(dissenting). The plaintiff agreed with Boatright that for 20 per cent, of their winnings he would wager Boatright’s money on a falce foot race, which Boatright agreed to make certain to result in their favor, so that they could thereby defraud the miners who bet against them out of their money. The plaintiff wagered large sums of money which he knew Boatright fraudulently furnished to him from the stakes and some of his own money in the 'performance of this corrupt agreement. Boatright broke his contract, and fixed the race against him. The plaintiff made and performed his part of his illegal contract to defraud others. He participated in the betting for this purpose. His intent and his acts were no less criminal and fatal to his case because they proved abortive. Rex v. De Berranger, 3 M. & S. 72.
The result of the opinion of the majority is that the plaintiff may recover because the gambling was fraudulent, because while the plaintiff was performing his agreement to cheat others by the fraudulent device of inducing them to bet upon the fake foot race they were engaged in a like endeavor to defraud him by the same device; an endeavor in which they succeeded while he failed. It is that one who is defrauded in gaming while he is engaged in an endeavor to defraud others thereby may recover the losses he sustains. The argument is that the plaintiff was induced by fraud to make his corrupt agreement, and to perform his part of it by betting upon a fraudulent race, and that he was not gaming because the result was certain. But the same argument holds good In every case of foul play, because in every such case the losing gambler is induced to bet upon a sure thing by the fraudulent representation that the play will be fair. If this argument be sound, and if the conclusion in this case illustrates the true rule, every gambler may recover in the courts the losses he sustains upon fixed races, marked cards, or foul plays upon the ground that in such cases there is no uncertainty in the result, while in cases in which the races and plays are fair he is remediless; and henceforth the courts must, as Judge Sherwood said in Kitchen v. Greenabaum, 61 Mo. 115, “sit as the *337arbiters of the gaming table and the umpires of the prize ring,” for they must hear the evidence upon and determine the issue in every losing gambler's case, whether the race or play was foul or fair, and give judgment for or against him accordingly. A rule and practice of this nature runs counter to my views of the law, to those of more eminent judges who have preceded me, and to the established rule that no cause of action lies for fraud which induces, or damage which results from, a contract or transaction which involves the moral turpitude of the plaintiff, or his violation of a general law of public policy.
In Babcock v. Thompson, 20 Mass. 446, 449, 15 Am. Dec. 235, this very question was considered and determined by the Supreme Court of Massachusetts. The plaintiff brought: an action to recover from the defendant money lost in gaming by foul play. The court said, by the mouth of Chief Justice Parker:
“Here is a case of gaming accompanied with cheating. Clearly, if the gaming had been fair, the law would give no remedy. The only question then is, whether the fraud will alter the case. We think it will not. If a man thus voluntarily puts himself in a condition to be cheated, through his illegal act he cheats the government, and the other person cheats him, and they must be left to settle the affair between themselves.”
In Abbe v. Marr, 14 Cal. 210, 212, the exact case before us was presented to Ihe Supreme Court of California, which was then composed of Chief justice Field, afterwards Mr. justice Field of the Supreme Court, and Judges Baldwin and Cope. The members of a gang of swindlers, by false representations and promises that they had arranged to fix a horse race so that the plaintiffs’ horse would surely win, induced them to bet their horses, cows, wood, and money-on this race, and then they so fixed the race that thfe plaintiffs lost. They brought an action directly against the members of the gang to recover hack their property. The court said:
“No court of justice can listen to such a case. When the plaintiff asserts his own turpitude in this way ho sends his case out of court. If in attempting, by way of reprisal or otherwise, to swindle another be becomes the victim of his own arts, it may become a question in morals or in honor which party is more culpable. Courts of law entertain no discussion on the subject, but terminate the controversy by shutting their doors in the face of the intruder.”
In Scott v. Brown & Co., L. T. R. (N. S. 1892) 782, the purchasers of shares of stock brought an action against their brokers to recover moneys they had paid for the shares, on the ground that the brokers had sold their own shares to them instead of buying shares for them in the market, and upon the trial the fact crept out that the plaintiffs had agreed that the brokers should buy the shares on the market at a premium to start the corporation and induce the public to buy at a high rate. The Court of Appeals held that the plaintiffs could not recover on account of the fraud which the brokers had committed upon the plaintiffs because the plaintiffs themselves had authorized the purchases for the purpose of cheating the public, and it quotes the declaration of Chief Justice Cockburn in Begbie v. Phosphate Sewage Co., L. R. 10 Q. B. 491, 499, that “the plaintiff *338cannot recover back the money, on the well-established principle that money paid in futherance of a fraud or other unlawful purpose cannot be recovered back.” The plaintiff paid his money here in furtherance of the fraud which he had agreed to perpetrate on the miners at Webb City, for the unlawful purpose of cheating them at gaming.
