Mr. Chief Justice Magruder
delivered the opinion of the court:
At the close of the evidence of the defendant in error, the plaintiff in error submitted a written instruction to the court, directing the jury to find a verdict for the defendant. This instruction was refused, and exception was taken to such refusal. At the close of all the testimony, the plaintiff in error again made a motion to withdraw the evidence from the jury and to instruct the jury to find for the plaintiff in error. A written instruction to this effect was refused by the court, and plaintiff in error took exception to such refusal. We are of the opinion that the instruction should have been given, upon the ground that the evidence does not tend to support a cause of action.
Section 56 of division 1 of the Criminal Code provides, that “whoever willfully disturbs the peace and quiet of any neighborhood or family, by loud or unusual noises, or by tumultuous or offensive carriage, threatening, traducing, quarreling, challenging to fight or fighting, or whoever shall carry concealed weapons, or in a threatening manner display any pistol, knife, slung-shot, brass, steel or iron knuckles, or other deadly weapon, shall be fined not exceeding $100.00.” Section 60 of division 1 of the Criminal Code provides, that “whoever willfully interrupts or disturbs any school or other assembly of people, met for a lawful purpose, shall be fined not exceeding $100.00.” (1 Starr & Curt. Ann. Stat. — 2d ed.— pp. 1266, 1267.)
Unquestionably defendant in error and plaintiff in error were both engaged in willfully disturbing the peace and quiet of the family of Daniel Hirsch by loud and unusual noises. The enterprise, in which they were both engaged at the time of the injury, was an unlawful one. The fact, that it is called a “charivari,” does not make it any the less unlawful. The assemblage around the house of Daniel Hirsch in the night time, there engaged in disturbing a family in which a wedding had occurred, was an unlawful and illegal assemblage, and not only so, but a gathering of illegal trespassers. They were all, including both plaintiff in error and defendant in error, engaged in the same unlawful enterprise. Defendant in error says that he did not know, that the plaintiff in error, Gilmore, had a revolver in -his possession before they went upon the premises of Hirsch, but his own testimony shows that, after they reached the premises of Hirsch, he saw the revolver in the possession of plaintiff in error, and saw and heard it fired off more than half a dozen times before he was wounded. After defendant in error witnessed the firing of the revolver by plaintiff in error, he still continued to join in the making of the noises, which disturbed the family, and was, with another young man named Cathcart, engaged in shaking a strand of sleigh-bells.
Webster, in his dictionary, defines charivari as “a mock serenade of discordant noises made with kettles, tin horns, etc., designed to annoy and insult.” Worcester, in his dictionary, defines a charivari as “a vile or noisy music made with tin horns, bells, kettles, pans, etc., in derision of some person or event; a mock serenade.”
In Higgins v. Minaghan, 78 Wis. 602, which was an action for damages brought for the shooting of the plaintiff in the leg, while he and others were giving the defendant a charivari, the plaintiff’s counsel on the voir dire was permitted to ask, against the objection of the defendant, whether the jurors had any prejudice for or against charivari parties, or entertained any prejudice against parties that engaged in a charivari, and the Supreme Court of Wisconsin there said: “The learned circuit judge seems to have had some doubt about the propriety of this course of examination, and we think it was wholly wrong. Every good, law-abiding citizen must and does condemn such unlawful and riotous assemblies. They are wholly indefensible in law and morals, and are reprobated by every well-disposed person. With the same propriety a juror, called upon to try a man charged with a criminal act, might be asked if he had or entertained any bias or prejudice for or against crime or criminals. * * * We do not understand that a prejudice, entertained by a juror against a particular crime, constitutes a sufficient ground for excluding him, when called to try a person for such offense. * * * It would be almost impossible to obtain a panel in a case, if every citizen was excluded from it, who had a prejudice against or was opposed to charivari, which is in law a crime.” In the same case it is also said: “The charivari parties, consisting of the crowd in front of or upon the defendant’s premises, constituted an unlawful assembly; and by their transactions, conduct, and behavior became what is known in the law as a ‘riot, ’ tending to the disturbance of the peace, and the annoyance, if not the terror, of the defendant and others in the vicinity; they were trespassers in the highway. * * * The rioters themselves knew, or should have known, that their acts and conduct about the house, in the , night, were well calculated to produce terror and fright and injuriously affect the defendant’s family. * * * Here, the rioters were firing guns, blowing horns, drumming on pans, and making all kinds of hideous noises,” etc.
