After a statement of tbe case as above,
BaRtci-i, J.,
delivered the opinion of the court.
The appellant contends that the court erred in its action respecting the amended answer and the proof offered in bar of the action, and we are of the opinion that this contention is well founded. It is true, the contract in question is not specifically referred to or set forth in the complaint, but it is alleged in the complaint that the “defendant agreed to pay the plaintiff” certain specified sums for serving summonses and executions in actions instituted by it for the purpose of recovering poll taxes due and owing it. The allegations are such that the defendant might well assume that the suit was based on the contract. Especially is this so since the services referred to in the complaint, and the prices therefor, are identical with those which formed the subject of the contract. It is admitted on both sides that the contract contravenes public policy and is illegal and void. It contains a different arrangement for the performance by and payment for services of a public officer than that prescribed by the statute in relation to fees. Both parties to the contract were parties to the illegal arrangement, each having entered into it voluntarily, without undue influence or coercion; and therefore both are in pari delicto, and the law leaves them where it finds them. Each party under such circumstances being a particeps criminis, neither will be aided, either in law or equity, to enforce the contract, or profit by the unlawful transaction. The general rule undoubtedly is that courts will not interpose to aid parties concerned in unlawful transactions or agreements. If such contract is executory, its performance will not be enforced; if executed, the parties will be permitted to remain where they are found. This is doubtless the result of the rule in all cases where each party to the unlawful agreement- or immoral trans[525]*525action acted voluntarily, and public interests and justice require no relief to be given. In sucb a case, upon suit brought to enforce the contract, the defendant may allege and prove its illegality or immorality in bar of the action. This is permitted, not for the sake of the defendant, but upon the general principles of public policy, to discourage corrupt and illegal agreements, by holding them void and refusing any judicial aid between the parties to the illegal or corrupt transaction. This rule is expressed in the maxim, "Ex turpi causa oritur actio ” The objection thus made by plea in bar is rather that of the public, speaking through the courts, than of the defendant as a party to the illegal or corrupt agreement. Such is evidently the weight of authority at present upon the subject. “The old eases,” says Mr. Justice Story, “often gave relief, both at law and in equity, where the party would otherwise derive an advantage from his iniquity. But the modem doctrine has adopted a more severely just, and probably politic and moral, rule, which is to leave parties where it finds them, giving no relief and no countenance to claims of this sort. 1 Story, Eq. Jur., sec. 298, note 2. “The courts of justice,” says Chancellor Kent, “will allow the objection that the consideration of the contract was immoral or illegal to be made even by the guilty party to the contract; for the allowance is not for the sake of the party who raises the objection, but is grounded on general principles of policy.” 2 Kent, Comm., 467. Lord Mansfield, in Holman v. Johnson, 1 Cowp. 341, said: “The objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this: (Ex dolo malo non oritur actioNo court will lend [526]*526its aid to a man wbo founds bis cause of action upon an immoral or illegal act. If, from the plaintiff’s own stating or-otherwise, the cause of action appears to arise ex turpi cmsa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will -not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would have the advantage of it; for, where both are equally in fault, ‘Potior est conditio defendentis” In Hope v. Association, 58 N. J. Law, 627, 34 Atl. 1070, 55 Am. St. Rep. 614, Chancellor McGill said: “It appears to me to follow from this 'view of the foundation of the rule with respect to illegal and corrupt contracts that the policy which constrains the courts to deny all relief to the parties demands that, when either of those parties shall offer to show that the cause of action springs from an illegal or corrupt agreement, the courts shall admit and consider the legal proofs offered to that end. It certainly does not further the salutary effect of the rule that neither party will be aided by the courts, or satisfy as to its impartiality, to exclude proof of some of the facts essential to show the entire transaction, and thus exhibit its illegality* merely because they are offered by a particeps criminis against whom a prima facie case is made by one equally corrupt, who has gained an advantage by presenting to the court garbled and partial proofs, which suppress part -of the truth, and impose a mutilated state of facts upon the court in place of the real transaction.” So, in Inhabitants of Worcester v. Eaton, 11 Mass. 368, Mr. Chief Justice Parker, after a review of a number of cases, said: “It appears, then, to be the settled law in England, and we are satisfied that it is also the law here, that where two parties agree in violating the laws of the land the court will not entertain the claim of either party against [527]*527tbe other for the fruits of an unlawful bargain. If one holds the obligation or promise of the other to pay him money or do any other valuable act on account of such illegal transaction, the party defendant may expose the nature of the transaction to the court; and the law will say, ‘Our forms and rules are established to protect the innocent and to vindicate the injury, not to aid offenders in the execution of their unjust projects;’ and if the party who has foolishly paid his money repents his folly, and bring his action to recover it back, the same law will say to him, ‘You have paid the price of your wickedness, and you must not have the aid of the law to rid you of an inconvenience which is a suitable punishment of your offense.’ ” In Sullivan v. Horgan, 17 R. I. 109, 20 Atl. 232, it was said: “Although a contract thus infected with illegality is regarded in law as a nullity, in so fax that the law will not lend its aid to enforce it, it is nevertheless not treated as if it had no existence in fact.” Likewise, in Harvey v. Tama Co., 53 Iowa 228, 5 N. W. 130, it was said: “The plaintiff cites many cases wherein a party sued upon an agreement has been permitted to show its illegal or immoral character in defense to the action. That a defendant should be allowed to make such defense follows from the rule that the law leaves parties to an illegal contract where it finds them, and extends no aid to either.” In Tappan v. Brown, 9 Wend. 175, Mr.
