Page:Federal Reporter, 1st Series, Volume 3.djvu/427

 MO FEpEIVi.Ii BSFOBTEB. �If I were passîng upon the legality of thîs contract as an original question, and had any doubt of its invalidity, I should foUow this rule as the most equitable and the safest, until a final hearing on the merits could be had. My understand- ing of the law is this : If this contract is ultra vires the rail- road companyj or is against public policy, it is absolutely void, and, so far as it is exeeutory, neither party can main- tain an action against the other for its breach. Nor can either party bring it forward to sustain or defeat a right of possession of property obtained under it, and if it involves any moral delinquenoy or turpitude, as contra bonos mores, the parties being in pari delicto, the courts leave them just where it finds them, and neithsr party bas any standing in court for legal or equitable relief. Thomas v. City of Bieh' mond, 12 Wall. 349, 354; Chitty on Contracts, (lOth Am. Ed.) 709-732; Bail v. Baquet, 4 Ohio, 400, 419; Moore v.Adams, 8 Ohio, 372; Dixon v. Olmstead, 9 Vt. 310; Foote v. Emmer- son, 10 Vt. 338; Buck v. Albee, 26 Vt. 184; U. S. Bank v. Owens, 2 Pet. 527, 538. �There is, however, a distinction màde where the contract vras in no respect immoral, or merely malum prohibitum. In such cases the courts have inquired into the relative delin- quency of the parties, and administered justice between them. Thomas v. Bichmond, supra; Lowell v. Bailroad Co. 23 Pick. 32. �But that is not the relief the defendant is seeking here. It is asking an enforcement of the contract. It is true, in the Omaha oase Judge McCrary ordered the property placed back into the possession of the telegraph company until an account- ing should be had between the parties. In that case the rail- road company had received stock of the telegraph company of the value of $150,000, and the raiiroad company had taken no legal proceedings to have the contract annulled, nor of- fered to acoount with the telegraph company, or return the consideration received. �It appeared equitable that it should account for what it had received, and under the equities of the case the judge made the order of restitution. �The faets in this case are quite different. At the sam» ����