In Robeson v. French, 53 Mass. 24, 25, 45 Am. Dec. 236, the plaintiff brought an action to recover damages for fraud in a horse trade which was made on Sunday. The court denied a- recovery, and said, after citing the statute which prohibited trading on that day: “In all such cases it is a well-established principle that a court will not lend its aid to a party who founds his action on an illegal transaction.”
In Gregg v. Wyman, 58 Mass. 322, 325, an action for damages for the abuse of a horse let for driving for pleasure on Sunday failed upon the same ground.
In Myers v. Meinrath, 101 Mass. 366, 370, 3 Am. Rep. 368, the plaintiff sold and delivered to the defendant a chattel in exchange for another on Sunday. He subsequently returned the chattel he had received, and then brought an action of tort for the conversion of the chattel which the defendant had retained. The court said that the plaintiff contended that he was entitled to recover because his rights did not depend at all upon .the illegal transaction, and it answered:
“But the illegality lies directly in the course of events which placed the property in the hands of the defendant, and made it necessary for the plaintiff to resort to this suit to regain it. It is inseparably connected with the origin of the cause of action, and it is immaterial which party discloses it to the court. Gregg v. Wyman, 4 Cush. (Mass.) 322; Duffy v. Gorman, 10 Cush. (Mass.) 45. The ends of justice are found to he best secured by permitting it to be thus administered upon one of two offending, parties at the instigation of the other,” and a recovery was denied.
In Haynes v. Rudd, 102 N. Y. 372, 376, 7 N. E. 287, 55 Am. Rep. 815, the maker of a note brought an action against the payee to recover from him the amount which the maker had been obliged to pay to a bona fide holder of the note, which the defendant had induced him by threats and the inspiration of fear to make to compound a felony. The court refused to permit a recovery and said:
“While fraud, duress, and undue influence employed in procuring a contract for the payment of money may vitiate and destroy the obligation created, and render it of no effect, and the party who has been compelled to pay money on account thereof may maintain an action to recover the same, such a right does not exist and cannot be enforced where the consideration of the contract thus made arises entirely upon, or is in any way affected by, the compounding of a felony.”
Nor does such a right exist when the object of the fraud is to induce the victim to make and perform a contract to defraud others, or to conduct an illegal transaction in gaming, because he can do neither without himself violating the moral and the civil law, and shutting the doors of the courts against him. This conclusion is further sustained by the following rules of law and decisions of the courts.
1. Ex dolo malo non oritur actio. It is the settled public policy of the United States that its courts shall sustain no action, whether in *339tort or on contract, which arises out of the moral turpitude of the 'plaintiff, or from his violation of a general law of public policy, because the maintenance of such' actions promotes violations of the moral law and of the civil law by inspiring the belief that one may safely violate both, since if he loses the courts will make him whole. This rule is not conditioned nor limited by the maxim, “In pari delicto potior cst conditio defendentis,” nor by any requirement that the guilt of the plaintiff must be equal to that of the defendant. Such a limitation would dcstroj the rule, because the cases are rare, perhaps none ever arises, in which the intelligence, knowledge, and situations of the parties are such that their guilt is equal. Hall v. Coppell, 7 Wall. 552, 547, 558, 19 L. Ed. 244; Thomas v. Richmond, 12 Wall, 349, 355, 20 L. Ed. 453; Oscanyan v. Arms Co., 103 U. S. 