and the plaintiff and the said T. Arrowsmith, confiding in the truth of the defendant's representation, and not knowing that the same was false, or that the said statement and paragraph were in its contents incorrect or untrue, or that the same was libellous, did accordingly, on the said 27th of January, 1833, publish the said statement and paragraph in the said newspaper. That, afterwards, and before the making of the promise and undertaking of the defendant, as heretofore mentioned, one Peter Charles Chalmers, being the said person named Chalmers in the said statement and paragraph, to wit, on the 25th of May, 1833, commenced an action on the case at his suit, against Edward Shackell, then the printer and publisher of the said newspaper, William Shackell, the now plaintiff, and the said Thomas Arrowsmith, since deceased, in the Court of Common Pleas, for the said publication of the said statement and paragraph, asserting and alleging that the same was a false, scandalous, malicious, and defamatory libel of and concerning the said Peter Charles Chalmers; and that he had sustained damages to a large amount thereby; and which said action, at the time of the making of the promise and undertaking of the defendant as hereinafter mentioned, was depending in the said Court, and the defendant had notice of the premises; and thereupon, heretofore, to wit, on the 6th of June, 1833, in consideration of the premises, and that the said Edward Shackell, the said William Shackell the now plaintiff, and the said Thomas Arrowsmith, would defend the said action, he, the defendant, undertook, and then faithfully promised the plaintiff, and the said Thomas Arrowsmith, to save harmless and indemnify them from, and reimburse them, all payments, damages, costs, charges, and expenses, which they should or might incur, bear, pay, sustain, or be liable [*637 for or by reason of their so as aforesaid publishing the said statement and paragraph, and of their defending the said action. The plaintiff then averred, that he and the said Thomas Arrowsmith, confiding in the said promise and undertaking of the defendant, did afterwards, to wit, on, etc., accordingly defend the said action, and the same was so defended. And the plaintiff averred, that afterwards, to wit, on the 4th of July, 1834, certain issues before then joined in the said action between the parties thereto came on to be, and were, in due form of law, tried at the sittings at Nisi Prius of the said court, after Trinity Term, 1834, held at Guildhall, in and for the city of London, before Sir Nicholas Conyngham Tindal, Knight, his majesty's chief justice of the bench at Westminster, by and before a jury in that behalf chosen and sworn between the said parties; and the said jury then found a verdict in the said action upon the said issues for the said P. C. Chalmers, and upon their cath said, that he had sustained damages for and by reason of the said publication of the said statement and paragraph, being a false, scandalous, malicious, and defamatory libel of and concerning him, to the amount of 30%.; and such proceedings were thereupon afterwards had in the said action, that the plaintiff, William Shackell, after the death of the said Thomas Arrowsmith, to wit, on the 5th of November, 1834, applied to the said court to set aside the said ver dict, and obtained a rule of the said court, calling upon the said P. C. Chalmers to shew cause, on a certain day therein named, why the said verdiet should not be set aside, and instead thereof a nonsuit be entered; or why the entry of final judgment on the said verdict should not be stayed: that the said Thomas Arrowsmith having died before the obtaining of the said rule nisi, and before the same was finally *disposed of, to wit, on the 26th of July, 1834, the said plaintiff, William Shackell, being advised by counsel learned in the [*639 law, and finding that he could not support the said rule, and make absolute, or set aside the said verdict, or arrest the said judgment, did, after the death of the said T. Arrowsmith, and with the leave and consent of the defendant Rosier, afterwards, to wit, on the 17th of November, 1834, settle and compromise the said action with the said P. C. Chalmers, and thereupon became liable for, and was forced and obliged to, and did pay him, a large sum to wit, 602, in satisfaction of the said damages so found by the said jury, and given by their

verdict aforesaid, and of the costs and charges of the said P. C. Chalmers, by him about his suit in that behalf expended; and by means of the premises the plaintiff, after the death of the said T. Arrowsmith, then became and was damnified and injured to the amount of the said sum of 607.; and also by means of the premises the plaintiff and the said T. Arrowsmith, during the lifetime of the said T. Arrowsmith, and the plaintiff after his death, were put to, incurred, bore, and sustained, and became liable for and paid, great costs, charges, and expenses, amounting to 300l., in and about the defending and compromising the said action, and in making the said application to the court, whereof the defendant afterwards, and after the death of the said T. Arrowsmith, to wit, an the 2d of December, 1834, had notice: yet the defendant, not regarding his said promise and undertaking, had not yet saved harmless and indemnified the plaintiff, and the said Thomas Arrowsmith in his lifetime, or the plaintiff since his death, or reimbursed them or either of them, the said payments, damages, costs, charges, and expenses so made, incurred, borne, paid, sustained, and become liable for as aforesaid, or any of them, or any part thereof, but so to do had hitherto wholly neglected and *refused, and still did neglect and refuse. Counts for money paid, and on an account stated.

