
    * Thomas Bayley & Al. versus John Taber & Al.
    Where a statute had made promissory notes of a certain description, made or is- - sued after a given day, utterly void, it was held competent for the makers of such notes, in an action brought against them upon notes bearing date before the day, to prove that they were, in fact, made and issued after the day.
    The declaration in this action contained thirty-seven counts upon as many promissory notes, alleged to have been made by the defendants, each under five dollars, payable to bearer on demand, for value received, and bearing date between the third day of October and the thirtieth day of December, 1804.
    The action was tried upon the general issue, before Parker, J., at the sittings after the present term.
    At the trial, notes comporting with the several counts were produced in evidence, all bearing the impression of plates, types or printing. The signature of the defendants to all of them was admitted.
    The defendants offered to prove that some of the notes declared on were, in fact, made and issued by them after the first day of April, 1805, though bearing date before that day; and that the notes which had been so made were antedated by them, to avoid the operation of the statute of 1804, c. 58., which declares notes of the like description, made or issued after that day, to be utterly void.
    This motion was overruled by the judge, and a verdict being found for the plaintiffs, the question was saved for the consideration of the whole Court; it being agreed by the parties that if the Court should be of opinion, that the defendants ought to have been permitted to prove, contrary to the apparent dates of the notes, that they were in truth made and issued after the passing of the aforesaid statute, and after the said first day of April, a new trial should be granted, otherwise judgment should be entered on the verdict.
    It was further agreed, that the action should stand continued nisi, and that in the mean time the counsel on either side might furnish the Court with their respective arguments in writing. The reporter has been favored with a perusal of those arguments, and [ * 287 ] regrets * that, in abridging them, he has so much diminished their strength as well as elegance.
    
      Mellen, for the defendants,
    contends that the evidence, which the judge rejected, ought to have been admitted, and that the defence stated was substantial and meritorious. The statute referred to was made expressly to put a stop to the circulation of this description of notes, which the legislature deemed to be a great mischief. It was intended effectually to destroy their value, as the most certain method to prevent their circulation; and for that purpose the act expressly takes away all power of enforcing the payment of them. But if evidence of the kind offered at the trial is not to be admitted, the design of the law is defeated, and any man, by giving a false date to his notes, may evade the prohibition, and continue the circulation of what the legislature have considered as a species of nuisance to the community.
    The objection to the admission of this evidence relied on at the trial, that a party shall not be permitted to show his own wrong in his own defence, though founded on a position generally correct, cannot avail against a positive statute provision. Hence though in an action by an innocent endorsee against the maker of a note, want of consideration, or an illegal one, if unknown to the plaintiff, forms no legal defence at common law; yet between the same jmrties a consideration illegal by statute, and a legislative declara lion that the instrument declared on shall be deemed utterly void will certainly defeat the action . The case at bar bears a strong resemblance to actions on usurious or gaming notes.
    
      If the plaintiffs became possessed of these notes after the 1st of April, 1805, as the evidence rejected necessarily implies, they were wrong-doers in the very act of receiving them, as they aided the person of whom they received them to violate the law; and though the statute has not inflicted a penalty on the receiver, yet if he * sets up a right to recover on them, his connection [ * 288 ] with the wrong-doer ought to defeat his claim. To this purpose he becomes particeps criminis; and the law will not enable a man to support an action on a contract or transaction directly against law. Ex delicto non oritur actio 
      .
    The plaintiffs declare as holders or bearers of the notes in question. In suspicious cases it is incumbent on the plaintiff to prove that he became fairly possessed of the note . If the present plaintiffs received these notes after the 1st of April, 1805, they certainly did not become fairly or legally possessed of them; and if they were not bound to prove how they became possessed, it was surely competent for the defendants to show that the possession was illegally obtained. The most decisive proof to this effect was that rejected at the trial; for if these notes were not in existence on the first of April, the plaintiffs could never have received them honestly, or pass them without a plain violation of law.
    