261, 269, 26 L. Ed. 539; Irwin v. Williar, 110 U. S. 499, 510, 4 Sup. Ct. 160, 28 L. Ed. 225; Embrey v. Jemison, 131 U. S. 336, 345, 9 Sup. Ct. 776, 33 L. Ed. 172; Transportation Co. v. Pullman’s Car Co., 139 U. S. 24, 60, 11 Sup. Ct. 478, 35 L. Ed. 55; Pullman’s Car Co. v. Transportation Co., 171 U. S. 138, 151, 18 Sup. Ct. 808, 43 L. Ed. 108; McMullen v. Hoffman, 174 U. S. 639, 654, 658, 19 Sup. Ct. 839, 43 L. Ed. 1117; Harriman v. Northern Securities Co., 197 U. S. 244, 295, 25 Sup. Ct. 493, 49 L. Ed. 739; Babcock v. Thompson, 20 Mass. 446, 449, 15 Am. Dec. 235; Myers v. Meinrath, 101 Mass. 366, 370, 3 Am. Rep. 368; Inhabitants of Worcester v. Eaton, 11 Mass. 368, 377; Robeson v. French, 53 Mass. 24, 25, 45 Am. Dec. 236; Duffy v. Gorman, 64 Mass. 45; Frost v. Cage, 85 Mass. 560, 562; Gregg v. Wyman, 58 Mass. 322, 324, 326, 327; Pattee v. Greely, 13 Metc. 281, 287; Holman v. Johnson, 1 Cowp. 341, 343, 344; Taylor v. Chester, L. R. 4 Q. B. 314, 315; Begbie v. Phosphate Sewage Co., 10 L. R. Q. B. (1875) 491, 499; Scott v. Brown & Co., L. T. R. (N. S. 1892) 782; Chicago, etc., R. Co. v. Wabash, etc., R. Co., 9 C. C. A. 659, 61 Fed. 993; Miller v. Marckle, 21 Ill. 151; Shaffner v. Pinchback (Ill.) 24 N. E. 867, 868, 23 Am. St. Rep. 624; Bryant v. Wilcox (Mich.) 100 N. W. 918, 919, 920; Knight v. Linzey, 80 Mich. 396, 45 N. W. 337, 339; Morgan v. Groff, 5 Denio (N. Y.) 364, 365, 49 Am. Dec. 273; Haynes v. Rudd, 102 N. Y. 372, 376, 377, 7 N. E. 287, 55 Am., Rep. 815; Morrison v. Bennett (Mont.) 52 Pac. 553, 40 L. R. A. 158; Lyon v. Strong, 6 Vt. 219; Shipley v. Reasoner, 80 Iowa, 548, 552, 45 N. W. 1077; Kitchen v. Greenabaum, 61 Mo. 110, 115; Williamson v. Baley, 78 Mo. 636, 638; Sprague v. Rooney, 104 Mo. 349, 358, 16 S. W. 505; Haggerty v. Storage Co., 143 Mo. 238, 247, 44 S. W. 1114, 40 L. R. A. 151, 65 Am. St. Rep. 647; Green v. Corrigan, 87 Mo. 359; Tyler v. Larimore, 19 Mo. App. 445, 458; Clark on Contracts, § 213.
3. The maintenance of actions to recover moneys or property lost or damages sustained through transactions or contracts wherein the plaintiffs are guilty oí moral turpitude or of the violation oí a general law of public policy is as imperatively prohibited by the foregoing rule as the maintenance of actions to enforce contracts of that nature. Thomas v. Richmond, 12 Wall. 349, 355, 20 L. Ed. 453; *340Irwin v. Williar, 110 U. S. 499, 510, 4 Sup. Ct. 160, 28 L. Ed. 225; Begbie v. Phosphate Sewage Co., L. R. 10 Q. B. 491, 499; Scott v. Brown & Co., L. T. R. (N. S. 1892) 782; Babcock v. Thompson, 20 Mass. 446, 449, 15 Am. Dec. 235; Abbe v. Marr, 14 Cal. 210, 212; Knight v. Linzey, 80 Mich. 396, 45 N. W. 337, 339, 8 L. R. A. 476; Morgan v. Groff, 5 Denio (N. Y.) 364, 365, 49 Am. Dec. 273; Myers v. Meinrath, 101 Mass. 366, 370, 3 Am. Rep. 368; Haynes v. Rudd, 102 N. Y. 372, 376, 377, 7 N. E. 287, 55 Am. Rep. 815; Bryant v. Wilcox (Mich.) 100 N. W. 919, 920; Shaffner v. Pinchback (Ill.) 24 N. E. 866, 868, 23 Am. St. Rep. 624; Inhabitants of Worcester v. Eaton, 11 Mass. 366, 377; Shipley v. Reasoner, 80 Iowa, 548, 558, 45 N. W. 1077; Robeson v. French, 53 Mass. 24, 25, 45 Am. Dec. 236; Lyon v. Strong, 6 Vt. 219; Duffy v. Gorman, 64 Mass. 45.
3. No action lies for fraudulently inducing one to engage knowingly, or for damages resulting while one is knowingly engaged, in a contract or transaction which involves his own moral turpitude and his violation of general laws of public policy, because his own wrong and his violation of law repel him from the courts. Haynes v. Rudd, 102 N. Y. 372, 376, 377, 7 N. E. 287, 55 Am. Rep. 815; Babcock v. Thompson, 20 Mass. 446, 449, 15 Am. Dec. 235; Abbe v. Marr, 14 Cal. 210, 212; Scott v. Brown & Co., L. T. R. (N. S. 1892) 782; Begbie v. Phosphate Sewage Co., L. R. 10 Q. B. 491, 499; Robeson v. French, 53 Mass. 24, 25, 45 Am. Dec. 236; Gregg v. Wyman, 58 Mass. 322, 325; Duffy v. Gorman, 64 Mass. 45.
