Sec 339

We have already seen that when fraudulent intention is proved, it is no defence that there were other motives more or less innocent prompting to the same act.3 It is no reply, also, to a plea that a contract was illegal, that there were other considerations besides that which was illegal.4 A contract to indemnify for publishing a criminal libel, for instance, is not relieved from illegality by the concurrence of other venial motives on the part of the person indemnifying;5 and a contract for illicit cohabitation is not made any the less inoperative by the fact that the person contracted with is also engaged to act as housekeeper.6 But, as we have already incidentally seen, where there are several concurrent promises which may be attached to the several parts of the consideration respectively, then the promises may be severed, and a suit sustained on the promise to which a good consideration is attached.1

Concurrence of other considerations no defence.

1 Merrill v. Ins. Co., 73 N. Y. 452; aff. 10 Hun, 428; S. P. Holmes v. Drew, 16 Hun, 491; Dacey v. Ins. Co., 21 Hun, 83; Clement's Ins. Dig. 92. See contra, Plath v. Ins. Co., 23 Minn. 479. See to the effect that alienation of one of several articles separately insured avoids the whole policy, Baldwin v. Ins. Co., 10 Ins. L. J. 433.

2 Associated Ins. Co. v. Assum, 5 Md. 165. To same effect see Kimball v. Ins. Co., 8 Gray, 33.

3 Supra, sec 236.

4 Scott v. Gilmore, 3 Taunt. 226; Hopkins v. Prescott, 4 C. B. 578; Waite v. Jones, 1 Bing. N. C. 662;.

Armstrong v. Toler, 11 Wheat. 258; 4 Wash. C. C. 297; Ladd v. Dillingham, 34 Me. 316; Prescott v. Norris, 32 N. H. 101; Bixby v. Moore, 51 N. H. 402; Woodruff v. Hinman, 11 Vt. 592; Dixie v. Abbott, 7 Cush. 610; Perkins v. Cummings, 2 Gray, 258; Raguet v. Roll, 7 Ohio, 77; Donellen v. Lenox, 6 Dana, 91; Chandler v. Johnson, 39 Ga. 85.

5 Shackell v. Rosier, 2 Bing. N. C. 634; see infra, sec 372.

6 R. v. Northwingfleld, 1 B. & Ad. 912; see Leake, 2d ed. 779; and see infra, sec 373.

Sec 340

A party to an illegal agreement, subject to the distinctions above stated and hereafter to be noticed, cannot use such agreement as the basis of a suit. "The principle of public 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 plaintiffs own stating or otherwise2 the cause of action appears to arise ex turpi causa, or the transgression 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 at fault, potior est conditio defendentis."3 "The policy of the law is to leave the parties in all such cases without remedy against each other;4 but this is not as a protection to the defendant, but as a disability to the plaintiff."5 And the "true test for determining whether or not the plaintiff and the defendant were in pari delicto is by considering whether the plaintiff could make out his case otherwise than through the medium and by the aid of the illegal transaction to which he was himself a party."6 Hence money contributed to an illegal act cannot be recovered back;1 nor can money advanced to carry out a fraud.2 Payment to an agent, in pursuance of an executed agreement, is to be in this respect regarded as payment to the principal.3 - It makes no matter by which party the bar of illegality is advanced. By whomsoever introduced into the case, it stops proceedings. Neither party can claim the aid of the law to enforce an illegal contract.4 And hence goods conveyed on a resulting trust in fraud of creditors cannot be recovered back by the grantor from the grantee.5 " The rule is that, in so far as the contract is executory, the defendant, although in pari delicto, or any one acquiring an interest in the property affected by the contract sought to be enforced, may set up the illegality of the consideration in defence."6 "Where parties are concerned in Party to illegal agreement cannot 6ue on it.

1 Supra, sec 338; Leake, 2d ed. 780, citing Mather ex parte, 3 Ves. 373. See generally on the topic in the text, Carleton v. Woods, 28 N. H. 290; Hinesburgh v. Sumner, 9 Vt. 23; Thayer v. Rock, 13 Wend. 53; Filson v. Himes, 5 Barr, 452.

2 That extrinsic proof is admissible for this purpose, see Collins v. Blan-tern, 1 Smith's L. C. 7th Am. ed. 667; Reynell v. Sprye, 1 D. M. G. 660, 672; Totten v. U. S., 92 U. S. 105; and other cases cited Wh. on Ev. sec 935.