What results from the fact, that defendant in error and plaintiff in error were both engaged in such an unlawful and criminal enterprise, as is above described? In Harris v. Hatfield, 71 Ill. 298, a suit was brought to recover damages on account of disease, communicated to the cattle of plaintiff by Texas cattle brought into this State by defendant in the month of July in violation of a statute forbidding such act, it appearing that the plaintiff had put his cattle, among which were the Texas cattle, into his own pasture; that soon afterward the plaintiff discovered, that some of them were Texas cattle, and still kept the possession and control of them, and bought some of them, and kept them with his other cattle; and it was there held that a court of justice will not assist a party, who has participated in a transaction forbidden by statute, to assert rights growing out of it, or to relieve himself from the consequences of his own illegal act. The principle is thus concisely stated in Heland v. City of Lowell, 3 Allen, 407: “And it is the "established law, that when a plaintiff’s own unlawful act concurs in causing the damage that he complains of, he cannot recover compensation for such damag'e.”
In Frye v. Chicago, Burlington and Quincy Railroad Co. 73 Ill. 399, we said: “The rule is well settled that, if a party suffers injury whilst violating a public law, the other party being also a transgressor, he cannot recover for the injury, if his unlawful act was the cause of the injury. The party, bringing the cattle to the State, may have violated the law — appellants were no less transgressors, and the maxim, in pari delicto potior est conditio defendentis, must apply. In Harris v. Hatfield, 71 Ill. 298, similar views were expressed.” (See also Toledo, Wabash and Western Railway Co. v. Beggs, 85 Ill. 80; Toledo, Wabash and Western Railway Co. v. Brooks, 81 id. 245; Chicago and Alton Railroad Co. v. Michie, 83 id. 427).
As long ag'o as the case of Holman v. Johnson, Cowp. 343, Lord Mansfield said: “The principle of public policy is this: ex dolo malo, non oritur actio. No court will lend its aid to a man, who founds his cause of action upon an immoral or illegal act.” ■
In Hall v. Corcoran, 107 Mass.
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Mr. Chief Justice Magruder
delivered the opinion of the court:
At the close of the evidence of the defendant in error, the plaintiff in error submitted a written instruction to the court, directing the jury to find a verdict for the defendant. This instruction was refused, and exception was taken to such refusal. At the close of all the testimony, the plaintiff in error again made a motion to withdraw the evidence from the jury and to instruct the jury to find for the plaintiff in error. A written instruction to this effect was refused by the court, and plaintiff in error took exception to such refusal. We are of the opinion that the instruction should have been given, upon the ground that the evidence does not tend to support a cause of action.
Section 56 of division 1 of the Criminal Code provides, that “whoever willfully disturbs the peace and quiet of any neighborhood or family, by loud or unusual noises, or by tumultuous or offensive carriage, threatening, traducing, quarreling, challenging to fight or fighting, or whoever shall carry concealed weapons, or in a threatening manner display any pistol, knife, slung-shot, brass, steel or iron knuckles, or other deadly weapon, shall be fined not exceeding $100.00.” Section 60 of division 1 of the Criminal Code provides, that “whoever willfully interrupts or disturbs any school or other assembly of people, met for a lawful purpose, shall be fined not exceeding $100.00.” (1 Starr & Curt. Ann. Stat. — 2d ed.— pp. 1266, 1267.)
Unquestionably defendant in error and plaintiff in error were both engaged in willfully disturbing the peace and quiet of the family of Daniel Hirsch by loud and unusual noises. The enterprise, in which they were both engaged at the time of the injury, was an unlawful one. The fact, that it is called a “charivari,” does not make it any the less unlawful. The assemblage around the house of Daniel Hirsch in the night time, there engaged in disturbing a family in which a wedding had occurred, was an unlawful and illegal assemblage, and not only so, but a gathering of illegal trespassers. They were all, including both plaintiff in error and defendant in error, engaged in the same unlawful enterprise. Defendant in error says that he did not know, that the plaintiff in error, Gilmore, had a revolver in -his possession before they went upon the premises of Hirsch, but his own testimony shows that, after they reached the premises of Hirsch, he saw the revolver in the possession of plaintiff in error, and saw and heard it fired off more than half a dozen times before he was wounded. After defendant in error witnessed the firing of the revolver by plaintiff in error, he still continued to join in the making of the noises, which disturbed the family, and was, with another young man named Cathcart, engaged in shaking a strand of sleigh-bells.
