In some cases rescission of an illegal transaction and recovery of consideration is allowed beyond the limits stated in the preceding section. This is true where the parties are said not to be in pari delicto. The typical case is where one party acts under compulsion of the other. The doctrine originated in cases proval in Duane v. Merchants' Legal Stamp Co., 231 Mass. 113, 120 N. £. 370, 372): "It has been held in many cases that, where the matters called for in the contract that render it illegal, do not involve moral turpitude, but are merely mala prokibila, either party, while it remains executory, may disaffirm it on account of its illegality and recover back money or property that he has advanced under it. If the contract has been executed the court will not relieve either party from the consequences of his own violation of law. But so long as it is entirely unexecuted in that part which the law forbids, there is a locus penitential. The doctrine is stated very fully in White v. Franklin Bank, 22 Pick. 181. This rule is followed in Love v. Harvey, 114 Mass. 80; Atlas Bank v. Na-hant Bank, 3 Met. 581, and Morgan v. Beaumont, 121 Mass. 7. where a creditor by pressure induced his debtor to enter in transactions fraudulent as to other creditors.71 In some case also the guilt of the parties is differentiated for other reason Probably no more exact principle can be laid down than the that if a plaintiff though culpable has not been guilty of more turpitude, and the loss he will suffer by being denied relief wholly out of proportion to the requirements either of pull lie policy or of appropriate individual punishment, he may in allowed to recover back, the consideration with which he his parted.72 The nature or terms of a statute or rule of law will also sometimes indicate that it is intended for the protection on one class of individuals against another, and where this is the case a party belonging to the class whose protection was in tended may recover what he has paid.73 Money lost at gamin is by statute frequently recoverable under this principle.74
" It is established in a long line of English cases. Hastelow v. Jackson, 8 B. & C. 221; Bone v. Ekless, 5 H. & N. 025; Taylor v. Bowers, 1 Q. B. D. 291; Hampden v. Walsh, 1 Q. B. D. 189; Strachan v. Universal Stock Exchange, Ltd. (1895), 2 Q. B. 329; Hermann v. Charlesworth (1905), 2 K. B. 123, 135. It is also adopted generally in America. Spring Co. v. Knowlton, 103 U. S. 49, 26 L. Ed. 347; Block v. Darling, 140 U. S. 234, 239, 35 L. Ed. 476, 11 S. Ct. 832; Pullman's Gar Co. v. Central Transportation Co., 171 U. S. 138, 43 L. Ed. 106, 18 S. Ct. 808; Kiewert v. Rindskopf, 46 Wis. 481, 1 N. W. 163, 32 Am. Rep. 731; Urwan v. Northwestern Ins. Co., 125 Wis. 349, 103 N. W. 1102; Skinner v. Henderson, 10 Mo. 205. Most of these cases relate to the recovery of money or property that has been advanced under the illegal contract which is subsequently repudiated. In the present case labor and materials for the improvement of real estate were furnished by the plaintiff." . . .
"When labor and materials have been furnished upon real estate under a contract which contains an illegal element under a prohibitory statute, and when the contract remains entirely executory in that part which is illegal, and is disaffirmed because of its illegality, the disaffirming party has the same right to have compensation for the benefit conferred upon the real estate that he would have to recover for money or property received by the other party before the disaffirmance of such a contract."
71 See Atkinson v. Denby, 6 H. & N. 778, 7 H. & N. 934, citing earlier decisions.
72 Thus in White v. Franklin Bank, 22 Pick. 181, the plaintiff had made a deposit in the defendant bank on terms which violated the Banking Law. Though the court admitted that the defendant was blameworthy, it regarded the bank as more seriously guilty, and allowed the plaintiff to recover his money. See also Reynall v. Sprye, 1 De G. M. & G. 660; McDuffee 9. Hayden-Coeur d'Alene Irr. Co., 25 Ida. 370, 138 Pac. 503; Lowell o. Boston & L. R. R. Corp., 23 Pick. 24, 34 Am. Dec. 33.
In Davis v. Smoot (N. C), 97 S. E. 488, the plaintiff in an accident case contracted to give his physician an illegal contingent fee for acting as an expert witness. Later the physician -while his patient was somewhat under the influence of morphine obtained payment of the agreed fee. The plaintiff was allowed to recover it.
73 Thomas v. City of Richmond, 12 Wail. 349, 20 L. Ed. 453; Parkers-burg v. Brown, 106 U. S. 487, 503, 27 Ii. Ed. 238,1 S. Ct. 442; Logan County Bank v. Townsend, 139 U. S. 67, 35
L. Ed. 107, 11 S. Ct. 496; Scotten State, 51 Ind. 52; Deming v. State, 2 Ind. 416; Smart v. White, 73 Me. 335
40 Am. Rep. 356; White v. Frankli Bank, 22 Pick. 181; Morville v. Amei Tract. Soc., 123 Mass. 129, 137, 138 25 Am. Rep. 40; Bateman v. Robinson 12 Neb. 508, 11 N. W. 736; Becker v Wilcox, 81 Neb. 476, 116 N. W. 160 16 L. R. A. (N. S.) 571; Manchester R Co. v. Concord R. Co., 66 N. H. 100 131, 20 Atl. 383; Schermerhorn v. Tal man, 14 N. Y. 93, 123; Tracy v. Tal mage, 14 N. Y. 162, 181, 199, 67 Am, Dec. 132; Oneida Bank v. Ontario Bank, 21 N. Y. 490; Irwin v. Curie, 171 N. Y. 409, 64 N. E. 161, 58 L. R. A. 830; Duval v. Wellman, 124 N. Y. 156, 26 N. E. 343; Webb v. Fulchire, 3 Ired. L. 485, 40 Am. Dec. 419; Rein-hard v. City, 49 Ohio St. 257, 31 N. E. 35; Insurance Co. v. Hull, 51 Ohio St. 270, 37 N. E. 1116, 46 Am. St. Rep. 571; Smith v. Blachley, 188 Pa. 550,
41 Atl. 619, 68 Am. St. Rep. 887, 198 Pa. 173, 47 Atl. 985, 53 L. R. A. 849; Deaton v. Lawson, 40 Wash. 486, 82 Pac. 879, 2 L. R. A. (N. S.) 392, 111 Am. St. Rep. 922.
74 See supra, Sec. 1679.