Simrall, J.:
William S. Brown sued William H. Gilliam, executor of James C. Brown, deceased, in cossumpsit., to recover a claim against the testator founded on open account. During the trial in the circuit court, several questions arose as to the competency and admissibility of testimony. The decisions of the court below, on these points, are assigned for error; also, the granting and refusing prayers for instructions, and the denial of a new trial, and the action of the court jn empanelling the jury. First, as to empanelling the jury.
In Ferry v. Selser, 4 How., 518, it is declared to be the duty of the court to watch over empanelling the jury, so as to preserve its impartiality and purity. In that case a juror was challenged for cause, and although the court disallowed-it, when the objection was Avell taken, inasmuch as the juror was excluded by peremptory challenge, no harm resulted. In McGowan v. State, 9 Yerger, 184, the verdict was sustained, although it appeared a juror was set aside by peremptory challenge, who should have been set aside for cause. [652]*652In McCarthy v. State, 26 Miss. Rep., 302, it is said to be the duty of the court to see that a fair,' competent, and impartial jury is made up, and nothing can interfere with this duty but the right of the parties to challenge peremptorily or for cause.
The parties may select the jury out of the regular venire, and talesmen brought to the bar of the court. To test their qualifications, each one may be examined. Large discretion should be indulged to the court, in any course taken by him, within the pale of the layy. The action of the court, in this case, was not an abuse, but a rightful exercise of discretion; no prejudice to either party, did or would happen because of it. Control over the selection of jurors, is committed very much to the discretion of the court. Kinnicut v. Stockwell, 8 Cush., 73; Borden v. Borden, 5 Miss., 79; Watson v. Walker, 33 N. H., 143.
A party complaining in this court ought to show that the circuit court so interfered with the empanelling of the jury as to have deprived the party of some legal right, to his prejudice. The setting aside of a juror, unchallenged by either party, Lewis v. the State, 9 S. & M., 115, or discharging from the panel a juror who has been sworn and taken his seat (before testimony introduced), on discovering that he is incompetent to serve, Williams v. the State, 32 Miss. Rep., 389, McGuire v. the State, 37 Miss. Rep., 376, does not deprive a party of a legal right, and may and ought to be done by the court in a proper case, in order to secure an impartial jury.
As to the admissibility of parol testimony to prove the declarations of the testator at the time his will was written: The purpose of this testimony was to show that the testator did not intend the legacy of $1,500 in gold, to his brother, W. T. Brown, to be in satisfaction in whole or pro tanto of his indebtedness to his brother. In Love v. Buchannan, 40 Miss. Rep., 755, the rule as laid down by Chancellor Kent, in Mann v. Executors of Mann, 1 Johns. Ch. R., 283, is approved, “ that such evidence cannot be admitted to supply [653]*653a contract,, enlarge, or vary the words of a will, nor to explain the intention of the testator, except to explain a latent ambiguity, and to rebut a resulting trust.” So also is Magee v. McNeil and wife, 41 Miss. Rep., 25. The question discussed in the case of Gilliam v. Chancellor & Murray, executors,
Inasmuch as the presumption is arbitrary and often in conflict with the real motive and wishes of the testator, and seemingly harsh, courts have been prompt to seize upon many circumstances to counteract and overcome it. It is, doubtless, because of a discontent with the rule itself, and to prevent its application (when nothing in the will itself could be seized upon), that the admission of extrinsic testimony, such as the declarations of the testator, contemporeous with the [654]*654testamentary paper, and afterwards, were let into prove that the intent was one way or the other. The admission of testimony aliunde has never been received with great favor. Slight circumstances upon the face of the will have been 1 aken hold, of to repel the presumption, such as the express declaration in the will that all debts must be paid, or words of similar import, or that the legacy is payable upon a contingency, or is in some particular less beneficial than the debt, though more so in others, as where the legacj»', though greater in amount, is'payable at a future date. Chancery’s case, 1 P. Williams, 409, note by Cox; Toller on Exrs., 336; Williams v. Crary, 4 Wench, 443. So if the debt is unliquidated, the presumption will not arise. 3 Atk., 68-96; Williams v. Crary, 5 Cowen., 370; Edelens v. Dent, 2 Gill. & Johns., 185; Strong v. Williams, 12 Mass. R., 391; Eaton v. Barton, 2 Hill, 576. It is laid down in the cases of Williams v. Crary, 6 Cow. R., 246; Clark v. Bogard, 2 Edwards’ Ch. R., 387; Van Reeper v. Van Reeper, 1 Green Ch. R., 1; Eaton v. Barton, 2 Hill, 573; Clark v. Bogard, 12 Wend., 65; Zeigler v. Eckhart, 6 Barr, 18; that if it appear from the face of the will, or by evidence aliunde, to be intended by the testator as a satisfaction, it will so have effect.