Webster, in his dictionary, defines charivari as “a mock serenade of discordant noises made with kettles, tin horns, etc., designed to annoy and insult.” Worcester, in his dictionary, defines a charivari as “a vile or noisy music made with tin horns, bells, kettles, pans, etc., in derision of some person or event; a mock serenade.”
In Higgins v. Minaghan, 78 Wis. 602, which was an action for damages brought for the shooting of the plaintiff in the leg, while he and others were giving the defendant a charivari, the plaintiff’s counsel on the voir dire was permitted to ask, against the objection of the defendant, whether the jurors had any prejudice for or against charivari parties, or entertained any prejudice against parties that engaged in a charivari, and the Supreme Court of Wisconsin there said: “The learned circuit judge seems to have had some doubt about the propriety of this course of examination, and we think it was wholly wrong. Every good, law-abiding citizen must and does condemn such unlawful and riotous assemblies. They are wholly indefensible in law and morals, and are reprobated by every well-disposed person. With the same propriety a juror, called upon to try a man charged with a criminal act, might be asked if he had or entertained any bias or prejudice for or against crime or criminals. * * * We do not understand that a prejudice, entertained by a juror against a particular crime, constitutes a sufficient ground for excluding him, when called to try a person for such offense. * * * It would be almost impossible to obtain a panel in a case, if every citizen was excluded from it, who had a prejudice against or was opposed to charivari, which is in law a crime.” In the same case it is also said: “The charivari parties, consisting of the crowd in front of or upon the defendant’s premises, constituted an unlawful assembly; and by their transactions, conduct, and behavior became what is known in the law as a ‘riot, ’ tending to the disturbance of the peace, and the annoyance, if not the terror, of the defendant and others in the vicinity; they were trespassers in the highway. * * * The rioters themselves knew, or should have known, that their acts and conduct about the house, in the , night, were well calculated to produce terror and fright and injuriously affect the defendant’s family. * * * Here, the rioters were firing guns, blowing horns, drumming on pans, and making all kinds of hideous noises,” etc.
What results from the fact, that defendant in error and plaintiff in error were both engaged in such an unlawful and criminal enterprise, as is above described? In Harris v. Hatfield, 71 Ill. 298, a suit was brought to recover damages on account of disease, communicated to the cattle of plaintiff by Texas cattle brought into this State by defendant in the month of July in violation of a statute forbidding such act, it appearing that the plaintiff had put his cattle, among which were the Texas cattle, into his own pasture; that soon afterward the plaintiff discovered, that some of them were Texas cattle, and still kept the possession and control of them, and bought some of them, and kept them with his other cattle; and it was there held that a court of justice will not assist a party, who has participated in a transaction forbidden by statute, to assert rights growing out of it, or to relieve himself from the consequences of his own illegal act. The principle is thus concisely stated in Heland v. City of Lowell, 3 Allen, 407: “And it is the "established law, that when a plaintiff’s own unlawful act concurs in causing the damage that he complains of, he cannot recover compensation for such damag'e.”
In Frye v. Chicago, Burlington and Quincy Railroad Co. 73 Ill. 399, we said: “The rule is well settled that, if a party suffers injury whilst violating a public law, the other party being also a transgressor, he cannot recover for the injury, if his unlawful act was the cause of the injury. The party, bringing the cattle to the State, may have violated the law — appellants were no less transgressors, and the maxim, in pari delicto potior est conditio defendentis, must apply. In Harris v. Hatfield, 71 Ill. 298, similar views were expressed.” (See also Toledo, Wabash and Western Railway Co. v. Beggs, 85 Ill. 80; Toledo, Wabash and Western Railway Co. v. Brooks, 81 id. 245; Chicago and Alton Railroad Co. v. Michie, 83 id. 427).