*639]

The defendant pleaded, first, non assumpsit, and,

Secondly, that he did not represent to the plaintiff, and the said T. Arrowsmith, since deceased, that the contents of the said statement and paragraph in the first count of the declaration mentioned were correct and true.

At the trial it appeared, that the plaintiff, in January, 1835, apprised the defendant that Chalmers had commenced proceedings against the John Bull newspaper, for the libel which had been furnished by the defendant. That the defendant called at the office of the newspaper, requested the plaintiff to defend the action commenced by Chalmers, and promised to indemnify the plaintiff : and that a written indemnity was drawn up, but never signed by the defendant, or stamped.

A verdict having been found for the plaintiff, with 3007. damages,

Talfourd, Serjt., pursuant to leave reserved at the trial, obtained a rule nisi to enter a nonsuit instead, on the ground that the writing containing the indemnity had not been stamped; or to arrest the judgment, on the ground that, if the defendant was privy to the publication of the libel, for which the plaintiff had been cast in damages, the consideration for the defendant's promise was the commission of an offence by the plaintiff, and therefore the promise was void : if the defendant was not privy to the publication of the libel, he was a stranger to the action brought against the plaintiff, and, in undertaking to indemnify the plaintiff against the costs, was guilty of maintenance, which also rendered his promise void.

*640] *Alexander, and Butt, shewed cause. The writing containing the indemnity not having been signed by the defendant, was a proposal only, and, as it did not amount to an agreement, did not require a stamp. Ramsbottom v. Tunbridge, 2 M. & S. 434, Hawkins v. Warre, 3 B. & C. 690, Wrigley v. Smith, 3 Nev. & M. 181, Rex v. Wrangle v. 4 Nev. & M. 375. It was only confirmatory of the plaintiff's parol promise, which was clearly proved, and was sufficient to bind him; for a contract of indemnity may be by parol as well as in writing. Thomas v. Cooke, 8 B. &. C. 728, Adams v. Dansey, 6 Bing.

506.

(THE COURT here intimated that the paper in question was only a proposal, not signed or binding on the party, and that, therefore, there was no ground. for entering a nonsuit.)

Then, on the second point, the defendant has not undertaken to indemnify the plaintiff against the conseqences of a libel, but against the costs of a particular action. The statement of the premises in the declaration is only explanatory of the promise, and may be rejected as part of the consideration. It may be conceded that, according to Colburn v. Patmore, 1 Cr. Mee. & R. 73, there VOL. XXIX.-45

can be no indemnifying against the consequences of a libel; and that, according to Merryweather v. Nixon, 8 T. R. 136, no contribution can be recovered from joint tort-feasors. But Lord Kenyon said, in that case, that "his decision would not affect cases of indemnity where one man employed another to do acts not unlawful in themselves." In Wooley v. Batte, 2 Car. & P. 417, contribution was recovered from a joint tort-feasor in a coach accident; and in Fletcher v. Harcourt, Hutton, 55, a distinction is expressly taken between an indemnity for an act *which is illegal, and one which may turn out to be legal. The plaintiff