3 Holnian v. Johnson, Cowp. 341.

4 Ames, J., Horton v. Buffinton, 105 Mass. 400.

5 Myers v. Meinrath, 101 Mass. 367.

6 Per cur. in Taylor v. Chester, L. R. 4 Q. B. 314, adopted in Leake, 2d ed. 774; Caldecott ex parte, L. R. 4 Ch. D. 150; Begbie v. Phos. Co., L. R. 10 Q. B. 491; L. R. 1 Q. B. D. 679. See to same effect, Fivaiz v. Nicholls, 2 C. B. 501; Dixon v. Olm-stead, 9 Vt. 310; Swan v. Scott, 11 S. & R. 155; Hippie v. Rice, 28 Penn. St. 406; Foote v. Emerson, 10 Vt. 338; Buck v. Albee, 26 Vt. 184; Myers v.

Meinrath, 101 Mass. 367; Horton v. Buffinton, 105 Mass. 400; Sampson v. Shaw, 101 Mass. 145; Roll v. Raguet, 4 Ohio, 400; 7 Ohio, 76; Moore v. Adams, 8 Ohio, 372; Smart v. Cason, 50 111. 195; McLostey v. Gordon, 26 Miss. 260; Hoover v. Pierce, 27 Miss. 13.

1 See cases to last note, and infra, sec 741.

2 Infra, sec 376.

3 Leake, 2d ed. 775; Tenant v. Elliott, 1 B. & P. 4.

4 Boutelle v. Melendy, 19 N. H. 196; Buck v. Albee-, 26 Vt. 184; Carroll v. Ins. Co., 8 Mass. 575; Sampson v. Shaw, 101 Mass. 145; Shaw v. Thompson, 105 Mass. 345; Perkins v. Savage, 15 Wend. 412; Burt v. Place, 6 Cow. 431; Cameron v. Peck, 37 Conn. 555; Hendricks v. Mount, 2 South. 738; Stewart v. Kearney, 6 Watts, 453; Scott v. Duffy, 14 Penn. St. 18; Bre-din's App., 92 Penn. St. 241; Lynch's App., 97 Penn. St. 349; Cushwa v. Cushwa, 5 Md. 44; Spurgeon v. McEl-wain, 6 Ohio, 442; Spalding v. Bank, 12 Ohio, 544; Barton v. Morris, 15 Ohio, 408; McQuade v. Rosencrans, 36 Oh. St. 442; Gregory v. Wendell, 39 Mich. 337; Drexler v. Tyrrell, 15 Nev.

115; Bestor v. Wathen, 60 111. 138; Blackburn v. Bell, 91 111. 434; Harvey 9. Tama Co., 53 Iowa, 228; Tyler v. Smith, 18 B. Mon. 793; Broughton v. Broughton, 4 Rich. 491; White v. Crew, 16 Ga. 416.

5 Ellis v. Higgins, 32 Me. 34; Stone v. Locke, 46 Me. 445; Evans v. Herring, 3 Dutcher, 243; Getzler v. Saroni, 18 111. 511.

6 Boynton, C. J., McQuade v. Rosencrans, 36 Oh. St. 448.

"As a general rule, a contract or agreement cannot be made the subject of an action if it be impeachable on the ground of dishonesty, or as being opposed to public policy, if it be either contra bonos mores, or forbidden by the law. In answer to an action founded on such an agreement, the maxim may be urged: Ex maleficio non oritur actio. A contract cannot arise out of an act radically vicious and illegal; those who come into a court of justice to seek redress must come with clean hands, and must disclose a transaction warranted by law; and it is quite clear that a court of justice can give no assistance to the enforcement of contracts which the law of the land has interdicted." Broom's Legal Maxims, 734.

illegal agreements or other transactions, whether they are mala prohibita or mala in se" so is the rule stated by Judge Story,1 "courts of equity, following the rule of law as to participators in a common crime, will not at present interpose to grant any relief; acting upon the known maxim, in pari delicto potior est conditio defendentis, et possidentis."2 - And between degrees of turpitude, supposing the parties intelligently co-operate in the wrong, the courts will not distinguish;3 though a party who is a dupe or a victim is not precluded from redress.4 Nor does the fact that the defendant was equally implicated with the plaintiff in the illegality preclude him from setting up the defence.5 Hence, money deposited as a "margin" cannot be recovered back in case of a fall in the price of the goods, when the deposit was known by both vendor and purchaser to be part of a gambling contract; though it would be otherwise, if the purchaser made the deposit in good faith, as part of a fair business transaction.6 - It must, however, be remembered that money paid on a purely executory illegal agreement may be recovered back before overt act;7 and so of goods deposited for illegal purpose not matured.8