4. The maxim, “In pari delicto potior est conditio defendcntis” is but a corollary to the general rule “Ex dolo malo non oritur actio,” and it neither limits nor controls it. But if the act or contract from which one’s cause of action springs be in itself immoral, or a violation of the general laws of public policy, he is in pari delicto, within the proper interpretation of this maxim, although his guilt may be incomparably less than that of the defendant. Thomas v. Richmond, 12 Wall. 349, 355, 20 L. Ed. 453; Smith v. Bromley, 2 Doug. 696, note; Harriman v. Northern Securities Co., 197 U. S. 244, 295, 25 Sup. Ct. 493, 49 L. Ed. 739, and authorities cited under rule 1. The test which -determines whether or not a plaintiff is in pari delicto, within the true meaning of this maxim, is not whether his guilt is equal to that of the defendant, but whether or not the whole transaction upon which his case is founded can be portrayed to the court without disclosing his moral turpitude or his violation of a general law of public policy. Taylor v. Chester, L. R. 4 Q. B. 314, 315; Simpson v. Bloss, 7 Taunt. 256; Gregg v. Wyman, 58 Mass. 322, 326, and authorities there.cited.
The rule of law which governs this case is one of public policy. All agree that the highest and broadest public policy forbids relief to the plaintiff, or the punishment of the defendants by the maintenance of a baseless action, in violation of any settled public policy of the nation evidenced by the uniform decisions of its Supreme, ■Court. The opinion of the majority, however, is that it is the public policy of this nation to sustain actions arising out of contracts .and transactions wherein the plaintiffs have been guilty of moral *341turpitude and of violation of general laws of public policy, such as those against gaming, unless the guilt of the plaintiffs is equal to that of the defendants, and even then whenever the judges who happen to try any particular case are of the opinion that the general welfare will be better subserved by the punishment of the defendant than by the denial of relief to the complaining party.
Public policy is not to be determined by the views which particular judges may entertain of the interests of the people, nor by general considerations tending to show what policy would probably be wise or unwise, because such a standard of determination might be unconsciously varied by the personal views of the judges who- happen to constitute the court in each particular case. The public policy of the nation may be determined only by its Constitution, laws, and judicial decisions. Vidal v. Girard’s Exr’s, 2 How. 127, 197, 11 L. Ed. 205; Swann v. Swann (C. C.) 21 Fed. 299, 301; U. S. v. Freight Ass’n, 166 U. S. 340, 17 Sup. Ct. 540, 41 L. Ed. 1007; Hartford Fire Ins. Co., v. Chicago, Milwaukee St St. Paul Ry. Co., 70 Fed. 201, 202, 17 C. C. A. 62, 63, 30 L. R. A. 193; Daniels v. Benedict, 97 Fed. 367, 372, 38 C. C. A. 592, 597.
Nor is the question here one of the public policy of the state of Missouri. This is an action between citizens of different states. It involves a question of general law, the public policy of the nation regarding the maintenance in its courts of actions for damages resulting from transactions wherein the plaintiffs are guilty of moral turpitude, as was the plaintiff in this case in making and performing his part of the agreement to defraud his associates by betting upon a fraudulent foot race. Hartford Fire Ins. Co. v. Chicago, Milwaukee & St. Paul Ry. Co., 70 Fed. 201, 202, 17 C. C. A. 62, 63, 30 L. R. A. 193. Moreover,' the state of Missouri has no settled public policy upon this question.
In Kitchen v. Greenabaum, 61 Mo. 110, 115, the Supreme Court of Missouri adopted and enforced the rules stated in this opinion. In that case the defendant by fraudulent concealment and false representations had induced the plaintiff to sell him a lottery ticket which had drawn a prize of $600 for the paltry sum of $10, and the court refused to sustain an action on his part for the recovery of the $600 which the defendant had collected on the ticket. Here was a mere violation of a general law of public policy. Here the guilt of the plaintiff was incomparably less than that of the defendant, because he had participated in nb fraud, and yet the court denied a recovery. The rule thus established was followed by the Supreme Court of that state in Williamson v. Baley, 78 Mo. 636, 638; Green v. Corrigan, 87 Mo. 359; Sprague v. Rooney, 104 Mo. 358, 16 S. W. 505; and Haggerty v. Storage Co., 143 Mo. 247, 44 S. W. 1114, 40 L. R. A. 151, 65 Am. St. Rep. 647. But in the late case of Hobbs v. Boatright (Mo. Sup.) 93 S. W. 934, wherein that court followed the judgment below, it repudiated these rules, and abandoned the salutary public policy they evidence. There is, therefore, no settled public policy upon this question in the state of Missouri.
*342We turn, therefore, to the decisions in England which have been adopted in this country, and to the decisions of the Supreme Court and to those of other courts whose opinions are in accord with them, to learn the public policy of the nation upon this subject.
In Holman v. Johnson, 1 Cowp. 343, Lord Mansfield declared the public policy which has ever prevailed in England in memorable words, which have been adopted by repeated decisions of the Supreme Court of the United States in cases which have involved this question. He said:
“The objection that a contract is immoral or illegal as between plaintiff and defendant sounds at ail 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 an 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.”
