Whar

is not to enforce, but to repudiate, an illegal agreement. ton, Con. 354. In such case there is a locus pœnitentiæ; the wrong is not consummated, and the contract may be rescinded by either party.

In Edgar v. Fowler (3 East, 225) Lord Ellenborough said: "In illegal transactions the money has always been stopped while it is in transitu to the person entitled to receive it." As Lord Justice Mellish said: "To hold that the plaintiff is entitled to recover does not carry out the illegal transaction, but the effect is to put everybody in the same situation as they were before the illegal transaction was determined upon, and before the parties took any steps. If money is paid or goods delivered for an illegal purpose, the person who has so paid the money or delivered the goods may recover them back before the illegal purpose is carried out; but if he waits till the illegal purpose is carried out, or if he seeks to enforce the illegal transaction, in neither case can he maintain an action; the law will not allow that to be done." Taylor v. Bowers, 1 Q. B. Div. 291. In Hastelow v. Jackson (8 Barn. & Cress. 221), which was an action by one of the parties to a wager on the event of a boxing match, commenced against the stakeholder after the battle had been fought, Littledale, J., said: "If two persons enter into an illegal contract and money is paid upon it by one to the other, that may be recovered back before the execution of the contract, but not afterwards." Smith v. Bickmore, 4 Taunt. 474; Tappenden v. Randall, 2 Bos. & Pul. 467; Lowry v. Bourdien, 2 Doug. 468; Munt v. Stokes, 4 T. R. 561; Utica Ins. Co. v. Kip, 8 Cow. 20; Merritt v. Millard, 4 Keys (N. Y.), 208; White v. Franklin Bank, 22 Pick. 181; O'Bryan v. Fitzpatrick, 48 Ark. 490. "And this rule," says Mr. Justice Woods, "is applied in the great majority of the cases, even when the parties to an illegal contract are in pari delicto, because the question which of two parties is the more blamable is often difficult of solution, and quite immaterial." Spring Co. v. Knowlton, 103 U. S. 60. The object of the law is to protect the public, and not the parties. This is upon the principle that it best comports with public policy to arrest the illegal transaction before it is consummated. Stacy v. Foss, 19 Me. 335 (36 Am. Dec. 755).

3. It only remains to apply these principles to the facts.

These show that the plaintiff was cognizant that the race had been fixed in advance that one of the parties should win, and that certain other persons should lose their money- - that it was a bogus race, and the arrangement based upon it corrupt, and designed to cheat and defraud.the other parties; but, at the same time, they show that he repented and repudiated the transaction before it was consummated, by demanding the return of his money the evening of the day before the race, and on the day of the race, but before it was to come off, and that the defendant refused to pay it back, and that he afterwards forbade the defendant to pay said money to any other person than himself. He availed himself of the opportunity which the law affords a person to withdraw from the illegal contract before it has been executed; he repented before the meditated wrong was consummated, and twice demanded to withdraw his money, and thereby rescinded the contract. To allow the plaintiff to recover does not aid or carry out the corrupt and illegal transaction, but the effect is to put the parties in the same condition as they were before it was determined upon. By allowing the party to withdraw, the contemplated wrong is arrested, and not consummated. This the law encourages, and no obstacle should be thrown in the way of his repentance. Hence, if the plaintiff retreated before the bet had been decided, his money ought to have been returned to him, and in default of this he is entitled to recover.

There was no error, and the judgment must be affirmed.1

1 See also, Tyler v. Carlisle, 79 Me. 210, ante, p. 390.

PART III.

CON

THE OPERATION OF CONTRACT.

CHAPTER I.

THE LIMITS OF THE CONTRACTUAL OBLIGATION.

§ 1. A man cannot incur liabilities from a contract to which he was not a party.

(i.) Paying another's debt.

CRUMLISH'S ADM'R v. CENTRAL IMPROVEMENT CO.

et al.

38 WEST VIRGINIA, 390.-1893.

Suit in equity against the Central Improvement Co. for the distribution of a fund for the payment of creditors of the company. Among the demands presented for payment was a judgment in favor of Jamison & Co., which was disallowed, payment being pleaded. Jamison & Co. appeal.

In a suit by Jamison & Co. against the Central Improvement Co., Jamison & Co. had attached bonds of the Shenandoah Valley Railroad held by a third party for the benefit of the Central Improvement Co. The Railroad Co. desired to make a new loan, and in order to cancel the bonds that had been attached, devised the following plan: Jamison & Co. and Clark & Co., the latter bankers and financial agents for the Railroad Co., agreed that Jamison & Co. should transfer to Clark & Co. all their interest in the bonds. Jamison & Co. were to get judgment upon the attachments, levy upon and sell the bonds, and if they were not bid up to the amount of the judgment, then Jamison & Co. were to buy them and transfer them to Clark & Co., whereupon Clark & Co. were "to pay" to Jamison & Co., in cash and notes, the

amount of the judgment against the Central Improvement Co. The bonds sold for less than the amount of the judgment, and Clark & Co. paid to Jamison & Co. the balance of the judgment as agreed, receiving in return a transfer of the bonds. In consequence of this transaction, the commissioner reported the judgment as paid, and disallowed the claim.

