doctrine of these cases is not entirely applicable to the case before us. The difference may not be very discernible, but still we are disposed to give it weight in our decision. Here the defendant was employed by the plaintiff to sell these lottery tickets, receive and retain the money for them until he became satisfied that the drawing of the prizes in the scheme was fairly conducted, and then account to the plaintiff. It was as well a part of his agency to receive and account for the money as to sell the tickets. And an action to recover this money goes in affirmance of the illegal contract and to enforce the performance of this duty. The main object of the agency was to do an act criminal by our statute (R. S., sec. 2, c. 169), -to engage "in a traffic not merely forbidden, but fraudulent and indictable." And if the agent is dishonest in the transaction of the business,-if he refuses to account for money which he has secured for the tickets sold by him,- should the court interfere and enforce a performance of his duty? It seems to us that the court must decline to interfere on either side, upon the maxim, Ex turpi causa non oritur actio. In Hunt v. Knickerbocker, 5 Johns. 326, which was an action on a contract made for the sale of tickets in a lottery not authorized by the legislature of New York, Mr. Justice Thompson, in delivering the opinion of the court, said: "No case could be found where an action has been sustained which goes in affirmance of an illegal contract, and where the object of it is to enforce the performance of an engagement prohibited by law. Wherever an action has been sustained against a party to prevent him from retaining the benefit derived from an unlawful act, the action proceeds in disaffirmance of the contract; and instead of endeavoring to enforce it, presumes it void": See Thalimer v. Brinkerhoff, 20 Johns. 386-397; Armstrong v. Toler, 11 Wheat. 258. It seems to us that the obligation of the defendant to pay over the money which he has received for the tickets sold by him is so connected with the illegal contract as to be inseparable from it, and that a court should not lend its aid to enforce it: Murdock v. Kilbourn, 6 Wis. 468.

But the money which the defendant received from Kilgore stands upon different grounds. So far as that money was concerned, it seems to us that it stands precisely on the same ground it would had Kilgore delivered the money to some stranger, or to an express company, to transmit it to the plaintiff. It is disconnected with the illegal transaction, and is not affected by it. It is the case suggested by the master of the

rolls in Thomson v. Thomson, 7 Ves. 468-471, of money paid into the hands of a third person for the use of the plaintiff, who may recover the same from such third person, although the money is the proceeds of some illegal transaction: Merritt v. Millard, 5 Bosw. 645. Therefore, so far as respects the $255 paid the defendant by Kilgore for the plaintiff, the action is maintainable.

The judgment of the county court must be reversed, and the cause remanded, with directions to enter judgment for the plaintiff for that amount.

Ordered accordingly

PAINE, J., having been of counsel for the plaintiff, did not sit in this case.

DEFENSE AGAINST RECOVERY OF MONEY COLLECTED ON GROUND THAT IT WAS COLLECTED ON UNLAWFUL CONTRACT OR FOR ILLEGAL PURPOSE.-The general rule with respect to the enforcement of illegal or immoral contracts, or contracts against public policy, is contained within the ancient maxims: A turpi causa, or Ex dolo malo, non oritur actio, and In pari delicto potior est amditio defendentis et possidentis. See also note to Boyd v. Barclay, 34 Am. Dec. 765-767, on the rights of parties to illegal or fraudulent transactions. When a plaintiff comes into court, and in order to establish his case, finds it necessary to rely upon such a contract as the gist of his action and the foundation of his recovery, he proves himself out of court, for no court will lend its aid to enforce a contract which is illegal, or variant from the dictates of public policy, but will leave the parties where it finds them. And the defendant may also make use of this malady in the plaintiff's action, and if he is a party to the contract and equally affected by its illegal provisions, he may set this up as a defense against the plaintiff's recovery. Nor is he thereby enabled to take advantage of his own wrong, for both he and the plaintiff must be equally in the wrong, and in pari delicto potior est conditio defendentis; and therefore it is rather of the plaintiff's than his own wrong that he takes advantage. Furthermore, as the illustrious Lord Mansfield has 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 actio. No court will lend its aid to a man who founds his 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 causa, 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 then have the advantage of it, for where both are equally in fault, potior est conditio defendentis": Holman v. Johnson, 1 Cowp. 343.

