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pany," and in its constitution recited its object to be the corporation. In the constitution of the present mutual benefit and relief in case of death as herein- society it is true that no guarantee bond of $100,000 is after set forth. The affairs of the company were provided for, but by reference to article 15 of the byintrusted to a board of directors, and its officers were laws it will be seen that a similar fund, though called a president, secretary, treasurer, etc. The funds of by a different name, is provided for. That article is as the company were raised by adinission fees of mem- follows: “ Article 15. The entrance or initiation fee bers and assessments, as prescribed in the by-laws. shall belong to and be invested as a permanent fund, The rate of fees was fixed according to certain enu- each of the classes being kept separate on the books of merated classes, and those who paid the largest pre- the society; provided that the board of trustees are miums were entitled to a proportionate increase of authorized to employ, from time to time, as they in dividends. In the case we have under consideration their discretion may deem best, one or more persons the title of the corporation is “Merchants' Exchange to act as solicitors for the purpose of obtaining memMutual Benevolent Society of St. Louis," the words bers to this society, and to pay such solicitor for his “mutual benefit” being exchanged for “mutual services out of the permanent fund, not to exceed the benevolent.” The object stated in the constitution sum of $1 for each member so obtained. The interest of the society is: “To give financial aid to the widows on the permanent fund, with the amount assessed and children of deceased members, or to such uses and against each member on the death of a fellow-member, purposes as such member shall by his last will and tes- together with all gifts or income received by the socitament direct." The election of nine trustees was ety, shall be placed to the credit of the contingent provided for, and appointment of the necessary offi- fund and used for advances for members, in anticipatcers, of president, secretary and treasurer. The funds ing their dues on the death of a fellow-member, dewere raised by initiation fees, and classes were arranged fraying the current expenses of the society, as may be as in the Connecticut charter; in short, it is impossible directed by the board of trustees; but if at any time to see any material difference in the two schemes. The the contingent fund shall exceed the wants of the opinion of the court was that the corporation or asso- society for the purpose named, the trustees shall order ciation was an insurance company, and came within the same to be invested in bonds." the meaning of the Massachusetts statute. I am not This opinion of the Supreme Court of Massachusetts, satisfied that I could express the views of this court if it be a sound one, would seem to be quite conclusive on the first point in the present case in a more con- on the first point discussed in this case, but as the densed, comprehensive or pointed form than will be opposite view has been maintained with much confidone by simply employing the language of the Massa- dence in the argument of counsel for the defendant, it chusetts Supreme Court: “The contract made between may be proper to show by the decisions of other courts the Connecticut Mutual Benefit Company," says Judge that it has been generally acquiesced iu, indeed, I may Gray, who delivered the opinion of the court, "aud say, uniformly adopted where there were no legislative each of its members, by the certificates of member- enactments requiring a contrary construction. The ship issued according to its charter, does not differ in case of Schunck v. Gegenseitiger, Wittwen und Waisen any essential particular of form or substance from an Fond, 44 Wis. 370, is merely an assumption on the part ordinary policy of life insurauce. The subject in- of counsel on both sides, in which the court coucursured is the life of the member. The risk insured is red, that the corporation defendant was a mutual death from any cause pot excepted in the terms of the insurance company. The name as translated from the contract. The assured pays a sum fixed by the direct- German was the Mutual Widows and Orphans' Fuud. ors, and not exceeding $10 at the inception of the con- It was a corporation organized and acting by the autract, and assessments of $2 each annually, and of $1 thority of the Grand Lodge of the United Ancient each upon the death of any member of the division to Order of Druids. The grand lodge consisted of reprewhich he belongs, during the continuance of the risk. sentatives from the several groves, which, together In case of the death of the assured by a peril insured with the association, were under the jurisdiction of against, the company absolutely promises to pay to his the grand lodge, and the court declared that the derepresentatives, in sixty days after receiving satisfac- fendant " was obviously organized to secure the ends tory notice and proof of his death, as many dollars as or serve the purposes of a mutual life insurance comthere are members in the same division, the number pany.” The description given by the court of the of which is limited to 5,000. The payment of this sum character and operations of this company, with unimis subject to no contingency but the insolvency of the portant changes as to details, would apply to the corcorporation. The means of paying it are derived from poration defendant here. “Among the provisions of the assessments collected upon his death from other the constitution and by-laws adopted for its managemembers, from the money received upon issuing other ment,” says Cole, J., “is one which provides that, on certificates of membership, which the by-laws declare the death of a member in good standing, there shall may, after payment of expenses, be used to cover losses be paid to his surviving widow or heirs the sum of $800 caused by the delinquencies of members, and from the as life insurance. The funds under the control of the guaranty fund of $100,000, established by the corpora- defendaut are made up chiefly of dues paid by memtion under its charter. This is not the less a contract bers on admission into the order, and assessments of mutual insurance upon the life of the assured be- levied upon and paid by the members on the death of cause the amount to be paid by the corporation is not a brother. The