
    *Harris v. Harris’ Ex’or.
    September Term, 1873.
    Staunton.
    i. Debt on Bond — Special Plea. — In debt on bonds by the executor of H against G, G tenders a special plea: That at the time of the execution of said bonds he owed nothing to G. and the consideration of said bonds was as follows: In 1866, four suits at law were pending against him in the county, naming plaintiffs, to recover damages for trespass during the civil war in impressing horses, &c. by him, under orders of the Confederate government, he being an officer of the army under that government. He did not regard these claims as debts or just liabilities on his part, but owing to the unfavourable and unjust constitution of courts and juries at that time, he feared they might be enforced against his property. He was informed by his counsel that the result was uncertain, that judgment had been given in similar cases in Berkeley county. That he conferred with his father, who warmly advised him to secure his property against these claims. The plan adopted was for him to execute to his father the bonds sued on, ante-dated, with the distinct understanding that they were only to be used and treated as obligations to claim priority over the plaintiffs in case of necessity, and if unnecessary, were to be handed back to the defendant; said bonds were executed under this understanding, and upon no other consideration. Wherefore said G and his executor were bound to re-deliver said bonds to defendant, because said suits had been dismissed in 1867, before the death of G, and the bonds were therefore null and void, and to be surrendered. Therefore he has sustained damages, &c. On the motion of the plaintiff the plea was rejected. Held:
    1. Same — Same—No Issue Possible. — The plea was properly rejected, because no issue, either by general or special replication, could be made up upon it.
    
      2. Same — Same — Statute of Equitable Defences — Inapplicable. — it was not good as a plea under the statute, for failure of consideration. The statute only applies to cases where the ^consideration was originally valuable, and not where there was no consideration.
    3. Same — Same—Improper Defence to Specialty.— Such a defence cannot be made to a specialty either at common law or under the statute. The seal imports a consideration, and a party cannot avoid it upon the ground of a want of consideration.
    4. Same — Same—No Grounds for Equitable Relief.— The plea is not good on the ground that the facts stated would entitle him to relief in equity; because his ground of relief is his own fraud.
    5. Same — Same—Fear of Injustice by Courts. — The averment of his fears that the courts and juries would not do him justice, could not avail him, as the court must presume that no injustice would be perpetrated in regular legal proceedings had in the forum where such proceedings were pending.
    6. Same — Same—Improper at Common Law. — It is not a good plea at common law; because it is emphatically of the class of cases in which the maxim, “JVemo dlleoans suam tarpitadin&m audien-dus est," applies with full force.
    7. Application of Maxims — “In Pari Delicto.” — The case does not come within the maxim. In vari delicto potior est conditio defendentis.
    
    8. Contracts Void Ab Initio — Contracts Void as to Third Persons. — There is a marked distinction between contracts which are void ab initio, and contracts which are void as to third persons, but are valid between the parties.
    9. Contracts — Void Ab Initio — No Relief. — Where the contract is void ab initio, when it appears either by the allegations of the plaintiff or by a proper plea of the defendant, that the contract is so void, the court will not lend its aid either to enforce it on the one hand, or give relief on the other.
    10. Same — Void as to Creditors — Valid between Parties. — Though the bonds are void as to creditors, they are valid between the parties, and therefore they will be enforced by the courts.
    11. Application of Maxims — “Potior est Conditio”— What flust Be Considered. — in order to apply correctly the rule, potior est conditio defendentis, it is necessary to consider, not who is plaintiff or who is defendant, but by whom the fraud is alleged, or sought to be made a ground of defence or recovery.
    