This, however, is the limit of the doctrine. And the plaintiff and defendant may have been guilty of any number of illegal acts, and yet the plaintiff may recover so long as those acts do not vitiate the contract upon which he sues; and notwithstanding the whole history of that contract would, and sometimes does, disclose illegal acts and contracts, it constitutes a perfectly competent cause of action, provided it can stand alone upon a new and separate consideration, and is in itself a lawful contract. Where a contract grows immediately out of and is connected with an illegal or immoral act, a court of justice will not lend its aid to enforce it. So if the contract be in part only connected with the illegal consideration, though it be in fact a new contract, it is equally tainted by it. But if the promise be entirely disconnected from the illegal act, and is founded on a new consideration, it is not affected by the act, although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act: Armstrong v. Toler, 11 Wheat. 258; Buck v. Albee, 26 Vt. 184; S. C., 62 Am. Dec. 564; Phalen v. Clark, 19 Conn. 421; S. C., 50 Am. Dec. 253; Thalimer v. Brinckerhoff, 20 Johns. 386-397; Green v. Corrigan, 87 Mo. 370; Hinnen v. Newman, 35 Kan. 709; Daniels v. Barney, 22 Ind. 207. Therefore the test is, whether or not the contract sought to be enforced can be separated from the illegal acts or contracts relied upon as avoiding it, and whether or not the plaintiff requires any aid from or must in any way rely upon the illegal transaction in order to establish his case: Hardy v. Stonebraker, 31 Wis. 647; Buck v. Albee, 26 Vt. 184; S. C., 62 Am. Dec. 564; Green v. Cor. rigan, 87 Mo. 370; Thalimer v. Brinckerhoff, 20 Johns. 386-397; Farmer v. Russell, 1 Bos. & P. 296; Simpson v. Bloss, 7 Taunt. 246. In Farmer v. Russell, supra, Chief Justice Eyre said: “The plaintiff's claim arises simply out of the circumstance of money being put into the defendant's hands, to be delivered to the plaintiff. This creates an indebitatus, from which an assumpsit in law arises, and on that an action on the case may be maintained. The case is brought to this: That the money has got into the hands of a person who was not a party to the contract, who has no pretense to retain it, and to whom the law could not give it by rescinding the contract." And Bullis, J., said in the same case: "When it appeared that the agent had received the money to the plaintiff's use, it was immaterial whether the money was paid on a legal or illegal contract." And in Woodworth v. Bennett, 43 N. Y. 275, 276, Chief Justice Church says: “It is undoubtedly true that if the contract or obligation does not depend upon nor require the enforcement of the unexecuted provisions of the illegal contract, it will be carried out. It has been laid down as a test that whether a demand connected with an illegal transaction is capable of being enforced at law depends upon whether the party requires any aid from the illegal transaction to establish the case: Chitty on Contracts, 657. So it has been settled that when a party pays money to a third person for the use of another, which, on account of the illegality of the transaction, he was not obliged to pay, such third person cannot interpose the defense of illegality: Tenant v. Elliott, 1 Bos. & P. 3; Merritt v. Millard, 4 Keyes, 208. This principle is based upon the undoubted right of a person to waive the illegality and pay the money; and that when once paid, either to the other party directly, or to a third person for his use, it cannot be recalled; and that the third person, who was in no way con. nected with the original transaction, cannot avail himself of a defense which his principal saw fit to waive."

Third Person. -Therefore when one party to an illegal contract pays money in execution and satisfaction of it to a third person for the use of the

other party to the contract, upon a promise by the third person to pay it over to the other party, he cannot defend an action for the money on the ground of the illegality of the contract in satisfaction of which it was paid; for, as he in no way participated in the illegal contract, and as his obligation to pay over the money is a new and different contract, the plaintiff need not rely upon the illegal contract to establish his case, but sues upon the new contract to pay over the money. This latter contract the court will enforce, and will not allow the defendant to retain the money because of the illegal ontract in which he had no privity: Merritt v. Millard, 5 Bosw. 645; S. C., 4 Keyes, 208; Tenant v. Elliott, 1 Bos. & P. 3; Farmer v. Russell, 1 Id. 296; see Thomson v. Thomson, 7 Ves. 468; and the principal case. Thus where one agreed to pay another five hundred dollars if he would not bid against him at an auction sale, and gave the money to a third person to take to him, the latter might recover from the third person upon his refusal to pay over the money: Merritt v. Millard, 4 Keyes, 208, citing Hamilton v. Canfield, 2 Hall, 526; Woodworth v. Bennett, 43 N. Y. 273, 276.

Insurance Broker. — In Tenant v. Elliott, 1 Bos. & P. 3, which is the leading case in which this distinction is taken between the illegal contract and the assumpsit of the third person to pay over the money, a broker who effected a policy on goods bound for the East Indies afterwards received from the underwriters the amount of the policy, the goods having been lost. The laws of England provided that all contracts with reference to supplying cargoes to any ship bound to the East Indies should be void, and the courts had held that insurance policies on such cargoes were void. The broker was, however, held to be liable for the amount received by him.