managing authority of the defendant a gross sum, but a sum graduated by the number of is termed a directory, which is chosen by the groves members holding similar contracts, nor because a por- from their members, each grove that has not more tion of the premiums is to be paid upon the uncertain than seventy-five members being entitled to one memperiods of the deaths of such members, nor because in ber in the directory and to an additional member for case of non-payment of assessments by any member, each additional seventy-five or fraction exceeding onethe contract provides no means of enforcing payment half that number. This directory conducts the whole thereof, but merely declares tho contract to be at an management of the defendant, fixes the amount of the end, and all moneys previously paid by the assured, assessment to be paid by the members on notice of and all dividends and credits accrued to him to be for- the death of a brother, issues through its correspondfeited to the company.” 105 Mass. 149.
ing secretary to all the groves a demand of payment The fact offered to be proved by the defendant, that of such assessments, and also determines whether the the object of the organization was benevolent, and not claims of the survivors of the deceased are just. speculative, has no bearing upon the nature and effect Every member of a grove is obliged to contribute to of the business conducted and the contract made by the fund by paying his admission fee and assessments, and is entitled to participate in its benefits. The ad- required, nor to any schemes where the object was not mission fees and assessments are paid by the members to raise public revenue, the court, with only a single to their respective groves, the groves paying over all dissenting voice among the eight judges, did not hesidues to the directory.” The point decided in the case tate to declare the scheme within the constitutional has no connection with the present question under prohibition as well as that of the statute. consideration, but it is an answer to the position taken The case of Commercial League Association of in this case, and somewhat urged in argument that America v. People, 90 Ill. 166, has been referred to as there was no contract provided for by the constitution conflicting with these decisions, but it cannot be so and by-laws of the present society; that the officers considered. That company was conceded to be an inwere merely collecting agents and their performance surance company, but it was held exempt from the of such voluntary duties could not be enforced. The general statutes regulating insurance, because of a court held that the groves were a part of the machin- special exemption in a special statute. We have no ery of the corporation for collecting assessments, and such statute here, but we have statutes which are were as much agents of the corporation as of the mem- claimed to have the same effect, and this leads us to a bers paying, and their neglect to pay over the money consideration of the second point. collected could not affect the representatives of the Assuming the defendant to be a mutual insurance deceased member, but that the corporation was liable, company, it is claimed that our legislation in regard to and judgment was accordingly given against it.
corporations which are termed benevolent associations, In Erdman v. Mutual Insurance Co. of the Order of and especially article 10, contains provisions which exHermans' Sons, of Wisconsin, 44 Wis. 376, the title of pressly exempt the defendant from the provisions of the company sufficiently indicates its character. But the general law in regard to insurance. This point is the machinery for collection and contribution and dis- not without difficulties, arising from the very peculiar tribution seems to have been essentially the same as bistory of our recent legislation. in the case just referred to. In Dietrich v. Madison On the 8th of March, 1879, the following statute was Relief Association, 45 Wis. 79, we have another corpo- passed : “Section 1. That chapter 70 of the General ration of the same class and managed in the same way. Statutes of Missouri, being article 8 of chapter 37 of No question was made as to its being a mutual life in- Wagner's Statutes of Missouri, relating to benevolent, surance company. In a recent case in Kentucky religious and educational associations, is hereby (Kentucky Masonic Ins. Co. v. Miller, 13 Bush, 489), amended by adding the following sections thereto, the same doctrine is recognized without question. to wit: Sec. 14. The associations and societies of the
So in Masons' Benevolent Society v. Winthrop, 85 Ill. character referred to and mentioned in the first section 537, there was no question raised as to the corporation of this act may also include in their corporate powers being an insurance company, but the statement of the the privilege for providing for the relief and aid of the case shows no essential difference between it and the families, widows, orphans or other dependents of their benevolent society which is defendant here. The cove- deceased members, or for assisting such as may be sick nant which was sued on consisted of a promise or or disabled, from the proceeds of assessments upon the agreement by the society to pay to the wife of the de- members of such society or association. Sec. 15. Any ceased member, on satisfactory proof of his death, a such society or association heretofore or hereafter incertain sum of money, depending on the class of which corporated under the provisions of this act may avail he was a member. The court say the organization is a itself of the benefits of the foregoing section by kind of mutual benefit association, managed by a amendment to its constitution or articles of associadirectory, and the expenses and losses of the society tion in the manner prescribed by this act; all such are paid by assessments made upon the members for societies or associations are hereby declared exsuch purposes. The court declares the certificate of empt from the operation of the General Statutes of membership in the nature of a policy of insurance on this State in regard to insurance companies." the life of the member. In Illinois Masons' Benevolent On the 19th of May, 1879, another act was passed, enSociety v. Baldwin, 86 Ill. 479, the corporation was titled an act to provide for the incorporation of benevotreated by the court, without question, so far as it ap- lent, religious, scientific and educational associations, pears, as an insurance company.