It will be noticed that the basis of this rule is not the equality of the guilt of the parties to the action. The remark upon that subject presents the maxim “In pari delicto potior est conditio defendentis” as a mere corollary to the fundamental rule. By the terms of the statement of Lord Mansfield it neither conditions nor controls that rule. The rule is- that the courts will not 'aid a plaintiff to maintain an action which, arises out of his moral turpitude and the violation of a general law of public policy if his act or contract is stained with wrong, although his guilt may be less than that of the defendant, and the reason for it is that the maintenance of such actions necessarily promotes violations of both the moral and the civil law. It leads men to lay the flattering unction to their souls that they may safely violate the laws of both God and man because if they lose thereby the courts will fully indemnify them. This rule of public policy has been adopted and steadily maintained by the uniform decisions of the Supreme Court. See the cases cited under rule 1, supra.
• In Hall v. Coppell, 7 Wall. 558, 19 L. Ed. 244, the plaintiff, who while British vice consul had undertaken to protect cotton in the confederate lines for certain commissions, brought an action to recover them, and asserted that the illegality of the transaction had been waived by a reconvention. The Supreme Court said:
“The maxim, ‘Ex dolo malo non oritur actio’ is limited by no such qualification. The proposition to the contrary strikes us as hardly worthy o£ serious refutation. Whenever the illegality appears, whether the evidence comes from one side or the other, the disclosure is fatal to the case. No consent of the defendant can neutralize its effect. A stipulation in the most solemn form to waive the objection would be tainted with the vice *343of the original contract, and void for the same reasons. Wherever the contamination reaches, it destroys. The principle io be extracted from ail the cases is, that the law will not lend its support to a claim founded upon its violation.”
Note that the court did not stop to inquire whether the guilt of the plaintiff was equal to that of the defendant, but declared that “wherever the contamination reaches, it destroys.-” This was an action to enforce a contract in violation of a general law of public policy. But the rule applies with equal force to actions to rescind or repudiate a contract to recover money paid or property delivered, or to recover damages which arise out of a plaintiff’s immoral act or his act violative of a general law of public policy.
In Thomas v. Richmond, 12 Wall, 349, 355, 20 L. Ed. 453, the city of Richmond had issued notes in small amounts to circulate as currency without authority so to do and in violation of the general public policy of the state of Virginia. The city had received the money therefor, and the plaintiff had purchased the notes. He brought an action in assumpsit and also on the common money counts for money had and received. His counsel contended that, although the notes themselves were void, the city received the money therefor, and ought not in conscience to retain it, and that therefore the action for money had and received could be maintained. The city had conceived and executed the unlawful scheme of making and issuing the notes and receiving the money therefor. The plaintiff was incomparably less guilty than the defendant, because he liad done nothing but purchase the notes in the ordinary course of his business. But he failed to recover, and to the proposition that he was not in pari delicto the Supreme Court said:
“Lord Mansfield, in Smith v. Bromley, as long ago as 1760, laid down the doctrine, which has ever since been followed, in these words: ‘If the act be in itself immoral, or a violation of the general laws of public policy, both parties are in pari delicto; but where the law violated is calculated for the prefect ion of the subject against oppression, extortion, and deceit, and tlie defendant takes advantage of the plaintiff's condition or situation, then the plaintiff shall recover’ ” (page 335).
The Supreme Court, so far as the decisions cited or discovered indicate, has never departed from this rule.
There are two cases in which the plaintiffs had been guilty of no moral turpitude and had violated no general law of public policy wherein they were permitted to recover the value of the property they had delivered to corporations under contracts that were simply beyond the powers of those corporations. These cases are Spring Co. v. Knowlton, 103 U. S. 19, 26 L. Ed. 347. where the plaintiff recovered back an installment of 20 per cent, of the par value of stock which he had agreed to take, but which the. corporation had no lawful authority to issue and did not issue, and Pullman’s Car Co. v. Transportation Co., 171 U. S. 138, 151, 18 Sup. Ct. 808, 43 L. Ed. 108, in which the transportation company was permitted to recover the value of property which it bad delivered under a contract beyond the powers of the corporation. But in each of these cases the Supreme *344Court was careful to reiterate the fundamental rule, and to declare that it would not be disregarded .and its full effect would not be minimized. In the former case it said:
“It is to be observed that the making of the illegal contract [the contract of subscription] was malum prohibitum and not malum in se. There is no moral turpitude in such a contract, nor is it of itself fraudulent, however much it may afford facilities for fraud.”
And in the latter case it quoted the first part of the declaration of Lord Mansfield in Holman v. Johnson, which closes with the words:
“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,”
■ — cited numerous authorities, and then said:
“They are substantially unanimous in expressing the view that in no way and through no channels, directly or indirectly, will the courts allow an action to be maintained for the recovery of property delivered under an illegal contract, where in order to maintain such recovery it is necessary to have recourse to that contract. The right of recovery must "rest upon a disaffirmance of the contract, and it is permitted only because of the desire of courts to do justice as far as possible to the party who has made payment or delivered property under a void agreement, and which in justice he ought to recover. But courts will not in such endeavor permit any recovery which will weaken the rule founded upon the principles of public policy already noticed.” - Page 151.