could not know at the time of publication whether the paragraph would [*641

turn out to be legal or not: if it were true, it would be legal; and the defendant, having assured the plaintiff it was true, is estopped to say that the plaintiff has been guilty of a libel: the plaintiff is the mere instrument to make a statement for the consequences of which the defendant was responsible to the plaintiff. Thus in Adamson v. Jarvis, 4 Bingh. 66, where the plaintiff, an auctioneer, sold goods under order of the defendant, who had no right to dispose of them, and the true owner afterwards recovered against the plaintiff; a declaration in case, which alleged that the defendant, being possessed of the goods, represented to the plaintiff, that he was entitled to dispose of them; that the plaintiff, in consequence, at the defendant's request, sold them by auction, and, after deducting certain charges for his trouble, paid the residue of the proceeds to the defendant that the defendant deceived the plaintiff in this, that he was not at the time of the sale entitled to dispose of the goods; that the true owner afterwards recovered the value of the plaintiff; and that the defendant refused to reimburse him; was held sufficient after verdict, and the plaintiff was allowed to recover; and Best, C. J., said, "From the concluding part of Lord Kenyon's judgment in Merryweather v. Nixon, and from reason, justice, and sound policy, the rule, that wrongdoers cannot have redress or contribution against each other, is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act." Betts v. Gibbins, 2 Adol. & El. 57, S. C., 4 Nev. & M. 64, is a decision the same in principle as Adamson r. Jarvis. Again, if part of the consideration be good, the defendant is bound by his promise, though other parts of the consideration be illegal. Thus in Newman v. Newman, 4 M. & S. 66, it was laid down, that in debt on [*642 bond, conditioned for the performance of several things, if one of them be void at the common law, yet the bond may be good for the others: as where it was conditioned to pay money to the obligee upon the conveyance of an estate to the obligor, and to present the obligee's son to the next avoidance of a church, the advowson of which belonged to the estate, if he were then of age to take it; or. if not, to procure the person who should be appointed, to resign, upon notice of the son's being qualified to take it, and to present him; and it was held, that admitting that part of the condition for the presentation of the obligee's son to be simonical, yet the bond was good for the payment of the money. So in Bradburne v. Bradburne, Cro. Eliz. 149, the Court said, where there are divers considerations alleged by the plaintiff, and some are frivolous and void, yet, if any of them be good, the plaintiff shall recover. And in Crisp v. Gamel, Cro. Jac. 103, 110, 128, in assumpsit, it was held sufficient if one of two considerations be proved good; and that a void consideration need not be proved. In Vin. Abr. Damages (Q), pl. 17, it is also laid down, "Where there are two considerations, whereof the one is good, and the other is void, the damages given shal be intended to be all given for the good consideration."

With respect to the imputation of maintenance, the defendant, after furnishing the statement to the plaintiff, was morally bound to save him harmless from costs, and, therefore, did not interfere in a matter in which he had no concern In Williamson v. Henley, 6 Bingh. 299, a declaration that plaintiff, at the request of defendant, and upon defendant's undertaking to indemnify, defended *an action for the recovery of money in which defendant claimed an interest; that judgment was given against plaintiff for 427.; and that he

[*643

was imprisoned, and paid the money under a ca. sa., was held not to disclose a contract void on account of maintenance. And, according to Hawkins, Pl. Cr. c. 83, s. 5, maintenance is stated to be either in pais, or by prosecuting suits : but the defendant's undertaking is neither the prosecution of a suit, nor maintenance in pais. At all events, if the defendant relies on the illegality of the consideration, he ought to have pleaded the illegality. In Potts v. Sparrow, 1 New Cases, 594, it was held, that illegality of consideration must be pleaded specially as a defence, not only where the express contract on which a plaintiff sues is illegal, but also, where illegal services having been performed, no contract to pay for them can be implied.

Talfourd, and Petersdorf, in support of the rule. The argument for the plaintiff does not extricate him from the dilemma on which the rule nisi for arresting judgment was obtained. This does not resemble the cases of contribution by a tort-feasor, where the tortious act is not legal, or, at least, of a dubious character. The act of the plaintiff was illegal within his own knowledge; he was bound to know that the publication of such a paragraph might subject him to prosecution for a libel; and he cannot recover in respect of his own wrongful act. In Pitcher v. Bailey, 8 East, 171, it was held, that if an officer permitted a prisoner to go at large on his promise to pay the debt to the creditor, in consequence of which he was obliged to pay the creditor himself, he could not recover back the money from the debtor, being guilty of a breach of duty, out of which he could not derive a cause of action. So that the contract to indemnify the *plaintiff against the consequences is bad, like a contract to indemnify a sheriff against an illegal act: Blackett v. Crissop, 1 Ld. Raymd. 278.

*644]

The premises in the declaration, which are the publication of the libel at the request of the defendant, cannot be excluded from the consideration; but if they can, then the defendant's promise was gratuitous, and amounts to maintenance. In Wallis v. Duke of Portland, 3 Ves. jun. 494, the Lord Chancellor says, "Maintenance is not confined to supporting suits at common law. In the first book you open upon the subject (one naturally looks to Hawkins), it is stated to be either in pais, or by prosecuting suits. Maintenance in pais is punishable by indictment. Maintenance by prosecuting suits, without distinguishing what suits, is punishable by an action by the party grieved also; and that is an action at common law. Statutes prohibiting particular species of maintenance and penalties; but it is laid down as a fundamental authority, that maintenance is not malum prohibitum, but malum in se; that parties shall not by their countenance aid the prosecuting of suits of any kind, which every person must bring upon his own bottom and at his own expense." And in Master v. Miller, 4 T. R. 340, it is laid down by Buller, J., "At one time, not only he who laid out money to assist another in his cause, but he that by his friendship or interest saved him an expense which he would otherwise be put to, was held guilty of maintenance; Bro., tit. Maintenance, 7, 14, 17, &c."