and of miscellaneous associations. The first section is A decision of the Court of Appeals in New York, not materially different from the corresponding section affirming one of the Supreme Court, has been referred in the Revised Code of 1865, as found in Wagner's to, though not on the subject of insurance, but to show Digest, page 339. The third section is as follows; how little importance was attached by the judiciary of “Any association formed for benevoleut purposes, inthat State to names or ostensible objects of association cluding any purely charitable society, hospital, asylum, when their organization and real effect was in conflict house of refuge, reformatory and eleemosynary instiwith the Constitution of the State. In the case of tution, any association whose object is to promote Governors of the Alms House, etc., v. American Art temperance or other virtue conducive to the well-being Union, 7 N. Y. 228, the corporation was professedly of the community, and generally any association devoted to the encouragement and promotion of the formed to provide for some good in the order of befine arts, and the works of art purchased were dis- nevolence that is useful to the public, may become a tributed every year among the members by lot. The body corporate and politic under this act, and inciConstitution of the State had this provision: “No lot- dentally such association may provide means wheretery shall hereafter be authorized in this State, and the with to assist its sick or disabled members, or relieve Legislature shall pass laws to prevent the sale of lot- or aid the families, widows, orphans or other dependtery tickets within this State, except,” etc. There was ents of its members who may die, without being also a statute which provided that “no person shall thereby subjected to the operation of the general set up or propose any money, goods or chattels, or statutes of this State relating to life insurance; prothings in action to be raffled for, or to be distributed by vided that nothing herein contained shall be construed lot or chance to any person who shall have paid, or con- to authorize any such association formed hereunder to tracted to pay, any valuable consideration for the insure the life of any member thereof for his own chance of obtaining any such money, goods or things benefit or that of any other person.” The concluding in action." Notwithstanding the ingenious argument section of this act contains the following clause: of Mr. O'Conor that the term “lottery" used in the “Section 14. All acts and parts of acts inconsistent Constitution was not designed to apply to games of with this act are hereby repealed, provided that nothchance, where no skill on the part of the player was ing in this section shall be prejudicial to any existing corporation whatever.” The revisers included both $1. The accused demurred to the indictment, and these acts in the revision, the first as sections 972 and raises here, in support of his demarrer, the single point, 973, and the second as a part of section 974, but omitted that in passing the ordinance in question the common the repealing clause of the last act. They probably council exceeded its powers, and the ordinance so acted upon the opinion that it was not their province passed is inoperative and void. The power of the Legbut that of the courts to determine upon the com- islature to confer authority for such municipal legispatibility of the two acts, and therefore inserted both. lation is not assailed, but the claim that it has actually
Whether the act of the 8th of March would have ex- done so is strenuously denied. empted the corporation defendant in this case from the The argument on behalf of the city is that the power operation of the general statutes concerning insurance to pass such ordinance was incidental to it as a municcompanies, we deem it unnecessary to determine, since ipal corporation, and resulted from its creation as such, the act of the 19th of May, if it did not operate as a without dependence upon particular words; that it repeal of the former act, undoubtedly so modified it was embraced in the powers granted by the Dongan as to exclude the defendant from its operation. The charter of July 22, 1686, and which were reserved to charter of defendant constitutes life insurance the the city by the act of 1842; and was specially conferred main, indeed the only, business of the company. It is by the amended charter of 1870. Laws of 1870, tit. 3, not incidental to some other form of benevolence in $ 12, sub. 14. which aid is extended to bereaved widows or orphans, The last-named act authorizes the common council but as has been shown, practically exhibits benevo- of Albany to enact ordinances, with penalties not exlence in the same way it is promoted by all life insur- ceeding one hundred dollars, in the matters and for ance companies.