The case of Catts v. Phalen, 2 How. 376, 11 L. Ed. 306, cited by the majority, rests upon the defendant’s false representation that he had drawn a prize ticket when he had not, and upon the fact that the plaintiffs had no need to disclose their acts, if any, in violation of the statute against lotteries in order to sustain their action. They abandoned all the other counts in their complaint, and recovered upon the count for money had and received upon the sole ground that they had been induced to pay out their money long after the lottery had been drawn by the false representation of the defendant that he had drawn out the prize ticket. This case was decided in 1844, and if it has any further or different significance it has been overruled long since by the decisions of the Supreme Court which are here cited.
In Irwin v. Williar, 110 U. S. 499, 510, 4 Sup. Ct. 160, 28 L. Ed. 225, and Embrey v. Jemison, 131 U. S. 336, 345, 9 Sup. Ct. 776, 33 L. Ed. 172, brokers had brought actions against their principals to recover losses which they had sustained and commissions which they had earned from their purchases by direction of their principals of contracts for the future delivery of commodities wdiich the principals intended to settle by the payment of differences between the contract prices and the market prices without the delivery of the goods. The illegal intent which alone made these purchases unlawful rested in the minds of the purchasers. The brokers could not have made them illegal by their intent, so that the guilt of the purchasers was incomparably greater than that of the brokers. But in answer to the. *345thought that the guilt of the brokers was unequal to that of their principals, the Supreme Court said in the former case :
“It is certainly true that a broker might negotiate such a contract without being privy to the illegal intent of the principal parties to it which renders it void, and in such a case, being innocent of any violation of law, and not suing to enforce an unlawful contract, has a meritorious ground for iho recovery of compensation for services and advances. But wo are also of the opinion that when the broker is privy to the unlawful design of the parties, and brings them together for the very purpose of entering into an illegal agreement, he is particeps ermiinis, and cannot recover for services rendered or losses incurred by himself on behalf of either in forwarding the transaction.”
In Harriman v. Northern Securities Co., 191 U. S. 244, 295, 25 Sup. Ct. 493, 49 L. Ed. 739, the complainants, the holders of the minority of the stock of a corporation, had been driven by a dominant majority to exchange their holdings for the stock of an illegal holding company, and the court held that they could not rescind or disregard the unlawful transaction, and recover back their original stock, although they were clearly far less guilty than the' majority, who conceived and forced the execution of the illegal scheme.
In McMullen v. Hoffman, 174 U. S. 639, 654, 19 Sup. Ct. 839, 43 L. Ed. 1117, the court again reviewed the authorities at length, and refused to sustain an action by a partner for his share of the profits of an executed contract secured by the suppression of competition, in effect overruled the case of Brooks v. Martin, 2 Wall. 70, 17 L. Ed. 732, and said:
“There are several old ami very familiar maxims of the common law which formulate the result of that law in regard to illegal contracts. They are cited in all law books upon the subject, and are known to all of us. They mean subsi antially the same thing, and are founded upon Hie same principles and reasoning. They are: ‘fix dolo malo non oritur actio;’ ‘fix pacto iilicito non oritur actio;’ ‘fix turpi causa non oritur actio.’ * * * The authorities from the earliest time "to the present unanimously hold that no court will lend its assistance in any way towards carrying out the terms of an illegal contract. In case any action is brought in which it is necessary to prove the illegal contract in order to maintain the action, courts will not. enforce it, nor will they enforce any alleged rights directly springing from such contract. In eases of this kind the maxim is ‘Potior csi. conditio dei'endentis’ ” (page 654).
—-and it quotes with approval the words of Eyre, Chief Justice, in Farmer v. Russell, 1 Bos. & P. 296, a. case in which an action was brought against the carrier to recover the moneys which he had collected for the delivery of counterfeit coin, wherein he said:
“However, T incline to a new trial on another ground. It docs not clearly appear that the defendant was not himself a party to the original contract, for there was a circumstance in the report: which gave much countenance to the idea that the carrier knew what: he was doing, viz., that lie was lending his assistance to an infamous traffic. In that case, the rule 'Mclior est conditio possidentis’ will apply; for if the contract: with him be stained by anything illegal, the plaintiff shall not be heard in a court of law.”
These repeated opinions of the highest judicial tribunal of the nation and the decisions of the English and of the state courts in accord *346with them, which have been cited above under the rules which they sustain, are more persuasive to my mind of the public policy of this nation regarding the maintenance of actions in its courts than the decisions of state and other inferior courts that are in conflict with them, the general statements of Story and Pomeroy respecting the application of the maxim “In pari delicto” in suits in equity, the decision In re Arnold (D. C.) 133 Fed. 789, which involved no moral turpitude of the claimant, the opinion of the Supreme Court of Missouri in Hobbs v. Boatright, which merely follows the decision under review, or the opinion of the Supreme Court of Arkansas to the same effect. Moreover, Story, at section 303 of his Equity Jurisprudence, says:
•‘In. regard to gaming contracts, it would follow, a fortiori, that courts of equity ought not to interfere in their favor, but ought to afford aid to suppress them, since they are not only prohibited by statute, but may justly be pronounced to bo immoral, as the practice tends to idleness, dissipation, and the ruin of families."
