The law sustains a defense of this nature only when an imperative rule of public policy requires it.' The rule against granting relief to a party to an illegal contract does not apply to prevent a receiver from recovering the fruits of the transaction for the benefit of honest creditors.' The rule that, where one transfers property to another for the purpose of cheating his creditors, the court will not aid him to recover it back, does not apply where the plaintiff and defendant were not in pari delicto, the defendant being the plaintiff's lawyer, under whose direction the latter acted and followed his advice that transfers were necessary to protect and cover up the property of his deceased father against the assaults of creditors.' But on the dissolution of an illegal partnership or combination to monopolize the manufacture and sale of a commodity, and the appointment of a receiver, neither the receiver nor any party to the illegal agreement can have any equitable relief based upon alleged rights growing out of such illegal combination." Since, on the dissolution of a corporation which had entered into an illegal combination or copartnership with others to monopolize the manufacture and sale of a commodity, the copartnership is dissolved, and a receiver of the corporation cannot enforce the right to have an accounting under the partnership agreement because of its illegality, he has no right that a court of equity can enforce, or which will justify a decree that a contract between the parties, to which he was not a party, should be canceled or declared illegal.' But the court will not refuse to enforce an express trust for the reason that the conveyance to the trustee, who has declared the trust, was to delay, hinder, and defraud the grantor's wife in obtaining alimony and maintenance in a suit which it was appre Wright v. Pipe Line Co. 101 Pa. 204. See also Steam Nav. Co. v. Weed, 17 Pittsburgh Carbon Co. v. McMillin, 7 L. R. A. 46, 119 N. Y. 46, 24 Abb. Place v. Hayward, 117 N. Y. 487. Gray v. Oxnard Bros. Co. 31 N. Y. S. R. 968. hended she was about to commence. does not apply.' The rule as to secret trusts b. Independent of Contract-Locus Pœnitentiæ.- If the plaintiff requires any aid from the illegal transaction in order to enable him to sue his claim, he cannot enforce it." Where a contract grows immediately out of, and is connected with an illegal or immoral act, it will not be enforced.' The test to determine whether the action arises ex stirpe causa, is the plaintiff's ability to establish his case without any aid from the illegal transaction. If his cause or right to recover depends upon a transaction which is malum in se or prohibited by law, and which he must prove in order to make out his case, he cannot recover.* An obligation will be enforced, though indirectly connected with an illegal transaction, if it is supported by an independent consideration, so that the plaintiff does not require the aid of the illegal transaction to make out his case." Money paid on an illegal contract, which remains executory, can be recovered back in an action founded on a disaffirmance and on the ground that it is void. Where parties have come to a locus pœnitentiæ, the courts allow them to recover money advanced. In such cases the contract is not the basis of a suit but the rescis- . sion of it." If an agreement is legally void and unenforceable by reason of some statutory or common law prohibition, which does not involve any positive immorality, and there is no other reason of public 'Tyler v. Tyler, 25 Ill. App. 333. Callagan v. Hallett, 1 Cai. 104; Forsythe v. State, 6 Ohio, 21; Simpson v. Bolles, 7 Taunt. 246. Jones v. Surprise, 4 New Eng. Rep. 295, 64 N. H. 243. Martin v. Hodge, 47 Ark. 378; Tylor v. Larimore, 2 West. Rep. 180, 19 Mo. App. 445; Suits v. Taylor, 2 West. Rep. 579, 20 Mo. App. 166. Armstrong v. Toler, 24 U. S. 11 Wheat. 258, 6 L. ed. 468; Faikney v. Reynous, 4 Burr. 2069; Petrie v. Hannay, 3 T. R. 418; Farmer v. Russell, 1 Bos. & P. 296; Planters Bank v. Union Bank, 83 U. S. 16 Wall. 483, 21 L. ed. 473; Mc Blair v. Gibbes, 58 U. S. 17 How. 232, 236, 15 L. ed. 132, 133; Brooks v. Martin, 69 U. S. 2 Wall. 70, 17 L. ed. 732; Bly v. Second Nat. Bank, 79 Pa. 453; Armstrong v. American Exch. Nat. Bank, 133 U. S. 433, 33 L. ed. 747. Souhegan Nat. Bank v. Wallace, 61 N. H. 24. Congress & E. Spring Co. v. Knowlton, 103 U. S. 49, 26 L. ed. 347; Skinner v. Henderson, 10 Mo. 205; Adams Exp. Co. v. Reno, 48 Mo. 264; White v. Franklin Bank, 23 Pick. 181; Brown v. Timmany, 20 Ohio, 81. policy why the courts should refuse to grant relief, a party who has received anything under it from the other party, and has failed to perform on his part, must account to the other for what he has received.' Where real estate is sold by means of a lottery scheme, but the lottery transaction does not appear on the face of the deed, the grantor cannot avoid it by showing his own share in the illegal transaction.' The party receiving property transferred under a contract merely malum prohibitum may be made to refund the value of that which it has actually received to the person from whom it has received the property for the unauthorized purpose.' If money is paid for an illegal purpose or goods delivered, the person who has so paid or delivered may recover them back before the illegal purpose is carried out; but if he delays until this is done, or if he seeks to enforce the illegal transaction, he will fail.