If the illegality of a transaction brought to the notice of the Court, whether the contract ex fade shows illegality, or it appears in the course of the proceedings, and the person Invoking the ald of the Court is himself "implicated in the illegality, the Court will not generally assist him, even if the defendant has not pleaded the illegality and does not wish to raise that objection Hailsham, 148), This principle has been extended to a contract which merely void under the. Gaming Acts (Luckett v. Wood, 1908, 24 TLR. 270). Where the object of a contract is illegal the whole transaction is tainted with illegality, and tne right of motion exists in of anything arising out of the trans action. In such a case the maxim in pari deticto, patier est condition defendentis applies. Money paid in pursuance of an itiegal contract can be recovered from the other party 50 long as the contract remains executory, provided that notice. is sivan repudiating the contract~ before the action 1s brought. Tf, hows over, the contract has been substan [tially performed, money pald under the contract can no longer be recovered, except where it appears that the. parties were not in' part delicto, for Instance where the on-tract is made illegal by statute with the object of protecting a particular class of persons to which the plain:
belongs (7 Hailsham, 176).
Browning". Morris (i718), which was an action brought by one lottery office keeper against another to recover money paid" upon Megat transaction or contract, Lord Mansfield LCJ, said: "The tule is pari delicto potter est condition. defendentis. Where the contract. is executed and the money paid. 4 part delicto this rule certainly holds and the party, who has polit can. not recover ok." For instance in "bribery, if a man pays a sum of Toney by way of a bribe, he can Never recover it in an action; be: cause both plaintiff and defendant fare equally "criminal, But where contracts or transactions are pro hibited by positive statutes for the sake of protecting one set of men from another set of men; the one, from.their situation and condition, deler; and' in furtherance. of these Parties are not en pari Mag WY the other
statutes, the person injured, after ihe transaction is frushed and complet may bring his action and defeat the contract"" And In Kearley v. Thoms, son, (24 QBD, 142) Lord dusilee Fry Jala the law down thus: "As a: gen. eral rule, where the plaintitt cannot get at the money which he secke fo recover "without. showing the legal contract, he cannot succeed, such a case the usual rile potlor est condite possidentis The Seneral rule applicable to. such a case is laid down in the very' doby orate Judgment in Cotiins v. Blantera 'To that rule there are undoubt tedly "severot exceptions, or appar. ent exceptions, One of those 'e the case of oppressor and oppressed, in Which case usually the oppressed Party' muy" recover' the money back from the oppressor. "Again, there are ther legalities which arise. where 2 statute has been Intended to" prot fect a class of persons, and ihe person seeking 10 recover is. a member of the protected class, "Instances of that description are familiar in the ease of contracts void for usury under the old' statutes, and other Instances are to be found in the books under other statutes, which are, T believe, now repealed, such os those directed against lot, tery Keepers. In these cases of Sppressor and oppressed, or of 'a class protected by statute, the one may Tecover from the other not. withstanding that both" have. been Parlies to the Ilegel contract'. Both these cocos were cited with approval
Text read from the printed page and cleaned; old type leaves the occasional error.