      12. Executed and Executory Contract — Fraud.—Upon the question whether a fraudulent contract shall or shall not he enforced, there Is no distinction between an executed and an executory contract
    *13. A Party Claiming Damages as Creditor. — A party claiming damages for the acts of another, must he regarded in law as much the creditor of that other, as one holding his bonds or other promises to pay.
    2. Pleadings — Non Est Factum. — A special plea of non est factum, which admits the execution and delivery of the bonds sued on, but avers that they were to be redelivered to defendant when he should request it, is not a good plea.
    This was an action of debt in the Circuit court of Frederick county, brought in September 1869, by the executor of Gabriel C. Harris against George C. Harris, to recover the amount of three bonds executed by George C. Harris to his father Gabriel C. Harris. The defendant appeared and filed the plea of payment; and he tendered a special plea of equitable offset; which being objected to by the plaintiff’s counsel, was rejected by the court; and Harris excepted. He then offered a special plea of non est factum, which was also rejected; and he again excepted. He then withdrew the plea of payment, and there was judgment in favour of the plaintiff for the sum of $5,100, the amount of the three bonds, with interest. And Harris thereupon applied to a judge of this court for a writ of error, which was awarded. The facts are stated, and the special pleas are set out, in the opinion of Judge Christian.
    Conrad and son for the appellant, after referring to the maxim “nemo allegans suam turpitudinem est audiendus,” upon which the court below had .rejected the first special plea, insisted that the doctrine embodied in this maxim had no application to this case. That the statements in the plea do not necessarily show to the court that the transaction between the father and the son, in the execution of the bonds sued on, was with any unjust or illegal intent, or that they were intended to be so used. And they referred to the condition of the country under a military despotism, when a military despot appointed *judges, justices and other civil officers, and removed them at pleasure; and the manner in which judgments were rendered against parties in such cases as those mentioned in the plea; and insisted that so far from being obnoxious to the imputation of dolus malus, the appellant’s whole conduct in the matter was dolus bonus, as used in the Roman and civil law, in contradistinction to the former, viz: an artifice he might lawfully employ to protect his own property from what was threatened; and that was under the circumstances a mere robbery. Mackelday Civ. Haw 165; Bell’s Dig. of Scotch Haw 319 d; Brisson ad verb. “Do-lus;” Taylor-’s Civ. Haw, 4 edi. 118, cited from Brown’s Begal Maxims, 4th edi. (1854) 464 top, 573 marg. ; Wilson v. Spencer, 1 Rand. 776; 3 Rand. 214, where relief in equity was given against a gaming bond.
    2. The doctrine does not apply to our de-fence, .because whatever may have been the prospective intent, it never was carried out into act; no human being was ever deceived, wronged, or in any way affected by it. These bonds were mere executory contracts. Why then do not these contracts, un-executed, stand upon the same footing with any other executory contract; liable to be cancelled or avoided, in equity, by showing that no such debts ever existed. It is not even like a gift or conveyance of a debtor’s property to defraud creditors. These have an inchoate lien upon the property of the debtor, and the .act may be characterized as a fraud; but here no - fraud was committed or intended by the act of giving the bond. It may have been intended to use these bonds at a future time, if necessary, for the purpose of deceit; but only then would the act have been done which the law reprobates.
    The counsel referred to the cases of Starke’s ex’ors v. Bittlepage, 4 Rand. 368; James v. Bird’s adm’r, 8 Heigh, *510; and 'Terrell v. Imboden, 10 Reigh 321; and distinguished them from the case at bar.
    3. If these bonds were given to defraud creditors, and therefore void under the statute of frauds, then does not the maxim, in equali delicto potior est conditio defend-entis, apply in letter and spirit to the case. Here the plaintiff, the holder of the bonds, invokes the action of the court; both (upon the hypothesis) are parties to the fraudulent contract, and in pari delicto; the unlawfulness of the transaction is shown to the court by the defendant, in order, simply, to prevent a judgment against him; and the whole plea is admitted to be true in fact. In giving judgment for the plaintiff, the court is not only lending its aid to the party who admits and alleges this fraud, but enables him to commit a much more atrocious fraud upon his confederate.
    The counsel then, after referring to Webster and Bouvier to show that a bond was an executory contract, proceeded: We take it then to be clear that this suit is brought to enforce the performance of an executory contract; that if the contract was fraudulent both obligor and obligee were in pari delicto; that the appellant was defendant in form and in fact in the court below; that every deed and every contract made in violation of law are equally void ab initio; and the court will not be made the instrument of sanctioning or promoting such designs in favor of either of the parties to the fraud. Aubert v. Maze, 2 Bos. & Pul. R. 370; Watts v. Brooks, 3 Ves. R. 612; Bank of U. S. v. Owens, 2 Peters U. S. R. 527 ; 4 Hill’s R. 424; Case v. Gerrish, 15 Pick. R. 49; Hazard v. Irwin, 18 Pick. R. 95; Collins v. Blantern, 2 Wils. R. 341, 1 Smith’s Bead. Cas. 667 top, 489 marg., opinion of Wilmot, Ch. J.
    _ It remains to enquire whether the invalidity of the *bonds were properly shown to the court in this case by the special plea.
    1. We submit that at common law it was competent to plead the facts in this plea, supposing that they show it was tainted with fraud ab initio. The plea does not relate only to the consideration, as in the case of Wynche v. Macklin, 2 Rand. 426; but alleges a fraud upon creditors contrary to the statute of frauds and violating public policy. If rendered void by a positive public law we can see no reason why it is not pleadable, because under seal. A fraud which vitiates the transaction may be pleaded, and constitutes a good defence at law. Hazard v. Irwin, 18 Pick. R. 95, 108; Stubbs v. King, 14 Serg. & Rawle’s R. 206; Bliss v. Thompson, 4 Mass. R. 488; Boynton v. Hubbard, 7 Mass. R. 112; Somes v. Skinner, 2 Pick. R. 52; Somes v. Skinner, 16 Mass. R. 348; Tuck v. Tooke, 9 Barn. & Cres. R. 437, 1 Mood. & Rob. R. 460; Canham v. Barry, 80 Eng. C. L. R. 597.
    2. But since our act admitting equitable pleas without limit, in suits at law upon specialties, it cannot be doubted that the | whole matter was properly shown to the i court: whether that rule of particeps crim-inis renders the plea bad in the mouth oí the defendant, is another question, to be determined in the face of the whole truth, and not by the exclusion of the truth: it is not a case of estoppel but of equity.
    The question is, is there any rule of law or equity, whereby a participant in a fraud, intended upon third parties, in a suit upon an executory contract made to carry out that fraud, instituted by the other part to the fraud, is prohibited from making that defence? On this question see 2 Rob. Pr. p. 32, and cases there referred to, and 5 Rob. Pr. p. 542. In these references will be found all the cases; and his deduction from them is, that “as a general rule courts leave the parties to such a fraud in the attitude in -which they have placed themselves without relief to either.” And he quotes from a decision of Mellon, Ch. J., of Maine in 1833: “There is a marked distinction between executory and executed contracts of a fraudulent or illegal character:” what the parties have done the court will not disturb; but when they have contracted, the court “will not compel the contractor to execute.”
    Chi tty states the rule thus: “Fraud avoids a contract ab' initio, both at law and in equity, whether such frauds were committed by one of the contracting parties upon the other, or by both upon persons not parties thereto; for the law will nor sanction dishonest views and practises by enabling an individual to acquire any right or interest by means thereof. Chitty on Cont. 590; Gaslight & Coke Co. v. Turner, 5 Bing. N. S. 666, 35 Eng. C. L. R. 264, see Ch. J. Tindal’s opinion; Fisher v. Bridges, 2 Ell. & Black. R. 118; 3 Id. 642; 75 Eng. C. L. R. 118; 77 Id. 642 ; 25 Eng. Law & Eq. R. 207. And to the same effect are all the decisions in the United States and State courts. See the cases referred to 2 Rob. Pr. 33.
    The only question therefore is, whether the case still rests in contract or whether the property has passed. See as to chattels : Bowes v. Foster, 2 Hurl. & Nor. R. 779; 27 Raw Jour. Exch. 262; 3 Rand. 214.
    3. The court erred in rejecting the second plea offered by the defendant; the plea of non est factum.
    1. If a bond when executed was void ab initio the defendant may say non est fac-tum generally. Thompson v. Rock, 4 Mau. & Sel. R. 338; Harmer v. Rowe, 2 Chit. R. 334; 18 Eng. C. R. R. 358; Phelps v. Decker, 10 Mass. R. 267. Upon this issue a defendant may prove that the deed was delivered and still remains as an escrow ; *may show that it was originally void, or made void by subsequent matter; that it was obtained by fraud, or that it never was delivered at all. Greenl. Ev. part 4, s. 300, and authorities cited in notes.
    It is true that the possession of the instrument by the payee is evidence of delivery ; but not conclusive, merely prima facie evidence. Union Bank of Maryland v. Ridgely, 1 Har. & Gill R. 324. It is still competent to show that the delivery was conditional or imperfect, or never legally made. Acceptance by the obligee is equally necessary to constitute a good delivery; and in this case it never was accepted by Gabriel C. Harris. Whelpsdale’s case, 5 Coke’s R. 118 b.
    2. Supposing this plea to contain matter not proper under non est factum; the mere conclusion and form being immaterial, as the case stands, we submit that as a collateral parol agreement, binding the plaintiff, it constitutes a good defence. This parol agreement would be a good ground for an action on the case at law, if the money was paid; and a fortiori is a good defence in this suit. Brent v. Richards, 2 Gratt. 539; Collins v. Blantern and notes, 1 Smith’s Head. Cas. 489 marg. 667 top.
    Andrew Hunter and Ranson, for the ap-pellee. 1st. The first special plea details circumstances, evidently amounting, in the pleader’s opinion, to a failure in the consideration of the bonds, though it does not claim that those circumstances would entitle defendant to relief in equity against the obligation. But if true the allegations of the plea show that the bonds were originally without consideration; a defence inadmissible to a specialty at common law or under the statute. Dorr v. Munsell, 13 John. R. 430; Code ch. 172, g 7.
    2d. Does the plea allege “any such matter existing before the execution of the bonds, or any such mistake ^therein, or in the execution thereof, as would entitle the defendant to recover in equity against the obligation of these contracts?”
    Take these allegations; and we submit that the statute applies to no such case: that the pre-existing matter intended is matter of misrepresentation or imposition between the parties in the negotiation of the contract; and that the fact that a bond was knowingly executed (for any purpose) without a valuable consideration, is no defence under the statute.
    But it is insisted that no court of equity would extend relief to the obligor on the case made in the plea. He asserts that he executed and delivered the bonds for the purpose of hindering the execution of legal process; for the purpose of defeating suitors in the very court in which the plea was tendered. It will not do to say that.the courts and juries were “unfavourably constituted.” They were the courts and juries of the land; and the court was bound to presume that no injustice would have been perpetrated in regular proceedings in that forum. In legal contemplation, (as in fact), the courts of the Commonwealth were courts of justice, and any scheme to interfere with their administration of justice so as to defeat the claims of suitors was in the eye of the law a fraud upon those suitors. Nor can the fraudulent intent be confined to any particular class of the appellant’s creditors. If fraudulent as to any, it was fraudulent as to all of his creditors to set up fictitious debts . for priority, and the morality or validity of the transaction is not to be determined by reference to these claims alone. And such being the case we submit with confidence, that equity in view of the demerit of the obligor, would not interpose in his behalf between the alleged participators in the fraud; but would leave them as it found them, abstaining from the slightest interference. *At best he was in pari delicto, and no public policy would be promoted by extending aid to him.
    3d. The plea was unquestionably bad at common law, unless it showed the defendant’s obligations to have been void ab in-itio. Appellant’s counsel have referred to Collins v. Blantern. In that case the Chief Justice, Wilmot, held the bond was void ab initio at common law. Fraud perpetrated by the obligee upon the obligor vitiated the bond at common law, and he might show the circumstances of fraud under a special plea of non est factum. But the common law has never excused the obligor from the consequences of his act, because intended by him in fraud of others.
    We do not admit the deduction drawn by appellant’s counsel from 5 Rob. Pr. 542. The result of these authorities is, that recoveries on specialties are not to be prevented by the plea, that they were without consideration, and were given to defraud creditors; that “by a stern, but proper policy of the law the party who alleges his participation in a fraud, is excluded from the proof which should show it,” and left to the consequences of his own misconduct.
    Our statute of frauds has been construed in Terrell v. Imboden, 10 Heigh 329; and there is no question now that though the fraudulent instrument is void as to creditors; it .is binding between the parties. As between the parties, then these bonds are not rendered “void by public law,” and their enforcement is not contrary to, but promotive of public policy; wherefore the plea, had it been liable to no other objection, did not bar the action.
    The principle is too firmly settled by decisions of this court to call for argument. The counsel referred to and commented on Starke’s ex’ors v. Hittlepage, 4 Rand. 368; James v. Bird’s adm’r, 8 Heigh 510; Terrell v. *Imboden, 10 Leigh 321; Owen v. Sharp & wife, 12 Leigh 427; and Haws v. Leader, Cro. Jac. 270. And they insisted that the facts stated as to the constitution of the courts and the character of the juries, certainly had no existence in 1866, and a part of 1867, when these bonds were executed, as Judge Parker was then the judge of that Circuit, and the juries were formed in the same manner and of the same materials, as before the war.
    2. The objection to the second special plea is its utter incongruity. In no sense can it be termed a plea of non est factum, because it avers that the instrument was “executed” and “delivered” by the appellant to the appellee’s testator not even as an escrow, even if this was admissible, which it was not; and then proceeds to aver, in effect, that it was by the terms of the contract to be redelivered to the appellant whenever requested. That is, that it was a deed subject to the abrogation of the maker at his pleasure. They referred to 2 Thomas Coke 36 a; Williams v. Green, Cro. Eliz. 884; Moss v. Riddle & Co., 5 Cranch’s R. 351.
    
