dissenting:
While there is testimony tending to show that Foote authorized Hooker & Co. to deal in options for him, and on his account, there is not one word of proof tending to show that there ever was, in fact, any dealing in options. The power in that regard was never exercised. Indeed, it is not claimed by counsel for appellee that any options .were in fact ever bought or sold. This, however, is not very material, as I concede, and we all agree, that the contracts which were in fact made were merely gambling contracts, and hence were unlawful, and could not be enforced by law.
The facts of the case as claimed by appellee, and as found by the Appellate Court, are as follows: In and before June, 1876, Hooker & Co., as brokers and agents of Foote, at his request made various time contracts on the board of trade in their own names, on account of Foote, nominally, for the purchase or sale of produce at a given price, at a future day, it being understood at the time that no delivery of the produce was intended, but that the matters were to be adjusted by the payment of differences between the contract price and the market price at the* time named for delivery. In some of these contracts profits were received, and in others losses were incurred, which Hooker & Co. paid for Foote. The losses exceeded the gains to such an extent that in June or July, 1876, Hooker & Co. rendered to Foote their bill for moneys thus paid out for him, and for commissions, amounting to over $22,000. After some dispute about the amount of the commissions, which wras adjusted to Foote’s satisfaction, he paid the bill, partly in cash and partly by the sale and delivery to them of certain promissory notes, and on each of which Foote indorsed his guaranty of payment at maturity. These notes were each made by the trustees of the Couch estate, payable to Foote at a future day, and for the sum of $5000. Hooker & Co., having sold all these notes except one, and afterwards failing in business, made a general assignment to Pearce, for the benefit of their creditors, of all their property and effects, and among other things this one note thus passed to Pearce. Foote, after demand made, brought an ordinary action of trover against Pearce for the value of this note. In other words, Hooker & Co., as the brokers and agents of Foote, at his request and in his behalf, made unlawful wagers on the board of trade, and suffered losses, and at his request Hooker & Co. paid these losses. In consideration of this payment of money for Foote, and of the commissions charged by them for transacting this unlawful business for Foote, and for no other consideration, Foote sold and delivered this note, and others of the same kind, to Hooker & Co., and indorsed on each of them his personal guaranty of payment at maturity. Hooker & Co. afterwards assigned this note to Pearce for the benefit of their creditors.
The only question presented by this record is, can Foote, in this state of affairs, because of the illegality of the consideration, rescind his action, retract his transfer and delivery of this note in such payment, and in an ordinary common law action of trover recover from Pearce the value of this note ? I think he can not lawfully do so. Undoubtedly, gambling transactions of this character are illegal, and incapable of enforcement in our courts. (See Lyon v. Culbertson, 83 Ill. 33.) By section 131 of the Criminal Code, all notes or securities are declared void which are made where any part of the consideration is any valuable thing won upon a wager on any unknown or contingent event, or made for reimbursing any money lent or advanced at the time and place of such bet, to any person so betting. The bets in this case were made when the time contracts were made. The money advanced by Hooker & Co. w7as not so advanced at the time of such bet, but at a subsequent time. The case does not fall within the latter clause of this section. The bets, however, were upon a contingent and unknown event, and had Foote made and given his note to the winner, promising to pay to him the money won by him, such note would have been void. The bets in this case were in the name of Hooker & Co., on Foote’s account, with the parties with whom they professed to make these time contracts. Foote was the real party betting with such parties. It was he, and not Hooker & Co., who was to win or lose upon the result. As it turned out, the parties with whom Hooker & Co. contracted were the winners, and Foote was the loser, nominally, Hooker & Co. were losers, but in reality Foote was the loser on these bets. Surely Hooker & Co. were not winners, even nominally, or in any sense.
