There is one other point which I will notice before altogether leaving the head of illegality. I have hitherto spoken of illegality as avoiding a contract, and of course operating by way of defence to any action brought upon the contract which it affects. But put the case that an illegal contract has been in part performed-that money, for instance, has been paid in pursuance of it-no action will he to recover that money back again. At an early period of the law it was thought that such an action might be perhaps maintainable upon the ordinary principle, that an action will lie to recover back money which has been paid on a consideration *which has failed. Thus, for instance, in the common case of an insurance, supposing that I insure a ship during a voyage and she never sails upon it, I should be entitled to recover back the money as paid upon a consideration which had failed : for the consideration for my paying the premium was the risk the underwriter was to take upon himself; but as the risk was to be contemporaneous with the voyage, and as that never commenced, so neither did the risk, and, consequently, nothing was ever given in exchange for the money. So, in the ordinary case of an action for a deposit. If A. sells an estate to B., B. paying a part of the purchase-money as a deposit, if A. afterwards prove unable to make out a title, B. may recover back the money deposited for the consideration; for the sale has become abortive. Such are the common cases, and the common rule: where money has been paid upon a consideration which totally fails, an action will lie to recover it back again. But it is otherwise where the contract was an illegal one. Where money is paid in pursuance of an illegal contract, the considerato complain of his own act; and a holder placing confidence in such paper, ought not to be compelled to prove consideration.-R.
To this rule, however, there are two exceptions: The first is, where the illegality is created by some statute, the object of which is to protect one class of men against another, or where the illegal contract has been extorted from one party by the oppression of the other. In cases of this sort, although the contract is illegal, and although a person belonging *to the class against whom it is intended to protect others cannot recover money he has paid in pursuance of it, yet a person belonging to the class to be protected may, since the allowing him to do so renders the Act more efficacious. You will see this proposition illustrated by the case of Smith v. Bromley (o), which turned on the application of one of the old Bankrupt Acts. That Act, to prevent practices on bankrupts who had not obtained their certificates, and who for the sake of obtaining them were likely to be willing to submit to any terms, however hard, that might be imposed upon them, vacated all securities given by the bankrupt or any one on his behalf, in consideration of the signature of the certificate. A creditor refused to sign the certificate unless a sum of money was paid him by a friend of the bankrupt's, and, the money having been paid, it was held that the person who paid it might recover it back again. In like manner one of the old Lottery Acts forbade, under a penalty, the ensuring of lottery tickets. The plaintiff had paid a sum of money to the lottery office keeper as premiums for the purpose thus forbidden, and was held entitled to recover it back as money received to his use (p). The Acts against usury (now repealed) made the taking money, reward, or promise of reward, by the informer or plaintiff suing for the penalties of usury, *in order to compound with any person offending against those laws, very highly penal: the object being to prevent the person so offending from being harassed by vexatious actions and informations. It was therefore held, that, where the defendant had in
(n) M'Kinnell v. Robinson, 3 M. & W. 441; Howson v. Hancock, 8 T. R. 575; Browning v. Morris, Cowp. 790; Lubbock v. Potts, 7 East, 449; Begbie v. Phosphate Sewage Co., L. R. 10 Q. B. 491,1 Q. B. D. (C. A.), 679; 44 L. J. (Q. B.) 233.
1 The familiar maxim applies, "In pari delicto, po'ior est conditio defendentis." and instances of its application may be found in Worcester v. Evton, 11 Mass. 368; Merwin v. Huntington, 2 Conn. 209; Perkins v. Savage, 15 Wend. 412, and in many other cases: White v. Hunter, 23 N. H. 128.-r.
(o) 2 Dougl. 696, note.
(p) Jacques v. Golightly, 2 Bl. 1073; Jacques v. Withy, 1 H. Bl. 65. 320 a former action sued the plaintiff for the penalties of usury in a transaction with another person, and the plaintiff had, in order to get rid of that penal action, compounded with the defendant, by paying him a large sum of money, he might recover it back from the defendant, the prohibition against compounding such actions being made for the protection of the party sued in them. The Court considered, that, although the plaintiff was guilty of usury and liable to the penalties for usury, he was not liable to be harassed by actions commenced for the purpose of being compounded. His criminality was collateral to the offence of compounding; his consciousness of his usurious dealings and dread of the consequences laid him at the mercy of the defendant, and enabled the latter to effectuate an act of extortion by procuring the payment of a sum of money; and in respect of the criminal offence of compounding, the plaintiff was the person whose situation was taken advantage of against the object of the statute, which, for his protection, made such compounding illegal (q).
*Very similar to the case of Smith v. Bromley, above cited, is that of Smith v. Cuffe (r), where the defendant, who was a creditor of the plaintiff, entered into an agreement with the plaintiff and the other creditors, to accept a composition of 10s. in the pound on the debts due to them from the plaintiff. The defendant would not enter into this agreement except upon the consideration that the plaintiff should give him his promissory note for the remainder of his debt. The note was given, the 10s. in the pound paid, the defendant passed away the note, and the owner compelled ing the unlawful purpose in furtherance of which the money was paid, he cannot recover (u).