      
       Application of Maxims —“In Pari Delicto.” — in Smith v. Elliott, 1 Patt & H, 307, the court said: “In the application of the maxim, in pari delicto melior est conditio defendentis, a court of equity will not consider and nicely weigh the relative guilt of the parties depending upon the strength of their understandings, but in order to entitle either party to relief, it must be shown that there was some undue influence or fraud, so that the party did not exercise a free and intelligent will in assenting to the contract.”
    
    
      
      Contract — Void as to Creditors — Valid between the Parties. — See Starke v. Littlepage, 4 Rand. 368; James v. Bird, 8 Leigh 510; Owen v. Sharp, 12 Leigh 429; Laws v. Law, 76 Va. 533, which hold — as does the principal case — that a fraudulent conveyance, though void as to creditors, is valid as between the parties.
      In Burtners v. Keran, 24 Gratt. 70, the court said: “In the case of Harris v. Harris, decided at the last Staunton term, 23 Gratt. 737, this court held that a. bond executed by a debtor in fraud of his creditors, though void as to them, is nevertheless valid between the parties; and that the debtor will not be permitted to set up his own fraud in avoidance of the bond. The whole question is fully considered in that case, and all the authorities carefully examined by Judge Chiustiak. The same principle applies to a grantor executing a deed in fraud of a. previous purchaser from him. The deed from the defendants to the plaintiff, with all its covenants, is valid between the parties, whatever fraud the plaintiff meditated they were privy to and participated in; and they cannot now rely upon their own turpitude to defeat the covenants contained in their deed.”
      In Martin v. Lewis, 30 Gratt. 687, the court said: “As was said in Harris v. Harris, 23 Gratt. 737, 746, we cannot allow a defendant to be heard in a court of equity to say that his own act is to be avoided by his own fraud. By a stern but proper policy of the law, the party who alleges his participation in a fraud is excluded from the proof which would show it. See Harris v. Harris, 23 Gratt. 737, and cases there cited. ”
      In Persinger v. Chapman, 93 Va. 352, 25 S. E. Rep. 6, the court said: “Equity will not extend its aid to one who has been guilty of culpable negligence. It requires that the party who aslrs relief on the ground of mutual mistake shall have exercised at least the degree of diligence which may be fairly expected from a reasonable person. And it has been repeatedly decided that equity will not relieve against mistake when the party complaining had within his reach the means of ascertaining the true state of facts, and, without being induced thereto by the other party, neglected! to avail himself of his opportunities of information. Beech on Mod. Eq. Jur., pp. 53-4; Foster v. Rison, supra (17 Gratt. 340); Towner v. Lucas, 13 Gratt. 705, 722; Harris v. Harris, 28 Gratt. 766; White v. Campbell, 80 Va, 181; Chapman v. Persinger, 87 Va. 581. 13 S. E. Rep. 549; Grymes v. Sanders, 93 U. S. 55.”
      In Williamson v. Cline, 40 W. Va. 205, 20 S. E. Rep. 921, the court said: “Illegality of consideration in a sealed document may be shown at law, but not want of consideration, or failure of consideration, according to common-law principles. The statute (section 5, ch. 126, Code), changes the rule by allowing failure of consideration to be pleaded at law, but, not mentioning want of consideration, leaves that as at common law; so that neither at common law nor under section 5, ch. 126, Code, can want of consideration be pleaded or shown at law. Harris v. Harris, 23 Gratt. 737.”
    
   CHRISTIAN, J.

This case is before us upon a writ of error to a judgment of the Circuit court of Frederick county.

The suit was an action of debt upon three bonds executed by George C. Harris, the plaintiff in error, to Gabriel C. Harris, the testator of the defendant in error; one for the sum of $2,500, payable one day after date, and bearing date the 10th day of April 1858; one for the sum of $1,100, dated the 30th October 1858, payable one day after date; and the third for the sum of $1,500, pajmble one day after date, and dated the 26th day of August 1859.

At the November term of said court, in the year 1869, 'x'the defendant set aside the office judgment by a plea of payment; which was afterwards withdrawn ; and leave was given to the defendant to file special pleas within sixty days; and the case was continued. Under the leave aforesaid to file special pleas within sixty days, the defendant filed the following plea; which he denominates a “special equitable plea of offsets.”

“And the said defendant saith, that before and at the time of the execution of the single bills in the plaintiff’s declaration, he, the said defendant, did not owe any money to the said Gabriel C. Harris, and the sole consideration for the execution of the same was as follows: About the day of -, in the year 1866, four suits at law were depending and undetermined in this county against this defendant — two by Henry B. Pitzer, as plaintiff, for damages $500, in one case, and $2,000 in another; both were actions of trespass for acts done by defendant during the civil war, in impressing horses and arresting conscripts under special orders to defendant from the proper military authorities of the Con-' federate army, in which defendant was regularly enrolled and commissioned as lieutenant: the other two cases were similar, brought by Daniel Walker and David Miller respectively, for impressments, and claiming heavy damages. Defendant did not regard these claims, or either of them, or any part thereof, as constituting debts or just liabilities on his part; but owing to the unfavorable and unjust constitution of courts and juries at that time, he had good reason to apprehend that they might be enforced under the form of law upon his property ; defendant was in fact informed by his counsel that the result was uncertain; that judgment had been given for plaintiffs in similar cases in Berkeley county, and might be given here. Defendant, about the date above mentioned, ^conferred with his father, the said Gabriel C. Harris, upon the situation; who advised defendant warmly, to secure his property against these claims. The plan adopted with this view, was for the defendant to execute to his father the three notes in the plaintiff’s declaration mentioned, antedated, and in the terms as they now appear, with the understanding distinctly, that they were only to be used and treated as obligations in order to claim priority over said plaintiffs, in case of necessity; and if unnecessary, were to be handed back to defendant. Said notes were executed and delivered accordingly, and with said understanding between the parties. And said defendant solemnly avers that no other or further inducement existed for the giving of said notes; and that the plaintiff had full notice of the above stated facts before the institution of this suit. Wherefore, defendant avers that the said Gabriel C. Harris, in his life time, and said plaintiff since his death, were bound to redeliver said note to defendant, because (as he avers,) that afterwards to wit on the —•— day of- 1867, these suits for damages as aforesaid were all dismissed, and came to nothing before the death of the said Gabriel C. Harris; and according to the understanding aforesaid, they were null and void, not to be used at all and surrendered. And defendant avers that by reason of the failure aforesaid to treat said notes as agreed and understood, he, the defendant, hath sustained damages to a large amount, to wit, the sum of $10,000, a sum over and above the amount of said notes and interest, and this he is ready to verify, &c.

The plaintiff moved to reject the plea, which motion was sustained by the court; and one of the questions, and the main question, presented by the writ of error, is whether the court erred in rejecting this plea.

*1 am of opinion that the plea was properly rejected. In the first place it is difficult to conceive how an issue either by general or special replication could be made up, on such a plea; such are the multiform averments in the plea, detailing his acts and doings as an officer in the Confederate army, and his apprehensions growing out of claims for damages arising out of his acts as such, and the unjust and unfavorable constitution of the courts and juries, and detailing what his counsel and his father had advised him to do under the circumstances. I say it is impossible upon such a plea, that there could be presented a certain, direct and single issue for the jury to try; and if there was no other ground, the form of the plea, presenting as it did, several distinct iseues of fact, would have justified the court in rejecting it.

It is insisted by the learned counsel for the appellant, that the plea is a good one, under the statute commonly called the statute of equitable defences; that the plea alleged a total “failure of consideration,” and also “such matter existing before the execution of the bonds sued on, as would entitle the defendant to relief in equity.” The 5th section of chap. 172, relied upon for the introduction of the plea is in these words: ‘ ‘In action on a contract, the defendant may file a plea alleging any such failure in the consideration of the contract, or fraud in its procurement, &c. * * as would entitle him to recover damages at law from the plaintiff, or the person under whom the plaintiff claims, or to relief in equitjr, in whole or in part, against the obligation of the contract; or if the contract be by deed, alleging any such matter existing before its execution, or any such mistake therein, or in the execution thereof, as would entitle him to such relief in equity, ’ ’ &c.