the purposes thereinafter named; and among these In plain terms the two acts are irreconcilable, the purposes is one contained in subdivision 14, the lanone aiming to relieve those benevolent associations guage of which is as follows, viz. : “To regulate the from the burdens imposed on mutual insurance com- erection, use and continuance of slaughter-houses." panies; the other designing, and in terms declaring, The counsel for the defendant contends that the power that they are not so exempt. They were obviously thus conferred upon the common council does not jusbrought about by different and opposite interests, and tify the ordinance for the violation of which the prisfrom different and opposite motives. They were framed oner was indicted, and his argument is that the clause diverso intentu. It is unnecessary to cite authority to referred to is a clear recognition of the right to erect, show that the last act must govern, though passed by use, and continue slaughter-houses within the city, the same Legislature and at the same session.
and everywhere and anywhere within its limits; and What was meant by the proviso to the repealing that therefore the authority to regulate them cannot clause of the act of May 19, I confess myself unable to be construed to permit a total prohibition in particuconjecture. It has been suggested that it might apply lar areas or location. to a company organized between the 8th of March and We do not think the reasoning is sound. The statthe 19th of May, but it is unnecessary to determine the ute recognizes the fact that slaughter-houses exist in plausibility of such a conjecture, since the defendant the city, rather than the right to erect them, and rewas not in that condition. Previous to the session of cognizing the fact, gives to the common council the 1879, no such provision in regard to benevolent associa- power to regulate them. The use of the word “regutions as were inserted in the act of March 8 is to be late” in the statute is not confined merely to the manfound in 1 Wag. Stat., title Corporations, art. 8, p. 339. ner in which the business of slaughtering animals is This act is the sole reliance for any claim of exemption, carried on. To regulate implies a power of restriction and being of opinion that the act was repealed or so and restraint, and is applied in the charter not merely essentially modified as to prevent any such effect, a to the use " of slaughter-houses, which would relate judgment of ouster necessarily follows. The other to the manner of conducting the business, but also to judges concur.
their "erection " ou the one hand, and their “continuance" on the other; so that their " erection" in the
first instance, and then the mode and manner of their MUNICIPAL CORPORATION – REGULATION
"use" after they are built, and lastly their "contingOF SLAUGHTER-HOUSES.
ance," are placed under the regulating power of the
municipal authority. It would be a very narrow and NEW YORK COURT OF APPEALS, NOVEMBER, 1880.
technical construction to say that a power to regulate the erection of a slaughter-house is exhausted in pre
scribing the form or material of its erection and has CRONIN V. PEOPLE OF THE STATE OF New YORK. no reference to its locality. And the construction A power conferred upon a city in its charter to "regulate
wholly fails when applied to the "continuance" of the erection, use, and continuance of slaughter-houses "
such a structure, and the business carried on within within the city, includes the power of total prohibition it. How is it possible to regulate its continuance, erwithin specified limits or localities.
cept by limiting and restricting that continuance, which agaiu can only be done by probibiting its con
tinued existence. It is the plain purpose of the statFINCH, J. The plaintiff in error was indicted in ute to give to the common council the right to fix and the Court of Sessions of the county of Albany for determine the limits and localities within which new slaughtering cattle in violation of an ordinance of the slaughter-houses may be erected, and the areas from common council of that city, which forbids such act which they shall be excluded; to direct and control within certain prescribed limits specifically named and the mode and manner of using those so erected, and described, and directs, in the interest of health and those already existing, as they may deem the health cleanliness, the manner of conducting such business in and cleanliness of the city requires; and to prohibit the localities from which it is not excluded. Penalties their continuance whenever and wherever they beare imposed by the ordinance for its violation, which come sources of danger to the health or comfort of the may be recovered in a civil action, or by prosecution community. as for a crimiual offense. The Legislature, in 1871, made The counsel argues that this construction may result such violation of a city ordinance a misdemeanor, pun- in a total prohibition; that if the municipal control ishable by fine or imprisonment, or both, in the dis- can exclude slaughter-houses from the area already cretion of the court. Laws 1871, ch. 536, tit. 15, named in the ordinance, it can steadily increase and
THE opinion states the case.