As long ag'o as the case of Holman v. Johnson, Cowp. 343, Lord Mansfield said: “The principle of public policy is this: ex dolo malo, non oritur actio. No court will lend its aid to a man, who founds his cause of action upon an immoral or illegal act.” ■
In Hall v. Corcoran, 107 Mass. 253, it was said by the Supreme Court of Massachusetts: “The general principle is undoubted, that courts of justice will not assist a person, who has participated in a transaction forbidden by statute, to assert rights growing out of it, or to relieve himself from the consequences of his own illegal act. Whether the form of the action is in contract or in tort, the test in each case is, whether, when all the facts are disclosed, the action appears to be founded in a violation of law, in which the plaintiff has taken part.” (Way v. Foster, 1 Allen, 408; Smith v. Boston and Maine Railroad Co. 120 Mass. 490; Wallace v. Gannon, 38 Ga. 199; Scott v. Duffy, 2 Harr. (Pa.) 20; Devor v. Knauer, 84 Ill. App. 184; Holt v. Green, 73 Pa. St. 198; DeGroot v. VanDuzer, 20 Wend. 406; Coppell v. Hall, 7 Wall. 558).
The same doctrine is laid down in the text books. Beach, in his work on Contributory Negligence (3d ed. sec. 47), says: “When the plaintiff is obliged to lay the foundation of his action in his own violation of the law, he cannot recover. And when his illegal act also contributes 'to produce the injury of which he complains, he has no action, unless the defendant acted wantonly.”
Cooley in his work on Torts (2d ed. marg. p. 151) says: “A further illustration of the rule, which refuses redress to one párticipating in a wrong, may be had where two persons are engaged in the same unlawful enterprise or action, and, in prosecuting it, one is injured by the negligence of the other. ” The reasoning of the latter author is, that, when the party injured undertakes to trace his injury to the negligence of the other, he shows that, at the time, he was himself engaged in unlawful action, and that it was only because of such action that the opportunity was afforded for the negligent injury. The author then says: “The injury, therefore, is as directly traceable to his own breach of the law as to the negligence of his associate; each has combined to produce it, and without both it could not have occurred. What the plaintiff must ask, therefore, must be this: that the law shall relieve him from the consequences of his disregard of the law; and this, as already stated, it will refuse to do.”
So, in the case at bar, the defendant in error traces his injury to the negligence of the plaintiff in error, but, in doing so, he necessarily shows that, at the time, both he and the plaintiff in error were engaged in the unlawful enterprise of disturbing the peace and quiet of the family of Hirsch by loud and unusual noises, and by the firing of revolvers and a shot-gun. Because of the engagement jointly and together of both plaintiff in error and defendant in error in the criminal charivari, an opportunity was afforded for the injury complained of. Therefore, the injury was as much due to the breach of the law by the defendant in error, as to the negligence of his associate, the plaintiff in error. Both the plaintiff in error and the defendant in error combined to produce the injury. It follows that defendant in error cannot be relieved by.the law from the consequences of his own disregard of the law.
The evidence shows, that there was an organization among these young men for the purpose of carrying into effect the unlawful charivari. Defendant in error testifies, that he was the first to reach the school house on the evening in question, and that his associates kept coming in, one or two at a time, until the whole party had arrived, including the plaintiff in error. A common purpose to participate in the unlawful transaction was thereby shown. Green] eaf, in his work on Evidence (vol. 1, sec. Ill), says: “The connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan', and with reference to the common object, is, in contemplation of law, the act and declaration of them all. "x" * * It makes no difference at what time any one entered into the conspiracy. Every one, who does enter into a common purpose or design, is generally deemed, in law, a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any of the others in furtherance of such common design.”
In Higgins v. Minaghan, supra, the same doctrine was recognized that, where a party is present as an actual participant in a charivari and aids and encourages the others, he is responsible for the acts, language and conduct of each and every one, constituting the charivari party, the same as if such acts were done py himself.