Now, the plea nowhere alleges “fraud in the procurement;” *but it is insisted, it in substance alleges “failure in the consideration.”

It has been repeatedly held by this court that the words “failure in the consideration” as used in the statute, refer to contracts originally founded on a valuable consideration, and not to contracts without consideration. Cunningham v. Smith, 10 Gratt. 255; Watkins v. Hopkins, ex’or, 13 Gratt. 743.

The allegations of the plea, if true, show that the ' bonds sued upon were originally without consideration. Such a defence cannot be made to a specialty either at common law or under the statute. The seal imports a consideration, and a party cannot avoid his solemn obligation under seal upon the ground of a want of consideration. That enquiry is precluded by the veryna-ture of the instrument. A seal (as is well said in 1 Smith’s Head. Cases, p. 636,) properly speaking, renders a consideration superfluous, and binds the parties by force of the natural presumption that an instrument executed with so much deliberation and solemnity is founded upon some sufficient cause. Nor can such defence be made under the statute.

The substance of the averments in the plea,' is that these bonds were merely voluntary ; and the 7th section of ch. 172, declares that “nothing in this chapter shall impair or affect the obligation of a bond or other deed deemed voluntary in law, upon any party thereto or his representative. ’ ’

But it is insisted that the plea is a good plea under the statute, because it alleges “such matter existing before the execution of the bonds as would entitle him to relief in equity against the obligation of these contracts.” Can this proposition be maintained upon principle or authority? The able argument of the learned counsel for the appellee on this point is Conclusive and unanswerable, and the authorities with one voice, sustain his views of this branch of the case.

Suppose the defendant had filed his bill in equity containing the same allegations which this plea sets up; and asking the court to interfere and decree a cancellation and delivery up of these bonds: would he be entertained for a moment in that forum? He would have to come before, that court, with the averment in substance, that he voluntarily entered into these obligations for the express purpose of defeating certain claimants who had sued him for damages; that he had ante-dated these bonds, which he executed and delivered to his father, for the purpose of giving him a priority over these claimants; and that no other consideration or inducement existed for giving them. His own statement would close the doors of a court of equity against him. He would in effect be asking the court to interfere, and by its decree relieve him from the consequences of his own fraud. This a court of equity will never do. The authorities speak with one voice on this subject. Hven the cases relied upon by the learned counsel for the appellant, settle the doctrine (which he relies upon with much ingenuity and force to sustain another branch of his argument,) that courts of equity will not relieve parties from the consequences of their own fraud; (See 5 Rob. Pract. pp. 542, 543, where numerous cases are cited,) but will leave them where they have placed themselves, by their fraudulent contracts.

Nor would the other averments in his plea, if made in a bill in equity, aid him in the slightest degree, in securing the interposition of a court of equity. The fact that he apprehended that injustice would be done him, in the suits then pending against him for damages, because, in his opinion, the courts and juries were unfavorably *and unjustly constituted,” ought not and could not have influenced a court of equity in any manner whatever. That court would be bound to presume that no injustice would be perpetrated in regular legal proceedings had in the forum where such suits are pending. Indeed they were pending before the same tribunal, (the Circuit court of Frederick,) to which he tendered his plea. In point of fact, the courts and juries were not in his language “unjustly and unfavorably constituted.” The judge who then, and for more than a year afterwards, presided in the tribunal in which the defendant was sued, was Judge Richard Parker, who, for years before the war, and before the constitution of a military government, had been the honoured and trusted judge of tbat Circuit, and whose long judicial career had been illustrated by a purity of character and unquestioned ability and learning, securing to him a judicial record of which any judge in this State might • well be proud. As to the juries, they were constituted as they had always been and are now. His case was to be tried by an impartial jury of his own countrymen, and there was no warrant for his apprehension that injustice would be done him, either by the court or juries as then constituted. Such an allegation could not be tolerated for a moment, as an additional aid to,the interposition of a court of equity. It would be mischievous to the last degree. The result would be, that a party against whom suits were pending for the recovery of debts or of damages, might justify himself for assigning away his property, so as to put it beyond the reach of his creditors or claimants for damages, upon the ground that he apprehended or had suspicion that the judge or the juries, as constituted, might do him injustice. I repeat that such an allegation could add no force to his claim for the interposition of a court of equity, because that court would be *bound to presume that no injustice would be perpetrated in regular legal preceedings had against him in a court of law.

I think, therefore, it is clear that if the defendant had come into a court of equity, making the same allegations in his bill as he has made in his plea, his own statement of his case would have effectually closed against him the doors of a court of equity. And it follows that he has not alleged “such matter existing before the execution” of the bonds sued upon “as would entitle him to relief in equity against the obligation of these contracts. ” lam, therefore, clearly of opinion that the plea tendered, is not a good plea under the statute.

Is it a good plea at common law? I think not. I think this is emphatically one of the class of cases in which the maxim of the common law, “nemo allegans suam turpi-tudinem est audiendus, ” applies with full force.

The learned counsel for the appellant, in an argument of great ingenuity, seeks to avoid the force of this maxim of the common law, by bringing the case within the operation of that other maxim, “In pari delicto potior est conditio defendentis and in an able and learned discussion of the subject, insists, that the rule to be applied to this case is, that courts will not lend their aid to one who was particeps fraudis, either to enforce a fraudulent contract or to relieve from its effects after it is executed. He further insists that this is an executory contract, and the plaintiff is here seeking the aid of the court in compelling its execution, though fraudulent. When applied to a certain class of illegal contracts, the argument of the learned counsel, and the authorities upon which he relies, are conclusive.

There is, however, a marked distinction between contracts which are void ab initio, and those which are void *as to third parties, but which the law upon grounds of public policy, makes valid between the parties.

A contract like that in the leading case of Collins v. Blantern, so much relied upon, was one void ab initio; because, in the language of Ch. Justice Wilmot, “it was an agreement to stifle a prosecution for wilful and corrupt perjury; a crime most detrimental to the Commonwealth;” and “the wicked consideration alleged in the plea undoubtedly rendered the bond void ab initio, at the common law, being a contract to tempt a man to commit a crime. ’ ’ And so all the cases relied upon by the learned counsel for the appellee, are cases where the contracts were void ab initio, as contracts against public policy, or contracts against public morals, or some positive law, common law or statute law. And it is upon such contracts that the Supreme court of the United States found their decision in the recent case of Hanaver v. Doane, 12 Wall. U. S. R. 342. And in such cases, it is undoubtedly sound - law, that where the court, either by the allegations of the plaintiff or by a proper plea of the defendant, is informed that the contract sought to be enforced is one which is void, because illegal, it will not lend its aid either to enforce on the one hand or give relief on the other. But in the case before us, the contract was one, which though void as to third parties, is, by the express terms of the statute, (as construed by this court so often that it is impossible now that its meaning can be questioned,) binding and valid between the parties. This statute (Code, p. 565, ch. 118, § 1) declares that “every bond or other writing given with intent to delay, hinder or defraud creditors, purchasers or other persons of or from what they are or may be lawfully entitled to, shall as to such creditors, purchasers or other persons, their representatives or assigns, be void. ’ ’ But such a contract as between the parties has uniformly and by unvarying ^decisions of this court, been held binding and valid. So that in such a contract as the case before us, it cannot be said that the contract was void ab initio, but it is one which is valid between the parties; and if valid, of course one which the courts will enforce as between the parties, though void as to third parties.

Whatever may be the conflict of authorities in oth'er States, (and I think there is none when the proper distinction is borne in mind between contracts void ab initio and contracts void as to third parties, but valid between the parties,) in Virginia the question must be conceded as res adjudi-cata.

This case must be ruled by the cases of Starke’s ex’ors v. Littlepage, 4 Rand. 368; James v. Bird’s adm’r, 8 Leigh 510; Terrell v. Imboden, 10 Leigh 321; and Sharp & wife v. Owen, 12 Leigh 429. It is impossible to distinguish these cases, in principle, from the case at bar; and if ever there was a case in which the doctrine of .“stare decisis” applies in full force, it is in the case before us.