BRANNON, J. . . . But this payment was made by a stranger, without request or ratification by the debtor, so far as appears. Does it satisfy the judgment? As it seems to me, the answer depends upon whether you mean as to the creditor or debtor. It remains a correct legal proposition to the present, that one man, who is under no obligation to pay the debt of another, cannot without his request officiously pay that other's debt, and charge him with it. If the debtor ratify such payment, the debt is discharged, and he becomes liable to the stranger for money paid to his use. If he refuse to ratify it, he disclaims the payment, and the debt stands unpaid as to him. In the one case, the stranger would at law sue the debtor for money paid to his use; in the other, enforce the debt in the creditor's name for his use. If his payment is not ratified, he may go into equity praying that, if the debtor ratify it, said debtor may be decreed to repay him, or, if the debtor do not ratify the payment, that the debt be treated as unpaid as between him and the debtor, and that it be enforced in his favor as an equitable assignee. Neely v. Jones, 16 W. Va. 625; Moore v. Ligon, 22 W. Va. 292; Beard v. Arbuckle, 19 W. Va. 135.

But how as to the creditor? When a stranger pays him the debt of a third party without the request of such third party, as in this case, can the creditor say the debt is yet unpaid, and enforce it against the debtor, as is attempted to be done by Jamison & Co.? Can he accept such payment and say, because it was made by a stranger, it is no payment? Is his acceptance not an estoppel by conduct in pais, as to him?

There has been a difference of opinion in this matter. The old English case of Grymes v. Blofield (Cro. Eliz. 541), decided in Elizabeth's reign, is the parent of the cases holding that even the creditor accepting payment from a stranger may repudiate, and still enforce his demand as unpaid. That case is said to

have decided that a plea of accord and satisfaction by a stranger is not good, while Rolle. Abr. 471 (condition F.) says it was decided just the other way. Denman, C. J., questioned its authority in Thurman v. Wild (11 A. & E. 453, 39 E. C. L. 145). Opposite holding has been made in England in Hawkshaw v. Rawlings (1 Strange, 24). Its authority is questioned at the close of the opinion by Cresswell, J., in Jones v. Broadhurst (9 M. G. & S., C. B., 173, 67 E. C. L. 172), as contrary to an ancient decision in 36 Hen. VI., and against reason and justice. Parke, B., seemed to think it law in Simpson v. Eggington (10 Exch. 845). It was followed in Edgcombe v. Rodd (5 East, 294) and Stark v. Thompson (3 T. B. Mon. 296). Lord Coke held the satisfaction good. Co. Litt. 206 b, 207 a. See 5 Rob. Pr. (New) 884; 7 Rob. Pr. (New) 548. The cases of Goodwin v. Cremer (18 A. & E., N. S. 757, 83 E. C. L. 757), and Kemp v. Balls (10 Exch. 607, 28 Eng. Law & Eq. 498), seem to hold that payment must be made by a third person as agent for, and on account of, debtor, with his assent or ratification. In New York old cases

held this doctrine. Clow v. Borst, 6 Johns. 37; Bleakley v. White, 4 Paige, 654. But later, in Wellington v. Kelly (84 N. Y. 543), Andrews, J., said that the old cases were doubtful, but had not been overruled, but it was not necessary in that case to say whether it should longer be regarded as law, and the syllabus makes a quære on the point. It was held in Harrison v. Hicks (1 Port. Ala. 423), that "payment of a debt, though made by one not a party to the contract, and though the assent of the debtor to the payment does not appear, is still the extinguishment of the demand." The opinion says that, as between the person paying and him for whose benefit it was paid, a question might arise whether it was voluntary, which would depend on circumstances of previous request or subsequent [assent], express or implied. This doctrine is sustained by Martin v. Quinn, 37 Cal. 55; Gray v. Herman, 75 Wis. 453 (44) N. W. Rep. 248); Cain v. Bryant, 12 Heisk. 45; Leavitt v. Morrow, 6 Ohio St. 71; Webster v. Wyser, 1 Stew. (Ala.) 184; Harvey v. Tama Co., 53 Ia. 228 (5 N. W. Rep. 130). Bish. Cont. § 211 holds that, if payment "be accepted by creditor in discharge of debt, it has that effect." See 2 Whart. Cont. § 1008.