Robeson v. French

Wilde, J. This was an action upon the case for a deceit alleged to have been practised on the plaintiff by the defendant, on an exchange of horses by them, which was proved, at the trial, to have been made on the Lord’s day, and between the hours of three and four o’clock in the afternoon. The question is, whether upon these facts this action can be maintained ; admitting that the deceit was practised as alleged in the declaration. By the Rev. Sts. c. 50, § 1, the doing of “ any manner of labor, business, or work, except only works of necessity and charity,” is expressly prohibited; and every person so offending is to be punished by a fine not exceeding ten dollars. There was no pretence that the transaction was within the exception of the prohibitory clause in the statute, and consequently it was a direct violation of the law, by both parties. In all such cases, it is a well established principle, that a court will not lend its aid to a party who founds his action on an illegal transaction. When the parties are in pari delicto, the court will not interfere to assist either of them. This principle is established in numerous cases, which were cited and considered in Wheeler v. Russell, 17 Mass. 257. In the decision of that case, Parker, O. J. said, “ no principle of law is better settled, than that no action will lie upon a contract made in violation of a statute, or of a principle of the common law.” The cases on this point will also be found cited, and fully considered by the supreme court of Vermont, in Lyon v. Strong, 6 Verm. 219. That case was precisely similar to the one under consideration, and we fully concur in the decision of that court. The same principle has been recently affirmed in Bosworth v. Inhabitants of Swansey, 10 Met. 363. In that case, it was decided that a person who travels on the Lord’s day, neither from necessity nor charity, cannot maintain an action against a town for an injury to him [26] wliile so travelling, by reason of a defect in the highway, which the town was by law bound to repair. The same principle applies to the present case. The case of Geer v. Putnam, 10 Mass. 312, has been supposed to be opposed to these decisions. But the grounds on which that case was decided are very imperfectly reported. It is manifest, however, that the case was correctly decided oh the insufficiency oí the plea, and that the case did not depend upon the question now under consideration. The plea was, that the note sued was made on the Lord’s day; but the exception in the statute was not negatived, nor was it averred that the note was made between sunrise and sunset, so that the plea was clearly insufficient. New trial granted.