Appeal of Bredin

Mr. Justice Trunkey delivered the opinion of the court January 5th 1880. The maxim, “Nemo allegans suam turpitudinem audiendus est,” is good in its use, and the authority of a long line of decisions prevents its abuse. In Collins v. Blantern, 2 Wils. 341, a leading case, it was decided that illegality may be pleaded as a defence to an action on a bond, and so it has been held in England and this country ever since. The bond in that case was given as an indemnity for a note entered into by the obligee for the purpose of inducing a prosecutor of an indictment for perjury to withhold his evidence. After speaking of the transaction as one to gild over and conceal the truth, the court said, “ This is an agreement to stifle a prosecution for wilful and corrupt perjury, a crime most detrimental to the Commonwealth; for it is the duty of every man to prosecute, appear against and bring offenders of this sort to justice.” “ This is a contract to tempt a man to transgress the law, to that which was injurious to the community ; it is void by the common law, and the reason why the common law says such contracts are void is for the public good.” Had the defendant not been heard the court would have known nothing of the facts; they were not set out in the bond, the plaintiff was not compelled to show them in making out his case, and on the face of the bond he was entitled to recover; all that which proved it a void contract was shown by the defendant. So in the late case of Ham et al. v. Smith, 6 Norris 63, the corrupt, immoral and forbidden' contract appeared in the proofs adduced by the defendants; the plaintiff made his case by showing the note, the fair-looking fruit of the illegal bargain. Notwithstanding the maxim, it has been settled that when a contract or deed is made for an illegal purpose, 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 decline its aid to enforce a contract thus wrongfully entered [246] into. The principle depends on the public good, not on the merit of the defendant, whose hand is as foul as the plaintiff’s. Public policy requires that he be heard, and if the contract be void, his relief is an incident. Swan v. Scott, 11 S. & R. 155, is no exception. There the suit was on a bond, given in satisfaction of an award of arbitrators, which had become a judgment; and the defendant proposed to go behind the judgment and show the illegal contract on which the award was obtained. Held, that he could not, and Duncan, J., remarked, “ The test, whether a demand connected with the illegal transaction is capable of being enforced at law is, whether the plaintiff requires the aid of the illegal transaction to establish his case.” It is manifest the judgment was conclusive, though obtained in a suit on an illegal contract, and the remark strictly fitted the facts in that case, without infringing on the rule. Wherever that test has been quoted and applied, it will be found there was a good consideration for the contract in suit before reaching back to the alleged illegal one. Where the public is not interested, the maxim has its full force, and the law leaves the parties as they placed themselves. Obligors in an instrument under seal, made for the purpose of defrauding the obligee’s wife, cannot shield themselves by alleging their own fraud; for this does not belong to the class of contracts forbidden by statute or public policy: Evans v. Dravo, 12 Harris 62; Hendrickson v. Evans, 1 Casey 441. On like principle, voluntary conveyances and contracts made to defraud creditors, though void as to them, are good and binding between the immediate parties. These are avoided by the statute of 13 Elizabeth, for the benefit of creditors, but not' as to the parties: Hershey v. Weiting, 14 Wright 240; Blystone v. Blystone, 1 P. F. Smith 373. “ That a collusive contract binds the parties to it is a principle which commends itself no less to the moralist than to the jurist; for no dictate of duty calls on a judge to extricate a rogue from his own toils.” Stewart v. Kearney, 6 Watts 453. In all such cases the actor is met by the maxim, “ In pari delicto melior est conditio possidentis.” Forgery, or the crimen falsi, is an infamous offence. It is classed with other infamous felonies and misdemeanors, the compounding of any of which is a misdemeanor punishable by fine and imprisonment: Act March 31st 1860, sect. 10, Pamph. L. 387. Under section 9 of the Criminal Procedure Act of 1860, Pamph. L. 432, no magistrate or court can lawfully permit a settlement of a prosecution for forgery, on satisfaction being made to the party complaining, for infamous crimes are excepted- from its operation. The legislature committed no such inconsistency as enacting two acts of the same date, one of which prohibits the settlement of forgery under a severe