1 Knight Bruce, L. J., opinion in Reynell v. Sprye, 1 D. M. G. 660; Osborne v. Williams, 18 Ves. 379. See Ford v. Harrington, 16 N. Y. 285, and cases cited Wald's Pollock, 333; Browning vi Morris, 2 Cowp. 792; Hatch v. Hatch, 9 Ves. 298; Lowell v. R. R., 23 Pick. 22; Pinckston v. Brown, 3 Jones's Eq. 494.

2 Story's Eq. Jur. 12th ed. sec 300, citing Woodhouse v. Meredith, 1 Jac. & W. 224; Morris v. MacCullock, 2 Eden, 190.

In Smart v. White, 73 Me. (26 Alb. L. J. 12), we have the following from Peters, J.: " The principle that where the offence is merely malum prohibitum and not in itself immoral, a person may recover back money paid under an illegal contract to the party who is wholly or principally the wrong-doer, runs through a long line of decisions which bear more or less analogy to the present case. The case at bar is a stronger case for the application of the principle than most of them. In Smith's Cont. 204, it is said there is an exception to the rule or maxim, in pari delicto, potior est conditio defendentis, 'where the illegality is created by some statute, tract is still unexecuted, by repudiating the agreement, supposing that the plaintiff is not using the process of the court as a criminal venture.1 This has been held to be the case with money paid as consideration of void wagering contracts,2 and with money deposited with a stakeholder to be paid over according to the event of an illegal or void wager.3 In all cases of this class, however, the plaintiff must act promptly and fairly, and give previous notice that he repudiated the agreement.4 The reason is that in such cases the plaintiff's claim is not to enforce, but to repudiate, an illegal contract. The object of the suit is not to get paid for something illegally done, but to prevent the defendant from using an illegal pretext to retain money unlawfully detained. In conformity with this view it was held by the Supreme Court of the United States, in 1881, that where a New York corporation increased its capital stock in contravention of the statutes of that state, a subscriber who paid an assessment on the shares allotted to him could recover back from the corporation the amount so paid.5 One party, sec 854. Where money has been paid on an illegal consideration, it may be recovered back at any time while the conthe object of which is to protect one class of men against another, or where the illegal contract has been extorted from one party by the oppression of the other.' And it is there further said: ' In cases of this sort, although the contract is illegal, and although a person belonging to the class against whom it is intended to protect others cannot recover money he has paid in pursuance of it, yet a person belonging to the class to be protected may, since the allowing him to do so renders the act more efficacious.' The English cases quoted by the author to illustrate the principle are many and various. In Smith v. Cuff, 6 M. & Selw. 160, Lord Ellen-borough says: ' This is not a case of par delictum, but of oppression on one side and submission on the other; it can never be predicated as par delictum when one holds the rod and the other bows to it; there was an inequality of situation between the parties.'

"In Curtiss v. Leavitt, 15 N. Y. 9, it was held that ' where a contract otherwise unobjectionable is prohibited by a statute which imposes a penalty upon one of the parties only, the other party is not in pari delicto, and upon disaffirming the contract may recover as upon an implied assumpsit, against the party upon whom the penalty is imposed, for any money or property which has been advanced upon such contract.' Other New York cases are to the same effect. Schermerhorn v. Talman, 4 Kern. 93, and Tracy v. Talmage, id. 162, are to the same point, and contain copious citations of analogous cases. Benj. on Sales, 3d Am. ed. sec 509, note c, and cases cited.

"In White v. Franklin Bank, 22 Pick. 181, where a plaintiff had deposited money in a bank repayable at a future day, in violation of a statute of Massachusetts, he was allowed to recover back the deposit upon the ground that although both parties were culpable the defendants were the principal offenders. The court there said that to deny the action would be to secure to the defendants the fruits of an illegal transaction, and would operate as a temptation to all banks to take an advantage of the unwary and those who had no knowledge of the law or the illegality of such transaction. In Lowell v. Boston and Lowell R. Co., 23 Pick. 24, the same doctrine is restated and reaffirmed as applicable to another class of facts. In Atlas Bank v. Nahant Bank, 3 Mete. 581, 585, the same court, speaking of the decision in White v. Franklin Bank, says: ' To have decided otherwise would have given effect to an illegal contract in favor of the principal offender, and would have operated as a reward for an offence which the statute was intended to prevent.' In Walan v. Kerby, 99 Mass. 1, in construing an act relating to the sale of intoxicating liquors, the court say: ' The seller and buyer of intoxicating liquors sold in violation of law are not in pari delicto, because the latter is guilty of no offence. When the purchaser seeks to recover back the price he has paid, the illegality of the transaction of which he offers evidence is wholly on the part of the defendant, and he himself is not par-ticeps criminis.'

" Other illustrations of the principle are found in many other cases. The doctrine is commented upon in Concord v. Delaney, 58 Me. 316; is considered in Connecticut in the case of Cameron v. Peck, 37 Conn. 555; and elaborately discussed in New Hampshire in the cases of Prescott v. Norris, 32 N. H.

Money paid on executory illegal agreement may be recovered back.

101, and Butler v. Northumberland, id. 33, 39." See infra, sec 730, as to principle ruled in this case.

1 Leake, 2d ed. 772 et seq.; 2 Addis. Con. sec 1412; Hasfelow v. Jackson, 8 B. & C. 221; Bone v. Eckless, 5 H. & N. 925; Palyart 0. Leckie, 6 M. & S. 290; Aubert v. Walsh, 3 Taunt. 277; Tap-penden v. Randall, 2 B. & P. 467; Busk v. Walsh, 4 Taunt. 290; Smith v. Bick-more, 4 Taunt. 474; Gatty v. Field, 9 Q. B. 431; Taylor v. Bowers, L. R. 1 Q. B. D. 291; Thomas v. Richmond, 12 Wall. 355; White v. Bank, 22 Pick. 184; Lowell v. R. R., 23 Pick. 24; Utica Ins. Co. v. Kip, 8 Cow. 20; Adams Ex. Co. v. Reno, 48 Mo. 264. See, however, Kingsbury v. Flemming, 66 N. C. 524; Alston v. Durant, 2 Strobh. 257. In Kiewert v. Rindskopf, 46 Wis. 481, it was held that money extortionately received by attorney to obtain mitiga tion of sentence of a person under in dictment could be recovered back.