The case of Starke v. Hittlepage, 4 Rand. 368, was an action of detinue brought by the executors of Starke against Hittlepage to recover certain slaves in his possession. The verdict and judgment was for the defendant, on a plea of non detinet. The court below admitted evidence to show that Starke’s purchase of certain slaves under execution, was not a real and bona fide purchase, but one made for the defendant, and with his money, and was intended by both as a cover to protect defendant’s property from executions of other creditors. This court reversed the judgment of the court below, on the ground that such evidence was inadmissible; and although the slaves had been in possession of the defendant for twenty years, he was compelled to deliver thém to the plaintiff, under his contract; and the defendant was not permitted to show that the purchase by Starke, *at the sheriff’s sale, was not a real and bona fide purchase, and was made with the money of Hittlepage, for the purpose of defeating other execution creditors. And the maxim nemo allegans suam turpi-tudinem est audiendus was declared to be applicable to the case. Judge Green, delivering the opinion of the majority of the court, says: “In the case of Hawes v. Leader, Cro. James 270, this point has been decided at law, and has never since been questioned, but uniformly recognized as good law. In that case the intestate of the defendant granted by deed .to the plaintiff all his goods embraced in a schedule, and covenanted to deliver them quietly to the plaintiff. After the death of the grantor, the grantee brought an action of debt against his administrator for. the goods mentioned in the schedule. The defendant pleaded that his intestate was largely indebted, specifying the debts, and that the deed was made by fraud and covin between his intestate and the plaintiff, to deceive those creditors; and that his intestate, notwithstanding the deed, used and occupied the goods during his life time. To this plea the plaintiff demurred, and had judgment upon the merits.” This case of Hawes v. Header has been repeatedly approved by this court, especially in the last case on the subject, (Owen v. Sharp & wife, 12 Leigh 427,) in which Judge Allen, delivering the unanimous opinion of this court, recognizes it as “founded on sound principles of law and policy. ’ ’

Judge Green further says, (and I quote from his opinion again, because his reasoning applies with great force to this case,) it is a general rule that, “in pari delicto potior est conditio defendentis, ” and this was the principle of the civil law. But this rule operates only in cases where the refusal of the courts to aid either party, frustrates the object of the transaction and takes away the temptation to engage in contracts contra bonos *mores, or violating the policy of the law. If it be necessary in order to discountenance such transactions, to enforce such a contract at law, or to relieve against it in equity, it will be done though both the parties are in pari delicto. The party is not allowed to allege his own turpitude in such cases, when defendant at law, or prevented from alleging it when plaintiff in equity, whenever the refusal to execute the contract at law, or the refusal to relieve against it in equity, would give effect to the original purpose, and encourage the parties engaging in such transactions.” After citing several cases to sustain his position, he concludes: “Toallow a fraudulent debtor conveying his property to another with intent to defraud his creditors to allege that fraud, for the purpose of avoiding the transfer, would be using the maxim of the law to frustrate the policy of that maxim, by giving full effect to the fraudulent contrivance of the parties according to their intent; and indeed rather to enforce than to frustrate the fraudulent contract; and debtors might with perfect impunity practice frauds upon their creditors. ’ ’

The next case decided by this court was that of James v. Bird’s adm’r, 8 Leigh 510. The case was briefly this: Bird, with a view to hinder and defraud his creditors, conveyed his slaves to James, and took his bond for the sum of $8,000 as the price of them. He filed a bill for the recision of the contract, upon the ground that it was not a bona fide sale. The proofs were full as to the fraudulent intent. The court held that the bill ought to have been dismissed. Judge Parker, (with whom all the judges concurred,) said, referring to the case of Starke’s ex’ors v. Hittlepage, “If James had sued at law to recover the slaves included in the deed, Bird w.ould not have been allowed to defeat his claim by proving the fraud; and so too, if Bird brings his action (on the $8,000 bond,) *to recover the purchase money to which there seems to be no impediment, the fraudulent grantee would not be permitted to impeach the transaction, and could set up no other than a strictly legal defence.” The case before us is brought exactly within the principles of this decision. Bird might have sued at law upon his bond, to which Judge Parker said, ‘ ‘ there was no impediment, ” and James could not have pleaded that the transaction was not bona fide, but entered into to defraud other creditors. So here there is “no impediment” to the plaintiff’s suing upon the bonds, and the defendant cannot be permitted to set up the defence that the bonds were given for the purpose of protecting himself against other claimants suing him in the same court. See also Terrell v. Imboden, 10 Leigh 321; Judge Parker’s opinion, approving Starke v. Hittlepage, and James v. Bird’s adm’r, supra, and reiterating the view always entertained by this court, that such a contract as the one under consideration, though void as to creditors, is valid and binding between the parties.

The last case decided by this court, in which the questions we are now considering are discussed, was the case of Owen v. Sharp & wife, 12 Leigh 427. The case was this: Waddy Thompson being at the time much embarrassed with debt, executed a bill of sale of a female slave, absolute on its face, in order to protect the property from his creditors; but with a secret trust that the grantee should hold the property for the benefit of the grantor’s daughters. Sharp having married one of the daughters, Sharp and wife filed their bill, setting up the secret trust; and that being proved, the Circuit court decreed the slaves and their increase to the daughters of Thompson. That decree was reversed by this court. Judge Allen delivered the opinion of the court; and the first sentences of that opinion show that he considered *the questions raised in the case before us as res adjudicata; and that however harshly the decision must operate upon the appellees in that case, the court was hound by the rule of stare decisis. He says: “With every disposition to deprive the fraudulent donee of the fruits of his iniquity, it seems to me that the repeated decisions of this court, and considerations of public policy, preclude us from giving' relief in this case. A fraudulent conveyance, though void as to creditors, is good between the parties. Being valid between the parties, it follows that the fraudulent grantor cannot be permitted to allege his fraud to avoid his deed. After approving the case of Hawes v. Leader, and the Virginia cases above referred to, he uses the following language, in commenting upon the case of Ward v. Webber, 1 Wash. 274, which had been relied on by the counsel for the appellees in that case: “They (the plaintiffs in that case,) had an absolute conveyance, and no proof of fraud came from them. It was offered by the defendant. To have received such evidence, would have been to have permitted the party committing the fraud, to have relied on it in his own defence. * * * * In this case, (Owen v. Sharp), it seems to me the proof of fraud comes, and of necessity must come, from the plaintiffs. The defendant has his deed absolute upon its face, and made apparently for a full and valuable consideration. The plaintiffs are driven to the necessity of showing by parol evidence, that this recital was false, that no consideration passed; and in doing so, they prove that the money ostensibly paid by the defendant was in fact the money of the grantor ; and that this device was resorted to for the purpose of securing the property from his creditors. The deed being absolute, the plaintiffs attempt to execute a secret trust, and in doing so, show the intent with which it was created. If *the facts were reversed, if the trust had been expressed on the face of the deed, and the granice bad refused to execute it on the ground of fraud, he would then be compelled to allege his own fraud to protect himself, and could not be heard. ’ ’ In the conclusion of this able opinion, Judge Allen adds, (showing how firmly the principles announced have been settled), “The conduct of Owen in this transaction has been marked with the most heartless perfidy towards his confiding father-in-law and his children, and the grossest fraud. But standing in the position he does, it seems to me that the law protects him.”

I have quoted thus largely from the opinion of Judge Allen, because its reasoning and the principles announced, apply with peculiar force to the case under consideration. In this case the very language of Judge Allen, (substituting the word bond for deed), may be used. The bonds were absolute upon their face. The seals imported a valuable consideration. No proof of fraud came from or was necessary to come from the plaintiff. It was offered by the defendant. To have received such evidence would have permitted the party committing the fraud to rely on it in his own defence. The plaintiff holds the bonds absolute upon their face, and apparently for a full and valuable consideration. The defendant is driven to the necessity of showing, by parol evidence, that no consideration passed; and in doing so he must allege and prove that it was a scheme or device resorted to for the express purpose of securing his property from claimants who had brought their suits for damages in the same court in which he offered his plea. In this case the proof of fraud comes, and of necessity must come, from the defendant. The bonds held by the executor being absolute upon their face, for the payment o f a sum of money due the testator, ‘ ‘ for value received of him,” as expressed on the face of the bonds, *the defendant attempts to establish a secret trust; and in doing so must show the intent with which it was created; and so must rely upon his fraud, in his own defence.

I think it is clear that upon the decisions of this court, the plea tendered by the defendant, presents no legal defence to the plaintiff’s action on the bonds, and that the court below did not err in ejecting the-plea. Nor are the decisions of this court at all in contravention of the best considered cases in the other States of the Union, or of the English cases.