Were this an action by Hooker & Co. to recover their demand for advances and commissions, or upon a note given to them by Foote for that consideration, it is plain they could not recover, because the action would be founded upon illegality. At common law, where a contract is founded upon an illegal consideration, it can not be enforced by either party by the aid of any court, in case the parties are in pari delicto. “In pari delicto potior est conditio defendentis et possidentis.” (Smith v. Broadley, 2 Doug. 696; Binnington v. Wallis, 4 Barn. & Ald. 650; Cowan v. Milburn, L. R. 2 Exch. 230.) Another maxim is, “Ex turpi causa non oritur actio.” But where contracts founded upon illegal consideration have been performed, the common law will not aid either party to place himself in statu quo by his rescinding the contract. In such case, the parties being in pari delicto, the law leaves them where it finds them, giving aid to neither. Mosher v. Griffin, 51 Ill. 184; Nellis v. Clark, 20 Wend. 24; Goudy v. Gebhart, 1 Ohio St. 266; Knowlton v. Congress Springs Co. 57 N. Y. 258; Hoover v. Pearce, 26 Miss. 627; McWilliams v. Phillips, 51 id. 196. Nor can any money or valuable thing which has been advanced in pursuance of such contract, be recovered back, at common law. Hanson v. Hancock, 8 T. R. 575 ; McClosky v. Gordon, 26 Miss. 260; Bouton v. Bouton, 4 Rich. (S. C.) 491; Thomas v. Richland, 12 Wall. 349; Setter v. Alvey, 15 Kan. 157; Adams v. Barrett, 5 Ga. 404; Babcock V. Thomson, 3 Pick. 446; Gill v. Webb, 4 T. B. Mon. 249; Welch v. Cutler, 44 N. H. 561; Danforth v. Evans, 14 Vt. 538; McCullum v. Gourley, 8 Johns. 147; Hudsforth v. Wilson, 2 Dev. (N. C. L.) 372. In fact, no exceptions are found to these rules where the principles of the common law control.
I can not appreciate, or recognize as sound, the suggestion that there is and cari he no such thing as agency in the perpetration of crimes and misdemeanors, or in the doing of unlawful acts. The mere fact that by our Criminal Code he who has advised or directed another to commit an offence is punished as though he had committed the sEtme in person, does not, so far as I can conceive, militate against the idea that the real actor is, in that regard, the agent of the other.
Where statutes have invaded or intrenched upon the rules of the common law stated above, the modification of these rules has always, so far as I can learn, been closely confined by the courts to the cases designated in the statute. And so in Indiana, where a statute of that State declared void all bonds and other securities where any part of the consideration should be for money or property won upon any wager, and that if any person should lose and deliver to another any money or property upon a wager upon any game, the person so losing and delivering might recover the money or thing so lost and delivered, by action of debt, it was held, in a case where two yards of broadcloth was lost and delivered, upon a wager on the result of the presidential election, that the loser could not recover for the same against the winner, and this upon the ground that the wager in question was not upon a game. The court said, in substance, that if the goods had not been delivered the winner could not have recovered the same, because the wager was unlawful; but the goods having been delivered, although upon an unlawful wager, the same could not be recovered by action, unless it be so provided by statute, and that the case did .not fall within the statute in that regard, because the wager was not upon any game. And the court cite, with approbation, the words of Lord Eldon, in Hanson v. Hancock, supra, that “there is no case to be found where money has been actually paid upon an illegal contract,—both parties being particeps criminis,—where an action has been maintained to recover it back again. ” Unless, therefore, in the case at bar the action can be sustained by some provision of the statute, of Illinois, it can not be sustained at all.
The consideration for the sale of the notes by Foote to Hooker was undoubtedly illegal, being services rendered and
money paid out in an unlawful enterprise; and on the same consideration rested the guaranty indorsed by Foote upon each of these notes. Foote and Hooker & Co. were in pari delicto, so far as the gambling is involved. It was therefore held in Tenney et al. v. Foote, 95 Ill. 99, (and properly held,) that no action would lie upon the guaranty of payment by Foote indorsed upon one of these four notes so sold by him to Hooker & Co. in this very transaction, and by them assigned to Tenney and others. Counsel for appellee seems to regard that decision as sustaining a right of action in the case at bar. This is clearly a misapprehension. Where parties are equally guilty of the illegality which taints a contract,—as Hooker & Co. and Foote were in this case,—the law, unless the statute so enacts, will give no aid in enforcing a contract which has not been executed,—such as was the guaranty of Foote upon these notes. Nor will it, where the contract has been executed, as by payment made by the delivery of the notes in this ease, give aid in putting the party in statu quo, by rescinding the sale and delivery of the notes. I do not understand that the decision in Tenney et al. v. Foote goes to the length of holding the fact of delivery of the note in payment to Hooker & Co., as was done, to be a void fact. It is not so stated in the opinion, and the only question in that case was upon the validity of the guaranty of Foote. That • guaranty, founded upon an illegal consideration, wre have seen could not be the basis of an action, and so it was there held.