Pomeroy says at section 938:
“In gaming contracts, unlike usurious loans, it cannot be said that one party takes advantage of the necessities of the other, who is in vinculis; both act freely, and are in pari delicto. The general maxims therefore apply.”
Further, the maxim of equity analogous to the principle which governs this case is not “In pari delicto potior est conditio defendentis,” but “He who comes into a court of equity must come with clean hands,” and “Pie who has done iniquity cannot have equity.” A court of equity repels from its precincts remediless the complainant who has been guilty of bad faith, fraud, or any unconscionable act in the transaction which forms the basis .of his suit. 1 Pomeroy, Eq. Jur. pars. 397, 398, 400; Medicine Co. v. Wood, 108 U. S. 218, 227, 2 Sup. Ct. 436, 27 L. Ed. 706; Marble Co. v. Ripely, 10 Wall. 339, 357, 19 L. Ed. 955; Michigan Pipe Co. v. Fremont Ditch, etc., Co., 49 C. C. A. 324, 327, 111 Fed. 284, 287. “If a contract has been entered into through fraud, or to accomplish any fraudulent purpose, a court of equity will not, at the suit of one of the fraudulent parties — a particeps doli — while the agreement is still executory, either compel its execution or decree its cancellation, nor after it has been executed, set it aside, and thus restore the plaintiff to the property or other interests w'hich he had fraudulently transferred.” 1 Pomeroy, Eq. Jur. par. 401.
If the decisions of the Supreme Court have not been misapprehended, they evidence a uniform and established ¡public policy "of the nation to refuse to maintain in its courts any action which is founded in a plaintiff’s immoral contract or act, or in his contract or act violative of a general law of public policy. This rule of public policy is not conditioned or limited by any inquiry into the equality of the guilt of the plaintiff and the defendant. It applies wherever the plaintiff is particeps criminis, whatever the degree of his guilt. It forbids the maintenance of actions to repudiate or rescind corrupt *347contracts and transactions and to recover the money lost in their performance as imperatively as actions to enforce them. The plaintiff's cause of action is founded in his own moral turpitude in making and performing his part of the agreement to defraud his associate gamblers, and in a violation of the general laws of public policy against gambling, and it ought not to be maintained in a court of the United States. Its maintenance is controlled and forbidden by the principle, “Ex dolo malo non oritur actio.” It is not governed or permitted by the maxim, “In pari delicto est conditio dcfcndenlis.”
If, however, the view heretofore presented were mistaken and if the maxim "In pari delicto” could be lawfully applied to the decision of this case, it would still seem to me that there was no right of recovery in the plaintiff: (1) Because his contract and act to defraud the miners were immoral, and his betting was violative of a general law of public policy, and these facts place him in pari delicto, within the legal meaning of this maxim. Thomas v. Richmond, 12 Wall. 349, 355, 20 L. Ed. 453. (2) Because evidence of his acts of moral wrong and violation of a general law of public policy is essential to a proof of his cause of action, and this fact places him in pari delicto. Taylor v. Chester, L. R. 4 Q. B. 314, 315; Gregg v. Wyman, 58 Mass. 322, 326, and cases there cited. (3) Because if the court is to sit to determine whether the plaintiff or the defendants were the more guilty, the evidence appears to me. to fix the heavier burden upon the former. The question is not whether the guilt of the members of the Buck-foot gang was equal to that of the plaintiff, but whether the guilt of the plaintiff was equal to that of these defendants.
