1 Bank of U. S. v. Owens, 2 Peters, 538; Aubert v. Maze, 2 Bos. & Pul. 371; Watts v. Brooks, 3 Ves. 612.
2 Bartlett v. Vinor, by Lord Holt, Carth. 252; Clark v. Protection Ins. Co., 1 Story, 109; De Begnis v. Armistead, 10 Bing. 110; Cope v. Rowlands, 2M.&W. 153; D'Allex v. Jones, 2 Jur. (n. s.) 979; 37 Eng. Law & Eq. 476; Bensley v. Bignold, 5 B. & Al. 335.
§ 615. And in the first place, if a contract be malum in se, being essentially immoral and criminal, neither party has any remedy against the other. Nor can money paid thereupon be reclaimed at law or in equity.2 If, therefore, a sum of money be paid by way of bribe,3 or for the compounding of a felony,4 or as a premium for future prostitution,5 or for a wager,6 it cannot be recovered on refusal of the other party to perform his part of the contract. Nor can an action be brought to enforce the performance of the contract. Ex turpi contractu non oritur actio. And it has been held that an action cannot be maintained for the breach of a contract for renting rooms, where the owner refused to allow the lessee to use them upon discovering that he intended to deliver lectures in them maintaining that the character of Christ was defective, and impeaching his teaching and that of the Bible.7 This was on the ground that, Christianity being a part of the law of England, the matter was blasphemous. It was also illegal by statute.
§ 616. In the next place, where the contract is malum prohibitum, and does not involve any moral turpitude or criminality, one party may, under certain circumstances, have a remedy against the other party on an executed or executory contract; and this rule is admitted on grounds of public policy. And first, if the contract be executed, the title of either party to relief will depend upon whether both parties are in equal fault, in pari delicto. If they be in pari delicto, no relief will be granted, but they will be left remediless; their contract will not be set aside, and any money which may have been advanced cannot be recovered.1 But if they be not in pari delicto, the rule is directly the reverse.2 Whenever, therefore, one party, acting under circumstances of great need, or oppression, or hardship, or great inequality of condition, makes a contract in violation of a law, or rule of public policy, intended to protect persons against oppression, or extortion, or deceit, he is not in equal fault, and he may recover of the other any money that he may have advanced, or he may have his contract set aside;3 and relief is granted in such cases, on the ground that the public interest, and not solely the private interest of the individual requires it.1 This rule applies to cases of usurious contracts, wherein it is considered that the lender has availed himself of the necessities or urgencies of the borrower to extort from him an unlawful rate of interest; and an action for money had and received will lie, therefore, for the excess paid beyond the principal and lawful interest thereon.2 So, also, the same doctrine applies to money paid as a premium for a lottery ticket.3
1 See cases cited post.
2 Howson v. Hancock, 8 T. R. 577; Smith v. Bromley, 2 Doug. 696; Browning v. Morris, 2 Cowp. 790; White v. Franklin Bank, 22 Pick. 184; Lowell v. Boston & Lowell Railroad Co., 23 Pick. 32; Worcester v. Eaton, 11 Mass. 376.
3 Browning v. Morris, 2 Cowp. 793.
4 Worcester v. Eaton, 11 Mass. 376; Collins v. Blantern, 2 Wils. 347.
5 Matthews v. L-e, 1 Madd. 558; Binnington v. Wallis, 4 B. & Al. 650.
6 Rourke v. Short, 5 El. & B. 904 (1856). See Crofton v. Colgan, 10 Irish Com. Law, 133 (1859).
7 Cowan v. Milbourn, Law R. 2 Exch. 230 (1867).
1 Browning v. Morris, 2 Cowp. 793; White v. Franklin Bank, 22 Pick. 188; Williams v. Hedley, 8 East, 378; Smith v. Bromley, 2 Doug. 696; Lowell v. Boston & Lowell Railroad Co., 23 Pick. 32; Worcester v. Eaton, 11 Mass. 376. See also 1 Story, Eq. Jur. § 298, 299, and cases cited; Howson v. Hancock, 8 T. R. 575; Collins v. Blantern, 2 Wils. 347; Thomas v. Richmond, 12 Wall. 349 (1870).
2 Browning v. Morris, 2 Cowp. 792; White v. Franklin Bank, 22 Pick. 188; Smith v. Bromley, 2 Doug. 696; St. John v. St. John, 11 Ves. 535; Hatch v. Hatch, 9 Ves. 298; Roche v. O'Brien, 1 Ball & Beat. 358; Neville v. Wilkinson, 1 Bro. C. C. 548; Lowell v. Boston & Lowell Railroad Co., 23 Pick. 32.
3 Ibid.; 1 Story, Eq. Jur. § 321; Smith v. Bromley, 2 Doug. 696. In this case Lord Mansfield said: " If the act is in itself immoral, or a violation of the general laws of public policy, there, the party paying shall not have this action; for where both parties are equally criminal against such general laws, the rule is, potior est conditio defendentis. But there are other laws, which are calculated for the protection of the subject against oppression, extortion, deceit, etc. If such laws are violated, and the defendant takes advantage of the plaintiff's condition or situation, there the plaintiff shall recover; and it is astonishing that the Reports do not distinguish between the violation of the one sort and the other." See also Bosanquett v. Dash-wood, Cas. t. Talb. 39, 40; Chesterfield v. Janssen, 2 Ves. 156; Jones v. Barkley, 2 Doug. 684.
§ 617. Again, if the contract be executory, to do an act not immoral in itself, but prohibited by some special rule of public policy, and one party advance money in consideration of the future execution of the illegal act, the intermediate time between such advance and the performance of the act is a locus pcenitentice, during which he may rescind his contract, and utterly abandon it, and recover the money advanced.4 And this rule obtains although the parties be in equal fault.5 Thus, where money was advanced to procure a place in the customs, and an action was brought therefor before the place had been procured, it was held that the plaintiff could recover.6 But in such a case, the money can only be recovered upon the ground of an utter abandonment of the contract, and the plaintiff must be careful not to affirm the contract by his action. The ground upon which this rule obtains is, that it tends to prevent the execution of illegal contracts, and while it is productive of no injustice to either party, promotes public policy and good morals.
§ 618. Illegal contracts may be divided into two classes: 1st. Contracts which violate the common law; 2d. Contracts which violate the statute provisions.
1 1 Story, Eq. Jur. § 298; St. John v. St. John, 11 Ves. 535; Lacaus-sade v. White, 7 T. R. 535.
2 Astley v. Reynolds, 2 Str. 916; Browning v. Morris, 2 Cowp. 793; Vandyck v. Hewitt, 1 East, 98.
3 Browning v. Morris, 2 Cowp. 793; Jaques v. Golightly, 2 W. Bl. 1073. 4 White v. Franklin Bank, 22 Pick. 189; Tappenden v. Randall, 2 Bos.
& Pul. 467; Aubert v. Walsh, 3 Taunt. 277; Lowry v. Bourdieu, 2 Dong. 470; Utica Ins. Co. v. Kip, 8 Cow. 20; Cotton v. Thurland, 5 T. R. 405; Jaques v. Withy, 1 H. Bl. 67; Morris v. M'Cullock, Ambl. 432; Adams Exp. Co. v. Reno, 48 Mo. 264 (1871). 5 Ibid.
6 Walker v. Chapman, Lofil, 342; White v. Franklin Bank, 22 Pick. 189.