Mansfield, as reported in Burrows, is not law; because the agreement in that case not to sue the endorser, was a defence strictly legal, and as such should have been received by the court of conscience; and that the court having ruled out his defence, he should have taken a writ of error, and not have waited to bring a new suit for the money. Whether this case be decided right or not, it is unnecessary to inquire, for in no part of the case is there any thing, as I humbly conceive, which in the remotest degree conflicts with the opinion of the law which I have advanced, or which in any way can be deemed as establishing the doctrine laid down in the case of Le Guen v. Governeur & Kemble.
    The foregoing cases are all but two, which Chief Justice Rat-cliffe relied upon to sustain him in reversing the decree of the chancellor. The other two I have been unable to find, the books not being in town; but I feel well assured from an examination of a large number of cases, connected with this subject, that they are of a similar class of the foregoing. If so, I hope the court is satisfied that I did not err in saying that those decisions which conflict with the opinion of the complainant’s counsel, were made without a due distinction between a defence strictly legal, and where the remedy is entirely at law, and those in which the party had a right to demand relief at law or in equity. The case of Lansing v. Teddy, 1 John. Ch. R. 49, was decided by chancellor Kent, who adopted the rule laid down by the court in Le Guen v. Governeur & Kemble; and the case seems to have been decided without argument, and to have taken the rule there laid down, as being settled by the supreme court of the state to be conclusive upon the chancellor. The decision by the S. C. of the U. S. reported in 9 Wheaton, 532, was made in a case where the complainant in equity tried to defend at law and failed, and after-wards sought relief in equity upon the same grounds on which a defence was made at law. Such, too, is the fact relative to the case reported in' Eng. Cond. Ch. R. 66. And after as full an examination as my time allowed me to make, I have found the fact to be, that in all cases decided in England, and in the United States, except in New York, and those other states which have adopted the New York decisions as precedents, that the only instances in which it has been decided that equity will not relieve after a verdict at law, where the party failed to defend, are found in cases where the defence was entirely legal, and in which the party shows no reasons for neglecting to defend in his proper tribunal; and upon an examination of the English and American cases upon this point, I think it will be found that the weight of authority and reason is clearly in favor of the doctrine as contended for by complainant’s counsel.
    The first case to which I shall direct the attention of the court, is that of Billow v. Hide & Mitchell, 1 Atk. 127, S: C., 1 Vesey, 327,.in which Lord Hardwicke held that where the jurisdictions were concurrent, equity would relieve, though the party failed to make a defence at law. •
    The some doctrine was laid down by the court, in the case of the Countess Gainsbóro v. --. 2 P. Williams,-424. Lord Eldon and Lord, Kenyon both held, that where ' a party offered a sett off at law, which was refused, he still might come into equity to have it allowed. 2 East R-. 627. 13 Vesey, 180. Again in the case of Kent v.' Bridgeman, Prec. in Ch. 2 3, a perpetual injunction was granted after a verdict at law, where the party attempted to defend, and failed for want of the requisite proof; and though no other matters of defence wer’e shown but such as were submitted to a jury! This is a much stronger case than the one before the court, because other matters of defence are here shown, than such as appeared at law; and the facts, too, are admitted.by the answer. In the case of Child v. Gibson, 2 Atk. 603, a bill was filed for an account, and a plea of former decree was put in. Lord Harkwicke said “ that every plea set up as a bar,1 must be ad idemj and that if a judgment or' decree is pleaded, it must appear to be a decree ad idem ; and that the defendant should set forth so much of the former bill and answer, as to have shown that the same point then in issue, was the one before decided, for it is extremely hard to say, because the plaintiff failed in the case he made on the account, now that he has made a new case, that he should not be allowed to go on.” It will appear from this, that Lord Hardwicke understood the rule of law to be, that a former judgment or decree was only conclusive as a har in those cases where the same point had been settled in the first case, about which the second controversy arose.
    In Atkinson v. Learned, 3’Bro. Ch. R. 218, Lord Thurlow observed, “ that it did not follow because a court of law would give relief, that this court lost the concurrent jurisdiction it has alwai's had, and till the law, is clear upon this subject the’court would not do justice in refusing to retain jurisdiction.” In the case of Brom-ley v. Holland, 7 Vesey, page 6, Lord Eldon laid down the same rule, and said that though a court of law might take cognizance of a subject, that'it would not oust equity of its jurisdiction upon the same subject, and in this case Lord Eldon after a judgment at law, gave relief against the judgment and ordered the, void instrument to be delivered up to be cancelled, remarking at the same time, that if Lord Roslyn, in France v. Bolton, 3 Vesey, had decided that equity did not possess such powers, he could not concur with him, though he said Lord Roslyn’s decision, was based upon other grounds,'and that he could not be considered as deciding the law to be that equity did not possess the power. ,
    In the case of Bateman v. Willac, 1 Sch. & Lef. 205, Lord Redes-dale said “ that there may be cases cognizable in law and also in equity, in which'after a trial at law equity will interfere,” though he decided that the case then before him, whs in the nature of a ' bill for.a new trial at law, in which the grounds of relief were of a strictly legal'natuíe and .over whiph equity had no concurrent jurisdiction, and he therefore refused to interfere, j 'In the casemf Harrington v. DuChatel, 1 Brown’s Ch. R. 124, a bill'was filed to stay a judgment and execution vlt law,'and to cancel a bond which was void, beingproturpi causa, and the. Lord Chancellor Thur-low granted a perpetual injunction, though the patty might have defended at law. See particularly the report of this cgse in note (A.) 2 Swanston’s R. 167.
    In the case of Thrall v. Ross, 3 Bro. Oh. R. 56, the chancellor said that he would not refuse to set aside a bond, because the party could defend at law, but he said .as the case before him was then pending in a court of law,- and as there was doubt as to. its consideration and he did not have the facts sufficiently before him, to decide upon its consideration, he would let a jury decide’upon it, admitting that if the facts were clear and had been admitted, that he would have given relief. *"
    In the case of Gray v. Mathias, 5 Vesey, 293, an injunction was granted, staying a judgment which had been obtained' on a bond alledged to bé void, and also' staying sjiit on a bond, the consideration of which appeared on its face, and which consideration it was stated was immoral and illegal. On. a motion, to dissolve both injunctions, it was admitted by the counsel on both sides in the argument, (Mr. Plumer, Mr. Fonblanque, and Mr. Cox being of counsel,) .that it was no't too late-.after verdict and judgment to apply to equity for relief against the judgment, where the contract • on which the judgment was obtained was founded on a corrupt agreement, the counsel for defendant saying “that because a verdict at law'had passed was nothing, for .if a defendant fail at law against a corrupt instrument he may afterwards come into equity, and that it was a cdmmon practice to relieve after verdict ,and enjoin execution.” The Chief Baron dissolved the .injunction as to the judgment because it appeared that the bond was not-illegal or immoral, but only voluntary, not pretendinglto deny the right of .equity to have given relief had the bond been void. The injunction on the second bond he dissolved, because he said as the suit at law was pending hpon it, and’as the -illegal consideration, .if any, appeared on its face, and, could be reached by a-demurrer that although in such cases, equity might have-' concurrent-jurisdiction ; ’yet in that particular case he would not- entertain the suit. Here as the court will see, the Chief Baron admitted that equity could take cognizance,-but, said it ought hot to encourage such suits and therefore dismissed the bill; upon which Chancellor Walworth in the case of Gridley v. jGarris.oii, 4 Paige’s Rep.,653, remarks that such applications should not be encouraged,-“but that, the. proper mode for- remedying the evil is not' by refusing to exercise the long established jurisdiction of this court in such cases, but by refusing to give the complainant Costs, which he might have saved by a trial at law.”, And the chancellor in that case gave relief though the party might have defended at lawj and obtained the relief .there which he asked in equity.
    . Such are the English cases-upon this subject, from which I think it will appear manifest to the Court, that there has been but one settled opinion in relation to it in that country, - and-that is, that though equity will not grant relief after a verd.i’ct at law, where the-party might have defended and did not, áhd where his defence was entirely at.lawi and-equity had no power.to grant relief concurrently .with a co'urt of law, yet in those cases,'in-which the party had a right to ask relief from either court, that there has yet been, no- instance in which -it has been .denied 'to him in equity, because he'failed to defend at.law, and preferred to- seek relief in a court, where- he,had a constitutional right to come, and in which he may have supposed that the merits of his case would be more surely tried, when submitted-to thq calm and dispassionate judgment of one man, not influenced by the prejudices of the community, than when placed in the keeping of a jury selected from the crowd, and who" however honest, might not be able to divest themselves of the prejudices of that community' in which they lived. See also, Newman v. Franco, 2 Anst. 519. ■ • .
    In America, the position for'which I have contended has been repeatedly recognized and acted upon by most every state in the Union; even in the state of'New York, where1 a contrary rule was laid down in the case of LeGuen v. Governeur, 1 John’s Cas. and in the case of Lansing v. Leddy, l John’s Ch. Rep. The latter decisions of her courts have so many exceptions to the rule established by those two cases, as in effect, though not directly to overrule them.
