Burt v. Place

6 Cow. 431

• Court: New York Supreme Court
• Decided: October 15, 1826
• Status: Published

Opinion

Curia, per

Savage, Ch. Justice.

Maintenance being prohibited by statute, (1 R. L. 173, 174,) and a part of the consideration being therefore illegal; this was sufficient to vitiate the contract. (1 Leon. 179, 180. Dy. 355. b.)

The main question then is, can money paid or received upon an illegal contract be recovered back ?

The general rule of law is, that it cannot, when it is paid upon an illegal consideration, and both parties are equally criminal. This was so laid down by lord Mansfield, in Smith v. Bromley, (Doug. 696, note.) His language is, “ 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.” In Lowry v. Bourdieu, (Doug. 467,) he said, he desired it might be understood, that the court held, that, in all cases where money has been paid on an illegal consideration, it cannot be recovered back ; except in cases of oppression, where the parties are not in pari delicto. In Howson v. Hancock, (8 T. R. 575,) lord Kenyon says, “thereis no case tobe found, where, when money has been actually paid by one of two parties to the other, upon an illegal contract, both being participes criminis, an action has been maintained to recover it back.” This doctrine has been since repeatedly recognized ; and I know of no case containing a contrary doctrine. In Lowry v. Bourdieu, Buller, justice, says, “ there is a sound distinction between contracts executed and executory ; and if an action be brought with a view to rescind a contract, you must do it while the contract continues executory ; and then it can only be done on the terms of restoring the other party to his original situation.”

In Hunt v. Knickerbacker, (5 John. 334,) Thompson, J. says, “ it is a general rule of law, that all contracts or agreements which have for their object any thing which is repugnant to the general policy of the common law, or contrary to the provisions of any statute, are void, and not to be enforced.” In Mount v. Waite, (7 John. 440,) the plaintiffs were allowed to recover back a premium paid upon the insurance of lottery tickets ; but Kent, Ch. J. who delivered the opinion of the court, puts it expressly on the ground, that they committed no crime in making the contract. They violated no statute, nor was the contract malum in se. Not so in this case. The contract was both malum in se, ahd prohibited by statute ; and, although it is against conscience for the defendant to keep the plaintiff’s money, the court will not lend its aid to enable the latter to recover back money thus illegally paid.

It is unnecessary, therefore, to decide, whether the acknowledgment by the defendant in the deed to Adding-ton, of having received the consideration of him, is evidence of the payment of the money to him.

(a.)

The defendant is entitled to judgment.

Judgment for the defendant.

) Semb. that it is. (Thallhimer y. Brinckerhoff, ante, 90.)