This section is from the book "A Commentary On The Law Of Contracts", by Francis Wharton. Also available from Amazon: A Commentary On The Law Of Contracts.
A distinction has been taken between "crimes involving great moral turpitude," and other offences "not amounting to felony," and it is argued that complicity in the latter does not preclude a party from suing on the transaction.6 But a conspiracy to commit a misdemeanor is as indictable as is a conspiracy to commit a felony, and hence a civil suit to further the former kind of conspiracy cannot be tolerated any more than a civil suit to further the latter. The question, when a party seeks to sue on an illegal adventure, is not the grade of the offence, but the fact of illegality. The distinction between felony and misdemeanor is no test. It is abandoned in many jurisdictions, and will soon be abandoned in all jurisdictions;7 and many misdemeanors are more heinous than some felonies. Nor is there any line of turpitude that can be drawn that can be relied on as a satisfactory basis of distinction. If, in a suit of this kind, it should appear that the plaintiff is suing for the purpose of putting in operation an illegal adventure, or of recovering the fruits of such adventure, then his suit cannot be maintained, no matter what may be the degree of the turpitude of the offence in which he is concerned.1 The distinction, also, between statutory and common law offences in this respect is no longer maintained.2 "Whatever may have been once thought, " there is no valid distinction in the application of the law upon the subject between mala prohibita and mala in se; and if it were ever regarded, it has now been wholly laid aside in the decision of the later English cases."3 The only distinctions to be recognized are the following: (1) Of coutracts which are not prohibited by law or immoral, there are some which it is against the policy of the law to enforce, and yet the fruits of which a person can obtain from a party unjustly holding them. It may be against the policy of the law to specifically execute such contracts, yet it may not be against the policy of the law to treat them when executed as giving title. In such cases "the circumstance that the relief is asked by a party who is particeps criminis is not in equity material. The reason is, that the public interest requires that relief should be given; and it is given to the public through the party.4 And in those cases, relief will be granted not only by setting aside the agreement or other transaction, but also, in many cases, by ordering a repayment of any money paid under it."5 - (2) Dupes and victims of an illegal transaction are not precluded from suing on it.6 They have this privilege, not because the illegality of the transaction is not of a heinous type, but because they are not personally tainted with the heinousness. (3) Mere knowledge of a contingent illegal application of supplies given, does not defeat a suit for remuneration.7
No distinction as to turpitude of offence.
1 Fraser v. Hill, 1 Macq. 392.
2 Wh. on Ev. sec 927-931; Smith's L. C. 7th Am. ed. 700; Roby v. West, 4 N. H. 285; Bayley v. Taber, 5 Mass. 286; Farrar v. Barton, 5 Mass. 395; Wheeler v. Russel, 17 Mass. 258; Dexter v. Snow, 12 Cush. 594; Bloss v. Bloomer, 23 Barb. 604.
3 Ibid.; Cannan v. Bryce, 3 B. & Ald. 179; M'Kinnell v. Robinson, 3 M. & W. 434; Kennett v. Chambers, 14 How. U. S. 38; Perkins v. Savage, 15 Wend. 412; Staples v. Gould, 5 Sandf.
411; Badgley v. Beale, 3 Watts, 263; see Smith's L. C. 7th Am. ed. 700.
* Supra, sec 239; Wh. on Ev. sec 1245, and cases there cited; Ware v. Jones, 61 Ala. 288; Bixby v. Carskadden, 55 Iowa, 533.
5 Beetem v. Burkholder, 69 Penn. St. 249; Wh. on Ev. sec 358.
6 Wald's Pollock, 365, citing Tracy v. Talmage, 14 N. Y. 162; Bickel v. Sheets, 24 Ind. 1; Michael v. Bacon, 49 Mo. 474; Steale v. Curie, 4 Dana, 381; Armfield v. Tate, 7 Ired. L. 258; Hubbard v. Moore, 24 La. An. 591.
7 Infra, sec 484.
1 See Finch v. Mansfield, 97 Mass. 89; Suit v. Woodhull, 113 Mass. 391.
2 Cannan v. Bryce, 3 B. & A. 179; and cases cited Benj. on Sales, 3d Am. ed. sec 507 et seq.
3 Foster, J., Hill v. Spear, 50 N. H. 253; and see Bank U. S. v. Owens, 2 Pet. 527; Clark v. Ins. Co., 1 Story, 109; Greenough v. Balch, 7 Greenl. 462; White v. Buss, 3 Cush. 448.
4 St. John v. St. John, 11 Ves. 535; Smith v. Bromley, Doug. 696; Hatch v. Hatch, 9 Ves. 292; Morris v. Mac-Cullock, 2 Eden, 190; Reynell v. Sprye, 1 DeG. M. & G. 660.
5 Story, Eq. Jur. 12th ed. sec 298; Reynell v. Sprye, 1 De G. M. & G. 660.
6 Infra, sec 353.
 
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