    In Rathborne v. Warren, 10 John’s Rep.. 595, the court allows a party to come into equity for relief, where he had failed to ask it at law, and where it was perfectly competent for him to have there obtained it. Again in the case of Simpson v. Hart, 14 John’s Rep. 65, a court of equity allowed the defendant a set-off, which on a trial at law, had been refused, and. this upon the,ground that a court of equity had always granted such relief, and because new facts, not before the court of law, were presented to the court of chancery, which made it manifest that the party should have been allowed his set-off. This was á' case in which by the rules of practice in New York, the two courts exercised concurrent jurisdiction. In another case, that of King v, Baldwin, 17 John’s Rep. 389, a court of equity granted relief, although the party might have defended at law if he would,' because equity exercised jurisdiction concurrently with law to grant relief in the'case presented. And Chief Justice Spencer in delivering his opinion, remarked “ that if the matter was strictly of legal jurisdiction and the nature of the case required the defendant to make his defence at law, in .such case a court of equity will not aid his negligence,” from which remark, it is manifest that C. J. Spence'r entertained the opinion', that in those cases, in which equity had concurrent power with a court of law to grant relief, that it could exercise its power after a trial at law, though it would not relieve where the defence was strictly legal, and the parfy had neglected to make it.
    The opinion of Chancellor Jones of New York, accorded with the view taken of the law by complainants’ counsel in this case. See 1 Johns. Cases, Le Guen v. Governeur. Of a similar opinion is the present Chancellor of the state, Walworth, whose legal research and learning in chancery, is not surpassed in America. 4 Paige, 653.
    From the foregoing authorities it will appear that the decisions of late years in New York, have so modified the doctrine laid down by Chancellor J. Ratcliffe and Chancellor Kent, as in effect to have overruled them.
    In the state of Virginia, the doctrine contended for by complainants’ counsel, has been recognized in several cases. In 2 Washington R. 36-255, in two cases the court gave relief in equity, after a failure to defend at law; the ground of defence being such as the party had a right, to make either in law or equity. So in the case of Snyder v. Bailey, 1 Rand. 76, the court granted a perpetual injunction of a judgment at law, which had been rendered on a note given for money loaned by an incorporated banking company, such companies being prohibited by statute. Again, in 3 Rand. 214, the court held, that after a judgment on a note given for money won at gaming, a court of equity would relieve, although the party should have no reason for not defending at law. The same point is decided in 2 Hen. and Munf. 80. In the case of Branch v. Bamley, 3 Rand. 135, it was held that equity would relieve against a judgment at law, although the party might have defended at law, it being a case in which equity had concurrent power to grant relief with the court of law, and also because new facts were stated in the bill as a ground of relief which were' not before the court of law at the trial, although the party might have introduced them there, had he wished; and in the case of Bumly v. Dick, 1 Rand. 178, the court say, that in a case of purely a legal nature, they will not relieve in equity merely because the judgment of the court of law is erroneous; and this we take to be the true rule upon this subject, and to this extent and no more, the court in Virginia have gone.
    In South Carolina, in the case of Crawford ¶. Crawford, 1 Dess. 176, a court of equity granted an injunction ■ of a judgment obtained on a bill of sale, which had been fraudulently obtained. In this case, the party might have defended at law, yet equity did not hesitate to grant relief. In Ohio, in the case of Curtiss et al. v. Cisna’s administrators, the court say, that in cases of concurrent jurisdiction, they will not grant relief, where the party elects to defend at law, and fails in his defence. 1 Cond. Ohio R. 188.
    In the state of Tennessee, in the case of Hancock v. Bryant and Hunt, 2 Yerg. 476, and in the case of Thompson v. Watson and Gibson, 10 Yerg. 363, it was held that if a party fail to defend at law, he may come into equity for relief, provided the courts nad concurrent power to grant relief. To the same point, see Cooke R. page 430. .
    In Kentucky, the rule contended for by complainants’ counsel, has been adopted to its fullest extent in a variety of cases. See 4 Monro, 299. 2 Bibb, 200. 2 J. J. Mar. 139, and particularly the case of Clay v. Fry, 3 Bibb, 249, which was a bill filed to enjoin a judgment on a note won at gaming; and the court in their opinion say, “that tvhere matter of defence is purely legal and exclusively cognizable in a court of law, it is clear that if a party fails or neglects to avail himself of his defence at law, he cannot be permitted to resort to a court of equity. But if the defence be of such nature that the party may avail himself of it in law or chancery, although he should fail to defend at law, he may, nevertheless, according to the repeated decisions of this court, resort to a court of equity for relief, in the same manner and for the same reasons, that a party having a claim of which a court of law and a court of equity have concurrent jurisdiction, may elect to which tribunal he will apply to enforce his claim.”
    In the above extract it is believed that the true rule upon this subject is clearly and distinctly laid down, and satisfactory reasons are given for the rule, to wit: that as a party may elect to which of two forums having concurrent jurisdiction he will apply to enforce his claim, so a defendant may elect in which two forums having concurrent jurisdiction, he will make or insist upon his defence. Any other rule upon this subject enables the plaintiff to make an election, in which of the two forums the defendant shall make his defence; and the plaintiff by his election is thus enabled to deprive a defendant of a right which is given him by law, and compels him, instead of defending in a tribunal of his own choice, to take that which the plaintiff chooses for him.
    There are many and obvious reasons to my mind, why this should be the rule upon the subject, particularly in a case like the one before the court. Had the complainants instead of being as they were in this instance, mere passive agents, doing no act which recognized the defendant’s right, when called upon for payment by the defendants, paid a part of the note, and given a new note for the balance, would they not have been entitled to the same defence upon such new note as they were upon the original ? Surely no one will doubt this; because it has been decided too frequently to admit of cavil. But had there been no decisions upon the subject, the reasons would be so clear that none could doubt; because the same taint which entered into the original, must have vitiated the new note, for it would be founded upon the same consideration, and a mere change of securities could not have made that valid and legal which was before declared by law to be illegal and invalid. Do the complainants stand in any different attitude before this court, now that they have suffered judgment to be taken against them, than they would if they had given a renewed note? It cannot surely be. For reasons of public policy, to protect the laws of the land from violation, to punish those who have transgressed, and by rendering crime unprofitable, to lessen its commission, courts of law and equity have said that all contracts made in violation of public policy or the laws of the land, shall be declared void, and shall not be enforced. Why. was this rule established ? Not for the benefit of either of the contracting parties, say the books, but for the protection of the public.
    A court of law allows the party who made the note to insist upon its illegality as a defence. A court of equity upon his application, will enjoin any suit from being brought upon it, and order it to be delivered up and to be cancelled. This is done, too, after he has reaped the benefit of the contract, as in the instance of marriage and place brokage bonds; but both courts say that this is done, not for any regard either court has to the party who insists upon the illegality of the note, but for reasons of public policy: to punish the active agent in violating the law, to deprive him of his unlawful gain, and thus to deter him and others from again committing a violation of the law, and by these means to give protection to the laws and the public.
    These are the reasons, and they are plain, obvious, and sensible ; for it will be seen in an instant, that if a party making a contract in violation of the law, were permitted to reap the benefit of his contract, there would be no respect paid to laws, and men would violate them with impunity, and soon reduce them and those that made them, to contempt and ridicule. Do not the same reasons demand that a court of equity should enjoin the execution of a judgment, which is based upon a void and illegal consideration, that is to prevent a suit being brought upon the note, or to order its cancellation ? It seems most manifest that they do. A note is void, because illegal, because made .in contravention of the constitution, of public policy or the laws of the land. A judgment is obtained on that note. Is that judgment less objectionable than the note ? Should a recovery of money upon it be allowed any sooner than upon the note? It cannot be, for its consideration is the same as the consideration of the note, and therefore the same taint which affected the note, must have entered into the judgment; and the mere fact of the party defendant having failed to defend, when sued, cannot have rendered that legal which was before illegal, that pure which was before impure, cannot have made it less the policy of the law to prevent the money being received by the defendants, the wages of their crime, now that a judgment has passed, than it was before.
    The defence upon the note was given to the defendant, not for his own deserts, but because through him the public was enabled to act upon the party, who was the active agent in violating the law. Are not the reasons, then, equally strong for enjoining the judgment, as they were for enjoining suit upon the note, for the same results will grow out of the permission to recover the money upon the judgment, as would have flown from permitting a recovery upon the note; and if equity would have acted in the one case to protect the public, for the same reason must it now act. If equity would have relieved against the note, because it was void, so must it relieve against the judgment founded on the note, for a void thing is incapable of confirmation. See Bac. Ab. In England, and in many of the U. States, it has been decided that a party who pays money on an illegal contract, may recover it back in equity. See Ambler, 432, 2 Strange, 915, 8 East, 383. 20 John’s Rep. 29Ó., 7 Yergfer, 563. 2 John’s Ch. R. 183. 1 Eq. Cas. Ab. 89.' 2 Eden R. 19Ó. LBrO.-C. 0. 543. These áre stronger cases than the one before the court, for there contract was executed, here it is executory. There an order was made: to pay back. Here it is asked’to prevent ft being, paid y and the reasons which-influenced the court in making their decisions there, to wit: that no man should be allowed to profit by an illegal transaction, are surely as potent to induce a court to restrain the payment of money, as to order it when once paid to be refunded.
    