The claim in the case at bar is for an unliquidated sum, uncertain as to the amount, and demanding testimony to ascertain what was owing. It may also have been payable in a different currency, in whole or part from the legacy. The demand largely exceeded the legacy in amount; besides, the legacy was to be paid promptly in gold. The terms of the will rather convey the idea that the legacy was meant as a gift. “ I desire that my executors be prompt in the payment of a.ll my debts. I give to my dear brother, Wm. T. Brown (who is now a prisoner of war), $1,500 in gold, to be paid to him promptly.” The residue, whether real or personal, is given to his wife. The inducement to bestow the legacy on the brother, is stated to be that he was u a prisoner of war,” and the idea of testator was, he would likely come out of his confinement in needy circumstances. The [655]*655injunction to the executors is to pay “ all debts,” and promptly pay this legacy. The testator evidently regarded his estate as able to meet the claims of creditors, assist his brother, and leave a residue to his wife. Within the scope of the rules laid down in the cases cited, we would be warranted in holding that the legacy was not a satisfaction pro tanto of the debt, if not on the face of the will itself, when coupled with the fact, that the debt was larger than the legacy, and for an unascertained amount, arising rather ex delicto than ex contractu, and that there was no need, therefore, to resort to parol testimony to compel a presumption of ratification. Whilst the admission of the testimony in this case was unnecessary and superogatory, yet in the view we have taken, there was no satisfaction of the debt, and this parol testimony only going to show that such view is correct, being confirmatory and cumulative, we do not feel inclined to reverse for this cause. If in its absence, there was no satisfaction, 'its presence could produce no other result, and no harm ensued to the defendant. We think it ought not to have been allowed in this case, nor in any other where the nature of the claim and the terms of the will induce the legal conclusion that satisfaction does not obtain; for to allow it in such case would be for the useless purpose of repelling a presumption which does not arise.
3d. Was the testimony of Judge Morgan competent? By the plaintiff it is claimed to be admissible, as showing the state of mind and motives of admissions made by him to Gilliam, the executor; and by the defendant it is objected to, because it is at a different time and place, and proposed to place before the jury conversations and statements made in his absence. The plaintiff would have the right to deduce all that was said in his interview with Gilliam, so that the jury might see under what circumstances the conversation was had, and be prepared to place the proper estimate on any admission then made.'
It has been well said, “ that admissions may be the strong[656]*656est, or the weakest evidence.” If there be a full, deliberate statement made by a party to one interested to hear, as to a subject matter then or afterward in suit, such admissions are entitled to weight, for the mind of the party was distinctly directed to the subject. But a single, separate declaration, casually made, in loose or idle conversation, would not deserve much consideration. It is also important to know the motive or reason that induced the admission. Therefore, if made in negotiation of a compromise, or to deprecate the anger of the adversary, or in the heat and excitement of a discussion, the circumstances ought to be disclosed, for in the first instance they would be altogether excluded, and in the second should be but lightly esteemed. If the admission occur, however, in a deliberate conversation, with the mind directed to the subject, then it would be entitled to great weight.
It is a familiar rule, that a party cannot make testimony for himself, and therefore, he cannot prove his own statements or admissions. But where he is entitled to the benefit of a fact, or act done by himself, in evidence, or such fact or act is put in evidence against him, then his declarations contemporaneously with the act, or fact, explanatory of its quality and motive, should be admitted. The rule is the same if the act be done by his agent. Such was the case of Sanford v. Howard, 29 Ala., 694. The defendant was sued on a promise to pay for goods supplied the minor children of his testator. Suits had been previously brought against the children, which fact was put in evidence by the defendant. The plaintiff then offered to prove the advice of his attorney, that the bringing of these suits would not prejudice his action against the defendant. The testimony was admissible as explaining the act, or as part of the res gesim. So, also, the Commonwealth v. O’Conner, 11 Gray, 94. A drainer was found in defendant’s shop. It was contended for the Commonwealth that this was a criminating circumstance — it being an implement used in the traffic in intoxicating liquors. It was held competent for the defendant to show that the [657]*657drainer was procured for a different purpose. The declarations made by the defendant at the time of ordering the drainer as to the purpose for which it was to be made were competent, as part of the res gestae, qualifying and explaining the act done.
