Adams vs. Barrett. 66 nor of Equity, as a general rule, will give relief. So soon as it is made to appear that the contract is illegal, whether by the plaintiff, or in defence, the Courts will turn the parties from their doors. Defence against such a contract is not allowed, through any regard to any rights of the defendant; the law has as little respect for him, when he is in pari delicto, as for the plaintiff. The defence is allowed, that through him the public policy may be subserved. The defendant comes into Court with a miserable grace, alleging his own violation of law, or public morality, or of the policy of the law, and he is to be heard, only as an instrument, by which to work out the ends of that policy. And where either party, as Lord Mansfield phrases it, by accident, as it were, is in the position of defenant, it is better for him. Potior est conditio defendentis." The case of Howell, Admr. rs. Fountain and others, decided by this Court, was a proceeding in Equity, to enforce an illegal contract. In that case, the principles which govern such proceedings, are briefly, but fully developed, as well as those, to some extent, which apply to this case. Upon this head, therefore, of this discussion, I refer to that case, and the authorities there cited. 3 Kelly, 176. That case, it is true, cannot be considered as a controlling authority in this, for this is not the case of a party who comes into Court to enforce an executory contract. Here a party, having executed his part of an illegal contract, invokes the aid of Chancery to revoke that execution, and by annulling the contract to place him in the position which he occupied before he entered into it. The principle which governs this case is this— if a contract is in violation of law, or of public policy, and the parties to it are in pari delicto, and it is executed, neither a Court of Law nor of Equity will interfere to relieve them, but will leave them where it finds them. I apprehend, that upon a careful review of the authorities, this rule will be found almost without an exception. Those cases which appear to be exceptions-cases where Equity, with a view to public policy, will interpose to set aside securities founded upon illegal considerations, will be found to be cases, where the contract either remains executory, or the parties are not in pari delicto. If the contract be executed, and the parties are equal in crime, the conclusion of the law is, that public policy is best promoted by non-intervention. I propose to test the truth of this rule by authority, first at Law. Whether the contract be executed by the payment of money, or Adams vs. Barrett. the delivery of goods, or the delivery of securities, the principle is the same. He can never recover either back again. Buller writes as follows: " Where one knowingly pays money upon an illegal consideration, he is particeps criminis, and there is no reason he should have his money again, for he parted with it freely, and volenti non fit injuria. In such case, melior est conditio defendentis, not because the defendant is more favored, but because the plaintiff must draw his justice from pure fountains. Therefore, though if A agree to give to B money for an illegal act, as if a wager be made on a boxing match, B cannot (though he do the act) recover the money by an action; yet if the money be paid, A cannot recover it back again." Buller's N. P. 131, 132. Here is the whole doctrine fairly stated, If the contract be executory, the parties cannot sue to enforce it—if executed, they are left as they are found. The case of Collins vs. Blantern, is a leading case at law. Wilmot, C. J. lays down the rule in these words: "All writers upon our law agree in this, no polluted hand shall touch the fountains of justice. Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a Court to fetch it back again. You shall not have a right of action when you come into a Court of Justice in this unclean manner, to recover it back." And with fervid indignation, the learned Judge exclaims: "Procul O! Procul este profani." 2 Wils. 350. In Howson vs. Hancock, Lord Kenyon said: " But there is no case to be found, where, when money has actually been paid, by one of two parties to the other, upon an illegal contract, both being particeps criminis, an action has been maintained to recover it back again." 3 T. R. 577. In Holman vs. Newland, Lord Mansfield is thus reported: "The objection that a contract is immoral or illegal, as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed, but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this; ex dolo, art non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an illegal or immoral act. If, upon the plaintiff's own stating, or otherwise, the cause of action appears to arise ex turpi causa, or a transgression of a posi Adams vs. Barrett. tive law of this country, there the Court says he has no right to be assisted. It is upon that ground the Court goes-not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it. For, where both are equally in fault, potior est conditio defendentis." Cowper, 192. The leading case of Browning vs. Morris, is to the same effect, to which I shall have occasion to refer, with a view to another distinction. Cowper, 417. From these, the very highest English authorities, (and they might be multiplied almost ad libitum,) I consider the principle settled there, that a Court of Law will not disturb an illegal executed contract. The American decisions, almost without variation, have followed those of Great Britain. I select one or two only, because of their pertinence to this case. The case of Denton and wife vs. English, tried before the Constitutional Court of South Carolina, was trover for the recovery back again, of negroes given by bill of sale and delivery of possession to a woman, in consideration of future illicit cohabitation. The Court denied the right of recovery, holding the contract, when executed, binding upon the donor, although it was against law, good morals, and public policy. In that case, the distinction is taken distinctly, between executory and executed contracts, Such contracts may be avoided by plea, when executory, and attempted to be enforced, but are to remain intact. when executed. There are exceptions, such as usury contracts, under Statutes, noted by the Court. Mr. Justice Johnson, delivering the opinion of the Court, however, says: "After a careful research, I have not been able to find a single exception in cases arising on Common Law principles, to the general rule, that when parties are in pari delicto, melior est conditio possidentis. And no possible case occurs to my mind, which would constitute an exception." 