      Those cases, "in which it has been held that after a failure to defend at law, equity will not relieve, are not at all like the present. They were all" case's in which the laws violated, were made for the-benefit and protection of the party, who failed to take advantage of them at law. Look, for instance, at the' case in 1 Johns. Ch. R. There the pa^ty failéd to, plead usury.at- lav/, and relief was denied in equity. . Why? - Because the usury laws' were made for -his benefit. They were made to protect him, not the public ; therefore, by" failing to have défeñded-at law, and having there waived.his right to relief, there are nq.reasons.of public policy, why equity should he anxious to grant him relief. In the casé before the court, However, the contract ib declared .to be void, not for the benefit of-either party. The complainants are the mere mouth-piece through which the public speak, the agent by which it acts; not for his deserts is the obligation cancelled, the instrument ■ declared void,-but it is because the policy 'of - the 'state has been violated and openly disregarded; and ,a recovery is not permitted, because it is believed that thus that policy may be vindicated, the breach healed which has'been made in’ the laws, and that others may thus'be induced to respect and regard the , policy and laws of the state, when they see that they can reap no profit by disregarding them. These reasons,'aside from decided cases, and’a long line, of well established precedents, it seems tó me -are sufficient to decide this point in favor of the complainants,
    ■That a court of equity has the .power to’relieve against illegal contracts, .and instruments which áre illegal and void, by injunction, and by ordering them to be delivered up to be cancelled, is at this day, be it as it may have been formerly; too well settled to require any argument to satisfy the court. It has been decided over and over again in England, in the case of marriage and place brokage bonds, bonds or securities given for m'oney won at play, notes or bonds given for future cohabitation, simon'iaqal contracts, &c., &c., in instances almost without ‘number, that equity would relieve; though in these cases the party might have availed himself at law of the defence, that the obligation was illegal. See the cases before cited in this argument; also the note in the case of Davis v. Duke of Marlborough, 2 Swanston R. 16'6, in which all the authorities nearly'upon this, point are collected. 7 Vesoy, 6. 1 Johns. Ch. R. 517. 1 Story Eq. 7, 8, 9, 10, 11.. 2 Anst 519. 1 Madd. Ch. P. lio. . 2 Vesey, 485. ‘ IS Vesey, 581. 2 Peere Williams, 170., 3 do.-391. Eden on’Injunctions, 39.
    Nor does the rule of particeps criminis prevent this court from acting, because the relief is not given so much to the party as’it is to the public through him. See the above authorities, and in addition upon this p’oint, the case in ’ 1 Rand. 76, before referred to. But in the case before the. court, the .parties are not equally guilty; all the complainants but Glidewell, are merely sureties, who w;ere induced to sign the instrument to accommodate a friend. Their kindness and regard for another has placed them as they stand before,the court. Let the contract be good or bad, legal or illegal, pure or impure, they reap no benefit from it, and cannot, therefore, be considered equally criminal, with those, who for selfish purposes, for the sake of. gain and that they might grow rich by. their, crimes, without shame or .remorse, in'open disregard of the laws and constitution of the state, bring into the state articles -prohibited "by law-from being introduced, and after-wards in furtherance of their formed designs, enter into contracts for'the sale of them, in utter defiance of the laws and authorities of the state. Nor is Glidewell so'.guilty as the defendants ; they were active agents in the transaction, they brought the prohibited article into -the state, they tempted him to buy, and throughout he was a, passive instrument rather than an active agent, in violating those laws, which'the defendant ’treated • with disrespect, and regarded as mere inanitions, because no punishment for their-violation had been provided, nor any sanction adopted to enforce them.
    It has been urged, I am told, that be the foregoing questions as they may, still this court will not grhnt relief until the slaves purchased are tendered back. . Whatever rule upon this subject the court may fix upon Glidewell, it cannot be .affixed to the other complainants. They have not now, and never had any control or management of the slaves, they were never in their possession, •no cent of profit ever accrued to them from the purchase, they cannot if they would tender them, as they do not belong to them. They are mere endorsers for accommodation of a note, which they contend was void,, and upon which, -therefore, they were never liable, arid having been drawn into this' matter by means of their kindness to Glidewell, and the defendants having reaped no benefit from it, it would be unprecedented to say that they should tender slaves which they have not and never had, and over which they never had any control, before they can ask to be relieved from an instrument signed by them without any hope or expectation of benefit or reward. But I do not think that this is one of the cases in which even Glidewell should be compelled to tender the slaves as a condition of relief. In usury contracts, the rule that the party should tender the principal sum borrowed, and legal interest, before relief wifi be granted him, is founded upon the reason that the usury statutes were made to protect him from paying more than that, and therefore it is but right that.chancery should grant him no further relief than the statute gave or intended to secure him; but in this case there is. no such reason, why a tender of slaves should be made a condition of relief, because the note given is void, for reasons .of public policy, and being so in equity, should impose no terms upon him; as a condition upon which it will see the laws of the' land vindicated, it should simply declare the contract and the instrument void, and leave the parties to settle the question as to tbe slaves by the -law of the land. If, however, I am mistaken in this view of the case, and the,court should think that Glidewell should make a tender of the slaves as a condition of relief, still I am well satisfied that the condition can never apply to the other complainants, who stand before the court in the attitude of mere sureties, who were drawn into their present situation "by kind feelingsj and who had no part nor Lot in trade between the principals, and who never expected, never did, and never will receive the slightest benefit from that trade. '
    With these remarks, I submit this case to the court, with the belief that the reasons for granting relief in this case are evident, and that the whole, range of English and American precedents upon this- subject, with but few exceptions, .clearly' establish the rules of law to be as I have laid them down, and that were this court now to refuse relief after the full, clear,. certain and distinct admission of the defendants of the illegality and baseness of their cause, it would be in the language of Lord Thurlow, « an Unequivocal declaration-of the law, that the party shall have all the benefit' of his contract, and that it is approved by law, for the law approves what it refuses to réscind.” '
    This case is very plainly distinguishable from the case of Thos. M. Green v. Winslow Robinson, decided by this court at the January terni, 1839. In that case the action was founded upon a promissory 'note, and by the rules of law, courts of law always possessed and exercised a concurrent jurisdiction with courts of equity, to inquire into and declare the -illegality of instruments not under seal. But in the" case at bar, the action at' law was brought upon a bill single or sealed instrument, and-anciently courts of law had no jurisdiction and exercised no right to inquire into the validity or .illegality of such instruments. In fact, it has only been within a short time since, that süch a power has been exercised. The first case in which it was ever done, was Collins v. Blanten, decided in 1767, reported ;n 2 Wilson, 341. See argument of Mr. Plumer in thé cáse of Gray v. Mathias, 5 Vesey, 292. 2 Swanston, 165; (note b.). ,
    The, well established rule of chancery in questions of this kind is, that where; the ancient jurisdiction "was’originally in equity, and belonged exclusively to it, the fact that courts of law will now give relief, where they once refused it, or -in-'the language of the books, “ because courts of law have fallen in love with the jurisdiction of chancery,” will not oust equity of its original juris- ' diction, nor will a court of chancery on that, account refuse cognizance of the case. 2 Swans. 165; (note b.) Bromley v. Holland, 7 Yesey, 6. 4 Paige’s Ch. Rep. 653. Nor do I think that any well considered case can be found in the English books, in which a court of chancery in England has refused to exercise its ancient jurisdiction, because the party might have had the same relief at law, which he sought in chancery. Our constitution has established courts of law and chancery in this state. Suppose the legislature should direct that courts of law might take jurisdiction in those cases, in which the jurisdiction belonged to chancery, at the adoption of the constitution, could a court of chancery refuse relief in any such case, because the party might have had it at law. It is beyond dispute, that it could not, becaúse if it did so, it would decide that the legislature might indirectly and “ by. a sidewind” do that, to wit: establish a court of chancery, which it could not do directly. If then the legislature could not in this indirect way oust a court of equity of its ancient jurisdiction, it seems manifest that the courts of law, by assuming powers they did not anciently possess, cannot do so. Where a court has jurisdiction of a cause, I do not know a case in which it can refuse to exercise it; for if it may refuse it in one case, because the party could have relief at law, it could refuse it in all, where the legislature might confer jurisdiction. Such a course of decision would amount to a virtual abolition of courts of chancery, inasmuch as there is no difference to the citizen, between the refusal of a court of chancery to exercise jurisdiction, which it is admitted, belongs to it, and an act of the legislature, which should declare, that the court of chancery should not exercise that particular power. Upon the whole view of the case, it does seem to me that the reasons are manifest why relief should be given in the present case.
    If the contract be void, as we contend it is, and if this court have jurisdiction to give relief, as we believe it has, still the question recurs, upon what terms will it be given ?
    The chancellor, in his opinion, says that it will be given only upon condition that the complainant will surrender to the vendor the slaves purchased of him, and the chancellor relies upon the maxim, that “ he who seeks equity, must do equity” to sustain this position. While we yield to this maxim all the weight we believe it entitled to, still we must believe that to a case similar to the present, it can have no application.
    
