I see no reason to change the opinion heretofore expressed, that this is not a proper case to dispense with the payment of the amount of the judgment into court as a condition of the granting of an injunction; even if there was sufficient equity in the bill to entitle the defendants in the judgment to an injunction. There certainly was no fraud on the part of the former agent in obtaining the judgment. For the facts upon which the question of the legality of the contract depended were as well known to the contractors as to him. And he told them truly, that if they did not pay or secure to his satisfaction the amount then due, he would have the right to rescind the contract for a noncompliance with its terms on their part; even if it ivas legal. Having themselves violated the contract, and having given these securities for the labor which had been actually performed, to enable them to retain the benefit of the contract for the time which was yet to elapse if it should eventually be decided that the contract was legal and valid, they have ño ground whatever which can justify a court of equity in setting aside those securities even if the contract was in fact illegal. For if the parties have, from a mistake of the law or the facts of the case, made an illegal contract, upon which neither of them could have sustained a suit, a subsequent agreement to pay for the services of the convicts which had been actually performed, may still be a legal and equitable agreement.
So far as the bill seeks to restrain the suit upon the contract to recover for services of the convicts subsequent to the judgment, the complainants’ remedy, if any, is at law, if the contract is illegal. And if it is not illegal, they have no defence any where; for the contractors had themselves violated the contract, by neglecting to pay for the services of the convicts the amounts which became due from time to time, subsequent to the giving of the judgment. That of itself was a sufficient ground for rescinding the contract, even if the certificate of the attorney general did not authorize *96the inspectors to terminate it on the ground of its illegality. And the contractors having violated the contract on their part, by neglecting to pay for the convict labor already performed, according to its terms, they have no legal or equitable claim for damages for not being permitted to have the labor of the convicts subsequen tly. In this view of the case, it is perhaps unnecessary that I should express any opinion upon the construction of the act of May, 1835, in relation to the state prisons, in reference to the legality of this contract. But as that question was fully argued by the counsel, and it may save further litigation in this court, it. may not be improper to express my views upon that subject.
The legislature appears to have had two objects in view, in the adoption of the 7th, 8th and 9th sections of the act of May, 1835; First, to prevent the employment of convicts in those trades in which the mechanics of this country were engaged, except so far as the convicts had already been instructed in such trades; and Secondly, to regulate the making of contracts so as to produce a fair competition. The 7th and 8th sections are confined to the fil'st object exclusively; but the 9th section appears to have been intended to embrace both. The 7th section accordingly provided that no mechanical trade should thereafter be taught to convicts, except the making of those articles of which the chief supply for the consumption of the country was imported from foreign countries. And the 8th section authorized the inspectors to employ artizans from abroad to instruct the convicts in,new trades not pursued in this state. The 9th section, after requiring the consent of the inspectors to contracts for the services of convicts for a longer period than six months, directs two months’ notice of the time and place for letting such contracts ; which notice is to specify the particular branches of business in which the convicts are to be employed, the length of time, not exceeding five years, for which their services are to be let, and the number of convicts to .which the contractors are to be limited: that is, as I understand the language of this section, the greatest number to whose services the contractor, shall be entitled under his contract, at any time *97during its continuance. The last clause of this 9th section then provides that in all those branches of business by which the consumption of the country is chiefly supplied without foreign importation, the number of convicts to be employed or let shall be limited by the number of convicts who had learned a trade before coming to prison.
The limitation in this last clause of the 9th section was intended to refer to a limitation to be inserted in the contract. And it cannot be presumed that it was intended to apply to the number of convicts at the time of making the contract, who had learned the trade before coming to prison. For as the contract might continue five years, there could be no certainty that the number who had previously learned the trade would remain the same, or as large as it then was, during the five years. And as new convicts could not be instructed in such trade, if the contract was not limited so as not to exceed the number in prison from time to time, who had learned the trade before coming there, it would be impossible for the agent to fulfil the contract without violating the law; in case the number of convicts who had learned the particular trade should be reduced, by the expiration of sentences, or otherwise. Although the indefinite article is used in the last clause of this 9th section, it is obvious that the legislature must have intended that the contract for the services of convicts employed in domestic manufactures, should be limited by the number who had learned the particular trade to which such contract related, and not by the number who had learned any trade whatever previous to their imprisonment.
In this contract there is an absolute agreement, by the agent, for the services of not less than thirty-five convicts to be employed in a branch of business of which the cljief supply of the country was from home manufactures; and without making any limitation or provision for the employment of a less number, if there should not be a sufficient number in prison from time to time, who had learned the trade of plane and tool making, to amount to the minimum of thirty-five specified in such contract. The act of 1842, could not render this contract illegal, if it was *98a substantial compliance with the law as the same existed when such contract uras made. Nor does that act authorize the violation of any contract previously made. For the 4th section, in terms, declared that nothing in that act contained should prevent the employment of convicts at any mechanical trade, in the state prisons, so far as might be necessary to fulfil the obligations of the state in such existing contracts as had been lawfully made for convict labor. Nor was it competent for the legislature to make the opinion of the attorney general, that contracts previously made were illegal, conclusive against the contractors. But if the contract was in fact illegal, and that was also the opinion of the attorney general, the inspectors were bound to rescind the contract. And especially were they bound to act upon the opinion of the attorney general that the contract was illegal, and to rescind it, whatever might be their own opinions upon the subject, if, as in this case, the contractors themselves had violated the contract by neglecting to comply with its terms on their part; so as to authorize the agent and inspectors to rescind it without reference to its illegality.
From the facts of the case, as they now appear, the complainants do not seem to have any equitable claim to damages for a breach of the contract on the part of the officers of the prison, whether it was or was not a valid contract in its inception, after having neglected to comply with the contract by paying for the labor which had been performed for more than three months previous to the 1st of May, 1843. The taking of the notes and judgment, and the extension of the credit for the amount liquidated in February of that year, was probably a waiver, by the agent, of the violation of the contract by the contractors previous to that time. But there is nothing in the case to show that the agent, or the inspectors of the prison, ever agreed to extend the time of the payments which subsequently fell due on the last days of February, March and April.
The application for an injunction must therefore be denied, with costs.