enlarge such area until the business is driven wholly VACATING JUDGMENT FOUNDED UPON from the city. That does not necessarily follow. It
ILLEGAL CONTRACT. will be soon enough to decide that question when it arises. It is not yet bere. We are not to presume that
PENNSYLVANIA SUPREME COURT, JANUARY, 1880. the common council will abuse the authority intrusted to them, or fail to recognize tbe absolute need of the business to the necessities of the community, while at
BREDIN, Plaintiff in Error, v. DORSEY. the same time they feel their responsibility for the B., in consideration that D. would drop a prosecution for health and comfort of the people. It is enough to say, forgery against M., executed a judgment noto upon for the present, that their action is clearly within the which D. subsequently entered judgment. Held, that authority of the charter.
B. was entitled to have the judgment opened, on the Our attention is called to other paragraphs under
ground of the illegality of the consideration of the note. section 12 as tending to throw light upon the meaning of the word "regulate.” The suggestion is that of Dorsey against Bredin and others, upon a judgwhere authority to prohibit is intended, some ment note, on the ground that the consideration of stronger word than “regulate" is used indicating the the note was the stifling of a prosecution for forgery. severer restriction. The language of legislative enact- Dorsey had procured an indictment against one MCments is not always rigidly precise and accurate, and Cullough, for the forgery of the certificate of a cashier an argument drawn from the use of specific words is of a bank that a check drawu on such bank was good. often dangerous; yet in the present case the terms of Thereafter, and before the indictment was tried, it the subdivisions referred to, favor, rather than oppose, was arranged that the judgment note in question the meaning we attach to the word in question. As a should be given by Bredin and another, who were congeneral rule, with perhaps occasional exceptions, nections by marriage with McCullough, to Dorsey, in through all the paragraphs of the section, where some consideration and upon the condition that Dorsey act or thing is not to be permitted at all, anywhere or should not appear to testify on the trial against Mcin any locality, a more restrictive word than “regu- Cullough, but that he should drop the prosecution and late" is used; as, “to prevent and remove” obstruc- permit a verdict of the petit jury in favor of McCul. tions in the streets. Where the act or thing is such as lough on said indictment. The note was accordingly may be permitted under proper restraint, at conven- executed and delivered, without other consideration, ient times, in suitable localities, the word "regulate and in pursuance of the bargain, when the case was is used; and where the act is one which it may be wise called for trial, Dorsey (though present) did not appear either to permit under appropriate restraints or wholly to testify, and in the absence of testimony for the to prohibit, the two words are used, “to regulate or prosecution, a verdict of not guilty was rendered. prevent;” and where 'a more general and undefined The court below discharged a rule to show cause why power is intended, involving various details, the phrase the judgment should not be opened. The court said: adopted is “ in relation to.” We see nothing, there- “If this was a suit ou a note or bond the defense could fore, in the language of the other subdivisions to be set up, Ex turpi causa non oritur actio. But here change our conclusion, that an ordinance which ex- the defendants are the actors, they apply to open a cludes from a specific place or locality the business of judgment and restrain an execution. In this attempt slaughtering cattle is a regulation of that business, and they are met by the maxims: In pari delicto melior therefore within the power conferred upon the com- est conditio possidentis; and Nemo allegans suam turmon council by the provision under discussion. In- pitudinem audiendus est. There are cases, indeed deed the precise point was long ago adjudged. In (such as attempts to poison the fountains of justice, Village of Buffalo v. Webster, 10 Wend. 100, where a and others), where the public interest demands the similar ordinance was assailed as in restraint of trade, overthrow and exposure of the scheme, that the partithe court held that an ordinance providing "that meat ceps criminis may be used for that purpose. But this shall not be sold in a particular place is good, not being is not such a case, and the agreement being executed, a restraint of the right to sell meat but a regulation of not executory, defendants are without remedy." that right.” The same authority disposes of the ob- “There is no difference in legal effect between a judgjection that the ordinance in question is void as being ment confessed and a judgment ou a verdict of a in restraint of trade, following in that respect still jury. Hopkins v. West, 2 Norris, 109. A judgment is older cases: Bush v. Seabury, 8 Johns. 418; Pierce v. an executed contract. So long as a contract continues Bartram, Cowp. 269; and justifying the principle of executory it may not only be impeached for fraud or the later authorities in which the exercise of such mistake, but any invalidity which would be a defense powers by boards of health has been steadily sustained. at law would in general be ground for cancellation Metropolitan Board of Health v. Heister, 37 N. Y. 662; in equity; as for instance, the illegality of contracts Polinsky v. People, 73 id. 65.