TINDAL, C. J. What has fallen from the Court in the course of the argument, renders it unnecessary now to observe on any point, except the arrest of judgment; *and I am of opinion that the judgment in this case ought *645] to be arrested; first, on the ground of illegality in the consideration for the defendant's promise; secondly, on the ground of the extent of that promise. The declaration sets out a paragraph which, at the request of the defendant, appeared in the John Bull newspaper, and is undoubtedly a libel on the individual against whom it was directed. The declaration then goes on to state, that the party libelled brought an action against Edward Shackell, the printer and publisher of the John Bull, William Shackell, the now plaintiff, and Thomas Arrowsmith, since deceased; that whilst that action was pending, the defendant," in consideration of the premises, and also in consideration that Edward Shackell, William Shackell, and Thomas Arrowsmith would defend the said action, promised to save harmless, and indemnify them from, and reimburse them all pay

ments of damages, costs, charges, and expenses which they should or might incur, bear, pay, sustain, or be liable for, for or by reason of their so as aforesaid publishing the said statement and paragraph, and of their defending the said action.

It appears, therefore, that the consideration consists of two parts: first, of the premises; that is, that the plaintiff, at the request of the defendant, had published the paragraph in question. Either that matter is to be rejected as surplusage, or it is not. On behalf of the plaintiff, it has been contended that it is to be rejected, and that it only introduces the statement, that the defendant promised to indemnify the plaintiff as to the costs of the action which had been brought against him. If so, the promise is a promise by a stranger to the action, and void as an act of maintenance. If the premises are not rejected, then it stands that the plaintiff, at the request of the defendant, had *published the libel; that is, had committed an indictable offence. [*646 What is that but saying, that, in consideration that the plaintiff and defendant had combined to commit a breach of the law, the defendant promised to save the plaintiff harmless?

It is said, however, that you may reject that part of the consideration which involves the breach of the law, and look only to the costs incurred by the plaintiff at the defendant's request. Undoubtedly, when a promise rests on two considerations, one of which is impossible or unintelligible, you may reject the impossible or unintelligible, and resort to that which is possible and plain. But all the books take a distinction as to the case where part of the consideration is illegal as in Featherston v. Hutchinson, Cro. Eliz. 199. There, a promise by a third person to pay the sheriff the debt of his prisoner, in consideraiion of his being set at large, was held void. A further distinction has been taken on the part of the plaintiff, between considerations void by statute, and such as are void at common law. If the consideration be illegal, I see no ground for such a distinction; and I am of opinion that this promise, being illegal, is void.

Even if it were not so as regards the particular transaction, I should say it is far too extensive to be legal; for it is not confined to indemnifying the plaintiff in the action for the libel, but from all costs and consequences. What is that but to indemnify him against all the consequences of his crime, costs, damages, fine, or imprisonment? It needs no argument to shew, that a promise to indemnify a man against all the consequences of an offence cannot be supported on any principle of law. The rule, therefore, for arresting the judgment in this case must be made absolute.

*PARK, J. It is impossible to look at this declaration without seeing that the publication of the libellous matter formed part of the consider[*647 ation for the defendant's promise; and Newman v. Newman has no application to the case. What does the declaration state? That the plaintiff, at the request of the defendant, published a libel against a third person; that the party libelled commenced his action against the plaintiff for the libel; and that the defendant, in consideration of the premises, and also that the plaintiff would defend the action, promised to indemnify him. So that, if you take away the criminal inducement, the intervention of the defendant is the act of a mere stranger.

The point was much discussed in Farebrother v. Ansley, 1 Campb. 342. There it was held, that there was no implied promise on the part of a sheriff to indemnify an auctioneer who sells goods seized under a fi. fa., when employed to do so by the sheriff's officer to whom the warrant was directed, and the plaintiff's attorney in the original cause, although the sheriff certified to the Excise Office that he himself had seized and sold the goods, and that he, in fact, received his poundage from the produce of the sale; and that if an action of trespass were brought by the owner of the goods against the auctioneer, the sheriff, and others, all the damages awarded in which were levied upon the auctioneer alone, he had no action for a contribution against any of his co-defendants.

Fletcher v. Harcourt is not particularly in point; but Martin v. Blythman.