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After a statement of tbe case as above,
BaRtci-i, J.,
delivered the opinion of the court.
The appellant contends that the court erred in its action respecting the amended answer and the proof offered in bar of the action, and we are of the opinion that this contention is well founded. It is true, the contract in question is not specifically referred to or set forth in the complaint, but it is alleged in the complaint that the “defendant agreed to pay the plaintiff” certain specified sums for serving summonses and executions in actions instituted by it for the purpose of recovering poll taxes due and owing it. The allegations are such that the defendant might well assume that the suit was based on the contract. Especially is this so since the services referred to in the complaint, and the prices therefor, are identical with those which formed the subject of the contract. It is admitted on both sides that the contract contravenes public policy and is illegal and void. It contains a different arrangement for the performance by and payment for services of a public officer than that prescribed by the statute in relation to fees. Both parties to the contract were parties to the illegal arrangement, each having entered into it voluntarily, without undue influence or coercion; and therefore both are in pari delicto, and the law leaves them where it finds them. Each party under such circumstances being a particeps criminis, neither will be aided, either in law or equity, to enforce the contract, or profit by the unlawful transaction. The general rule undoubtedly is that courts will not interpose to aid parties concerned in unlawful transactions or agreements. If such contract is executory, its performance will not be enforced; if executed, the parties will be permitted to remain where they are found. This is doubtless the result of the rule in all cases where each party to the unlawful agreement- or immoral trans[525]*525action acted voluntarily, and public interests and justice require no relief to be given. In sucb a case, upon suit brought to enforce the contract, the defendant may allege and prove its illegality or immorality in bar of the action. This is permitted, not for the sake of the defendant, but upon the general principles of public policy, to discourage corrupt and illegal agreements, by holding them void and refusing any judicial aid between the parties to the illegal or corrupt transaction. This rule is expressed in the maxim, "Ex turpi causa oritur actio ” The objection thus made by plea in bar is rather that of the public, speaking through the courts, than of the defendant as a party to the illegal or corrupt agreement. Such is evidently the weight of authority at present upon the subject. “The old eases,” says Mr. Justice Story, “often gave relief, both at law and in equity, where the party would otherwise derive an advantage from his iniquity. But the modem doctrine has adopted a more severely just, and probably politic and moral, rule, which is to leave parties where it finds them, giving no relief and no countenance to claims of this sort. 1 Story, Eq. Jur., sec. 298, note 2. “The courts of justice,” says Chancellor Kent, “will allow the objection that the consideration of the contract was immoral or illegal to be made even by the guilty party to the contract; for the allowance is not for the sake of the party who raises the objection, but is grounded on general principles of policy.” 2 Kent, Comm., 467. Lord Mansfield, in Holman v. Johnson, 1 Cowp. 341, said: “The objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may so say. The principle of public policy is this: (Ex dolo malo non oritur actioNo court will lend [526]*526its aid to a man wbo founds bis cause of action upon an immoral or illegal act. If, from the plaintiff’s own stating or-otherwise, the cause of action appears to arise ex turpi cmsa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. It is upon that ground the court goes, not for the sake of the defendant, but because they will -not lend their aid to such a plaintiff. So, if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would have the advantage of it; for, where both are equally in fault, ‘Potior est conditio defendentis” In Hope v. Association, 58 N. J. Law, 627, 34 Atl. 1070, 55 Am. St. Rep. 614, Chancellor McGill said: “It appears to me to follow from this 'view of the foundation of the rule with respect to illegal and corrupt contracts that the policy which constrains the courts to deny all relief to the parties demands that, when either of those parties shall offer to show that the cause of action springs from an illegal or corrupt agreement, the courts shall admit and consider the legal proofs offered to that end. It certainly does not further the salutary effect of the rule that neither party will be aided by the courts, or satisfy as to its impartiality, to exclude proof of some of the facts essential to show the entire transaction, and thus exhibit its illegality* merely because they are offered by a particeps