      Hopkins arid Lincoln, for the plaintiffs,
    insist that the maxim of the common law, that no man shall take benefit of his own wrong, is in no case departed from, with the exceptions alluded to by the counsel for the defendants, of actions on usurious and gaming contracts. But in those cases there is an eocpress statute provision to-control the common law, which is wanting in the present case. And there is ample provisions in the statute referred to, and in the additional statute of 1804, c. 134., to remedy all the mischiefs intended to be prevented. Penalties are enacted for issuing and passing such notes, &c., and qui tarn actions provided for their recovery. The doctrine contended for by the defendants would make the statute to encourage and promote fraud; as parties, by antedating their notes, and practising upon the ignorant and uninformed, would shelter themselves * under its provisions. Such [ * 289 ] a construction would be to legalize a cheat.
    Further, in the cases of usurious contracts, the plaintiff is really the wrong-doer, and not the defendant. There is no offence in promising or paying more than lawful interest for money lent; but the defendant is permitted by law to avail himself of the extortion of the plaintiff. In this case the plaintiff is the injured party, and the defendant, who is the wrong-doer, seeks to take advantage from his own wrong.
    Gaming contracts might be enforced at common law. Particular statutes have been enacted to defeat them. The parties there, in virtue of the provisions of divers statutes, are in pari delicto, and no action can be maintained on such contracts. But unless it can be shown that a similar provision is made in our statutes relative to notes of the description under consideration, there is no analogy between the present action and actions upon gaming contracts; for surely there are no principles common to both.
    The statute, indeed, declares notes, bills, &c. of a certain description to be void. But from the face of the contract itseff, it appears that the notes declared upon are not of that description; and the defendants, the only actors in a breach of the law, if there be any, would take advantage of that very breach of law, to defeat their own contract.
    It is said that both the parties are in pari delicto, et melior est conditio possidentis. If this maxim applies in the present case, it is in favor of the plaintiffs; for if the plaintiffs and defendants are both wrong-doers in their respectively paying and receiving of these notes, still the defendants should not be permitted to prove this by establishing another fact, which proves them to be guilty of a fraud.
    But the parties are not in pari delicto. The statute no where declares that the receiving such notes, &c. is * contrary [*290] to law; but the issuing and passing of them is made criminal. The breach of law, then, is wholly on the part of the defendants, who now move for permission to show a further wrong done by them to defeat the plaintiffs’ right.
    It may further be made a question, whether, under the general issue, which alone is pleaded in this action, such evidence, if it were proper on every other ground, is admissible. It is stated in Gilberfs Law of Evidence , that “ public as well as private statutes ought to be pleaded, when they make void legal solemnities, or take away the compulsion to the performance of a contract.”
    
      
      
        Bower vs. Bampton, 2 Str. 1155. — Lowe vs. Walker, Doug, 736
    
    
      
      
        Cowp. 197. 790. — 2 W. Black. 1073. — Doug. 468. — 1 H. Black. 65.
    
    
      
       3 Burr. 1516.
    
    
      
      
        Vol. 1. page 16.
    
   Afterwards, at an adjournment of the March term, in the county of Suffolk, holden in July following, the opinion of the Court was delivered as follows, by

Parker, J.

This cause was tried before me at the sittings after the last law term, in Cumberland, in May last; and I then inclined to the opinion, that the defendants should not be permitted to allege a falsity in an instrument made and signed by themselves, and which had by them been put into general circulation as money. Notes of this description, under the denomination of Taber’s notes, to a large amount, having become a common currency in the district of Maine, it suddenly struck me as inconsistent with the common principles of justice, and the policy of the law, that the promisers in those notes should be allowed to avoid payment of them to an innocent holder, by alleging that they bore false dates, and by showing that in uttering them they had contravened the laws of the commonwealth.

I therefore rejected the evidence offered: but very soon after the trial, having revolved the question in my mind at more leisure, I came to doubt of the correctness of my opinion, and intimated my desire to the counsel, that the question should be reserved for the consideration * of the whole Court. This was [*291 ] done in such manner as to cause very little delay, and no inconvenience to the parties or their counsel; it having been agreed that the question should be taken up by the Court at this adjourned session, and that the arguments of the counsel should be reduced to writing and transmitted to the Court.