In a very learned note of Messrs. Hare and Wallace in Smith’s Leading Cases, Vol. 1st, pt. 1st, ed. of 1866, to the Leading Case of Collins v. Blantern, much relied on by the counsel for the appellee, and where all the authorities, English and American, are carefully collected, it is said, p. 637, “In order, however, to apply the rule potior est conditio defendentis, correctly, it is necessary to consider, not who is plaintiff and who defendant, but by whom the fraud is alleged, or sought to be made a ground of defence or recovery. Eor although it is no doubt true in general, that the law will not lend its aid to enforce a fraudulent or illegal contract, still if the plaintiff can make out his case without disclosing the fraud, the defendant will not be allowed to show that he is equally guilty with the plaintiff, as a reason why the latter should not recover. An action of debt or ejectment consequently cannot be defeated by proof, that the instrument which constitutes the foundation of the plaintiff’s claim, was executed with a secret and fraudulent understanding that it should be subject to a trust for the benefit of the defendant, and surrendered whenever he thought proper to demand it. ’ ’ And for this doctrine the authors cite many cases, English and American.

These doctrines must now be considered as settled too firmly to be shaken. There is but a single case which 'x'can be said to be in opposition to the views herein expressed, and that when properly understood, has no application to the case. That, is the case of “Austin’s adm’x v. Winston’s ex’x,” 1 Hen. and Mun. 33. In the first place it may be said that this case has never been followed. It was a decision of two judges; and its authority has been seriously questioned. In James v. Bird’s adm’r, 8 Leigh 510, already referred to, Judge Parker says: “There is no case in equity where relief has been given to a fraudulent grantor of property, the conveyance being made to protect it against his creditors, except that of Austin’s adm’x v. Winston’s ex’x, decided by a divided court, and perhaps under the circumstances, properly decided.” Hr. Conway Robinson, in his admirable work, in reference to the same case, says: “Notwithstanding Austin’s adm’x v. Winston’s ex’x, the case of Hawes v. Leader, was approved in Stark’s ex’ors v. Littlepage, and such is the general course of decisions;” and in a note to the text he refers to James v. Bird’s adm’r, Terrell v. Imboden and Owen v. Sharp and wife; in all of which and especially the last, Hawes v. Leader was approved as unquestioned law. 5 Rob. Pract. 543. But conceding that Austin’s adm’x v. Winston’s ex’x is sound law and its authority unquestioned; still the case before us cannot be brought within the principles of that case. The relief given in that case was founded upon the fact that the grantee, a creditor, (the debtor being in distressed circumstances,) had availed himself of his power over him to induce the debtor to unite in the fraud; the creditor having proposed and urged the execution of the scheme which was adopted for that purpose. No circumstances of that sort are even suggested in the case before us.

It is further argued that there is a distinction between executory and executed contracts; and this being an exec-utory *contract, the court ought to refuse its aid in granting relief to the plaintiff. It is sufficient to say in answer to this position, that no such distinction is recognized in the uniform decisions of this court. But, on the contrary, Hawes v. Leader, so often approved, was a case of executory contract; and in James v. Bird’s adm’r it was distinctly said by Judge Parker, that if the suit in that case had been brought on the bond of $8,000 executed as the price of the slaves, James could not have defeated the action by alleging that the bond was not in fact given for the pur-' chase money, but was only intended to defeat the claims of other creditors; in other words, he ‘ ‘would not be allowed to impeach the transaction, and could set up no other than a- strictly legal defence. ’ ’

It is, however, urged with much ingenuity and force, that this case does not come within the operation of the statute of frauds; because these bonds were not given to hinder and delay creditors, but only to protect the defendant against the assertion of unjust demands, which he apprehended might be recovered against him because of the “unfavorable and unjust constitution of courts and juries at that time,;?’-that there was no fraudulent intent to secure his property against the claims of creditors; but the scheme resorted to was one intended for protection against unjust claimants. Now, it must be conceded that a party claiming damages for the acts of another, must be regarded in law as much the creditor of that other, as one holding his bonds or 1 other promises to pay. Every person having a legal demand against another, is his creditor, whether that demand is one sounding in damages, or one that comes under a contract. This is a proposition too plain for argument. And it is to my mind equally plain, that the question, whether the demand asserted is a just and legal one, and whether *the courts and juries will be likely to enforce an illegal and unjust claim, is not one for the party himself to decide. Nor will another court, passing upon his transactions, in transferring his property to another to protect himself against such demands made in regular legal proceedings, enquire whether his apprehensions were justified, or whether the suits pending against him were proper suits. All these must necessarily be questions which another court cannot enquire into, and which certainly the party cannot be allowed to decide for himself. Much has been said about the abnormal condition of affairs after the close of the late war, and the uncertainty of the administration of justice, growing out of the fact that the State was subjected to a military government which had the power to remove all State officers. But all this, (if it could be taken cognizance of at all in a court of law, upon a plea to an action of debt,) applies to a later period. When these suits were pending against the appellant for damages, in the Circuit court of Frederick, during the year 1866 and part of the year 1867, when they were dismissed, that court was presided over by an able and upright judge, who was not removed till the year 1869; and I think all must admit that during that period there was certainly an honest and impartial administration of justice in this Commonwealth. So that there was nothing in the extraordinary circumstances of the times which can take this case out of the operation of the well settled rules of law.

I am also of opinion, that there was no error in rejecting the special plea of non .est factum. That plea admits the execution 'and delivery of the bonds by the appellant to the appellee’s testator, but avers that they were “so executed and delivered without any consideration in money or other value, or any debt then due and owing between the parties; but was so made and delivered '^solely, for the use and benefit, and under the control of the said defendant, and to be redelivered to said defendant, by the agreement of the parties at the tíme, whenever the said defendant should request it. Wherefore, the said defendant says the said writing obligatory is not his deed,” &c.

This cannot be received as- a plea of non est factum, because the plea in terms admits the execution and delivery of the bonds, the very thing- which the plea of non est factum always puts in issue. Nor is the objection one of form only. The matter averred could not be pleaded in any form. It avers in effect that the bonds were delivered to the obligee, to be redelivered to the obligor whenever he demanded it. A deed executed and delivered, subject to the abrogation of the maker at his pleasure, is something unknown to the law. However much disposed I might be to relieve the appellant under the circumstances, from a harsh judgment, I am compelled to say, in the language of Judge Allen, in Owen v. Sharp, ‘‘ He has placed himself in a position where thé' courts cannot relieve him.

Upon the whole case, I am of opinion that, upon well settled principles of law, established by the uniform decisions of this court, there was no error in the judgment of the Circuit court; and that it ought to be affirmed.

ANDERSON, J.

Broom says: It is “a general rule that an agreement cannot be made the subject of an action, if it can be impeached on the grounds of dishonesty, or as being opposed to public policy; if it be either contra bonos mores, or forbidden by the law.” Broom’s Regal Maxims, p. 349, side. Ex dolo malo non oritur actio, has been recognized as a maxim of law, wherever organized society has existed. The same writer says, *those who come into a court of justice for redress, must come with clean hands, and must disclose a transaction warranted by law. “Ex maleficio non oritur contractus. And this defence may be made by a defendant who is pari delicto. Although it is an indisputable proposition! us against an innocent party, that no man shall set up his own iniquity as a defence, any more than as a cause of action; and that is what C. J. Mansfield meant in Montefiori v. Montefiori, 1 W. Black. R. 363; yet, where a contract or deed is made for an illegal purpose, whatever may be stated in it, a defendant against whom it is sought to be enforced, may show the turpitude of both himself and the plaintiff; and a court of justice will not give its aid to enforce a contract springing from such a source. In Holeman v. Johnson, Cowp. R. 341, 343, C. J. Mansfield said, “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 action upon an immoral or illegal act. If from the plaintiff’s own stating, or otherwise, the cause of action appears to arise ex turpi causa, or a transgression of a positive law of this country, then the court says, he has no right to be assisted. * * * So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plain-' tiff, the latter would then have the advantage of it; for where both are equally in fault, potior est conditio defendentis. In support of this principle, authorities might be cited almost without limit; but I deem it unnecessary. It cannot be controverted successfully without overturning the oldest and best established maxims of the law.

