Barnard

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Crane.

Vermont Stat. vol. 1. p. 342.

of in pari delicto, &c. to cases of this sort, in our present state of society; whether the Court, by deciding against the plaintiff, will in effect confirm these deceptive contracts, and suffer the swindler to triumph in his unjust gains, or whether they will consider the plaintiff as a weak and oppressed man, and by deciding in his favour break the net of the fowler and set the captive free, and teach these cunning marauders on society, that they must be brought to a strict account for their crooked practices, and be obliged to disgorge their prey. This is a question of policy; and if it has been thought proper to deny men redress in the Courts of Law on the failure of an illegal contract in certain cases, on account of the operation it might have on society, it is well deserving of consideration what will be the effect in our state of society, to suffer the swindler to be protected by law in the possession of the property swindled; for we can see no distinction in effect between protecting the swindler collaterally, or by solemn decision affirming his right to prosecute his base contracts.

But if the parties should be considered in pari delicto, and the distinction we have taken between contracts executory and contracts executed, is not sound or is inapplicable to this case, it will bring us to the consideration of our second position.

That the verdict finds the contract to have been made in the State of New-York. This takes it out of our statute against swindling, and of our statute against passing counterfeited money.

It does not appear that there is any statute against crimes of this kind in the State of New-York, and the commission of them is certainly no crime at com

mon law. But if there are any such statutes in that State, an illegal act done contrary to the laws, and within another State, is not to be drawn into question here.

By the Court. The Court do not incline to hear this point argued. There is an existing statute in the State of New-York against passing counterfeited coins, passed 7th of February, 1788. If no such sta tute existed, we presume it would have been considered there as a crime at common law. The passing base money knowingly carries fraud of the basest kind upon the face of it. It is against good morals, which are the basis of the common law. An act illegal and fraudulent by the common law carries with it its turpitude whenever it is brought into view of a Court of Justice.

Cook. We shall then proceed to establish our third position.

That if there are general counts and a special count in a declaration, the plaintiff may, if he fails of maintaining his special count, safely rely on his general counts.

In the case of Clark v. Shee and Johnson, already read, there was a special count and several money counts. In speaking of these general counts, upon the point whether the plaintiff could maintain this action upon them, Lord Mansfield observed, that the general indebitatus assumpsit is a liberal action in the nature of a bill in equity; and if under the circum-1 stances of the case it appears that the defendant can

Barnard

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Crane.

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 Visi 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