There are many qualifications of the general rule, that a party cannot prove his declarations or statements in his own favor. Where the matter in issue is compounded of fact and intention, they are competent if made before lis moiam or as part of the res gestae. The cases of Cross v. Black, 9 Gill. & Johns., 198; Offutt v. Edwards, 9 Robinson’s La. R., 90, and Baker v. Kelly, 41 Miss. R., 702, are illustrative of this. These were controverted attachments, on the ground of the defendant’s removal out of the state. The precise point was whether the removal was temporary or permanent, and the declarations made out of the presence of the plaintiff (before suit brought), as to the character of the removal, whether permanent or not, were competent evidence. Indeed, when motive is an element in the issue, it can only be established by the acts and declarations of the party, but these acts and declarations must be done and made at a time when they are free from suspicion — generally before the legal controversy has originated.
The import of the testimony of Morgan was, that Brown, the plaintiff, in the latter part of 1865, and early part of 1866, applied to him as attorney, to sue upon his claim, when he advised against it for want of sufficient testimony to sustain the demand. Now the only effect that this testimony could produce on the mind, was that Brown had a demand against his brother’s estate, which he was disposed to push by suit, and that in his judgment, it was a fair claim. And either because he might fail in the suit, or to deprecate the displeasure of the executor, and perhaps postpone the reception of the legacy, he did not then proceed a. law.
Taking all the admissions to Gilliam together, which this was offered to explain, and they amount to this: He had no claim against the estate, which he would urge by suit, but [658]*658lie thought he ought to be paid $1,600 on account of some cotton, and also for his wagon and mule. There is no pretence in law, that Brown was estopped by his admissions to Gilliam from preferring his claim against the estate, by amicable demand or suit, if he chose to do so. An estoppel in pais shuts up a party, from asserting a demand or pressing a right, because in the circumstances, to allow it to be done would be to perpetrate a fraud upon another, to his injury. To illustrate the principle, if A proposes to purchase B’s note, and before the sale is consummated, informs B of what he is about to do, and asks him if he has defense against the note, and B responds in the negative, and the purchase is made, B would be estopped from setting up a defense, however well founded; because A has advanced his money on the faith of his declaration, and it would be a deceit and a snare to him if allowed.
A person may say, however emphatically, that he has no claim against another which he proposes to enforce or demand. Yet if he does produce a debt well fpunded in law and fact, established to the satisfaction of the jury, his disclaimer is not a legal bar to the suit. And notwithstanding such disclaimer, a jury may allow it. It is a fact, however, justly challenging the grave consideration of the jury, who are the final judges of the weight of testimony. We think that the testimony of Morgan ought not to have been admitted to the jury.
The third instruction granted for the plaintiff, and the converse of it refused, at the prayer of the defendant, go to the merits of the controversy, and have especially engaged the attention of counsel. This instruction asserts the proposition that although the traffic in cotton between a resident of DeSoto county, and parties residents of Memphis, Tennessee, was illegal, at the time part of the transactions, out of which this suit originated were carried on, yet if Jas. 0. Brown took the plaintiff’s cotton with his consent, and as his agent carried it into Memphis, and there sold it and received the money, which his executor, the defendant, still [659]*659had, that the traffic through the lines had long since ceased, the plaintiff ivas entitled to the money, the proceeds thereof.
It is conceded by counsel on both sides, that this trade in cotton, whilst the war was flagrant between parties resident, the one in territory occupied by the military forces of the United States, and the other by the forces of the Confederate military organization, was denounced by the public laws of nations, by the acts of the Congress of the United States, and the proclamation of the President in pursuance thereof.