But it is contended, that the acts prohibited by the statute of frauds, to hinder, delay or defraud creditors, &c., do not fall within this principle. Are they not dolo malo? Are they not against mores bonos? Are they not dishonest? Do not contracts or conveyances *which are made to hinder, delay and defraud creditors, or other persons of their just and legal demands, arise ex maleficio? The statute declares that such acts “as to such creditors, purchasers or other persons, their representatives or assigns, shall be void.” It does not say that they shall or shall not be void, or valid as between the parties themselves. The statute only makes them void as to the parties who were designed to be injured; and as between the parties themselves does not provide how they shall be treated or regarded. The law on this subject is not declared by the statute; and if such acts were valid and binding as between the parties themselves, at common law, they would still be so after the statute. But were they? I cannot but think that it was as dishonest and immoral for a man to dispose of his property with a secret trust for his own benefit, to defraud his creditors or other persons, of their just and legal demands, before the statute, as since. And I think the better opinion is, that the statute is only declaratory of the common law. Coke Ritt. 290 b. Lord Coke so held. And Lord Mansfield said that the principles of the common law, as now universally known and understood, are so strong against fraud in every shape, that the common law would have attained every end proposed by the statute of Elizabeth c. S. But the courts have held that such contracts are binding between the parties themselves. But I am not aware that it has ever been held that the party who was pari delicto, and who was out of possession, could maintain an action to enforce the contract, or to acquire the fruits of his fraudulent contrivance, unless it is so held in Starke’s ex’ors v. Littlepage, 4 Rand. 368. That case was decided by a minority of the whole court, by two judges in a court of three. I have found no other case in which this court has decided that a fraudulent grantee, who was pari delicto *in the fraud, would be aided, either by a court of law or equity, to possess himself of the fruits of his fraudulent contract, or that the fraud might not be shown by the defendant.

The case of Austin’s adm’x v. Winston’s ex’x, 1 Hen. & Mun. 33, was a bill by the executor of the grantor, against the fraudulent grantee, to redeem the slaves which he had obtained from the grantor, under a fraudulent contrivance to shield ' them from the grantor’s creditors, with a secret trust that they were to be restored to the grantor. Relief was given in that case, to the representative of the grantor, upon the ground that he was not pari delicto in the fraud. J. Tucker was of opinion that he was pari delicto, and that his bill ought to be dismissed. He says: “It is a maxim at law that when the parties are equally culpable or criminal, the defendant must prevail: and in equity,- that he that has done iniquity shall not have equity; that is, that he shall not have the aid of the court where he is plaintiff; which brings both maxims to the same point". ” And he further says, “that had Austin been the plaintiff, and Winston the defendant, I should have held him as little entitled to the aid of a court, as I now think Winston.” His opinion is put upon the ground that they were equally in fault, and that in such case potior est con-ditio defendentis. He clearly negatives the idea that by virtue of the statute of frauds, the contract is binding between the fraudulent parties themselves, in the sense that it will be enforced in courts of justice, as between the parties, at the instance of a particeps fraudis. The other judges were for enforcing it, in favor of the fraudulent grantor, but upon the ground that he was not pari delicto, • but that there were circumstances palliating and excusing the fraud on the part of the "grantor. And, in that case the majority of the court held that the ostensible ^contract was not binding between the parties under the circumstances, and enforced the secret trust in favour of the grantor, but upon the ground that he was' not pari delicto. The majority of the court concurred with J. Tucker in the principles of law, as laid down by him, but different from him in their application to that case.

In the case before us, I may here remark, if the plaintiff in error had been plaintiff below, and had exhibited his bill in equity against his father’s executor, to compel him to surrender his bonds, in compliance with his father’s agreement, the circumstances, I think, would have presented a much stronger case- for relief, than in the case of Austin’s adm’x v. Winston’s ex’x. But, in this case, the plaintiff in error was defendantand it was a plain case for the application of the principles, as laid down by J. Tucker in Austin v. Winston, and concurred in by all the judges, and controverted by no other decision of this court, that I am aware of, except in Starke’s ex’ors v. Littlepage, supra. The subsequent cases of James v. Bird’s adm’r; Terrell v. Imboden & others; and Owen v. Sharp & wife; cited and relied on by the counsel for defendant, are not in conflict with the principles declared in the commencement of this opinion, and as laid down by J. Tucker in Austin v. Winston, and concurred in by the whole court. • In all of those cases relief was denied thé plaintiff, who sought relief from the contract made to defraud creditors, and for the enforcement of the secret trust in his favor. If the contract is binding between the parties themselves, the courts will leave them where they have placed themselves," and will' not open its doors for either of them to enter, to obtain its aid. to carry out • the. fraudulent contract. The antieh-principle of equity,' that a- court of equity will not stain its escutcheon by aiding a party in carrying out a fraud; *or that other great legal maxiin that in pari delicto potior est conditio defendentis, has not been overturned or assailed by either of those decisions. And the case of Starke’s ex’ors v. Bittlepage, decided by a minority of the whole court, and therefore not authority,has not been followed in subsequent cases; and whether right or wrong in principle, has not been established as authority. And if the transaction in this case was fraudulent, the father was at least in pari delicto with the son; and the judgment of the court below, in repudiating the long established maxim, that a right of action cannot arise out of fraud; and also that other equally well established maxim, that when the plaintiff and defendant are in pari delicto, the defendant should prevail, is erroneous.

In this view I am fully sustained by the Supreme court of Kentucky, in Norris v. Norris’ adm’r, 9 Dana, R. 317. That was an action of covenant. The opinion of the court was delivered by the able and distinguished Chief J. Robinson, and maintains that “when the parties to an illegal or fraudulent contract are in pari delicto, neither a court of equity nor a court of law will aid either of them in forcing the execution of that which may be executory, or in revoking or rescinding that which may be executed. In such a case, the law will not be the instrument of its own subversion. And to every invocation of its assistance, replies, in pari delicto, potior est conditio defendentis.” Again: “Ourstatute against frauds, which declares that all conveyances, bonds, etc., made for the illegal purpose of, defrauding bona fide creditors or purchasers, shall be void only as to any such creditor or purchaser, has never been construed as having been intended to change the conservative principle just defined. * * * And, therefore, a party to an executorj" agreement made to defraud creditors or ^purchasers, has no more right to maintain a suit for coercing the execution of it, than a party to an executed contract for the same illegal end would have to prosecute a suit for restoration or rescission.” The same distinction is maintained in Mason & wife v. Baker, 1 A. K. Marsh. R. 208, marg. p. 153, top. Chief J. Boyle, delivering the opinion of the court, says: ‘It is true that the bill of sale, though fraudulent as to creditors and purchasers, is nevertheless binding in law upon the parties to it; and that "a court of equity would not interfere. in behalf of Baker (the grantor) to set it aside. But it is equally true, that a court of equity cannot, according to the principles by which it is invariably governed, lend its aid to give effect to the bill of sale. For Hamlett, (the grantee), as well as Baker, is particeps criminis, and equally guilty of the fraud. And the rule is, that in respect to the parties to the fraud, in pari delicto potior est conditio defendentis.” Fargo v. Ladd, 6 Wis. R. 106, is in accord.

-The principle of these cases is, that although the statute is construed to avoid the contract only as to those whom it was designed to defraud, and to consider it binding between the parties themselves, the courts will not interfere to set it aside, or to enforce it, but will leave the parties where they have placed themselves. There is nothing in the opinion of J. Allen, in Owen v. Sharp & al., supra, in conflict with this principle. He holds, indeed, under the established judicial construction of the statute, the contract is binding between the parties themselves, and that the court could not entertain the plaintiffs, who claimed under the fraudulent grantor, to rescind it, although the perfidious and iniquitous conduct of the fraudulent grantee would strongly incline it to do so. Who can doubt that if the case had been reversed, and the fraudulent grantee had been suing to enforce 'x'the contract, that the court would, with alacrity, have dismissed him from its portals. The perusal of J. Allen’s opinion can leave no question of this on the mind. And that is precisely the case here. The fraudulent obligee is seeking the assistance of the court to enforce his fraudulent contract against his son, in which he is more to blame than the son. For, doubtless, the son consented to the arrangement under his parental influence. The character of the transaction is made known to the court by the plea; the facts of which, on a motion to reject, as upon a demurrer, must be taken as true. And now this father invokes the assistance of the court, in violation of his faith to his son, (or his personal representative does it, which is the same thing,) to enforce this fraudulent contract in his behalf, and to help him to the fruits of his fraud, and thereby enable him to practice a most iniquitous fraud upon his son. To entertain him for such a purpose, it seems to me, would bring reproach upon the courts, and the administration of public justice. It cannot be the public policy requires that the equally culpable, in this case, the most culpable party, should be rewarded, by the direct instrumentality and agency of the courts of justice, with the fruits of his fraud, in order to punish the other party, and to deter others from such practices. This act most probably would never have been committed by the son except by the influence and advice of the father; and to reward him for it, would encourage its repetition, which is certainly against public policy.

