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not in conscience retain what is the subject matter of it, the plaintiff may and will support this action.

Let the inquiry in the present case be, can the defendant in good conscience retain the property received from the plaintiff?

In the case of Lacaussade v. White, already cited, there was a special count, setting forth the wager. The declaration also contained the common money counts. On the trial at Nisi Prius, upon the opening of the case, Lord Kenyon asked the plaintiff's counsel if the wager in question was not of the description of those which could not support an action as being contrary to the policy of the state.

Garrow, for the plaintiff, admitted the force of his Lordship's objection, that the special count could not be maintained, but contended that he could recover the 1007. paid by him in the count for money had and received; and the plaintiff had a verdict on the money counts, which was afterwards affirmed in the King's Bench.

In the present case we contend that the special count will lie; but if we are incorrect, the general counts will support a decision in our favour, on the facts found by the special verdict; for our action is not brought, as in the case of Lacaussade and White, to enforce an illegal contract, but merely to recover back property advanced upon a mere executory contract; and this reminds me of an observation I had intended to have made, that where a contract is ever so illegal, while. it is merely executory or in transitu, either party may rescind the contract, and have his action to recover back the property which he may have advanced in the course of the traffic. We find

this doctrine laid down in the case of Cotton v. Thurland. Our client, by instituting the present suit, has given plenary evidence of his rescinding the contract, which was only executory.

We therefore, on all these points, rest assured of a decision in our favour.

Daniel Chipman, contra. The contract upon which the action is founded, as disclosed by the special verdict, is, that the watch, horses, &c. delivered by the plaintiff to the defendant, were to be paid for by the latter to double the amount of their estimated value in counterfeit money. What follows in the verdict is mere surplusage.

The question is, can this contract be enforced? or on its failure can the money or property advanced be recovered back?

If we had no authorities to guide, and no axioms of the English jurists to enlighten us, we should all see that there is something wrong in the very idea of a Court of Justice enforcing an immoral contract.

If two burglers, after having robbed a house, should disagree as to the division of the spoil, and one should bring his action against the other to recover his share of the booty, the entire voice of community would be against sustaining such action. It may be said this is a strong case. True: but the maxims of the English law, ex dolo malo non oritur actio, et ex maleficio non oritur contractus, et in pari delicto potior est conditio defendentis aut possidentis, cover the present case equally with that I have put.

It is said a distinction is made between an illegal contract executory or executed; that in the former

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case an action will lie to recover back property advanced on an illegal contract, and therefore this is an exception to the general rules; and yet in the case of Tompkins v. Barnet, 1 Salk. p. 22. the contracts appear to have been executory, but the Court ruled, that the action would not lie; and Treby, Chief Justice, observed, that where a man pays money on a mistake in an account, or where one pays money under or by a mere deceit, it is reasonable he should have his money again; but where one knowingly pays money upon an illegal consideration, the party that recovers it ought to be punished for his defence, and the party who pays it 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.

The intent and application of this principle is clearly expressed by Lord Mansfield in delivering his opinion in the case of Holman et al. v. Johnson, alias Newland, in Cowper's Reports, p. 343.

"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 real justice, as between him and the plaintiff, by accident, if I may so say. The principle of policy is this, ex dolo malo non oritur actio. No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. If from the plaintiff's own stating or otherwise, the cause of action appear to arise ex turpi causa, or the trans

gression of a positive 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."

The question in this case is the same with that now under consideration. Is the plaintiff's demand founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country.

Can there exist a doubt that the plaintiff's action is grounded upon an immoral act? that he entered into an illegal contract, expressly prohibited by the statute law of this State? If he had received the base coin which he contracted to receive, would it not have been highly criminal in him if he had passed it to others? and this must have been his design in contracting for it. Would it not have exposed him to infamous punishment.

If the contract is founded upon an immoral act, or upon the ground of doing any thing prohibited by positive law, it is of no importance whether executory or executed. Here the contract was both malum prohibitum and malum in se. Therefore the cases cited by the gentleman opposing do not apply.

The case of Lacaussade v. White, in which a verdict was taken for the plaintiff, and affirmed in the Court of King's Bench, exhibits a contract neither

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malum prohibitum or in se. It was a wager about a peace between England and France, and Lord Kenyon declared, that it turned on a matter of public policy. And here the question was properly made, whether the contract was executory or executed; for his Lordship expressly declared, that if the contract was malum in se, the money could not be recovered back.

It is said that the plaintiff is not par delictum. It is true, that in contracts made in breach of certain penal statutes, which give a penalty against only one of the contracting parties, both are not considered in pari delicto; as in case of usury, and in case of money advanced by the relation of a bankrupt, extorted by a creditor for signing the bankrupt's certificate, Doug. 697. and the case of Jacques v. Golightly, 2 Black. Rep. 1073. where the plaintiff brought his action to recover back premiums advanced by him for insuring lottery tickets; and so in Jacques v. Withy, 1 H. Black. 65. Here the parties were not in pari delicto. The penal statutes had distinguished the criminal by subjecting him only to the penalty, and considered the other party as oppressed or overreached, and the acts were merely mala prohibita; but where the act or contract is malum in se, the parties are both considered in pari delicto, and the maxim applies with force, ex dolo malo non oritur actio.

Of the case of the Newgate solicitor, cited from Lord Raymond, we have but a short note, and doubts may arise whether the case is correctly reported. It certainly is not much relied upon in subsequent cases of the same nature.