The grave question is, where profit and gain has accrued from this unlawful traffic, and these gains are in the hands of an agent, can he be called to account in a court of law by his principal. If the plaintiff, W. T. Brown, permitted his brother, J. C. Brown, to take his cotton into Memphis, and there convert it into money, does not the illegality, and legal turpitude imputed to the transfer and sale, so attach to the act, and himself as a particeps, consenting to it, as that a court of justice will altogether refrain from adjudicating between the parties, on the ground that ex turpi causa non oriter actio. Generally those who violate law in their dealings with one another, are left in precisely the condition they placed themselves. As to third persons, injured by their acts, courts are free to give full redress. Those who make the covinous conveyances, and other acts denounced by the statute of fraud and perjuries, are not permitted to apply to the courts for extrication from the consequences of their fraudulent acts, if the grantee prove false to the secret trust reposed in him. It is not disputed that a remedy will not lie on the illegal contract itself. If J. 0. Brown had obligated himself to carry W. 0. Brown’s cotton into Memphis, and sell it, no suit could be sustained for a non-performance. But where the illegal adventure has been accomplished, and the money arising out of it is in the hands of J. 0. Brown, or his legal representative, what law is violated, what rule of public policy is infringed, what encouragement is given to the yiolaters of law, by compelling him to turn over the money [660]*660' to his principal ? If the sensualist makes provision for his . cast-off mistress, is morality put to the blush by the act — would the legal tribunals frown upon such a contract ? It was very aptly said by Lord Mansfield, in Hulman v. Johnson, Cowp. Rep., 343: “The objection that a contract is immoral or illegal, as between plaintiff and defendant, sounds at all times very ill in the mouth of a defendant. It is not for his sake that the objection is ever allowed, but is founded on the general principles of iiolicy, which the defendant has the advantage of, contrary to the real justice between himself and the plaintiff.” The ends attempted to be reached by the principle is Ho restrain and discourage a violation of law by withholding a remedy, founded on the illegal contract. Therefore, the law esteems a promise, made in consideration of future cohabitation, to be utterly void; yet a bond or deed made for a past cohabitation is good. Froninger v. McBurny, 5 Cow., 253; Chit. Cont., 516. In the latter case, the offense against morals was already accomplished. The bond or deed was not the inducement that brought it about.
The point is full of embarrassment, and we have maturely considered it with a view of apprehending some principle that may reconcile the adjudications. The general principle laid down in a great number of cases is to this effect: That if the contract grows out of an illegal act, a court of justice will not enforce it. But if the promise be unconnected with the.illegal act, and is founded on a new consideration, it is not tainted by the act. A new contract founded on a new consideration, although in relation to property respecting which there had been unlawful transactions between the parties, is not itself unlawful. Armstrong v. Toller, 11 Wheat., 269; Craig v. Missouri, 4 Pet. Rep.; Roby v. West, 4 N. H., 290; Patterson v. Nicholas, 3 Wheat., 204; Wooten v. Miller, 7 S. & M., 385.
It has been observed that the test, whether a demand connected with an illegal act, can be enforced, is whether the plaintiff requires any aid from the illegal transaction to establish his case. Simpson v. Bloss, 7 Taunt., 246; Roby v. West, [661]*6614 N. H., 290. Subjecting the case at bar to this test,.and it is manifest that the demand of W. T. Brown against his broth-1 er’s estate, must be traced back to the illegal traffic in the. cotton; putting the claim in the simplest form of speech,' and it takes this legal form. There was no express contract that J. C. Brown would account and pay over to his brother the proceeds of the cotton passed through the military lines and sold, nor was there a subsequent promise that he would pay the money thus realized. It comes to this, then, that by his so removing and selling the cotton with the consent of W. T. Brown, the law implied a promise that he should pay for it. The law will never imply a promise where an express promise would be invalid, or would not be enforced. If J. O. ^ Brown had made an express promise that he would take the cotton to Memphis, sell it, and pay the proceeds to his brother,’ ' such contract would have been an engagement to violate law and duty, and no suit could be maintained upon it. It is conceded that W»T. Brown had no right of action grounded on the refusal of J. 0. Brown to comply with his agreement to remove and sell the cotton. But the other member of the fact is, that he will account for the proceeds. To allow a suit on this, would be to give effect to the illegal bargain. This is hardly, then, a case where a subsequent contract relates back and attaches itself to the original illegal act, for the only contract shown to exist, if any, is such as the law will imply.