* The rule is generally applied, even if the parties are in parı delicto, disregarding the question who is most in fault." A contract with the State, procured by bribery upon the officers having power to make it, is against public policy and void; and where the briber has paid money on the contract, the courts will relieve him where he stands, and cancel the contract, without decreeing a return of the money. c. Upon Executed Contract.-Although contracts cannot be enforced, yet if parties carry them out they become entitled to claim the promise or payment due in respect of it in some cases.' A private corporation cannot be allowed to interpose the plea 1Manchester & L. R. Co. v. Concord R. Co. (N. H.) 9 L. R. A. 689, 3 Inters. Com. Rep. 319. Allebach v. Hunsicker, 132 Pa. 349. Logan County Nat. Bank v. Townsend, 139 U. S. 67, 35 L. ed. 107. Taylor v. Bowers, L. R. 1 Q. B. Div. 291; Lowry v. Bourdieu, 2 Dougl. 468; Tappenden v. Randall, 2 Bos. & P. 467; Hastelow v. Jackson, 8 Barn. & C. 221; Bone v. Ekless, 5 Hurlst. & N. 925; Lacaussade v. White, 7 T. R. 535; Colton v. Thurland, 5 T. R. 405; Smith v. Bickmore, 4 Taunt. 474; Munt v. Stokes, 4 T. R. 561; Morgan v. Groff, 4 Barb. 524; Utica Ins. Co. v. Kip, 8 Cow. 20; Merritt v. Millard, 4 Keyes, 208; White v. Franklin Bank, 22 Pick. 181; Lowell v. Boston & L. R. Corp. 23 Pick. 24; Thomas v. Richmond, 79 U. S. 12 Wall. 349, 20 L. ed. 453. 'Congress & E. Spring Co. v. Knowlton, 103 U. S. 49, 26 L. ed. 347. *State v. Cross, 38 Kan. 696. 'Leake, Cont. Lond. 1878, 738; Bishop v. Kitchen, 38 L. J. N. S. Q. B. 20. of ultra vires where its contract has been performed by the other party and the corporation has had the benefit of the contract and its performance.' Where contracts are positively immoral or illegal, the property earned from them will be dealt with according to equity, and the contract will define the relation of the parties to the property.' The agreement having been executed, the parties, having submitted to its terms, are clearly entitled to the benefit of the consideration stipulated." The court will not refuse to deal with the property, on the ground that it was acquired under an illegal contract.* Where losses have been made in an illegal transaction, a person who lends money to the loser with which to pay the debt can recover the loan, notwithstanding his knowledge of the fact that the money was to be so used.' 'Camden & A. R. Co. v. May's Landing & E. H. C. R. Co. 4 Cent. Rep. 801. 48 N. J. L. 530; Denver F. Ins. Co. v. McClelland, 9 Colo. 11; Whitney Arms Co. v. Barlow, 63 N. Y. 62; Hall Mfg. Co. v. American R. S. Co. 48 Mich. 331; Oil Creek & A. R. R. Co, v. Pennsylvania Transp. Co. 83 Pa. 160; Bradley v. Ballard, 55 Ill. 413, 417; Ohio & M. R. Co. v. McCarthy, 96 U. S. 258, 267, 24 L. ed. 693, 695; Pneumatic Gas Co. v. Berry, 113 U. S. 322, 327, 28 L. ed. 1003; Union Water Co. v. Murphy & Flat Fluming Co. 22 Cal. 620; State Board of Agriculture v. Citizens St. R. Co. 47 Ind. 407; Newburg Petroleum Co. v. Weare, 27 Ohio St. 343, 353; Slater Woolen Co. v. Lamb, 3 New Eng. Rep. 443, 143 Mass. 420; Hall v. Paris, 59 N. H. 74; Norton v. Derry Nat. Bank, 61 N. H. 589; Parish v. Wheeler, 22 N. Y. 494; Darst v. Gale, 83 Ill. 137; Ward v. Johnson, 95 Ill. 215; Peoria & S. R. Co. v. Thompson, 103 Ill. 187; Steamboat Co. v. McCutcheon, 13 Pa. 13; Terry v. Eagle Lock Co. 47 Conn. 141; De Groff v. American Linen Thread Co. 21 N. Y. 124, 127; Underwood v. Newport Lyceum, 5 B. Mon. 129; Southern L. Ins. & T. Co. v. Lanier, 5 Fla. 110, 165; Chicago Bldg. Soc. v. Crowell, 65 Ill. 453; Pine Grore Trop. v. Talcott, 86 U. S. 19 Wall. 696, 678, 22 L. ed. 227, 233; Rutland & B. R. Co. v. Proctor, 29 Vt. 93; Prairie Lodge v. Smith, 58 Miss. 301, 308; Hitchcock v. Galveston, 96 U. S. 341, 351, 24 L. ed. 659, 662; Ossipee H. & W. Mfg. Co. v. Canney, 54 N. H. 295, 318, 327; Pierce, Railroads, 519, et seq.; Waterman, Spec. Perf. § 226; Morawetz, Priv. Corp. §§ 648-653, 689-699. Planters Bank v. Union Bank, 83 U. S. 16 Wall. 483, 21 L. ed. 473; West. ern U. Teleg. Co. v. Burlington & S. W. R. Co. 3 McCrary, 138, 139; Cook v. Sherman, 4 McCrary, 33. Irwin v. Williar, 110 U. S. 499, 509, 510, 28 L. ed. 225, 230; Roundtree v. W. U. Tel. Co. v. Burlington & S. W. R. Co. 11 Fed. Rep. 1. Mere knowledge on the part of a person loaning money that the borrower intends to use it by engaging in the purchase of options on grains in the market of another State, or investing it in wagering or gambling contracts, will not defeat an action by the lender to recover back the amount loaned.' 1Jackson v. City Nat. Bank, 9 L. R. A. 657, 125 Ind. 347. |