
    [646] [*] VAN DOREN against STAATS.
    Action lies not for prize money of a foreign lottery ticket.
    This was an action of assumpsit, for money had and received to the plaintiff’s use. This cause was submitted to the court by an agreement of the parties, on the following facts admitted, and the evidence of several witnesses, detailed at large in the case submitted, [f] It was agreed between the parties, that the court should weigh the evidence and draw conclusions both of fact and law, as it should think warranted by the evidence, and render judgment according to the result.
    It was agreed by both parties, that in February, 1810, the defendant, Staats, in connection with fifteen other persons, was concerned in the purchase of twenty tickets in a lottery, then about to be drawn in the city of New York, for which he paid at that time ten dollars; that the plaintiff, the defendant, and Ealph V. Beekman, had been in partnership in a mercantile concern, and had one store at New Brunswick, where the defendant resided, which partnership was about expiring, and did expire on the first day of March, then next.
    
      Ralph V. Beekman, according to the case submitted, testified in substance, that after the defendant, Staats, had become concerned in the lottery company, and before it was known that the company had drawn a high prize, he agreed to let the witness, Beekman, and his other partner, Van Doren, the plaintiff!, have each a third part of his share in the lottery company; that the witness and the plaintiff agreed to it; that it was not to be a partnership concern, but each was to have a third part, independent of the partnership concern; that the lottery company having purchased another ticket, the defendant said he had to pay fifty cents in addition to the ten dollars at first paid, that this made three dollars and fifty cents for a third part; that the plaintiffj Van Doren was charged in the company book with the money for his share; this was all transacted in New Jersey; that after it was known that the lottery company had drawn a high prize, the defendant claimed the whole, and refused to pay either to the plaintiff or witness, any part. Another witness swore, that the defendant received from the agent of the lottery company, $1303.12J for [*] one-sixteenth part of the nett proceeds of the prizes; being the sum appropriated to the defendant’s original share. The defendant examined some witnesses; but as the court did not decide on the facts, it is unnecessary to swell the case with a long detail of testimony.
    The counsel for the plaintiff contended, first, that this was not an illegal contract; that at common law the buying and selling lottery tickets was lawful, and that our act did not alter the law; that the lottery act did not contain a substantive specific prohibition to sell or buy lottery tickets, and although the act created a penalty for doing it, no indictment would lie; that where a penal statute contains no prohibitory clause, but merely creates a penalty, no other remedy than the penalty can be had. 1 Burr. 5J+7 ; 2 Stra. 12Ip9 ; 1 Bur. 1077. The act does not make void the contract. When the Legislature mean to prohibit a thing to be done, they do it in direct terms, as in the statutes against usury and gaming, or stock jobbing in England.
    2d. The plaintiff does not found his action on the original contract, but on a count for money had and received. It is not an action for the lottery ticket, nor against the managers. The money has been received by the defendant for the plaintiff’s use; the defendant is a third person into whose hands the money has come; he is quasi ah agent. Suppose one agent should receive for his principal, usurious interest, could he retain it ? Or suppose the money had been paid in the bank, could the bank retain it ? The cause of action is one remove from the original contract. I Burr. 2069. The defendant cannot in good conscience retain the money.
    
      Isaac H. Williamson, for the defendant.
    Both the facts and the law are submitted.' The defendant denies the contract, as well as the law arising on it; he submits to the court whether Mr. Beekman is a competent [*] witness, as he has an interest in the question. The contract, if any, was made in Jersey, was not only [648] against the words of the law, but against the policy of it. It is not essential to the destruction of the action, that the contract is against the positive prohibition of the statute; it is sufficient that it is against the policy of it; the very inflicting a penalty implies a prohibition. Esp. 88, 89, Cowp. 3J¡3. No court will lend its aid to enforce a contract made in violation of a law; courts of law will not only refuse to enforce contracts immoral in themselves, but such as are founded on illegal transactions. 5 John. 327, Carthew, 252,1 Com. on Con. 39. It cannot be law, that the contract is good, and the penalty the only remedy; the distinction between the act that is malum prohibitum and malum in se, has long been reprobated; 2 Bos. and Bui. 37'J. This contract is contaminated with illegality, and the court cannot aid the execution of it.
    As to the second point, the plaintiff makes his claim to this money through the lottery ticket: that is, through an unlawful contract lie is compelled to disclose an illegal agreement to make out Ms right of action. The law will not imply an assumpsit on an illegal transaction. The action, in this case, is founded on the agreement. The foundation of the contract must be lawful. B N. Y Term Rep. 147, ® Term Rep. 405. The case in Burrow, does not bear out the counsel for the plaintiff in his distinction. Whether or not this is a conscientious defense, is not under the consideration of the court.
    