There are a class of cases which it is verjr difficult to take out of the range of these principles. In Fainbury v. Renons, 4 Burr, 2096, several persons had been engaged in illegal stock-jobbing, with a third, and sustained a loss. One of them paid the whole, and took a security from the other, for his share. This security was held valid as a new contract. It is hard to see how this can be separated from the original transaction. Its consideration rested on the loss, which the party ought to share; yet the court would have held that indebitatus assumpsit would not lie for contribution of an [662]*662aliquot part of the loss. Lord Mansfield declared that it was a fair, honest transaction "as between the two.”
Thompson v. Thompson, 7 Vesey, jr., was an application to be paid a sum of money in consideration of the resignation of the command of a ship in the service of the East India Company, in favor of the defendant. The master of the rolls (Sir William Grant),-thought the contract illegal. There is no claim to the fund except through an illegal contract. “ If the company had paid this money into the hands of a third person for the use of the plaintiff, he might have recovered from that third person, who could not have set up this objection as a reason for not performing the trust.” There is nothing collateral in respect of which (the agreement being out of the way), a collateral demand arises.
Tennant v. Elliott, 1 Bos. & Pul., 3, was this: The defendant, being a broker, effected an insurance for the plaintiff, a British subject, on goods in an imperial ship, bound to the East Indies. Such insurance came within the statute of 7 Geo. 1, Ch. 21, and was illegal. The ship being lost, the underwriters paid' the amount of the insurance to the defendant, who, without any intimation from them to retain it, refused to pay it over to the plaintiff. The argument at the bar against the recovery was: The defendant, the broker, is in nature of a stakeholder, and the plaintiff’s right of action being grounded on his claim against the underwriters, he must stand in the same situation as if he had sued them. To this, Buller, J., replied: “ Is the man who has paid over money to another’s use, to dispute the legality of the original contract ? Having once waived the legality, the money shall never come back to his hands again. To whom is he to pay it over ? Who is entitled to it but the plaintiff? ”
Eyre, Ch. J.: "The defendant is not a stakeholder. The question is, whether he, who has received money to another’s use, on an illegal contract, can be allowed to retain it, and that not even at the desire of those who paid it. I think he cannot.”
[663]*663Turner v. Russel et al, 2 Bos. & Pul., 296, was this: The indebtedness arose out of carrying counterfeit coin to Portsmouth. It did not appear that the carriers were acquainted with the contents of the boxes. The defendants had received money from the person at Portsmouth, and had accounted to the plaintiff for the whole of it, except £13, the subject of the action. The Chief Justice states the question thus: The plaintiff’s demand arises simply out of the circumstance of money being put into the defendant’s hands to be delivered to him. This creates an indebitatus from which an assumpsit arises. Buller, J., said the plaintiff’s case was made out, when he showed that the defendant had recovered so much money for his use, and it was immaterial whether the money was paid on a legal or illegal contract. The money having been paid “by another” to the plaintiff’s use, the illegal contract is out of the question.
Alcinbrook v. Hall, 2 Wils., 302, was for money lent to pay a bet at a horse race. Fainbur v. Renons, Burr, 2069 was a loan of money to pay differences in a stock-jobbing bargain where the defendant was privy to the transaction.
In Owen v. Davis, 1 Bailey, S. C. Rep., 316, the plaintiff was the joint owner of the note of one Murray, which had been given for money lost at cards. The whole of the note had been paid to the defendant. The plaintiff claimed half of it as money paid for his use. The objection was the illegality attaching to the transaction. The judgment of the court went upon the ground that if the defendant had received money, of which, by an agreement between them, the plaintiff was entitled to half, there was no sound principle on which the fact that it had been received on an illegal contract would entitle the defendant to violate his agreement. Murray would have been protected in refusing to pay, but as he had paid, the plaintiff was certainly entitled to recover his share of the fund.
