#### BENJAMIN SHARP, Adm’r of ANNA SHARP, *v.*MOSES FARMER.

Dec. 1838.

aot‘on can 3ustainedin affirmance and enforcement of an executory contract to do an immoral act, or one against the policy of the law, the due course of justice, or the prohibition of a penal statute. Therefore no action can be sustained upon a promise to settle an estate and pay over the distributive shares to those entitled, without taking out letters of administration upon such estate. ■

name of Benjamin Sharp and his wife Anna, and upon the death of the wife, coptinued by the said Benjamin as her This was an action of assumpsit commenced in the *123administrator. The defendant pleaded the *general*and upon the trial at Edgecomb on the last circuit before his Honor Judge Saunders, it appeared that the plaintiff was entitled in right of his wife to a distributive share of the estate of one Jerusha Farmer deceased, and thereupon made an agreement with the defendant, who was also a ° . . tee, that the latter, instead of taking out letters of istration on the estate of the said Jerusha, should collect and *sell the*estate, and, after paying the debts, divide the residue among those entitled to distribution.

The defendant, in pursuance of this agreement, sold the property and paid the debts of the said Jerusha, and a balance remaining in his hands, the plaintiff demanded the share to which he was entitled in right of his wife, and upon the defendant’s refusal to pay the same brought this suit.

His Honor being of opinion, upon these facts, that the right of action vested in the plaintiff alone in his own right, and not in the plaintiff and his wife, directed a nonsuit to be entered, and the plaintiff appealed.

*■Iredell,*for the plaintiff.

*J. H. Bryan*and *B. F. Moore,*for the defendant.

Ruffin, Chief Justice.

The point, whether the right of. action on this contract,, supposing it to be a lawful and valid contract — is in the husband in his own right, or survived to him as administrator of the wife, involves much nice learning. We are relieved from going into it by other matter apparent in the record, upon which we are satisfied that neither the husband, nor the husband and wife together, could have an action upon this contract. It is an agreement between the next of kin of an intestate for an administration of the estate and its distribution by one of them, without obtaining letters of administration, or taking the oath of office, or giving bond. This is prohibited by the act of 1715, Rev. ch. 10, s. 4 and 5, under a penalty of fifty pounds. (See 1 Rev. Stat. ch. 46, sec. 8.) After a vast number of cases upon the subject, it seems to be now perfectly settled, that no action will be sustained in affirmance and enforcement of an executory contract to do an immoral act, or one against the policy- of the law, the due course of justice, or the prohi*124bition of a penal statute. The distinction between an act *ma-lum in se*and one merely *malum prohibitum*was never sound, and is entirely disregarded ; for the law would be false to itself if it allowed a party through its tribunals to derive advantage from a contract made against the intent and express provisions of the law. *Lankton*v. Hughes, 1 Maul and Selw. 593, and *Bensley*v. *Bignold, 5*Barn. and Ald. 341, establishes this principle upon consideration of all the previous cases. It will be seen at once-that the Court could . . . _ . , . - not give the plaintiff a judgment; since by the very act of receiving the sum recovered the plaintiff would be executor *(¡q son tort*which is a consequence which a Court cannot , allow itself to be made accessory.

No dia_> tinction ia nised be-*in se*and one merely1 *malum win*for the law would be' false to it-lowed aa1’ S“ty>, ., through its tribunals, to derive advantage from a contract made against the intent and express pro-j¿^0nS

The nonsuit must therefore stand and the judgment be affirmed,

Per Cuiuam. Judgment affirmed,