If the plaintiff, when he confers the benefit sought to be recovered, is ignorant of the fact which makes his contract illegal, relief will be afforded. If the defendant is aware of the fact which brings the contract within the inhibition of the law, it may be said that the parties are not in pari delicto. But even if the defendant, like the plaintiff, is ignorant of the fact, and consequently there is no difference in degree of guilt, the plaintiff will be permitted to recover:
Hentig v. Staniforth, 1816, 5 Maul. & Sel. 122: Action to recover premium paid on a policy of marine insurance. The voyage insured was illegal unless licensed. The plaintiff, residing abroad, sent a letter to his agent directing that a license be obtained, but the vessel carrying the letter was delayed by contrary winds and the license was not issued until after the voyage had commenced. The insurance policy had therefore been held void. Lord Ellenborough, C.J. (p. 125): "In the present case, a state of facts was supposed to exist, and reasonably so supposed, under which, if the expectation of the parties had been realized, the voyage would have been legal. Unfortunately for the plaintiff his expectation was disappointed, and he lost the benefit of his insurance; but he contemplated a legal voyage and a legal contract. And we think, therefore, that he is not a party to a violation of the law, and is entitled to recover back his premium, as money paid without consideration"
The plaintiff's ignorance or mistake as to the law, however, will not enable him to recover (see ante, Sec. 134), even though it be due to the innocent misrepresentations of the defendant.1