Sec 353

To the rule that parties implicated in an executed illegal transaction have no remedy against each other, an exception is recognized in cases where one is the victim of duress, or fraud, or superior influence.10 A party, for instance, who buys spirituous liquors Complicity does not bar dupes or victims.

1 Ayerst v. Jenkins, L. R. 16 Eq. 275; infra, sec 373.

2 Infra, sec 473.

3 Andre v. Fletcher, 3 T. R. 266; Allkins v. Tupe, L. R. 2 C. P. D. 375.

4 Tenant v. Elliott, 1 B. & P. 4.

5 Montgomery v. U. S., 15 Wal. 395; Whitfield v. U. S., 92 U. S. 165; Desmore v. U. S., 73 U. S. 605.

6 Tenant v. Elliott, 1 B. & P. 3; Merritt v. Millard, 4 Keyes, 208; Robinson v. Ins. Co., 42 N. Y. 54; Clements v. Yturria, 81 N. Y. 285; Pfeuffer v. Maltby, 54 Tex. 454.

7 Supra, sec 292.

8 See Wh. Cr. L. 8th ed. sec 945. In White v. Franklin Bank, 22 Pick. 186, Wilde, J., said: "Where money is paid on a contract which is merely prohibited by statute, and the receiver is the principal offender, he may be compelled to refund." "Where the parties are not in pari delicto, the rule potior est conditio defendentis is not applicable." See Lovell v. R. R., 23 Pick. 32; Sampson v. Shaw, 101 Mass. 150; Tracy v. Talmage, 4 Kernan, 162; Schermerhorn v. Talman, 4 Kernan, 93. As to distinctions of turpitude, see supra, sec 345.

9 De Leon v. Trevino, 49 Tex. 88; infra, sec 357.

10 Smith v. Bromley, Doug. 696; Browning v. Morris, 2 Cowp. 790; Pres-cott v. Norris, 32 N. H. 101; Lowell v. R. R., 23 Pick. 32; Walan v. Kerby, 99 Mass. 1; Sampson v. Shaw, 101 illegally sold is not, if he were at the time imposed on, necessarily so implicated in the illegality that he may not sue for money paid on the sale, or for false warranty.1 A debtor, also, who, when in great difficulty, in order to get the consent of an unscrupulous creditor to a settlement, secretly pays such creditor a bonus in fraud of other creditors, can recover back the money so paid;2 and the same rule applies where a defendant pays money to get rid of a criminal prosecution or a penal suit,3 to usurious contracts which the borrower has been compelled by the creditor's harshness to accept;4 and to cases where bankrupts pay money to buy off an opposing creditor.5.

Mass. 150; Phalen v. Clark, 19 Conn. 421; Schermerhorn v. Talman, 4 Kern. 93; Deming v. State, 23 Ind. 416; Davidson v. Carter, 55 Iowa, 117; Heck-man v. Swartz, 50 Wis. 267; Poston v. Balch, 69 Mo. 115.

1 Prescott v. Norris, 32 N. H.-101; Walan v. Kerby, 99 Mass. 1. See infra, sec 354.

2 Atkinson v. Derby, 7 H. & N. 934; Leuzberg's Policy in re, L. R. 7 C. D. 650; Bean v. Amsink, 10 Blatch. 361; Crossley v. Moore, 40 N. J. L. 27; and cases cited Wald's Pollock, 331; infra, sec 737.

3 Unwin v. Leaper, 1 M. & G. 747; infra, sec 737.

4 Vandyck v. Hewitt, 1 East, 98; Astley v. Reynolds, 2 Str. 916; Browning v. Morris, 2 Cowp. 792; infra, sec 469.

5 Smith v. Bromley, Doug. 696 n; Sievers v. Boswell, 3 Man. & Gr. 524. On the whole question see 1 Story Eq. Jur. 12th ed. sec 321. As to gambling debts, see infra, sec 454.

As conflicting with the text may be noticed Hackett v. Chellerton, 13 R. I., where it was ruled that an action does not lie by an infant on a contract of service forbidden by statute. The distinction is thus stated by Durfee, C. J.: "The law, however, while it will give no remedy on the illegal contract, does not always utterly refuse relief. It is settled that where a party has paid money or delivered personal property on a contract which is illegal because it involves the violation of a statute, he can recover it back in an action commenced while the contract remains simply executory, the recovery being had not under the contract, which is void, but in disaffirmance of it, on a promise implied or right existing independently of it. Congress & Empire Spring Co. v. Knowlton, 103 U. S. 49; Chitty on Cont. 11th Am. ed. 944. The case at bar does not fall under this rule, for in the case at bar the plaintiff has himself executed the contract. There are cases which go further and hold that money so paid or property so delivered can be recovered back, even after the contract has been fully executed, if the plaintiff is an innocent party or is not in pari delicto with the defendant. Tracy v. Talmage, 14 N. Y. 162. In this case also the recovery is had not under, but independently of the contract, the contract being treated as a nullity. Can the plaintiff recover on the authority of these latter cases, recovering of course on a quantum meruit the value of his services ? Can he be regarded as an innocent or comparatively innocent and unoffending party ? We think not. The cases which sup-

In equity this protection has been extended so as to cover all cases of imposition. "Where the parties to a contract against public policy or illegal are not in pari delicto (and they are not always so), and where public policy is considered as advanced by allowing either, or at least the most excusable of the two, to sue for relief against the transaction, relief is given to him."1 "One party," says Judge Story, taking the same distinction, "may act under circumstances of oppression, imposition, hardship, undue influence, or great inequality of condition or age; so that his guilt may be far less in degree than that of his associate in the offence. And besides, there may be, on the part of the court itself, a necessity for supporting the public interests or public policy, in many cases, however reprehensible the acts of the parties may be."2 port the doctrine last stated are cases where the statutory prohibition is directed solely against the defendant. That is not this case. Here the prohibition is directed, not against particular persons, but against a particular thing, namely, the employment of minors in manufacturing establishments. The language of the statute is 'no minor, etc., shall be employed,' which means not only that no manufacturer shall employ any minor, but also - what it says - that no minor shall be employed, the employment itself being interdicted. The plaintiff is therefore suing for compensation for having violated the statute, for having done a forbidden thing, which is very different from suing for money or property paid or delivered on a contract, the execution of which does not involve the plaintiff in the violation of any statute,but only the defendant. Thomas v. City of Richmond, 12 Wall. 349, 356." See as sustaining the text White v. Bank, 22 Pick. 181; see also Tracy v. Talmage, 14 N. Y. 162; Ford v. Harrington, 16 N. Y. 285; Long v. Long, 9 Md. 348; and cases cited Smith's L. C. 7th Am. ed. 699.