An immoral contract it certainly is not for the revenue laws themselves, as well as the offences against them, are all positivi juris. The question therefore is, whether, in this case, the plaintiff’s demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of any thing which is prohibited by a positive law of this country. So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it for where both were equally in fault, potior est conditio defendentis.
It is upon that ground the court goes not for the sake of the defendant, but because they will not lend their aid to such a plaintiff. If, from the plaintiff’s own standing or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. The principle of public policy is this ex dolo malo non oritur actio. It is not for his sake, however, that the objection is ever allowed but it is founded in general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. “ The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant.
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