It remains to inquire whether any statute of this State sustains this action. Eeliance is placed upon section 132 of the Criminal Code as supporting this action. That section, rejecting verbiage which can by no possibility apply to this case, provides: “Any person who shall, * * ’ by any wager or bet upon any * * * contingent event, lose to any person so * * * betting, any sum of money or other valuable thing, (amounting in the whole to the sum of $10,) and shall pay or deliver the same, or any part thereof, the person so losing and paying or delivering the same shall be at liberty to sue for and recover the money or other valuable thing so lost and paid or delivered, or any part thereof, or the full value of the same, by action of * * * trover, or proceeding in chancery, from the winner thereof, with costs, in any court of competent jurisdiction. In any such action at law it shall be sufficient for the plaintiff to declare, generally, as in actions of * * * trover, upon a supposed finding and the detaining or converting the property of the plaintiff to the use of the defendant, whereby an action hath accrued to the plaintiff according to the form of this act, without setting forth the special matter. ” And in case of failure in the loser to so prosecute within six months, “it shall be lawful for any person to sue for and recover treble the value of the money * * * and other things, with costs of suit, by special action bn the case against such winner aforesaid, one-half to the use of the county and the other to the person suing. ”
It is plain this action is not brought under that section of the statute. The declaration is a common declaration in trover at common law. It does not set forth any special matter to bring the case within the statute, nor does it, in lieu thereof, as permitted by the statute, use the words “whereby an action hath accrued to the plaintiff according to the form of” the statute in section 132 of the Criminal Code, nor does the declaration use any words indicating that the action is brought at all under the statute. In such case the statute can not be invoked in support of the action. Again, had the declaration stated that the action was brought under the statute, the case made by the facts is not the case provided for in this section of the statute. That section invades the common law, so as to permit the loser of property or money on a» wager, where it has been delivered or paid, by action at law, to recover back the same from the toinner to whom it has been paid or delivered, and it gives no action against any one except against the winner on the wager. I can not perceive how Hooker & Co. can in any rational sense be said to be winners. They made gaming contracts (for Foote) with other parties, and on these gaming contracts these other parties won. If Hooker & Co. are to be regarded as principals in these gaming contracts, then they were the losers, not winners. When, therefore, Foote paid to them their losses, by selling and delivering to them this note, he paid it to losers, and not to winners. This section of the statute does not say the title to property so paid out shall not pass by delivery. It simply gives a statutory action by the loser against the winner, and against no one else. Even if Hooker & Co. could be held to be winners, the statute does not give an action against an innocent assignee of the winner, who has received of the winner the money or thing won upon the wager. . Pearce can not be said to be a winner. He took no part in the wager. He has done no unlawful act. There was no wager between Foote and Pearce, wherein Foote lost to Pearce any money or other valuable thing. Even had the statute given action against an assignee of the winner, still this case would not fall within the statute, for there was no wager between Foote and Hooker & Co., the assignors of Pearce, on which Foote lost to Hooker & Co. any money or valuable thing. The statutory liability imposed upon the winner was intended as a punishment upon the guilty winner. Pearce was not guilty of gambling, and was not a winner. He not only was not a winner, but was entirely innocent of the gambling, and knew not of any fact pertaining thereto until the. trial of this cause. The controversy here is, in fact, between Foote on the one side, who was guilty óf gambling, and the creditors of Hooker & Co. on the other, who are represented here by Pearce. I do not think there is in this case anything calling upon us to extend, by construction, a penal statute so as to aid and abet one of the guilty parties to prevail against the honest and innocent creditors of Foote’s associates in violating the law.
I think the judgment against Pearce ought to be reversed.