Where one party to a bargain has been fraudulently induced to enter into the transaction, it is frequently said he is not in pari delicto, and the case has sometimes been classed with duress or coercion, but a distinction is to be observed. If the fraud consisted in deceiving the plaintiff as to the unlawful character of the transaction, doubtless the analogy with duress is sound.79 And even though the fraud consisted in depriving the plaintiff of the use of his faculties or judgment, the same principle might apply.80 But if the only fraud consisted in rep-
75 See supra, Sec. 1631.
76 Lee v;. Boyd, 86 Ala. 283, 5 So. 489.
77 Traders' Nat. Bank v. Steere, 165 Mass. 389, 43 N. E. 187, quoted with approval and followed in Johns v. Reed, 77 Neb. 492, 109 N. W. 738.
78 Shoolbred v. Roberts, ]1899] 2 Q. B. 560  2 Q. B. 497.
79 Fears v. United Ac. Bank, 172 Ky. 255, 189 S. W. 226.
80 In Block v. McMurry, 56 Miss. 217, 31 Am. Rep. 357, the defendant fraudulently induced the plaintiff to become intoxicated and then induced reservations inducing the plaintiff to believe that the propose illegal transaction would be more profitable than it actual turned out to be, it seems hard to discover any reason which should induce a court to favor him.81 It has been indeed de cided by the Supreme Court of the United States82 that a fraud ulent illegal transaction might be rescinded on the broad ground that "a person does not become an outlaw and lose all right by doing an illegal act. The right not to be led by fraud change one's situation is anterior to and independent of the contract. The fraud is a tort. Its usual consequence is than as between the parties one who is defrauded has a right, if poss sible, to be restored to his former position. That right is not taken away because the consequence of its exercise will be the undoing of a forbidden deed." While the decision of the casse may be supported on the ground of the slight guilt of the plain tiff, it is believed that the broad statement just quoted cannot be accepted as a statement of general principle. Certainly where the illegality is of a serious character its consequence may well be expressed by saying that as to that transaction the parties engaged in it become outlaws. For instance, if a pur chase of stolen silver known by both parties to be such was in duced by fraudulent misrepresentations of circumstances af fecting its value, it is submitted that not only could the bargain not be enforced if executory, but it could not be rescinded in executed, nor would an action of tort for deceit lie in favor of the defrauded party. The broad principle ex dolo malo non ori tur actio is not confined in its terms nor in its reason to an ac tion on the contract.83 him to make a sale of his horse on Sunday. The seller was allowed to recover. See also Bell v. Campbell, 123 Mo. 1, 25 S. W. 359, 45 Am. St. Rep. 505.
82 National Bank & Loan Co. v. Petrie, 189 U. S. 423, 23 S. Ct. 512, 47 L. Ed. 879. In this case the plaintiff bought bonds of the National Bank & Loan Co., the defendant below. The court assumed that the transaction was forbidden by law. The plaintiff alleged that the sale was induced by fraud and sought in the action to rescind the sale and recover the money paid for the bonds, tender of which was made and kept good. The court held the action maintainable.
83 In Tracy v. Talmage, 14 N. Y. 162, 181, 67 Am. Dec. 132, Selden, J., said: "The cases in which the courts will give relief to one of the parties on the ground that he is not in pari delicto form an independent class entirely distinct from those cases which rest upon a disaffirmance of the con-