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the law leaves the parties where they have placed themselves. Here again, usually, potior est conditio defendentis; not from regard for him any more than in the cases previously mentioned, but from regard for the policy of the law.

§ 999.

Withdrawal from incomplete contract-Locus pœnitentiæ. A case, sometimes spoken of as an exception to the rule that neither party can disaffirm, but which is really a case excluded from its operation, is that in which a party who has contemplated an unlawful contract and taken some step looking toward its execution repents himself before the contract has been performed, and disavows his unlawful purpose. He may, in such a case, recover what he has deposited or parted with in anticipation of such performance. Said Mellish, L. J., in the leading case1 upon the subject: "If money

Mass. 366, 3 Am. R. 368. These were cases of Sunday contracts, but the principle is the same.

Taylor v. Bowers (1876), 1 Q. B. Div. 291, C. A. Here the plaintiff had transferred goods to a friend with intent to defrand his creditors. While nothing further in execution of that scheme had been done, plaintiff sought to repudiate it and get back his goods; it was held that he might do so. (But considerable doubt has been thrown upon Taylor v. Bowers by the remarks of Fry, L. J., in which C. J. Coleridge concurred, in Kearley v. Thomson, 24 Q. B. Div. 742. It has, however, been followed in many American cases cited below.)

In Tyler v. Carlisle (1887), 79 Me. 210, 1 Am. St. R. 301, 9 Atl. R. 356, the court say: "The law encourages a repudiation of the illegal contract, even by a guilty participator, as long as it remains an executory contract or the illegal purpose has not been put in operation."

An illegal contract may be re

scinded so long as it continues executory, and the money paid under it may be recovered back. Souhegan National Bank v. Wallace (1881), 61 N. H. 24; Peters v. Grim (1892), 149 Pa. St. 163, 34 Am. St. R. 599, 24 Atl. R. 192; Clarke v. Brown, 77 Ga. 606; Spring Co. v. Knowlton, 103 U. S. 49: Bernard v. Taylor, 23 Oreg. 416, 37 Am. St. R. 693, 18 L. R. A. 859, 31 Pac. R. 968 (citing Hastelow v. Jackson, 8 B. & C. 221; Smith v. Bickmore, 4 Taunt. 474; Tappenden v. Randall, 2 Bos. & P. 467; Lowry v. Bourdieu, 2 Doug. 468; Munt v. Stokes, 4 Term R. 561; Utica Ins. Co. v. Kip, 8 Cow. (N. Y.) 20; Merritt v. Millard, 4 Keyes (N. Y.), 208; White v. Franklin Bank, 22 Pick. (Mass.) 181; O'Bryan v. Fitzpatrick, 48 Ark. 487, 3 S. W. R. 527; Stacy v. Foss, 19 Me. 335, 36 Am. Dec. 755); Parkersburg v. Brown, 106 U. S. 487; Bateman v. Robinson, 12 Neb. 508, 11 N. W. R. 736. Contra: Knowlton v. Spring Co., 57 N. Y. 518.

is paid or goods delivered for an illegal purpose, the person who has so paid the money or delivered the goods may recover them back before the illegal purpose is carried out; but if he waits till the illegal purpose is carried out, or if he seeks to enforce the illegal transaction, in neither case can he maintain an action; the law will not allow that to be done." And the supreme court of the United States has approved the rule that "a recovery can be had, as for money had and received, when the illegality consists in the contract itself and that contract is not executed; in such case there is a locus pœnitentiæ; the delictum is incomplete; the contract may be rescinded by either party."

§ 1000.