for gaming or smuggling, or aiding prosecution, for If we correctly understand the counsel for the appel-compounding a felony or for paying usury. But a conlant, he also claims that the ordinance is void because tract already executed cannot be set aside as illegal or it punishes the prohibited acts "without pretense, or
immoral, and nothing but fraud or palpable mistake is any form of proof that they were injurious to the well-ground for rescinding an executed conveyance. Nace being of the town, or that prudence required its pass- v. Boyer, 6 Casey, 110. See, also, Hershey v. Weiting, age." The answer is that neither in the ordinance it- 14 Wright, 245; Blystone v. Blijstone, 1 P. F. Smith, self, nor in the indictment founded upon it, is it neces- 375, and Steinbaker v. Wilson, 1 Leg. Gaz. Rep. 76." sary to allege or explain the reasons for its enactment From this decision the defendants below took a writ or the exigency out of which it grew. It is of the na- of error. ture of legislative bodies to judge for themselves, and
John M. Thompson and W. D. Brandon, for plaintiff the fact and the exercise of that judgment is to be im
in error. plied from the law itself. Stuyvesant y. Mayor of N. Y., 7 Cow 606; Martin v. Mott, 12 Wheat. 19; Rector,
John M. Greer, for defendant in error. etc., of Trinity Charch v. Higgins, 4 Rob. 1.
TRUNKEY, J. The maxim, “Nemo allegans suam We do not see, therefore, that any error was com- turpitudinem audiendus est," is good in its use, and the mitted in the court below. The judgment must be authority of a long line of decisions prevents its abuse. affirmed, and the case remanded for the proper sen- In Collins v. Blantern, 2 Wils. 341, a leading case, it tence to the Court of Sessions of the county of Albany. was decided that illegality may be pleaded as a defense to an action on a bond; and so it has been held in Eng- meanors, the compounding of any of which is a misland and this country ever since. Tho bond in that demeanor punishable by fine and imprisonment. Act case was given as an indemnity for a note entered into March 31, 1860, $ 10, P. L. 387. Under section 9 of the by the obligee for the purpose of inducing a prosecutor Criminal Procedure Act of 1860 (P. L. 432), no magis. of an indictment for perjury to withhold his evidence. trate or court can lawfully permit a settlement of a After speaking of the transaction as one to gild over prosecution for forgery on satisfaction being made to and conceal the truth, the court said: “This is an the party complaining; for infamous crimes are exagreement to stifle a prosecution for willful and cor- cepted from its operation. The Legislature committed rupt perjury, a crime most detrimental to the Com- no such inconsistency as enacting two acts of the same monwealth; for it is the duty of every man to prose- date, one of which prohibits the settlement of forgery cute, appear against and bring offenders of this sort to under a severe penalty, and the other authorizing it, it justice." * * “This is a contract to tempt a man the complaining party acknowledges satisfaction. to transgress the law, to do that which was injurious Cheats by false pretenses are among the cases authorto the community; it is void by the common law, and ized to be settled by the 9th section of the Criminal the reason why the common law says such contracts Procedure Act, and therefore Steinbacher v. Wilson & are void is for the public good.” Had the defendant | Young, 1 Leg. Gaz. Rep. 76, has no application to the not been heard the court would have known nothing question now pending. And the settlement of cases of the facts, they were not set out in the bond, the within that section is not touched by the principles plaintiff was not compelled to show them in making applicable to the compounding of an infamous crime. out his case, and on the face of the bond he was enti- Dorsey charged McCullough with forgery, and contled to recover; all that which proved it a void con- ducted the prosecution to his indictment and acquite tract was shown by the defendant. So in the late case tal. After the indictment, and before the acquittal, a of Ham et al. v. Smith, 6 Norris, 63, the corrupt, im- bargain was struck, the judgment note given, Dorsey's moral and forbidden contract appeared in the proofs claim against McCullough satisfied, and Dorsey was adduced by the defendant; the plaintiff made his case not to appear and testify in the forgery case. He saw by showing the note, the fair-looking fruit of the ille- the Commonwealth fail, for he did not answer to tesgal bargain. Notwithstanding the maxim, it has been tify, though present. It cannot be doubted that the settled that where a contract or deed is made for an abandonment of the prosecution and failure to testify illegal purpose, a defendant against whom it is sought entered into the agreement. The note was given for to be enforced may show the turpitude of both him- the debt and for the acquittal, and if any part of an self and the plaintiff, and a court of justice will de- indivisible promise, or of an indivisible consideration cline its aid to enforce a contract thus wrongfully for a promise, is illegal, the whole is void. Filson v. entered into. The principle depends on the public Himes, 5 Barr, 452. good, not on the merit of the defendant, whose hand Agreements founded upon the suppression of crimiis as foul as the plaintiff's. Public policy requires that nal prosecutions are void; they bare a manifest tenhe be heard, and if the contract be void, his relief is dency to subvert public justice. 