      The artthorities and decisions which I heretofore read to the court, fully establish the position, that in those cases where contracts have been declared void, on account of their violating an express statute, or the policy of the state, courts’ of equity have laid aside those rules and maxims which were established in causes where the rights of private individuals only were involved, and have adopted such rules of decision as were best calculated to promote the great interests of the state : treating the individuals in whose names the suits were litigated, as mere instruments by which the policy of the state was to be upheld and maintained. Take for example the maxim, that “ parties in pari delicto cannot obtain relief from contracts which they have made by the assistance of a court of equity.” No principle of equity, as applied to causes in which individual rights and interests only are involved, is better established or more unwavering than the above; yet, as we have seen, it is never applied to contracts declared void by statute, or which it is against the policy of the state to, make. Again — take the maxim that he who is a “parliceps criminis” will not be aided by a court of equity. Yet wherever a statute declares a contract void, or it is against the policy of the law to make, the courts of England and America have disregarded the maxim, treating the party whose name stood as plaintiff on the record, as a mere instrument by which the policy of the law might be maintained. Well established as these principles now are, there are some of the earlier cases which overlooked the plain difference between contracts which it was the policy of the law to declare void, and the making of which the public policy forbade, and those which were made in contravention of some law, made to protect individuals and not the state.
    Where the maxim that “ he who seeks equity, must do equity,” is applied to those cases in which no principle of public policy is involved, and where the contest is alone between individuals, there can £>e no doubt of its, correctness. Take for example those cases which arise under the usury laws, which having been made to protect the borrower, alone, and not the public, the courts may well say, that he who asks relief in equity shall only have it conditioned that he will pay to the lender the principal and interest borrowed. So, too, the rule is well applied to that class of cases in which relief is asked from a contract in which the party has been imposed upon and defrauded, and in which it is but right that he should surrender whatever he may have obtained, in order that each party may occupy his original condition. The case before the court, however, is very different from the above. In it the contract is vacated solely upon principles of public policy. The courts disregard the parties on the record; the state itself and her laws being the real parties in the suit.
    In Virginia, in the case of McGuire v. Ashley, 1 Rand. 101, the court say, that “ a court of equity as well as a court of law will interfere to .prohibit the effects of a contract made in violation of laws enacted for the public good,” and relief after a judgment at law was there given, without any terms being imposed upon the party. In the same state, in the case of McPherrin v. King, 1 Rand. 172, the court without expressly deciding, intimate the opinion that courts of equity will relieve against contracts made in violation of laws passed for the good of the public, without imposing any terms on the complainant as a condition of relief. For these reasons, I think as between the vendor and pur chaser, this court might well hesitate before they would refuse relief without a tender of the slaves. But in this case I consider the question to be plain, that no such terms should be imposed upon the complainant. He is, as I stated in my argument, a mere surety. He came into the-contract without the hope or expectation of profit. No mercenary motives induced him to'hazard a violation of the laws. He had no agency in making the contract, but actuated alone by the principles of friendship, at the request of a friend he has entered into a contract which the law declares to be illegal and void, and from which he claims to be relieved. What will this court require the complainant to do in this case, to obtain relief? To tender the slaves ? Most surely not. He never had them in his possession. He cannot obtain them, did he desire it; and to impose such a condition, would be to say in so many words, “ take your pound of flesh, but see that you draw' no blood.” The court will not compel him to pay the value of the slaves, because he has never had them in his possession; he never derived any profit from them, and never expected to do so, and to make him pay the money, would be to give a bonus to the party, who for the sake of profit only from mercenary motives alone, was the active agent in procuring a violation of the law, and who throughout held the temptation to all other parties to do the illegal act. It would, in fact, be paying him to violate the laws.
    Courts of equity always view sureties with great favor, and never compel them to a more rigid accountability than the law actually demands. This principle has been established on account of the peculiar situation of sureties. They become sureties from no selfish motives. They never expect any profit or benefit for doing so. Influenced by kind and benevolent feelings, they in many instances without reflection yield to the request's of their friends, fearful very often to refuse, lest by so-doing those ties of friendship which bound them together should be broken. For these reasons courts of equity have always been astute to find some means to discharge them, not inconsistent with justice and equity.
    In the case before the court, we think it would be .a strange notion of equity, to say that he who had no active agency in violating the law, who has been drawn into it without any improper motive upon his part, should be denied relief from the contract which is confessedly illegal and void, and which it is the policy of the law to declare so, unless he will pay to the party who contrived the scheme, and procured the means of violating the law, those illegal profits, which induced him with unblushing effrontery to treat the policy of the state with contempt, and to violate her laws without remorse. To do this, would be to punish the innocent, and reward the guilty, and would have the effect of encouraging others to do similar wrongs to the constitution and laws of the land. The fact that a judgment has gone, is in their view of the case immaterial. A court of chancery always looks to the real situation of parties, and never regards the accidental position in which they stand upon the record.
    Holt, for appellees.
    So far as the equity of the bill is rested upon the alledged unsoundness of the slaves, and the fraud charged upon defendants in making the sale, it is completely swept away by the answer, which denies in the strongest terms, that the slaves were unsound, or that any warranty, or representation of soundness was made, or that any fraud was practised by defendants. There being neither deposition nor affidavit to support the bill against these denials of the answer, the injunction cannot, of course, be maintained upon this ground. .Upon this state of the pleadings and evidence, defendants are not driven to rely upon the judgment at law, as showing that the subject matter of this branch of the de-fence has been already adjudicated upon.
    If however, the contract of sale, was void or voidable, because made in violation of the provisions of the statute of 1S22, and of the new constitution of Mississippi, certainly the defence upon that ground, was strictly, a legal one. No reason is shown, why the defence was not made'at law. The complainants were as fully aware of the existence of the facts constituting the subject matter of the defence, upon the trial at law, as they now are. Under these circumstances, the rule is inveterate and inflexible that the chancellor will not interpose. To do so, would be to confound the jurisdiction of the two courts. 1 J. C. R. 322-3. 2 Story’s Eq. ISO — 1. 3 Afkyns, 223. 3 Yerger, 105,131. The argument that however negligent a party may have been, his rights of defence shall not be lost, upon principles of public policy, finds no countenance in reason, or in any of the analogies of law. The public vindicate their policy, through indietménts, and do not rely upon the interests or passions of private litigants to make such vindication. Public policy requires that there should be an end of litigation; it requires that the rights of the áctive and vigilant should be sustained, and it looks with unconcern upon the sacrifice of the supine and the slothfuL litigant.
    The statute of 1822, has not been regarded as in force since the adoption of the new constitution. After that constitution had been framed and had acquired obligatory force, the old statutes bécame inoperative, except so far as they were adopted by it. In the fourth section of the «schedule” this language is found: “All laws now in force in this state, not repugnant to this constitution, shall continne to operate until they shall expire by their own limitation, or be altered or repealed by the legislature.”
    The statute of 1822, permitted the introduction of slaves into this state for, sale or as merchandize, under certain restrictions; the new constitution commands the legislature to prohibit such introduction absolutely, after the 1st of May, 1833. The statute and constitution are therefore clearly repugnant to each other, and the former must fall. The neglect or refusal of the legislature to comply with this constitutional mandate, would not revive or continue in force the statute of 18.82; after the constitution had been adopted, no statute of antecedent date continued to operate ex propriis vigore, but only by the express sanction of that instrument, and surely a constitution which commanded the legislature to prohibit absolutely the introduction of slaves as merchandize, cannot be construed to continue in force a pre-existing law, which permitted such introduction.
    As to the effect of the constitutional prohibition, it may be remarked, that the clause in question does not declare that the slaves introduced into this state, after the 1st day of May, 1833, for sale or as merchandize, shall be forfeited; nor does it in any manner strip them of their attributes or qualities as property. Being property still, .they are necessarily the subject of sale and transfer. Had the bond of complainants been executed in consideration of services performed in introducing slaves into this state as merchandize, — had it formed a part of a contract thus to introduce them, it would have been void, if the language of the constitution upon this subject, be regarded as any thing more than directory to the legislature. But, it was no part of any such contract. It followed the introduction of the slaves, it is true, but remotely; it did not superinduce such introduction. The position contended for will be found to be fully examined and recognized in Armstrong v. Toler, 11 Wheaton, 258. The court there say, “ If, for example, the man who imports goods for another, by means of a violation of the laws of his country, is disqualified from founding any action upon such illegal transaction, for the value or freight of the goods, or other advances made on them, he is justly punished for the immorality of the act, and a powerful discouragement from the perpetration of it is provided by the rule. But after the act is accomplished, no new contract ought to be affected by it; it ought not. to vitiate the contract of the retail merchant who buys these goods from the importer, that of the tailor, who purchases from the merchant, or of the customers of the former, amongst whom the goods are distributed in clothing, although the illegality of the original act was known to each of the above persons at the time he contracted.” Vide also 2 Kent, 466, (edition 1832,) where it is said that “ if the contract be unconnected with the illegal act, and founded on a new consideration, it may be enforced, although the illegal act was known to the party to whom the promise was made, and he was the contriver ox the illegal act.”