2

Rescission where parties not in pari delicto Effect of fraud or duress.- Another case in which the rule denying relief does not apply is that in which the parties, though in delicto, are not in pari delicto, by reason of the fact that the party seeking relief was induced by the fraud or duress of the other to enter into the contract. Thus, it is said by Lord Ellenborough in a leading English case, where the parties were respectively a bankrupt and a creditor, and the latter had compelled the other to pay him money in fraud of other creditors: "This is not a case of par delictum; it is oppression on one side and submission on the other; it never can be predicated as par delictum when one holds the rod and the other bows to it. There was inequality of situation between these parties; one was creditor, the other debtor, who was driven to comply with the terms which the former chose to enforce." And in another case involving the same question it was said by Cockburn,

1 In Spring Co. v. Knowlton (1880), horse. See also Bell v. Campbell, 123 103 U. S. 49, 26 L. ed. 347. Mo. 1, 25 S. W. R. 359.

2 Smith v. Cuff, 6 M. & Sel. 160. So in Block v. McMurry, 56 Miss. 217, 31 Am. R. 357, it is held that if the seller in a Sunday sale is made drunk by the buyer for the purpose of defrauding him, the parties are not in pari delicto, and the seller can recover his

3 Atkinson v. Denby, 7 Hurl. & Norm. 934.

But the application of this rule to a case involving the compounding of a felony was denied in Haynes v. Rudd, 102 N. Y. 372.

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C. J.: "It is said that both parties are in pari delicto. It is true that both are in delicto, because the act is a fraud upon the other creditors, but it is not par delictum, because the one has the power to dictate, the other no alternative but to submit."

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$ 1001. There are also cases in which public policy is deemed to be best subserved by permitting the less guilty party to withdraw and regain his former position. Thus, it is said, "Where the parties to a contract against public policy, or illegal, are not in pari delicto (and they are not always so), and where public policy is considered as advanced by allowing either, or at least the more excusable of the two, to sue for relief against the transaction, relief is given to him.” 1

1 Reynell v. Sprye, 1 De Gex, M. & G. 660.

In Lowell v. Boston & L. R. Co. (1839), 23 Pick. (Mass.) 24, 34 Am. Dec. 33, it is said: "The general rule of law is that where two parties participate in the commission of a criminal act, and one party suffers damage thereby, he is not entitled to indemnity or contribution from the other party. So also is the rule of the civil law. Nemo ex delicto consequi potest actionem. The French law is more indulgent, and allows a trespasser who has paid the whole damage to maintain an action for contribution against his co-trespasser. Pothier on Oblig. 282. Whether the latter rule be or be not founded on a wiser policy and more equal justice is a question which we are not called upon to decide. This case, like all others, must be decided by the law as it is, whether it be consonant with sound policy or not.

joint offense. The rule is, in pari delicto potior est conditio defendentis If the parties are not equally criminal, the principal delinquent may be held responsible to his co-delinquent for damages incurred by their joint offense. In respect to offenses in which is involved any moral delinquency or turpitude all parties are deemed equally guilty, and the courts will not inquire into their relative guilt. But where the offense is merely malum prohibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice between them, although both parties are wrong-doers. This distinction was very fully considered in a case recently decided by this court - White v. Franklin Bank, 22 Pick. 181. In that case the plaintiff had deposited in the bank a large sum of money, payable at a future day, in violation of a provision in the Revised Statutes which prohibits any such deposit or loan. Both parties were culpable, but as the defendants

"Our law, however, does not in every case disallow an action by one wrong-doer against another to recover damages incurred by their

§ 1002.. And finally, there are still other cases in which relief is granted because the person seeking relief belongs to a class for whose protection the statute declaring the invalidity was enacted. Thus, in a recent case,' Fry, L. J., in speaking of the maxim, said: "To that general rule there are undoubtedly several exceptions or apparent exceptions. One of those is the case of oppressor and oppressed, in which case usually the oppressed party may recover the money back from the oppressor. In that class of cases the delictum is not par, and therefore the maxim does not apply. Again, there are other illegalities which arise where a statute has been intended to protect a class of persons, and the person seeking to recover is a member of the protected class. Instances of that description are familiar in the case of contracts void for usury under the old statutes, and other instances are to be found in the books under other statutes which are, I believe, now repealed, such as those directed against lottery keepers. In these cases of oppressor and oppressed, or of a class protected by statute, the one may recover from the other, notwithstanding that both have been parties to the illegal contract."