Upon an attentive consideration of the question, and of the arguments sent to us, which on both sides are concise and perspicuous, we are unanimously and clearly of opinion, that the facts proposed by the defendants to be proved to the jury at the trial, constitute a good defence against the counts, to which those facts are applicable, and that it is competent to the defendants in this action to set up and maintain such defence.

The statute of 1804, c. 58. <§> 1., enacts that all bills, notes, checks, droughts or obligations whatsoever, under the amount of five dollars, payable to bearer or to order, shall be wholly in writing ; and that all notes, &c., under the aforesaid amount, and payable as aforesaid, which should be made or issued after the first day of April, then next, and which should bear the impression of types, plates or printing, should be utterly void, and that no action should be thereon sustained in any Court of law.

The second section of the same statute imposes a penalty upon any person who should issue or pass any of the securities described in the first section, after the said first day of April, which was April, 1805.

The same statute, c. 134., imposed an increased penalty upon any person who should, after the tenth day of the same April, issue or pass like notes, other than those of incorporated banks, for a less sum than five dollars, or whereon less than five dollars should be due, with intent that the same should be circulated as currency.

The statute first cited is peremptory and unequivocal, in enacting that all notes like those declared on in this action, made [ * 292 ] or issued, after the first day of April, * 1805, shall be utterly void ; and it prohibits the sustaining of any suit upon them in any Court of law. The defendants say, and they offered to prove, that some of the notes sued in this action, were made and issued after that day. To reject the proofs of these facts, because the defendants are the original promisers, and because the plaintiffs may be supposed to be innocent holders of the notes for valuable considerations, would be, to all intents and purposes, to defeat the operation of the statute, and would amount to a judicial repeal of an act of the legislature.

The maker of a note payable to bearer is generally the only person to be called upon for payment, it passing from hand to hand, on the credit of the promiser’s name, like bank-bills, the receiver seldom requiring any guaranty from him who passes it. Now the declared object of the legislature was entirely to prevent the circulation of such paper. But if, by giving a fictitious date to them, the maker is prevented from showing that they were made or issued after the time, when they were declared by the statute to be void, they would continue to circulate, as long as there should be confidence in the ability of the makers to pay them.

However hard the operation of the statute may appear to be against persons, into whose possession such notes may have come bona fide, and for a valuable consideration, it is a hardship created by law for the public good, and the Courts of law are prohibited from granting any relief against it.

Nor is it altogether certain that the receivers of such notes are free from blame, although not privy to the actual making or antedating of them. The laws of the government are presumed to be known by all the citizens. If the notes were in fact made or issued after they were declared void by statute, and after a penalty was attached to the passing of them, although no penalty is expressly enacted against the receiver; yet the act of receiving [ * 293 ] was necessary to enable the offender to pass * them, and in this view the receiver may be considered as having aided in the offence of passing. Nor is it improbable that the legislature contemplated the punishment of the receiver, when they took from him all power of coercing payment of such notes in the Courts of law. But be this as it may, whether the plaintiffs in this action are innocent or not; to authorize them to maintain a suit, and recover judgment on notes of this description so’ situated, when the legislature has declared them to be utterly void, would be effectually to annul an act, the wisdom and the policy of which the legislature alone had the right to determine.

Nor is it a novel doctrine, that a person shall be permitted to avoid his contract by alleging his own criminality, provided it consists in the violation of some positive statute of the government Contracts, the consideration of which is money won at play, or loaned at unlawful interest, have always been subject to the same rule, not only against those who participated in the offence, but even against innocent endorsees, when they have claimed the performance of such contracts.

The case of Lowe vs. Walker shows this long to have been the law in England; and it is understood that the like principle has been uniformly adopted and practised upon by the Courts in this country.

It has been suggested by the counsel for the plamtiffs in the close of their argument, that to make this a good defence, it should have been specially pleaded.

But it is not necessary; for in assumpsit every thing, which destroys the right of action, may be given in evidence under the general issue.

Indeed, there seems to be no room to doubt upon this question ; and nothing but a reluctance to permit a man to avail himself of a falsity in circulating these notes, and afterwards to avoid payment by showing the truth, could have caused a hesitation at the trial.

The verdict must be set aside, and a new trial granted. 
      
      
        Doug. 736.
     