    The case is precisely in point. Had this been a suit against Hite and Fitzpatrick for work and labor performed in introducing for them the slaves into this state, or for advances made, in furtherance of such introduction, it could not have been maintained, because “founded upon the illegal transaction itself,” the consideration of the promise declared on, being the very act forbidden by law. But after the slaves have been brought into the state, the sale of them is an entirely new contract, based upon a valuable consideration, “which is not infected with the vice of their importation.” As the contract of the retail merchant who purchased smuggled goods from the importer, was not vitiated by the previous illegal act of importation, so the contract of Griffin and Glidewell in the purchase of these slaves, cannot be avoided because the defendant had previously violated the law in bringing them into the state. Complainants’ bond to defendants stipulated for no iniquity, was tainted by no illegality of consideration, but was based upon a consideration most valuable, the sale and transfer of slaves, which neither the statute of 1822, nor the constitution had, manumitted, the title to which no law constitutional or otherwise, had in any manner impaired.
    It is believed, however, that the clause in the constitution was merely directory to the legislature, and until such direction had been obeyed, the constitution in this particular was inoperative as a law. Constitutions address themselves, not to individuals, but to the different departments of the government, which are charged with carrying into effect the principles which the constitution establishes. In the section preceding that under examination, various powers are given to the legislature over slaves, and a discretion left them to exercise these powers or not, as they may deem proper. Bat in regard to the prohibition in question, they are left no discretion. The language is imperative, that they shall prohibit, still it is only directory, and if the legislature refused or neglected to 3deld obedience to this constitutional mandate, it is difficult to perceive how the prohibition could take effect. Had it been designed by the framers of the constitution, that this prohibition should be consummated by that instrument itself, a different phraseology would certainly have been adopted. The language would probably have been, “the introduction of slaves into this state as merchandize, or for sale, be and is hereby prohibited, from, and after the first day of Mfay, 1833,55 or “ that from and after the first day of May, 1833, slaves shall not be introduced into this state, for sale or as merchandize.” The language actually employed is, however, very different. It speaks of a prohibition thereafter to be made, “ shall be prohibited,” and has evident reference to some supervenient power or agency, by which such prohibition is to be made and declared. “ Shall be prohibited!” By whom ? is the question which naturally arises. Certainly not by the convention, which before the first day of May, 1833, would be extinct, but by the legislature, charged with the execution of the wishes of that convention as indicated in the constitution. As a prohibition is nothing without a penalty, and as the framers of the constitution could not in preparing such an instrument, descend into the details of a criminal code, it was proper and according to usage, to refer to the legislature, not merely the power of providing adequate punishments for the introduction of slaves into the state as merchandize or for sale, but also of giving to the contemplated prohibition itself, the form and obligatory force of a penal law. To suppose that the members of the convention regarded the prohibition as complete, and clothed with the energies of a public law, by the clause in question, would be to suppose them capable of exhibiting the anomaly, and I may add, the absurdity, in jurisprudence, of prohibiting an act as at war with the best interests of the state, and yet providing no punishment for its commission.
    The constitution was adopted on the 26th of October, 1832. As shown by the 5th section of the “ schedule,” the first session of the legislature under that constitution, was to be holden on the first Monday of January, 1833, four months before the day on which the prohibition contemplated was to take effect; of course there was ample time for legislative action, in obedience to the constitutional mandate. At the January session, 1833, the whole government was organized under the new constitution, and this very subject was acted upon by the legislature. Laws of Miss. 478. Instead of obeying the constitutional mandate, they proposed an amendment to the people.
    Contemporaneous exposition of a law, is much to be regarded in its interpretation. That the legislature, courts, and people of Mississippi, considered the' prohibition in the constitution as insufficient without further legislation, is well known, and under this construction, which every where obtained, slaves were imported for sale from every slave holding state in the Union. The legislature itself encouraged this interpretation, by refusing, for four years, in view of the continued influx of slaves as merchandise, to pass any prohibitory laws. With this lure held out, to seize upon thousands of slaves introduced under its influence, would exhibit all the rapacity of the robber, without any of the courage, which redeems his groveling passion from contempt. The very enactment of the statute of 1S37, was a direct confirmation of the construction which had prevailed, because it was a declaration that legislative action was required to give effect to the direction of the constitution upon this subject.
    Appellant’s counsel have sought to distinguish this case from that of Green v. Robinson, by urging that the judgment against Green was rendered upon a promissory note, the consideration of which was always impeachable at law; whereas the judgment against complainant was upon a bond, the consideration of which originally could only be impeached in equity, and that the statute which gives the obligor in a bond ■ a right to impeach its consideration at law, has not ousted the chancellor of his original jurisdiction upon the subject. This doctrine originated with the English chancellors, who have ever looked with jealousy upon the common law courts, and have watched with apprehension every attempt at an enlargement of their jurisdiction. This spirit was well portrayed in the remark of the chancellor, who declared that he would not give up his jurisdiction over, a particular subject, merely because the common law judge had fallen in love with it. This feeling has not been indulged by American chancellors, who, with few exceptions, have repudiated the doctrine referred to, as unsound, and as trenching upon a great principle of public policy which looks to the repression of litigation as a consummation devoutly to be wished. In furtherance of this policy, they have held, that, in cases of concurrent jurisdiction, (to which class appellant’s counsel insists the case at bar belongs,) the court which first gets jurisdiction, must finally decide,' and that the party is bound to make every defence available to him, in the forum where he is first impleaded. Such was the doctrine of the supreme court of the United States, in Smith v. Mclver, 9 Wheaton, 552, and such was the emphatic doctrine of this court in Green v. Robinson. It is obvious, that so far as the maintainance of the principle of public policy adverted to, is concerned, it is wholly immaterial whether the right to impeach the consideration of a bond, be of common law, or statutory origin. In either case, the reason of the rule would require that a party to a bond when sued at law, should make his defence there, or show some satisfactory excuse for not having done so. A contrary doctrine, this court, in the case just cited has pronounced “ at war with the best interests of society, by encouraging litigation.”
    But even if the principle contended for, on behalf of appellants, were maintainable, the facts of this case furnish no room for its application. The most jealous and rigorous of the English chancellors have always held, that in cases of concurrent jurisdiction, if the party elects to defend at law, he must abide the judgment of the forum he has chosen, and cannot afterwards claim the interposition of the chancellor, upon grounds of which he might have availed himself in the common law court. Complainants availed themselves of the right given by statute to impeach the consideration of the bond on which they were sued at law; they filed two special pleas in bar, each of which impugned the consideration, and they thereby fixed the jurisdiction of that court over their defence, and forever precluded the chancellor from interfering. No decision or dictum can be found, which will authorize a party in a case of concurrent jurisdiction, to split up his de-fence, making one half before the common law court and the other before the chancellor. Having selected his forum, he is bound to urge there every matter of defence of which that forum, can take cognizance. This principle, to which, it is believed, no exception exists, must be fatal to the pretended equity set up by appellants.
    G. S. Yerger on the same side.
    1st. By the act of 1822, Revised Code, 118, the consideration of a bond may be impeached at law. In this cause it was impeached and relied on. The question was settled at law. But when the defence is legal, and might have been made at law, and the party is not prevented from making his defence by the fraud of the plaintiff, or by matter over which he had no control, it is settled by undisputed authority, that equity will not entertain jurisdiction. Duncan v. Lyon, 3 John. Ch. Rep. 351. Nevit v. Gillespie, l Howard, 108. Foster v. Wood, 6 John. Ch. Rep. 87.
    2d. The illegality of the contract was clearly a defence at law, and only at law, as in case of usury. When a party is sued on an usurious contract, and he does not defend upon that ground at law, he cannot after judgment come into equity for relief. Lansing v. Eddy, 1 John. Ch. Rep, 49. The Virginia and Kentucky usury cases, to the contrary, were decided upon special statutes of those states. So of gaming contracts, there are in those states, as in Mississippi, statutes authorizing the interposition of the chancellor ; but these laws are in derogation of the general rule, and can have no influence upon this case.
    3rd. If a discovery was wanted from the defendant, he could not be compelled to give .it, as it would subject him to forfeitures, &c. But if a discovery could be enforced, it is too late to come into equity for a discovery after trial at law.
    In the case of Nevit v. Gillespie, 1 Howard, 113, the court says, that if the defendant saw proper to suffer judgment to be rendered against him without presenting his defence, if he had any, the court will not now shield him from the consequences of his own neglect. It is a principle of law prevailing in our system, that where a party has been impleaded before any judicial tribunal, he must use due diligence to avail himself of every legal defence proper to his cause, and admissible in the forum in which he stands charged, &c.
    It is admitted, that a court of equity has jurisdiction to order a gaming contract, or any other illegal contract which is against the policy of the law, to be delivered up and cancelled. The jurisdiction is concurrent with that at law, and it is now well settled, (although there may be some cases to the contrary,) that in such a case, the court which first takes jurisdiction, settles the matter conclusively.
    This rule is explicitly laid down in the case of Smith v. Mc-Iver’s heirs, 9 Wheaton’s Rep. 532,and Thompsons. Hill, 3 Yer-ger’s Rep. 170.
    In Virginia, the jurisdiction in gambling cases to enjoin a payment, is expressly given by statute, of which ours is a copy. Laws of Mississippi, 326.
    It is believed that the true principle deducible from all the authorities is this: If equity and law have equally concurrent jurisdiction, and the jurisdiction is not originally exclusive in equity, then the party is bound to defend in the jurisdiction which first takes cognizance of the cause, unless special grounds of jurisdiction is shown; and if he does not defend, the rule, “ that when he has a legal defence and does not make it,” when impleaded in a court of law, is conclusive. But if equity originally had exclusive jurisdiction of the matter, and a court of law afterwards assumes jurisdiction as it is given by statute, in such cases, the defendant has a right to elect in which tribunal he will defend. 2 Paige’s Ch. Rep. 499. 5 Paige, 249. 2 Story’s Eq. 179.
   Opinion of the court, by