. It follows that the firing of the pistol by the plaintiff in error was as much the act of the defendant in error as of any other person engaged in the enterprise. The fact, that the parties, assembled at the school house, were associated in the joint prosecution of the common design, gave to the collective body the attribute of individuality by their mutual agreement, and the act of each member in furtherance of the common object was the act of all concerned. Under this view, to allow defendant in error to recover in this case would be to allow him to recover for an injury, which was, in the eye of the law, as much his own act as the act of the plaintiff in error.
It is said, however, by the defendant in error, that the trial court gave, in behalf of the plaintiff in error, the instructions which he asked embodying the view above stated. It is true that the court instructed the jury that whosoever willfully disturbs the peace and quiet of any neighborhood or family by loud or unusual noises, is, under the laws of this State, guilty of a misdemeanor, and subject to a fine on conviction thereof. The court also instructed the jury, in behalf of plaintiff in error, that, if they should believe from the evidence “that, at the time of the injury complained of, the plaintiff and defendant, with others, were engaged in an unlawful enterprise or action, and in prosecuting such unlawful enterprise the plaintiff was unintentionally injured by the negligence of the defendant, then the plaintiff cannot recover for any injury received under such circumstances, while so unlawfully engaged.” But the court gave twenty-6.ve instructions in behalf of defendant in error, which ignored entirely the unlawful character of the enterprise in which these parties were engaged, and which based the responsibility of the plaintiff in error for negligence in the handling of his pistol, resulting in the injury to defendant in error, upon the supposition that none of the parties, participating in the charivari, were engaged in an unlawful transaction. The court used the following language in instruction, numbered 23, given for the defendant in error, to-wit: “The court instructs the jury that a charivari, so called, is not in itself unlawful.” This instruction was not only incorrect as a statement of the law, but it was directly contradictory of the instructions heretofore referred to, given in behalf of the defendant. In instruction 19, given in behalf of the defendant in error, the court said: “The lawfulness of the act, from which the injury resulted, is no excuse for the negligence,” etc. In the same instruction the court also said: “The court further instructs the jury that, although you may find the defendant was in the exercise of a lawful right, yet he is bound to use such reasonable diligence and precaution that no injury may be done to others.” Clearly, these instructions, thus given for the defendant in error, were erroneous in holding that plaintiff in error was engag'ed in the exercise of a lawful right, while participating in the charivari.
The instructions above referred to, given for plaintiff in error, tended to make the impression upon the minds of the jury that the charivari was an unlawful transaction, while all the instructions of the defendant in error, including those herein referred to, tended to make the impression upon the minds of the jury that the charivari was not an unlawful transaction. “Where the instructions set up for the jury contradictory rules for their guidance, which are unexplained, and following either of which would or might lead to different results, then the instructions are inherently defective and calculated to confuse and mislead the jury. ” (Blashfield on Instructions to Juries, sec. 73; Chicago, Burlington and Quincy Railroad Co. v. Payne, 49 Ill. 499; Quinn v. Donovan, 85 id. 194).
In the first and second counts of the declaration an assault is charged against plaintiff in error. “The intention to do harm is of the essence of an assault.” (2 Green-leaf on Evidence, — 16th ed. — sec. 83; 1 Hilliard on Torts, —3d ed. — p. 181, secs. 7, 8, 9; Paxton v. Boyer, 67 Ill. 132; Razor v. Kinsey, 55 Ill. App. 605; Kennedy v. People, 122 Ill. 649). In the case at bar, there is no evidence in the record, tending in the slightest degree to prove that plaintiff in error intended to do any harm to the defendant in error, or that the wound, inflicted upon the defendant in error, was in any way intentional or willful. The sole ground, upon which it is sought to base a right of recovery, is that the plaintiff in error was careless and negligent in the handling of the revolver, which caused the injury to the defendant in error. In view of this absence of intention or willfulness on the part of the plaintiff in error, he asked the court to instruct the jury to find for him upon the first and second counts of the declaration; but the instructions so asked were refused. We are of the opinion that the instructions to find for the defendant upon the first and second counts should have been given, and that it was error to refuse them.
The judgments of the Appellate Court and of the circuit court of Piatt county are "reversed and, the cause is remanded to the latter court with directions to proceed in accordance with the views herein expressed.
Reversed and remanded.