1 Story's Eq., & 294. it an incident. Suan v. Scott, 11 S. & R. 155, is no ex- is the nature of the crime, not so much whether it be ception. There the suit was on a bond, given in satis- | felony or misdemeanor, which is to be considered. faction of an award of arbitrators which had become Many felonies are not so enormous as some misdea judgment; and the defendant proposed to go behind meanors. The law recognizes this in their punishment; the judgment and show the illegal contract on which for instance, the maximum of imprisonment for ove the award was obtained; held that he could not, and convicted of forgery is ten years, of larceny three. Duncan, J., remarked: “The test, whether a demand Stifling a prosecution for forgery, though an offense of connected with the illegal transaction is capable of the same grade as compounding divers felonies, seems being enforced at law, is whether the plaintiff requires to be a graver offense than compounding some felonies. the aid of the illegal transaction to establish his case." It comes within the rule, that where the welfare of It is manifest the judgment was conclusive, though society and the vindication of the law are the chief obtained in a suit on an illegal contract, and the re- objects, the defendant may givo in evidence the illemark strictly fitted the facts in that case, without in- gality of the contract as a bar to a suit to enforce it, fringing on the rule. Wherever that test has been and this to prevent evil which would be produced by quoted and applied, it will be found there was a good enforcing the contract or allowing it to stand. consideration for the contract in suit, before reaching Shall these objects be thwarted, and the evil follow back to the alleged illegal one.
which the law designs to prevent, because of a judgWhere the public is not interested, the maxim has ment confessed by virtue of a warrant which is but a its full force, and the law leaves the parties as they part of the criminal transaction? placed themselves. Obligors in an instrument under It was said by the present chief justice, in Hopkins seal, made for the purpose of defrauding the obligee's v. West, 2 Norris, 109: "There is no difference in legal wife, cannot shield themselves by alleging their own effect between a judgment confessed or for want of fraud; for this does not belong to the class of contracts appearance or plea, and a judgment on the verdict of forbidden by statute or public policy. Evans y. Dravo, a jury. The court in which the judgment is rendered 12 Har. 63; Hendrickson v. Evans, 1 Cas. 441. On like will indeed open one of the former kind, and let the principle voluntary conveyances and contracts, made defendaut in to a defense in a proper case, and upon to defraud creditors, though void as to them, are good equitable terms." In Pennsylvania it has always been and binding between the immediate parties. These the right of a defendant in a judgment confessed by are voided by the statute of 13 Elizabeth, for the benefit virtue of a warrant of attorney to petition that it be of creditors, but not as to the parties. Hershey v. opened for cause. This right was so well respected by Weiting, 14 Wright, 240; Blystone v. Blystone, 1 P. F. the courts that there was no occasion for legislation S. 373. “That a collusive contract binds the parties to providing for appeal from refusal to open till a recent it, is a principle which commends itself no less to the date. The entry of judgment, either by attorneys or moralist than to the jurist; for no dictate of duty prothonotaries on judgment notes is very common. calls on a judge to extricate a rogue from his own These, though having the same effect as if on the vertoils." Stewart v. Kearney. 6 Watts, 453. In all such dict of a jury, while they stand, in fact never waire cases the actor is met by the maxim, “In pari delicto the results of adjudication. melior est conditio possidentis."
To hold that such a judgment, entered on an imForgery, or the crimen falsi, is an infamous offense. moral and illegal obligation, part of a transaction sube It is classed with other infamous felonies and misde- versive of public interest, shall be deemed an executed