Mr. Justice Tkottek.

This cause involves the same questions that were decided by this court at the last January term, in the case of Thomas M. Green v. Winslow Robinson. Since then, I have seen no reason to change the opinion then expressed, but on the contrary, have been strongly confirmed in it by subsequent examination. Since that decision was made, my attention has been directed to the case of Haden v. Garden, which was decided by the court of appeals in Virginia, as late as the year 1836, and reported in 7 Leigh, 161. it was upon a bill in chancery to be relieved from the payment of a bond alledged to have been procured by fraud and imposition. An action was commenced upon the bond in a court of law, and the defendant suffered a judgment to be entered against him by default. The bill alledged no sufficient, reason for not making the defence upon the trial at law, but relied upon the concurrent jurisdiction of a court of equity in cases of fraud.

The case was fully argued at the bar, and appears to have received the deliberate consideration of the court; and the judges were unanimous in the opinion that the court had,not the power to relieve against the judgment. One of the judges in giving his opinion observes, “ Nor does the consideration that equity has concurrent jurisdiction, make any difference. The jurisdiction of equity to relieve against a fraud, is no excuse for the omission to make the defence, when the party is already before a court having full cognizance of it. Gasden was sued at law, and might there have had redress. Shall he without even a pretext, multiply litigation, by instituting this second suit in equity ? Shall he be permitted to shrink from a jury trial, which must have decided the case at law, and bring his adversary into equity, where he may escape that ordeal ?” In the case before us, the complainant had ample redress at law, and he should have availed himself of the defence he has insisted upon, on the trial at law. The grounds of public policy upon which this court has been zealously invoked to sustain the application in this case, and make it an exception from the general rule of equity jurisdiction, are surely as deeply involved in cases of gross fraud, as in those which violate the provisions of a statute. Nothing can be more abhorrent to the law and the moral sense of civilized society, or challenge more boldly the interposition of the judicial authority, than a deliberate violation of good faith and honesty. Fair dealing is essential to the existence of society, and to its happiness and prosperity. It is the implied compact which is the very foundation of all the' social relations of man, and when its habitual violation shall be sanctioned, or tolerated with impunity, the complicated transactions of society must cease, and its purposes be totally defeated. And yet the wisest jurists have thought that the rule which was established under a sound policy to prevent multiplicity of litigation, ought not to be relaxed to suppress even so great an evil as this. The decree must, be affirmed.