$1003. Agreements partly illegal — Divisible agreements. The illegality connected with the contract may attach to the whole contract or to some portion of it only. In the former case there is, of course, no question that the whole contract is rendered unenforceable; but whether the same result must follow in the latter case depends upon whether the contract is indivisible or is so far divisible that the infected parts can be effectually separated from the uninfected; for it is well settled that in case of an illegality in part only, the valid portions may be enforced provided they can be separated from the invalid. Metcalfe, J., stated the rule in this language: "If any part of an agreement is valid it will avail pro tanto, though another part of it may be prohibited by statute; provided the

were deemed the principal offenders,

1 Kearley v. Thomson (1890), 24 Q. B.

it was held that the plaintiff was en- Div. 742. titled to recover back his deposit."

statute does not, either expressly or by necessary implication, render the whole void; and provided, furthermore, that the sound part can be separated from the unsound and be enforced without injustice to the defendant."1

§ 1004. Note for price.- In the case, therefore, of the sale of a number of articles, part of which were forbidden and the residue were not, if the sale were a sale of the whole for one entire sum, no recovery could be had for any; but if a distinct price were affixed to each article, then the promise to pay is deemed divisible, and the price for those which might lawfully be sold could be recovered, though there could be no recovery for the others."

But in the latter case, notwithstanding that a distinct price

In Rand v. Mather, 11 Cush. (Mass.) 1, 59 Am. Dec. 131. To same effect: Handy v. Globe Publishing Co., 41 Minn. 188, 16 Am. St. R. 695, 4 L. R. A. 466, 42 N. W. R. 872; Santa Clara Mill & Lumber Co. v. Hayes, 76 Cal. 387, 9 Am. St. R. 211, 18 Pac. R. 391; Braitch v. Guelick, 37 Iowa, 212; Sullivan v. Hergan, 17 R. I. 109, 9 L. R. A. 110, 20 Atl. R. 232.

2 See Standard Furniture Co. v. Van Alstine (1900), 22 Wash. 670, 62 Pac. R. 145, and cases cited. On a sale of a stock of goods for a gross sum, including liquors which the seller was not licensed to sell, there can be no recovery. Ladd v. Dillingham, 34 Me. 316. If liquors are illegally sold, including the barrels containing them, there can be no recovery for the barrels, although it had been agreed that they might be returned and their price credited; they formed part of the illegal contract and hence there can be no recovery. Holt v. O'Brien, 15 Gray (Mass.), 311; Bligh v. James, 6 Allen (Mass.), 570. So in case of beer and bottles. Wirth v. Roche, 92 Me. 383,

42 Atl. Rep. 794. See also Stewart v. Thayer (1897), 168 Mass. 519, 47 N. E. R. 420, 60 Am. St. R. 407.

But the

3 Clark on Contracts, 475. sale of a stock of goods is not entire and indivisible, though the entire stock is sold at one and the same time, if a separate and distinct price is agreed upon for each article; and in an action brought for the whole sum the plaintiff may amend by striking out the illegal items. Boyd v. Eaton, 44 Me. 51, 69 Am. Dec. 83. Same: Walker v. Lovell, 28 N. H. 138, 61 Am. Dec. 605; Carleton v. Woods, 28 N. H. 290. In an action on an account containing legal and illegal items, the latter may be stricken out and a recovery be had upon the former. Goodwin v. Clark, 65 Me. 280 [citing Robinson v. Green, 3 Metc. (Mass.) 159; Rundlett v. Weeber, 3 Gray (Mass.), 263; Holt v. O'Brien, 15 Gray, 311; Bligh v. James, 6 Allen (Mass.), 570; Warren v. Chapman, 105 Mass. 187; Dunbar v. Johnson, 108 Mass. 519; Hall v. Costello, 48 N. H. 176]; Chase v. Burkholder, 18 Pa. St. 48.

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