2 N. & McC. 581. The next case which I quote, is Inhab. of Worc.vs. Eaton, determined by the Supreme Court of Massachusetts. It is the case of a contract for compounding or preventing a prosecution for larceny, executed by a payment of land in the delivery of a deed. It is, in every principle involved, the case I am now discussing. The question made in that case was, whether the grantor could avoid her own deed, given for the consideration stated, by an entry, so as to give effect to a sub Adams vs, Barrett. sequent deed made by her, bona fide, and for a valuable consideration. The Court, upon the principles which I have herein insisted upon, ruled that she could not. Parker, C. J. said, after a review of the authorities, "if then, the composition of a felony or larceny is an illegal consideration of any promise or obligation for money, the party claiming under such instrument, cannot enforce it in a Court of Justice, nor can the other party, if he has paid it, recover it back again." The Chief Justice then notices a distinction sought to be made by counsel, between the payment of money under such a contract, and the conveyance of land, and declares that there is no foundation for it; holding that a deed is an actual transfer of land, as much as the delivery of a sum of money, or of a personal chattel, is a transfer of either of those. 11 Mass. R. 369. In support of the rule that a Court of Law will not interfere with an illegal contract executed, I refer to the following authorities: Buller's N. P. 131, 2. 2 Wils. 347. 6 D. & East, 61. 7 Ibid, 535, 630. Doug. 470, 697. Cowp. 191. Cowp. 418. 1 East, 94. 1 Com. on Cont. 30, 46. Powell on Contr. 1 Vol. 200. 4 T. R. 664. 2 2 Ibid, 109, Inst. 391.. 7 Bing. 98. 10 B. & C. 684. 1 Wheat. Selwyn, 94, 5, note, 5th Am. Edit. 2 Bing. 250. 8 T. R. 575. 4 Taunt. 165. 3 T. R. 266. 6 M. & S. 290. 4 Ibid, 16. 3 Bos. & Pul. 35. 8 J. R. 147. 11 Mass. 368. 10 lbid, 267. 4 Peters R. 184. 2 N. & McC. 581. 9 Vermont R. 310. Some of the authorities in terms sustain the distinction between contracts executory and executed. For caution's sake, I repeat, that by drawing this distinction, I am not to be understood to say that the Courts will aid in the enforcement of an illegal contract. I mean to say, that if the contract be executory, and it appear by the plaintiff's case, or the defence, that it is illegal or opposed to public policy, the plaintiff will be turned away, and it is virtually annulled in favor of the defendant, for the promotion of public policy. But if it be executed, then in no form, in favor of neither party, will the Courts disturb the status of the parties. Mr. Powell thus recognizes the distinction," although contracts or agreements respecting things which the law prohibits to be the subjects of contracts, create no rights, and consequently no obligations on either side, yet the law suffers them in some instances nevertheless, after they have been carried into execution, to prevail contrary to its prohibition; for being executed, they Adams vs. Barrett. are valid between the parties, although the law will not give its aid to assist either party in carrying them into execution; for the parties are looked upon to treat together, as if there were no law about the matter, and so to renounce the benefits which might accrue by the law to either of them; and therefore, though they do ill to engage themselves, they ought, in conscience, to suffer their engagements, being executed, to continue in force, and neither of them to break without the assent of the other." 1 Powell Cont. 200. 2 Comyn on Con. 109. Such is this author's idea of the philosophy of the "melior conditio possidentis." So in cases involving no moral turpitude, and the contract is executory, and the event has not happened upon which money is to be paid, the Courts have recognized the right of the party, upon notice, to repudiate it. By Buller, in Lowry vs. Bourdieu, 2 Doug. 470. By Ld. Mansfield, in Walker vs. Chapman and Walter, Loft's R. By Sir James Mansfield, in Auburt vs. Welsh, 3 Taunt. 283. By Lord Alvanly, in Tappanden and others vs. Randall, 2 Bos. & Pul. 470. See also, 1 Wheat. Selw. 94, '5, note. I come now, to show that the cases at Law, (and as we shall see, in Equity,) which seem to constitute exceptions to the general· rule I have laid down, are not in fact exceptions, but are cases in which the parties are not in pari delicto. One exception, it is said, for example, is found in usurious contracts; an action lying in favor of the borrower, to recover back money paid as usurious interest. Upon usurious contracts the parties are not equal in crime. This matter is set at rest by Lord Mansfield, in two cases, to wit, the cases of Smith vs. Bromley, Douglass, 696, and Browning vs. Morris, 2 Cowp. 790. In the latter case, his Lordship says, "the rule is in pari delicto potior est conditio defendentis, and there are several other maxims of the same kind. When the contract is executed and the money paid in pari delicto, this rule certainly holds, and the party who has paid cannot recover it back. For instance, in bribery, if a man pay a sum of money by way of bribe, he can never recover it in an action, because, both the plaintiff and the defendant are equally criminal. But when contracts are prohibited by positive Statute, for the sake of protecting one set of men from another set of men; the one from their situation and condition, being liable to be oppressed or imposed upon by the other; there the parties are not in pari delicto, and in furtherance of these Statutes, the person injured, after the |