Mr. Chief Justice Shahkey,

dissenting:

The only question which this case presents, is whether the court of chancery has jurisdiction over the matters set out in the bill, after a default at law. In dissenting from the opinion expressed by a majority of the court, I shall endeavor to explain as briefly as possible the reasons on which I predicate my opinion. I do not propose to enter on a review of the numerous authorities cited to show the disputed boundary between courts of law and chancery, but will rely on grounds which I think are clearly tenable, without much aid from adjudged cases. The principles which divide the two jurisdictions, are neither obscure nor doubtful as they are laid down by law writers, and yet the exceptions to the general rule by repeated adjudications have become so numerous and so varied as almost to have destroyed the rule; but that there are cases in which either court may rightfully take jurisdiction originally, is very clear, and it is also true that there are cases in which the court of chancery may properly interpose after a judgment at law, and when too, the defence might have been made at law. The question is whether this is one of that description. In contending that it is, I shall assume two grounds and endeavor to maintain them. First, that when the contract is void by being contrary to a constitutional policy, the court of chancery has jurisdiction for the purpose of protecting the public policy; and second, that this contract being void by a constitutional provision, can never be enforced, and that a judgment predicated on it must also be void, and may be perpetually enjoined.

First. That all contracts which are against public policy are absolutely void, is a proposition undeniably true. Why I would ask are they so? The answer is plain; because the public have an interest in the subject matter of the contract. The whole community is interested in the suppression of vice and immorality, and every thing which tends to disturb the peace and harmony, or jeopardize the safety of society. Every law to some extent may be said to be a law of public policy, for every community is interested in having a perfect system of laws for the protection of life, liberty and property. Good order is then a consequence, but there is a distinction between laws which secure private rights merely, and those which are intended to protect the interests of the whole community, as a community. In the first case the law looks no further than the rights of individuals, or of meum et tuum, and when it deals out justice between them, its object is accomplished, but in the latter case' mere private rights are overlooked and the law is adopted with a view to the general good, Public welfare is paramount to private right, and although each individual may take protection under such laws, yet he does so as a member of the community, having an interest in common with his fellow citizens in having them duly enforced. In cases of this description, public policy is in reality the leading object in the adjudication, and it is made exclusively with a view to guard that policy. As between'the individuals, the contract might be beneficial to both parties, and free from the taint of fraud or injustice, when tested by the rules which regulate private rights; but the public is the party beneficially interested, and the parties to the suit are the mere instruments through whom the community receives protection. Laws of policy must be viewed in this light, otherwise the public interest is lost sight of, and they become like all other laws, mere rules for the government of private rights. Suppose for instance that in the present controversy we can look no further than the respective rights of the parties, then it cannot be said to be a law of public policy:

A law cannot be one of public policy, unless the whole community have an interest in seeing it enforced; and if so, must not that interest be looked to and regarded in the adjudication, aud will not a court of chancery especially extend its aid to prevent a result prejudicial to tho public. To me it seems peculiarly proper that it should. The community should not suffer by the laches of the party to tho record. If there is an interest involved paramount to the interest of the immediate parties, there can be no reason for an application of the technical rule of requiring that the defence should have been made at law; the reason of tho rule ceases in a great degree, and so should its application. This is not a novel doctrine; we find repeated recognitions of it, a few of which I will notice.. In the case of Snyder v. Dailey, 1 Randolph, 76, a bill was brought to enjoin a judgment at law, on a contract in violation of law; it was said by the court that the commonwealth, whose policy was violated in contracts of that kind, might be considered the real party, and on that ground the injunction was made perpetual, although the defence was full and complete at law. The case of McGuire v. Ashby, tried with the one above cited, was one of the same kind; and the court remarked, that courts of chancery, as well as courts of law, would interfere to prohibit the effects of contracts made in violation of public good. The case of Woodson v. Barret, 2 Hen. & Mun. 80, was a bill to enjoin a judgment recovered on a bond given for a gaming consideration. The question of jurisdiction was discussed, and yet the court did not hesitate to grant a perpetual injunction, although the defence was ample at law. The case of Skipwith v. Strother, 3 Randolph, 214, was also a bill to enjoin a judgment for a gaming consideration, and the injunction was made perpetual. In all these cases defence might have been made at law ; but as the contracts were in violation of a law of public policy, and absolutely void, the chancery court did not hesitate to take jurisdiction, and these ■ decisions are either not law, or my position is correct. In principle they do not differ from the case before ds, but if there be a difference, it must operate in favor of the present case, for this contract is void by the constitution.. These cases seem to me to be based on reason; hence I conclude that this case is a proper one for the interposition of a court of chancery, and this brings me to the second ground taken, to wit:

Second. That this contract being void by a constitutional provision, can never be enforced, and that a judgment predicated on it must also be void, and may be perpetually enjoined. In the case of Green v. Robinson, it was decided by this court, that a contract in all respects like this was void by virtue of the constitutional provision which prohibits the introduction of slaves into this state as merchandize. I do not assume too müch therefore, in saying that this contract was made in direct violation of the constitution. Now if it be void by the constitution, how can it ever ripen into a valid, contract ? The constitution is the paramount law of the land, and nothing can contravene it. Certainly no law could give validity to a contract in violation of it, nor can even the judgment of the court give vigor to any thing which is paralyzed by its moral power.

In theory it is legally impossible that any thing, either contract or judgment, can be enforced which is confessedly unconstitutional. It is the circumference of our power, beyond which we cannot go. The judgment of the court can impart no validity to a contract which is unconstitutional. If it can, the authority of the court is superior to the constitution. Validity, I take it, it must have, before it can be enforced; it would not do for its to say the contract was void in the beginning, is void now, and must always continue so, and still enforce it. The law can only enforce obligations or duties, and one of these characteristics must attach before the law has any thing to operate on. We must therefore make this contract obligatory in some way before we can carry it out. By enforcing this contract, we do what ? we give validity to that which we admit has none of itself, and. which on the authority of the constitution never can have any. We say, that by the law the defence should have been made in the circuit court, and because it was not, the contract must be enforced, although it is against the supreme law.

By the constitution, all laws contrary to its provisions are void, and that law by which this contract is to be enforced, because the defence was not made in the circuit court, is certainly contrary to it, because it seeks to enforce that which the constitution forbids. The question stands thus: the constitution declares the contract void; we admit it: the law declares that it is not now void, because the defence was not properly made. Here is a conflict: which is to prevail? The position taken is, that although the contract is void, the judgment is binding; but I think a judgment which is against the constitution, is as much void as a contract of that description. No court has power to render such a judgment. It is the province of the courts to expound the constitution, and when the exposition is given every thing must yield to it; judgments as well .as contracts. We have expounded it as applicable to this contract, and. declared it void. If this position be true, I cannot imagine any way by which it can be enforced. There is in this respect, a wide difference between contracts void by the constitution, and those which are void by law merely.

It must be remembered that the law is a science or system, the various parts of which form one complete whole. A contract may be void by one law, and still by other provisions of the same system, it may become valid, unless the proper mode be taken to establish its void character. One law may declare a contract void, another may declare how this shall be shown, and a third may provide that if it be not so shown at a particular time, it shall be binding. These are but parts of the same system, and in the practical use of that system, each part must be regarded. The one qualifies or limits the other. Now it is the case with many contracts void by law, that the defence must be pleaded, and if it is not, the contract will be enforced. Its void character is changed; chancery will not interfere, because the de-fence was at .law, and thus by the operation of the remedial part of the system, that which was void may sometimes become valid. Hence we often see contracts which were void, enforced. But it is not so with the constitution. It is not a system with counteracting provisions. It neither points out nor contains the means by which any thing declared void by one part of it, can become valid by another part; and as it does not, and as this contract is void by one part, so it must remain, notwithstanding our judgment. In the case of Woodson v. Barrett, above cited, Judge Tucker well remarked, when an instrument is absolutely void in its creation, it cannot, I conceive, be made valid by any subsequent transaction immediately arising out of it.” With how much more propriety may this be said of an instrument void by the constitution'.

By our statute, “ all promises, agreements, notes, bills, bonds, or other contracts, judgments, mortgages, or other securities, or conveyances whatsoever, made, given, granted, drawn, or entered into, or executed,” for money won at gaming, are declared to be utterly void. Now suppose a note be given for a gaming consideration, on which suit is brought, and judgment by default rendered. To enjoin this judgment a bill is brought; could we say to the complainant, we cannot entertain this suit, your remedy was at law ? 1 think not. To do so would be to deny the authority of the statute, which says the judgment is void. 1 cannot be mistaken in saying that chancery would be bound to take jurisdiction, and on what principle would it do so ? because the judgment was void. Suppose the legislature should confer on the Roman Catholic priests the exclusive right to preach the gospel in this state, with power to sue for a breach of the law; suit is brought, and judgment by default is taken against one who has violated the law, would we enjoin it, or would we not ? I do not think we should hesitate; and on what principle? because the judgment would be void. It might be answered that a writ of error would lie in such cases ; probably it would; but suppose it was barred by the statute of limitations, or whether it was or not, I think the doctrine is now too well settled to be shaken, that a court of chancery will cancel that which is absolutely void, be it bond or judgment, for every one has a right to have even apparent incumbrances or clouds removed. But would such a ■ judgment be any more void than the one before us ? We have said that this contract was void by the constitution, and I know of no degrees in constitutional invalidity. In the case put, the law as the foundation of the action, would be void. In this case the contract as the foundation of the action is void. Now is a judgment better, founded on an unconstitutional contract, than one founded on an unconstitutional law ? This is the plain question. I cannot perceive that it is, and therefore adhere to the opinion which I entertained in the case of Green v. Robinson, that the case is proper for chancery cognizance.  