penalty, and the other authorizing it, if the complaining party acknowledges satisfaction. [247] Cheats by false pretences are among the cases authorized to be settled by the 9th section of the Criminal Procedure Act, and therefore, Steinbaker v. Wilson & Young, 1 Leg. Gaz. 76, has no application to the question now pending. And the settlement of eases within that section is not touched by the principles applicable to the compounding of an infamous crime. Dorsey charged McCullough with forgery, and conducted the prosecution to his indictment and acquittal. After the indictment and before the acquittal, a bargain was struck, the judgment-note given, Dorsey’s claim against McCullough satisfied, and Dorsey was not to appear and testify in the forgery case. He saw the Commonwealth fail, for he did not answer to testify, though present. It cannot be doubted that the abandonment of the prosecution and failure to testify entered into the agreement. The note was given for the debt and for the acquittal — neither promise nor consideration is divisible. If any part of an indivisible promise, or any part of an indivisible consideration for a promise, is illegal, the whole is void: Filson v. Himes, 5 Barr 452. Agreements founded upon the suppression of criminal prosecutions are void; they have a manifest tendency to subvert public justice: -1 Story Eq., sect. 294. It is the nature of the crime, not so much whether i't be felony or misdemeanor, which is to be considered. Many felonies are not so enormous as some misdemeanors. The law recognises this in their punishment. For instance, the maximum of imprisonment for one convicted of forgery is ten years, of larceny three. Stifling a prosecution for forgery, though an offence of same grade as compounding divers felonies, seems to be a graver offence than compounding some felonies. It comes within the rule, that where the welfare of society and the vindication of the law are the chief objects, the defendant may give in evidence the illegality of the contract as a bar to a suit to enforce it; and this to prevent the evil which would he produced by enforcing the contract or allowing it to stand. Shall these objects be thwarted, and the evil follow which the law designs to prevent, because of a judgment confessed by virtue of a warrant which is but a part of the criminal transaction ? It was said by the present Chief Justice in Hopkins v. West, 2 Norris 109 : “ There is no difference in legal effect between a judgment confessed, or for want of appearance or plea, and a judgment on the verdict of a jury. The court in which the judgment is rendered will indeed open one of the former kind, and let the defendant into a defence in a proper case and upon equitable terms.” In Pennsylvania it has always been the right of a defendant in a judgment confessed by virtue of a warrant of attorney to petition that it be opened for cause. This right was so well respected by the courts that there was no occasion for legislation providing for appeal from refusal to open till a recent date. The entry of judg [248] merits, either by attorneys or prothonotaries, on judgment-notes, is very common. These though having the same effect as if on the verdict of a jury, while they stand, in fact, never were the results of adjudication. To hold that such a judgment entered on an immoral and illegal obligation, part of a transaction subversive of public interests, shall be deemed an executed contract, with absolute right in the plaintiff to judicial process for collection, would be shocking to every man’s sense of justice. The argument is that the judgment shall stand, for the plaintiff need only show the note, and the defendant, as actor, will not be heard alleging his own and the plaintiff’s turpitude in an application for opening the judgment. In one sense the plaintiff is an actor — he caused confession of judgment on the void instrument, and uses the process of the law to collect the money agreed to be paid for its violation. The reason of the rule which allows a defendant to plead and prove the illegality of a contract in bar of a suit upon it, demands that he be heard in an application to open a judgment so confessed. His rights are of secondary importance, and he is not heard for their vindication. It is the duty of the court, on proper showing, to open such a judgment, to the end that there may be a trial as if suit had been originally commenced on the note or other obligation on which the- judgment was entered. In this way the law may be vindicated and the interest of the Commonwealth conserved. The order and decree discharging the rule to show cause • why judgment should not be opened, reversed, and now the said rule is made absolute; the record to be remitted for further proceedings. Appellees to pay costs of this appeal.