Agents. So, in general, money collected by an agent, or paid to him for his principal, on an illegal contract in which he had no participation, may be recovered: See Hovey v. Storer, 63 Me. 486; Daniels v. Barney, 22 Ind. 207; the principal case. Thus where two steamship companies agree that one shall not oppose the other, the latter agreeing to pay the former a certain sum per trip, and does pay such sum to the former's agent, the agent cannot defend a suit for the recovery of the money on the ground of the invalidity of the contract between the companies: Murray v. Vanderbilt, 39 Barb. 140. So a carrier who takes a package of counterfeit money to deliver C. O. D. is liable to account to the consignor for the money collected from the consignee, if he was not informed of its contents by the consignor: Farmer v. Russell, 1 Bos. & P. 295. An agent who collects usurious interest for his principal is liable to the principal therefor: Chinn v. Chinn, 22 La. Ann. 599. And so where A sues B, who is the agent of C, for money had and received by him to A's use, B having received the insurance money on a policy on goods sold or conveyed by C to A in fraud of C's creditors, B cannot set up this fraud in defense; for the conveyance, as between the parties, is good, and B is a mere agent: Newson v. Douglass, 7 Har. & J. 417; see also Owen v. Dixon, 17 Conn. 492.

Promissory Note. - Where A gives B, for his children, a note, to secure them against his creditors, and F receives the note for collection and delivers the proceeds to G, who pretends to have authority to receive them, G cannot plead the illegality of the note, in an action for money had and received: Fairbanks v. Blakinton, 9 Pick. 93. And in Owen v. Davis, 1 Bail. 315, the plaintiff and defendant were joint winners at cards of a sum of money for which the loser gave his note to the defendant; the latter transferred the note, in payment of a gaming debt of his own, to a third person, who subsequently

received payment from the maker, and it was held that the plaintiff was en titled to recover his share of the sum paid by the maker of the note.

Treasurer of Horse-fair Association was held to be liable to the association in an action for moneys had and received, though the purposes of the associa tion were illegal, the money being received as stock subscriptions, entrance and admission fees, and commissions on pools sold. It does not appear, however, that the defendant in his capacity of treasurer participated in any of the illegal acts: Willson v. Owen, 30 Mich. 474.

Wharfinger. So in Betteley v. Reed, 4 Q. B. 511, the defendant, a wharfinger, received malt from and for B, and B, to cover a usurious transaction, made a colorable sale of the malt to plaintiff, the defendant transferring the malt on his books to the plaintiff. Afterwards B became bankrupt, and his assignees sued the plaintiff in trover for the malt. Pending the dispute, plaintiff, defendant, and the assignees agreed that the malt should be sold, and the proceeds paid into a bank, except a part which the defendant was to retain on account of a lien which he had against B, but that this transaction should not prejudice the rights of any party. The defendant had no lien against the plaintiff. Afterwards the assignees abandoned the action against the plaintiff, on his giving up part of the proceeds, and the plaintiff then brought assumpsit against the defendant for money had and received, and it was held that he might maintain the action, and that the defendant could not set up the usuri. ous nature of the transaction between B and the plaintiff as invalidating the transfer.

Agent, to Sell Property, cannot defend an action for the proceeds on the ground that his principal obtained the property illegally. As we shall see, the principal cannot recover when the agent participates in the illegal act, for both are then in pari delicto. But the mere selling of property illegally obtained is not a participation in the illegal act of obtaining it. Thus where a contract for the sale and purchase of property has been executed by the delivery of the property to the purchaser, the latter becomes vested with the title to it, at least so far as persons receiving the same from him to sell on commission are concerned. And whether the property was originally obtained by the vendor under an illegal contract or not, does not affect the question of the liability of the consignees to account to the consignor for the moneys received by them upon the sale of the property. The undertaking of the consignees to sell the property for the consignor on commission is upon a new and distinct consideration, having no actual or necessary connection with the original contract. And the consignees are in no wise privy to that contract, nor in a position to question the title of the consignors to the prop erty: Alvord v. Latham, 31 Barb. 294. But see Hardman v. Willcock, 9 Bing. 382, note a (auctioneer), contra, but not authority. One who has sold a horse for another cannot defend an action for the proceeds, on the ground that the principal won the horse at a raffle: Jamieson v. Sherwood, 14 U. C. Q. B. 282. And so an agent who has sold stock in a corporation, chartered contrary to law, cannot set up that fact in an action against him for the proceeds: Bonsfield v. Wilson, 16 Mees. & W. 185.

An agent for the sale of slaves was liable for the money received, though the slaves were illegally imported: Andersons v. Moncrieff, 3 Desaus. Eq. 124. And in Baldwin v. Porter, 46 Vt. 402, it was held that an agent is bound to account to his principal for money received by him in the course of his agency, for goods sold by his principal on orders obtained by him as agent on commission, although the sales, as between the principal and purchaser, be illegal and void. But this case, if authority, is certainly upon the verge; for it is