The facts of other cases, the wickedness of the Buckfoot gang, and the acquaintance of the defendants with their general reputation and practices, should not be permitted to conceal the real nature of this case nor the facts it presents. It is an action of conversion by an ex-deputy sheriff of Texas, who participated in the betting, against a. bank, its cashier and president, who took no part therein, to recover of them $5.100 which the plaintiff lost, not to the defendants, but to the members of the gang, while he was performing his part of his corrupt agreement with Boatright to defraud them. All that the defendants ever had to do with this case was that the plaintiff deposited in the bank money he had received from Boatright and drafts on his local bank. The defendant bank cashed the draft.-,, and paid over to him their proceeds and the money he had deposited with it, and, after die plaintiff had made his agreement with Boatright, and after he knew that he was a perfidious swindler, the cashier, in answer to his suggestion to that effect, said that Boatright was ail right. The plaintiff was a man of years, intelligence, and experience, when, in his own home in Texas, free from all inequalities of place or of fortune, of all threats and of all undue influence, a stranger (one of the Buck-loot gang) came to him, informed him that if he would go to Webb City, Mo., show that he had financial standing, and bet the money oE Boatright under the false pretense that it was his own, on a race that Boatright had so fixed that it would surely result in his favor, and *348would thereby induce the miners, who were Boatright’s associates and', the members of his club, to be defrauded out of their money by matching his bets, Boatright would give him 20 per cent, of the winnings they should thus fraudulently secure. The plaintiff procured a letter of credit from his local bank for $5,000, went to AVebb City,, met Boatright, and agreed with him to do this thing. In performance-of this agreement Boatright gave him $3,300, and told him to match a bet on the race with one Ellis. The plaintiff deposited this $3,300 in the defendant bank for the purpose of making a false pretense that he was betting his own money, and exhibited to the bank his letter of credit. lie went to the club room, bet $5,000 with Ellis on the footrace, and put up $2,500 as a forfeit in the hands of Boatright as a. stakeholder. The latter then gave him $4,000 of the stake money secretly, and he drew out of the bank on his letter of credit $1,000 of his own money, and bet the entire $5,000 as his own. These proceedings concluded the operations of his first day in performance of his corrupt agreement. He retired in the consciousness of duty done,, considered, but was not content. He returned to the club next day. Boatright gave him $4,000 more out of the stake money and he drew $4,000 of his own money, wagered it all, $100 more that he had in his pocket, and his watch, upon this race, and then asked Boatright to-give him more money to bet. It was not until the latter refused this last request that he sought to withdraw his money from the stakeholder, but he nevertheless proceeded to the grounds, and held one end of the string while the race was run. His racer fell and lost. Now, the plaintiff engaged in unlawful betting in violation of a general law of public policy. The defendants did not. The plaintiff made and performed his part of a corrupt contract to defraud his gambling-associates, and thereby engaged in a contract and transaction which were both mala in se and mala prohibita. The defendants made no-such contract. They engaged in no such transaction. They did nothing in this case but to inform the plaintiff that Boatright was all right when he knew that he was not, and to pay him his money on his drafts in the regular course of a banking business. In this state of the case, the guilt of the plaintiff in this transaction appears to me to be incomparably greater than that of-the defendants, and it does not seem to me that he acted under such circumstances of oppression,, hardship, undue influence, or great inequality of condition or age as would bring his case under the exception to the rule in pari delictoupon which the majority rely.
The principles, rules, and authorities to which reference has now been made have forced my mind to the conclusion that the plaintiff is-entitled to no relief at the hands of the courts of the United States in this case because he was guilty of the moral turpitude of making- and performing his part, of his contract with Boatright to defraud the-miners by a fixed foot race, and because he was guilty by his betting-of violating a general law of public policy, and this contract and act constitute an inseparable part of his cause of action, because it was. in the performance of them that he lost his money.
*349There is another reason why the judgment below should be reversed. This is not an action for money had and received. The defendants have none o£ the money or property of the plaintiff. It is an action for damages for wrongful acts of the defendants. The only acts they performed in this case which could in any way have caused the plaintiff to lose his money were the statement of the cashier that Boatright was all right and the cashing of the drafts of the plaintiff upon his local bank. The plaintiff can recover nothing for the statement concerning Boatright, because he knew when it was made that it was false and that Boatright was a faithless rascal. He had made a contract with him to share the profits of the swindle he liad agreed to perpetrate. He was not injured by that statement. The defendants violated no duty they owed to the plaintiff by cashing his drafts drawn upon his letter of credit from his local bank. The plaintiff had a right to draw his money from his local bank. If he had brought an action against that bank to recover the $5,000 which he had on deposit there, it would have been no defense to that action that he intended to bet his money on a fixed foot race, that he was sure to lose it, and that the bank knew it. No court would listen to such a defense. The defendants cannot be lawfully cast in damages for assisting the plaintiff to draw his money from the bank when they did nothing which a court would not have done in the face of a defense that the bank knew that he was about to lose the money on a fraudulent game. A plaintiff may recover the purchase price of goods which he sells and delivers to a defendant when he knows that the latter is to use them for an unlawful purpose. Holman v. Johnson, 1 Cowp. 341; Tracy v. Talmage, 14 N. Y. 162, 170, 67 Am. Dec. 132; Graves v. Johnson, 179 Mass. 53, 58; 60 N. E. 383, 88 Am. St. Rep. 55; Anheuser-Busch Brewing Ass’n v. Mason, 44 Minn. 318, 321, 46 N. W. 558, 9 L. R. A. 506, 20 Am. St. Rep. 580. And the bank cannot be legally liable for damages which result to a customer from his own folly in violating the moral and the civil law because it assists him by a lawful act to procure money which he is lawfully entitled to obtain, although it divines or knows that he is about to lose it in a transaction in which it takes no part and from which it receives no benefit.
In my opinion, the judgment against the bank and its officers is wrong, and it should be reversed.