But I rest my opinion in this case also upon another ground. The plaintiff in error was guilty of no fraud in the transaction as set out in his special plea, either at common law, or under the statute. His case does not fall within the purview of the statute of frauds. The language of the 1st section is (Code of 60, Chap. 118, *p. 565,) “every gift, conveyance,” &c., and “every bond or other writing, given, with intent to delay, hinder or defraud creditors, purchasers or other persons, of or from what they are, or may be lawfully entitled to, shall, as to such ered-itors, purchasers or other persons, their representatives or assigns, be void. ’ ’ These bonds were not given to defraud any persons “of or from what they were lawfully entitled to.” The facts as shown by the plea, are, that the plaintiff in error was an officer in the military service of the Confederate States in the late war, and that four suits had been instituted against him for heavy damages by parties claiming to have been loyal citizens of the United States, for acts done by him in his official character, in obedience to the orders of his superiors in command during the war. And that he was greatly alarmed, and seriously apprehended, that owing to the bitter hostility which swayed the then supreme power in the country, towards the class to which he belonged, that the plaintiffs would succeed, in the then unsettled condition of the country, without a constitutional a nd stable government, in recovering their unjust demands against him; which would overwhelm him with ruin. That he sought' advice from his counsel, who gave him no ground for hope or encouragement. That he then sought counsel from his father, who" increased his alarm, and urged him to do something to protect him from the impending catastrophe; andas the result of that conference, he executed the bonds upon which this suit was brought, and placed them in the hands of his father, to have the force of bonds, only in the event that the plaintiffs recovered against him, in said suits; and that if they did not recover, then the said bonds were to have no force or effect; but-were to be delivered up to him by his father. And he avers that said suits-were afterwards abandoned, and dismissed *by the plaintiffs, and his father died, without returning to him his said bonds, and they afterwards coming to the possession of his executor, the defendant in error, he instituted this suit upon them. It is evident from the pleadings, that the papers in controversy, were signed and sealed by the plaintiff in error, and handed to his father by his advice, for his protection, in the event there was a recovery against him, in the suits aforesaid. It was designed, however vain and ineffectual the device, to screen his property from any recovery that might be had against him in those suits, and for no other purpose whatever. It was not intended to protect his property from the claims of creditors or other persons, of what they were or might be lawfully entitled to, because the bonds were handed to his father, with the express condition, that they were to be returned to him in the event that there was no recovery against him in those suits. If there was any intent to delay, hinder or defraud any body, it was only the plaintiffs in those suits.

Was the execution of these bonds, for the purpose of rendering a recovery in these suits unvailing, fraudulent in intent? They clearly had no lawful or just claim against him for damages for the execution of the orders of his superiors. It was his duty to obey their orders; and they had the powér to enforce obedience. They had, therefore, no just or lawful demand against him. And a recoverj' against him, would be repulsive, not only to the well established principles of law, but to the plainest dictates of morality and justice, which they virtually acknowledged themselves, by abandoning and dismissing their suits. Yet, without any constitutional protection, and with a sense of the insecurity of all personal and civil rights, under military-rule, and not knowing how the courts which would have the trial of those suits, might be constituted under the military bills, *which had been enacted by Congress, which placed the civil authority under the foot of the military, he entered into this arrangement with his father, and by his advice, to save himself and family'from destitution and ruin, should such an iniquity be perpetrated against him, as he apprehended, and had just cause to apprehend, might be done, in the then prevailing temper of those who wielded the power. There might have been no necessity for it, as the result showed there was not. But in that case, no harm would be done to any one; and no harm would have been done, if the father had kept his faith with his son, and returned him his bonds. Neither creditors nor purchasers, nor other persons including the plaintiffs in those suits, suffered-any loss by this arrangement between the father and the son. Nor does it seem to m'e that it was fraudulent in intent, because designed to render any recovery in the suits which had been instituted against him, unavailing.

Actual fraud cannot exist where there was no fraudulent intent. And there can be no fraudulent intent unless injury is intended to the rights of others. And no injury' can be done to other’s rights, when none existed. Now the plaintiff in error, by this arrangement with his father, however unwise or injudicious, has done no injury to any body. The plaintiffs in those suits have acknowledged they had no rights, by abandoning them. And the execution of the bonds in question, has not affected them in any way; and could not have affected them unless they had succeeded by unlawful authority, by might and not by right, in recovering judgments against him. ' In that case the bonds, if they could have been made availing to the obligor, would only have protected his property against a wrongful invasion of his rights by lawless power. The act was not done to protect his ^property against a rightful and constitutional administration of the law; from that he had nothing to fear. But it was only' designed to operate against an irregular and unconstitutional administration of the law. It is said that a pure and able judge presided in the court where those suits were brought; but what assurance was there that he would continue to preside there under the military bills enacted by Congress, until those suits-were tried. He was then a judge only at suffer-anee, and might be removed any day, as he was soon after, by the fiat of a shoulder strapped despot; an issue, which, I think, the plaintiff had cause to apprehend, in the circumstances which surrounded him. His apprehensions, though by no means groundless, were not realized, and the writings he executed were not to operate if they were not realized. His design was not to invade the rights of others, but only to protect his own. If his apprehensions were groundless, no harm was done; if they were real no wrong was done. It was only against apprehended wrong that he sought to protect himself, under circumstances most extraordinary and anomalous. It is true that in his attempt, he resorted to deception. How his conduct might be regarded in the code of morals, it is needless to inquire. But if there is such a thing as dolus bonus; if a person would be justified by finesse and deception to shield his property from a lawless robber, he, by this contrivance, is liable to no greater censure.

I know of no principle which would forbid the interference of a court of equity, if this suit had been brought by the father in his life time, to restrain him from perpetrating so great a wrong upon his son, in violation of the plainest principles of right and honesty. And what the father could not do, if he were alive, his personal representative cannot do,' now that *he is dead. To my mind, it is a case which calls loudly for the relief of a court of equity.

Believing that the first special plea of the defendant in the court below, substantially presents the ground of this defence ; and that it is authorized by Sec. S, Chap. 172, of the Code of 1860, I am of opinion that the court erred in rejecting the plea.

The special plea of non est factum is very inartificially drawn, and I am inclined to think that the special facts as therein set out, do not justify the conclusion that the said writing was not the defendant’s deed. But it is by no means clear that the plea of non est factum would not be a good plea upon the facts as now fully disclosed in the •first special plea. In Ward & al. v. Churn, 18 Gratt. 801, the court held that if the instrument was delivered to the obligee upon a condition, and the condition was known to the obligee, then the obligor is entitled to insist on said condition, and the obligee, if said condition has not been fulfilled, is not entitled to recover on the bond. In that case one of the obligors named in the bond had not subscribed his name; and a scroll was annexed to which no name was signed. But such indications of incompleteness in the instrument are only circumstances from which an inference may be drawn, that the instrument was delivered to the obligee, only upon condition: not equal in force to direct and positive evidence that it was so delivered. J. Joynes, in delivering the opinion of the court, said: “When the instrument is delivered directly to the obligee, the delivery cannot be regarded as conditional in respect to the party who makes it; unless the condition is made known to the obligee.” (p. 813.) And he cites Hudson v. Revett, 5 Bing. R. 368, (15 Eng. C. L. R. 467), in which C. J. Best characterized the old rule that a deed could not he delivered as an escrow to the grantee and obligee as a mere *technical subtlety; and quotes Comyn as good authority, and as saying: “If it he delivered to the party as an escrow, to be his deed on the performance of a condition, it is not his deed until the condition is performed, though the party happen to have it before the condition is performed.” He also quotes J. Cabell in Hicks v. G-oode, 12 Leigh 479, that the position that where the deed is delivered to the donee, it is not competent for the obligor to show that it was delivered as an escrow, or upon condition, rests on technical and unsatisfactory grounds. J. Joynes himself characterizes it as “strict and technical to the last degree;” and quotes from Preston in his edition to the Touchstone, to show that he did not regard it as the law in his day.

But it is unnecessary, and would protract this opinion, already too long, to say more on this point. I think it is clear from the record, that the plaintiff in error, has not had a fair trial of his case upon its merits, and that flagrant injustice has been done him by the judgment of the court below. Upon the whole, X am of opinion to reverse the judgment, and to remand the cause, &c.

MONCURE, P., and STAPLES and BOULDIN, Js., concurredin the opinion of Christian, J.

Judgment affirmed.  