The case of Sharp v. Taylor, 2 Phillips Ch., 801, was very maturely considered by the Lord Chancellor. In that case the complainant sought a share and division of the profits, [664]*664which had been earned by a vessel engaged in a traffic which was in violation of the navigation laws of both the United States and Great Britain. The defendant interposed the illegality of the traffic, as an objection to the relief. To this plea the chancellor responded: “ Gan one of two partners possess himself of the property of a firm, and be permitted to retain it, if he can show that in realizing it, some act of parliament has been violated ? The transaction alleged to be illegal is completed and closed and will not in any manner be affected by what the court may do between the parties.”
So, too, in Brooks v. Martin, 2 Wallace 79. It is directly stated that the business of dealing in soldiers’ bounty land claims, as provided in the copartnership articles, was illegal and violative of the act of Congress, February 11,1847. After large gain, however, had been made in the business ; on a bill brought by one partner to set aside a fraudulent settle mentmade between the parties and for an account and division of the profits, the principle is affirmed that one partner, who has obtained possession and control of the funds will not be permitted to refuse to do equity to his other partners because of the money originally due or intended for the soldier. This statute made in the interest of the soldier and for his benefit cannot be made more efficient by leaving all the funds and profits in the hands of Brooks. The illegal transactions have become accomplished facts, and cannot be affected by any action of the court between these parties.
So long as an illegal contract is, in fieri, in the .course of execution, neither party can have a remedy grounded upon it, either for its specific enforcement or for damages for any breach of it. Russell v. Wheeler, 17 Mass., 281; Sheffner v. Gordon, 12 East, 304.
But the principle seems to be well established that after the illegal contract has been executed, one party in possession of all the gains and profits resulting from the illicit traffic and transactions, will not be tolerated to interpose the objec tion that the business which produced the fund was in violation of law, and, therefore, the plaintiff, jointly interested in [665]*665its profits and gains, cannot ground any claim to an account and share thereof. All the harm that can inure to the public by an infraction of law has already accrued; and it were to encourage hypocrisy and gross dishonesty to permit a party fresh from a violation of the law, to set up his own turpitude as a shield and protection against a division of the gains of the illicit business with one jointly entitled to share them.
It is patent to observe the struggle of the courts, and a gradual advance to escape from the unjust consequences-of the universal application of an acknowledged principle, and the distinctions, not always palpably suggested by a sense of justice, to except special cases. In the earlier cases, if the money (the fruit of the unlawful business) was deposited with a third person for the plaintiff, this was treated as a collateral contract, and he was not permitted to defend on the ground of the illegality of the original act. As put by -Justice Buller on the broad premise, that the moment the money passed into the stranger’s hands, he held it as trustee for the plaintiff. As stated by the supreme court in McBlair v. Gibbs, 17, How. S. C., 236, an implied promise, arising out of the receipt of the money was a new contract not affected by the illegality of the original transaction. It was further enlarged or illustrated, as in the case of several engaged in stock-jobbing gambling, when one paid all the losses and took from the other his obligation for his contributory part. All vrere implicated in the illegal act, and no third person intervened as stake-holder or trustee. A further extension was made when one who had collected the winnings at a game of hazard was compelled to pay a moiety to his associate in the winning. After pushing the principle thus far, it were easy to afford relief to a partner against his co-partner who had taken to himself all the profits of a business forbidden by legislative enactment. Within the range of the same doctrine is embraced the case of him who confides his money or his property to another, to be embarked in an illegal traffic, after the dealings are over and the business ended; that the money [666]*666realized shall be regarded as had and received for the plaintiff’s use and an implied assumpsit to account for it.
Whilst affording this relief the courts are not obnoxious to the imputation of giving effect to illegal contracts or encouraging immoral acts. In all these cases the violation of law has already been accomplished and one party is found in possession of money which belongs to another, and no detriment can arise further by raising an assumpsit to pay it over to the principal.
In some of the cases closest in analogy to the one under consideration the suits were in chancery. This can make no difference, for a court of equity will no more lend its aid to an iniquitous transaction than a court of law, and a plea of “illegality” or contra lonos mores is just as available in the one jurisdiction as the other.
Without commenting on the several charges granted on the prayer of the plaintiff, we think they conformed to the views we have expressed. For the error in admitting the testimony oí Morgan the judgment of the circuit court is reversed and the cause remanded for a venire facias. We forbear comment on the testimony or its weight as involved in the motion for a new trial, as that subject especially belongs to the province of the jury.
Supra p. 437.