      Scott, on the same side.
    We in the first place, deny the contraed; and, in the second place, the validity of the contract. The original purchase was made in New York, and therefore lawful; there was no impediment to Staats’ receiving the money; the agent of the lottery company did not receive the money for Vanderveer but for Staats; who alone was known in [*] the contract with the original lottery company ; if the plaintiff is right, the plaintiff, defendant, and Beekman are partners; and one partner cannot bring assumpsit against another.
    In reply, it was said, that the point of interest in the question had been long settled in this court. That if the original purchase of the tickets were not illegal, the assignment of the interest in the concern was not illegal; it was admitted, that a penalty might, in certain cases, imply a prohibition ; but this was not one of them; the rule was mb modo; the case of gaming shows it, Robinson v. Bland, 2 Burr. 1077; as also respecting sales on Sunday, Oro. Eliz. 485 ; and in this court in this .term, in certiorari y the Legislature did not intend that contracts of this kind should be void; this is not a contract to sell and deliver [649] lottery tickets, but simply for the money that the defendant has received belonging to the plaintiff, and which he cannot in conscience retain. The case cited by Mr. Williamson, from Johnson, is against him. The judge, in that case, said that the action was not to recover back the money received, thereby implying, if it had been, it would have altered the case; as to the partnership, that was dissolved; each were owners of one third.
    
      
      
        Crocket v. Vanderveer. This cause was argued last term.
    
   Kirkpatrick, C. J.

I am willing to take upon myself the office of arbitrator between these parties, and determine the facts arising out of the case submitted, this being the proper province of a jury, and not the court ; but as, in my view of the subject, it makes no difference whether the facts contended for by the plaintiff, exist or not, to save further expense to the parties, I consent to render judgment. The transaction, as disclosed by the testimony of Mr. Beekman, the principal witness for the plaintiff, was an illegal one; the contract on which the plaintiff founds his claim, was made in violation of a positive law of the State. It is a settled rule, that a court of [*] law will not lend its aid to enforce such a contract. The defendant is, therefore, clearly entitled to judgment.

Rossell, J.

Was of the same opinion.

Pennington, J.

It appears to me, impossible to read the act for the suppression of lotteries, and the state of this case as detailed in the testimony of Beekman, the plaintiff’s principal witness, without feeling a conviction, that the cause of action arose out of a transaction which violated the statute law of the State. The statute declares all lotteries a public nuisance; and inflicts severe punishments on all persons who shall set up, erect, open or draw any lottery or lotteries, either publicly or privately; and then proceeds to enact, that if any pei’son shall give, barter, sell, or otherwise dispose of any ticket, or tickets in any lottery, whether erected, set up, opened or made in this State, or elsewhere; or if any person shall receive or purchase the same, or in any other way become an adventurer therein, &c., every person so offending, shall, for every such offence, forfeit and pay the sum of thirty dollars. If the plaintiff has any cause of action, it is because he became, by purchase, a,n adventurer in a lottery. If this fact is not true, he has no right of action; it is on this contract that he founds his claim; it is immaterial whether he is liable to be indicted for this act or not. The act which he lias done, and on which he founds his right to recover, is declared to be an offense against the law of the State, and the offender liable to be punished, by the infliction of a penalty. The transaction [650] was illegal; and it is a settled rale, that courts of justice will not aid or render any assistance to enforce an illegal transaction; and this arises from a principle of public policy; not from any tenderness to the defendant. It would be the same if the parties were to change sides; where both are equally in fault, potior est conditio defendentis. I admit that there are eases where a particeps [*] oriminis may sustain an action. For instance, the common one of usury. The borrower may maintain an action against the lender. The borrower, to save himself from jail, must have the money at any rate; he is emphatically the slave of the lender; the parties are not equally criminal, and therefore, the maxim, pari delicto does not apply. The borrower is not only the less innocent, but considered as an oppressed man; and this action is not in affirmance of the contract, but in disaffirmance of it. A distinction has been set up between a case that is malum in se, and one that is malum, prohibitum; but where the transaction is illegal, and in contravention of a positive law, there is no difference; the court will not lend its aid to carry it into effect.

There are cases where money arising out of an illegal transaction, has come into the hands of a third party, as banker, broker, or agent, for the use of a party to the original transaction, where the party has been permitted to recover it in an action for money had and received. Gould’s Esp. 24-, 25. Those cases go on the ground, that the action is not brought on the original illegal transaction, but for money received by the agent for the use of the plaintiff, which he cannot in conscience retain. The learned counsel for the plaintiff has very ingeniously endeavored to bring his client’s case within the principle of those cases, by contending that the defendant received the money as agent for the plaintiff. But I think that this is not the correct interpretation of the transaction. The plaintiff was not known to the lottery company; he was no member of it. The agent of that company would not have been justifiable in paying any part of the money to him. If there was any agreement at all, it was this, that the plaintiff paid to the defendant, $3.50 on. an agreement between them, that the defendant should pay to him one-third of the money that he [*] should receive on that adventure; and this action is brought to enforce the fulfillment of that agreement. This agreement was in itself illegal, [651] made in contravention of a statute of the State, and in my opinion, the court cannot, with legal propriety, sustain the action.

The view of the subject renders it unnecessary for me to consider the weight of evidence, or the propriety of the admissibility of Mr. Beekman as a witness, as I have gone on the ground, that if even the case of 'the plaintiff is as the witness testified, yet that he is not entitled to the maintenance of his action.

Judgment for defendant. 
      
       Where both parties are equally criminal, better is the condition of the defendant.
     