criminis against whom a prima facie case is made by one equally corrupt, who has gained an advantage by presenting to the court garbled and partial proofs, which suppress part -of the truth, and impose a mutilated state of facts upon the court in place of the real transaction.” So, in Inhabitants of Worcester v. Eaton, 11 Mass. 368, Mr. Chief Justice Parker, after a review of a number of cases, said: “It appears, then, to be the settled law in England, and we are satisfied that it is also the law here, that where two parties agree in violating the laws of the land the court will not entertain the claim of either party against [527]*527tbe other for the fruits of an unlawful bargain. If one holds the obligation or promise of the other to pay him money or do any other valuable act on account of such illegal transaction, the party defendant may expose the nature of the transaction to the court; and the law will say, ‘Our forms and rules are established to protect the innocent and to vindicate the injury, not to aid offenders in the execution of their unjust projects;’ and if the party who has foolishly paid his money repents his folly, and bring his action to recover it back, the same law will say to him, ‘You have paid the price of your wickedness, and you must not have the aid of the law to rid you of an inconvenience which is a suitable punishment of your offense.’ ” In Sullivan v. Horgan, 17 R. I. 109, 20 Atl. 232, it was said: “Although a contract thus infected with illegality is regarded in law as a nullity, in so fax that the law will not lend its aid to enforce it, it is nevertheless not treated as if it had no existence in fact.” Likewise, in Harvey v. Tama Co., 53 Iowa 228, 5 N. W. 130, it was said: “The plaintiff cites many cases wherein a party sued upon an agreement has been permitted to show its illegal or immoral character in defense to the action. That a defendant should be allowed to make such defense follows from the rule that the law leaves parties to an illegal contract where it finds them, and extends no aid to either.” In Tappan v. Brown, 9 Wend. 175, Mr. Justice Nelson, speaking for the court, said: “It is equally clear to me that the appointment of the plaintiff to the office of deputy is so connected and interwoven with this corrupt agreement that it is impossible for the court, upon any sound construction, to separate them. The one was the consequence of the other, and so understood and intended by both parties; and to permit the plaintiff to recover the statute compensation would be only dis-affirming a part of the illegal agreement, and confirming the reskhie. It would be confirming the defendant’s part of it, to-wit, the appointment, and disaffirming the plaintiff’s, to-[528]*528wit, that part which secured the reward for the office. I do not say that one part was the consideration for the other, technically speaking, but the whole was one entire arrangement, and if one part is void the whole must be. The parties are therefore in pari delicto, and the law will help neither.” 15 Am. and Eng. Enc. Law, 933-939; Wooden v. Shotwell, 23 N. J. Law 465; Willemin v. Bateson, 63 Mich. 309, 29 N. W. 734; Nellis v. Clark, 20 Wend. 24; Smith v. Hubbs, 10 Me. 71; Harrison v. Hatcher, 44 Ga. 638; Church v. Muir, 33 N. J. Law, 318; Short v. Mining Co., 20 Utah 20, 57 Pac. 720, 45 L. R. A. 603; Gorringe v. Read (Utah), 63 Pac. 902; Marlatt v. Warwick, 19 N. J. Eq. 439; Bowman v. Phillips, 41 Kan. 364; 21 Pac. 230, 13 Am. St. Rep. 292; White v. Hunter, 23 N. H. 128; Vulcan Powder Co. v. Hercules Powder Co., 96 Cal. 510, 31 Pac. 581, 31 Am. St. Rep. 242; Ruckman v. Bryan, 3 Denio 341; Church v. Proctor, 13 C. C. A. 426, 66 Fed. 240; Howell v. Fountain, 3 Ga. 176, 46 Am. Dec. 415; Gunderson v. Richardson (Iowa), 8 N. W. 683; Gleason v. Railroad Co., (Iowa), 43 N. W. 517; Richardson v. Buhl, 77 Mich. 632, 43 N. W. 1102; Birkett v. Chatterton, 13 R. I. 299, 43 Am. Rep. 30; Spalding v. Ewing, 149 Pa. 375, 24 Atl. 219, 15 L. R. A. 727, 34 Am. St. Rep. 608; Peck v. Burr, 10 N. Y. 294; Brooks v. Cooper, 50 N. J. Eq. 761, 26 Atl. 978, 35 Am. St. Rep. 793.
From the foregoing considerations, it is evident that the appellant had the right to plead and prove the illegal contract, and that the respondent has shown no right of recovery, either in law or equity, for any services rendered in the pursuance of such contract, or embraced within it. Since, however, the length of time during which the contract was to continue is not specified therein, as will bq noticed by reference to its terms, and as counsel for the respondent claim, although without satisfactory proof thereof, that the services sued for were performed independently of the contract, and insist that they [529]*529are not included therein, a new trial may be granted, with privilege to both parties to so amend their pleadings as tO' permit the exact transaction to be shown in evidence. The case is therefore reversed, with costs, and the cause remanded, with directions to the court below to grant a new trial' and proceed in accordance herewith.
Miner 3 O. J., concurs.