force such contracts because they are levelled at the safety and repose of society. If money is paid upon such a contract, the courts will not aid in recovering it back. They will leave both parties in the exact position in which they have placed themselves.'” Question 117: (1) State the facts in the above case and the rule applied. (2) A desired to open up a place of business as a pool room and for bookmaking purposes. The object of his business was forbidden by ordinance, but the public authorities in violation of such ordinance were accustomed to grant licenses. A paid. $500 for such a license for one year, which was granted him. He then began the illegal business. The authorities thereupon closed it up. He sues to recover the money. Can he recover? Why? (3) A being desirous of procuring the office of clerk of a police court sent $20 to B asking B in consideration thereof to use his influence to get A nominated. B used the money to defeat A's nomination. A sues to recover the money. What result? (Liness v. Hesing, 44 Ill. 113.) § 104. (Contracts, Sec. 72.) Exception. Parties not in equal guilt. Case 118. Duval v. Wellman, 124 N. Y. 156. Facts: Plaintiff sues as assignee of Mrs. E. Guion, a widow, "who in her search for a husband sought the advice and aid of the defendant, who was the owner and publisher of a matrimonial journal called 'The New York Cupid' and the proprietor of a matrimonial bureau in New York City." Mrs. Guion testified that she paid defendant $5.00 as a registration fee and later $50 under an agreement that it was to be returned to her if no husband were found, but that $50 additional was to be paid if she married any gentleman introduced by defendant. Later, Mrs. Guion, finding no one satisfactory among those introduced to her demanded back her $50, which was refused. Suit to recover such $50. Point Involved: If a person enters into an illegal agreement with another person who is the more blame worthy of the two by reason. of his imposition upon, or undue influence over the first party, or by reason of his greater guilt in violating public policy, will the court assist the first party to withdraw from the contract? 66* BROWN, J.: The five learned judges who have delivered opinions in the case have agreed that the contract between the parties was void, and this conclusion appears to be ably supported by authority. 66* * The defendant has, however, succeeded in the lower court on the application of the rule that a court will not lend its aid to either of the parties to an illegal or fraudulent contract, either by enforcing its execution. if it be executory, or by rescinding it, if it be executed. "Public policy has dictated the adoption of this rule, but it has its limitations, and when the parties are not equally guilty, or when the public interest is advanced by allowing the more excusable of the two to sue for relief, the courts will aid the injured party by setting aside the contract and restoring him, so far as possible to his original position. (1 Pomeroy's Equity, sec. 403; 1 Story's Equity, sec. 300.) 66# * In many such cases relief from the contract will be afforded to the least guilty party when he appears to have acted under circumstances of imposition, hardship, or undue influence, and especially where there is a necessity of supporting public interests or a well settled policy of the law, whether that policy be declared in the statutes of the state or be the outgrowth of the decision of the courts. * Accordingly many cases may be cited where relief has been granted from contracts which partook of the character of marriage brokerage agreements. The cases are collected in Pomeroy's Equity Jurisprudence, in a note to section 931; in Fonblanques Eq. (B. I., ch. 4, Par. 10, 11), and Bacon's Abridgment, Title Marg. and Divrs. (541 et seq.), and need not be cited here. "In two of the cases referred to, money paid under the contract was recovered back. (Smith v. Bruning, 2 Vern. 392; Goldsmith v. Bruning, 1 Eq. Cases Abr. 89.) "The question in this and kindred cases, therefore, must always be whether the parties are equal in guilt. Obviously cases might arise where this would clearly appear and where the court would be justified in so holding as a matter of law, as where there was an agreement between two, having for its purpose the marriage of one to a third party, the parties would be so clearly in pari delicto that the courts would not aid the one who had paid money to the other in the promotion of the common purpose, to recover it back. Such a case would partake of the character of a conspiracy to defraud. So if two parties entered into a partnership to carry on such a business as defendant conducted, the courts would not lend their aid to either to enforce the agreement between them. "But where a party carries on a business of promoting marriage as the defendant appears to have done, it is plain to be seen that the natural tendency of such business is immoral and it would be so clearly the policy of the law to suppress it and public interest would be so greatly promoted by its suppression, that there would be no hesitation upon the part of the courts to aid the party who had patronized such a business by relieving him or her from all contracts made, and grant restitution of any money paid or property transferred. In that way only could the policy of the law be enforced and public interests promoted. "Contracts of this sort are considered as fraudulent in their character and parties who pay money for the purpose of procuring a husband or wife will be regarded as under a species of imposition or undue influence. "The subject is classed by all text writers under the head of constructive or implied fraud, and it is upon the application of rules which belong to that branch of the law that the cases have been decided to which I have referred. "We are of opinion, therefore, that it was error to hold as a legal conclusion that the parties to the contract in question were equal in guilt." Question 118: What was the contract in Case 118? For what purpose was the suit brought? Why did the court not enforce the rule that it will not give relief to a party in an illegal contract? § 105. (Contracts, Sec. 73.) Exception: Defendant's contract wholly executory. Case 119. Johnson v. Russell, 37 Cal. 670. "If the parties to an illegal wager repent and desire to withdraw before the wager has been decided, let them be encouraged to do so by allowing them to recover their stakes from each other, or from the stakeholder, if one has been employed. In times of political excitement persons may be provoked to make wagers which they may regret in their cooler moments. No obstacle should be thrown in the way of their repentance, and if they retract before the bet has been decided, their money ought to be returned to them. But persons who allow their stakes to remain until after the bet has been decided, and the result has become generally known, are entitled to no such consideration. Their tears, if any, are not repentant tears, but such as crocodiles shed over the victims they are about to devour. To allow them to recover is not to reward repentance-not to promote the public good; for as to that, the mischief has already been done, but to reward hypocrisy and promote the private interests of such as are found willing to violate not only the law of the land, but the law of honor also. After the money has been lost and won, and the result generally known, neither party ought to be heard in a Court of Justice. "The judgment is affirmed." Question 119: What exception to the general rule did the court make in this case? Why? (Note: "Where money has been paid or goods have been delivered in part performance of an illegal agreement, the money or payment for the goods may be recovered so long as the illegal part of the agreement is wholly unexecuted, unless the whole agreement involves serious moral turpitude." Williston on Contracts, Sec. 1788. This exception does not appear to have been definitely worked out and there might be a considerable difference of opinion as to whether given cases fall within the rule or within the exception.) § 106. (Contracts, Sec. 74.) Exception: Where statute allows rescission. Case 120. Rice v. Winslow, 182 Mass. 273. Facts: Suit brought to declare void a negotiable promissory note and a mortgage given in security thereof. There was a statute in Massachusetts giving a party a right to avoid his contracts and recover back any money paid or property parted with, in gambling transactions. Point Involved: The right to rescind contracts of an illegal nature where the statute so provides. * MORTON, J.: * ** were clearly wagering contracts, and, as such, illegal. and prior to the passage of statute 1890, Ch. 437, the plaintiff would not have been entitled to recover any sums paid by him in the course of their performance, or to have any security that he had given declared void. But the object of that statute was to discredit and discourage such transactions by giving the losing party the right to avoid his contracts and to recover back any payment made or the value of anything delivered. * * * Question 120: What relief was asked in Case 120? Would it have been allowed had there been no statute? § 107. Where contract partly legal, partly illegal. Case 121. Bixby v. Moore, 51 New Hampshire, 402. Facts: Moore kept a saloon in which he illegally sold liquors. He also in connection therewith operated a billiard hall legally. He employed Bixby to render serv |