Appeal of Bredin

• Decision Date: 05 January 1880
• Citation: 92 Pa. 241
• Parties: Appeal of Bredin et al.
• Court: Pennsylvania Supreme Court

92 Pa. 241

Appeal of Bredin et al.

Supreme Court of Pennsylvania.

January 5, 1880

November 21, 1879

1. When the public is not interested, the maxim " Nemo allegans suam turpitudinem audiendus est " is in full force, and the law leaves the parties as they placed themselves.

2. When a deed or contract 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 refuse its aid to enforce a contract thus wrongfully entered into.

3. Agreements founded on the suppression of criminal prosecutions are void, as they have a manifest tendency to subvert public justice. Stifling a prosecution of forgery 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 be produced by enforcing the contract or allowing it to stand.

4. A judgment confessed by warrant of attorney, in consideration of stifling a prosecution for forgery is void, and it was error for the court to refuse to open such judgment and permit the defendants to show the illegal consideration although they were parties thereto.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON and TRUNKEY, JJ.

STERRETT and GREEN, JJ., absent.

Appeal from the Court of Common Pleas of Butler county: Of October and November Term 1879, No. 96.

Appeal of E. M. Bredin, Jr., and others, from a decree of the court refusing to open a judgment entered against them on a warrant of attorney, and to let them into a defence.

A. W McCullough and P. Dorsey were oil speculators and producers. In 1875, McCullough borrowed from Dorsey 1000 barrels of oil. As security therefor, he gave Dorsey a check on the Citizens' Bank of East Brady for $2000, in which it was written, that the bank held 1000 barrels of oil as collateral for the check. This check was not to be presented nor otherwise used during the continuance of the loan. The check was endorsed, " Good, J. Y. Foster, cashier." This indorsement and signature of Foster was alleged to have been forged by McCullough; and for this, Dorsey made an information against McCullough for forgery. McCullough was arrested, and indicted by the grand jury of Butler county for forgery, in January 1878. A jury was empanelled, and a verdict of not guilty entered on the issue joined.

The verdict was the result of an arrangement previously made by Dorsey, the prosecutor, and the appellant, the brother-in-law of McCullough, by which, in consideration of McCullough's securing $2300 to Dorsey by a note, the latter agreed not to appear as a witness against McCullough, and to keep back all other witnesses, and thus insure a verdict in favor of McCullough. This was carried out. Neither Dorsey nor any other witness appeared to testify. Upon the rendition of the verdict, the note of the defendants, in pursuance of such arrangement, was handed over to Dorsey, who accepted it as the consideration for suppressing the prosecution.

Dorsey entered judgment on the note, by virtue of the warrant of attorney, to September term 1878, and issued an execution thereon. The defendants therein then presented a petition to the court, setting out in detail the history of the transaction, alleging, that the giving of the note was against the policy of the law, fraudulent and void, and asking the court to open the judgment, let them into a defence, & c. A rule was granted to show cause why the relief prayed for should not be granted, and depositions were taken by both parties.

The court, Bredin, J., refused to open the judgment, in an opinion, inter alia, saying:

" The evidence is, that McCullough gave to Dorsey, as collateral security for the loan of 1000 barrels of oil, a check on the East Brady Savings Bank for $2000, purporting to be certified as " good" by J. Y. Foster, as cashier of said bank. The oil was not returned by McCullough, and the check went to protest. The bank refused to pay, alleging that the acceptance was a forgery, and that if genuine, it was beyond the power of the cashier. The latter position was sustained by the Supreme Court. Dorsey having then no recourse except on McCullough, who was insolvent, indicted him for forgery, evidently as a means towards securing the debt. Dorsey claimed that McCullough owed him about $2300 McCullough admits some $1400 or $1500; but the great fluctuations in the price of oil, and the difference it would make if the oil was estimated at the price when borrowed by McCullough, or at the price when Dorsey asked its return give room for a considerable difference in the views of the creditor and debtor, without injuring the honesty of either. We have no evidence that Dorsey used the prosecution to extort from defendants a note for one dollar more than he believed to be honestly due him from McCullough, or that he used any fraud or misrepresentation in the matter. The defendants therefore must rest their application entirely on the grounds, that part of the consideration of the note on which judgment was confessed, was the settlement and stifling of the criminal prosecution, and that, being against public policy, renders the note void. If this was a suit on a note or bond, the defence could be set up, % 7F‘ Ex turpi causa non oritus actio. ’ But here the defendants are the actors, they apply to open a judgment and restrain an execution. In this attempt they are met by the maxims: ‘ In pari delicto melior est conditio possidentis, ’ and " Nemo allegans suam turpitudinem audiendus est. ' There are cases, indeed (such as attempts to poison the fountains of justice, and others), where the public interests demand the overthrow and exposure of the scheme, that the particeps criminis may be used for that purpose. But this is not such a case, and the agreement being executed not executory, defendants are without remedy. The practice which has grown up in this and other counties in the western part of this state, of making use of judgment notes in lieu of promissory notes, for vendue notes, for discount paper in bank, and indeed for all ordinary business transactions, must if such practice becomes general over the state, lead the courts or the legislature to relax the rules as to defences thereto. But as yet ‘ There is no difference in legal effect between a judgment confessed, and a judgment on a verdict of a jury:" Hopkins v. West, 2 Norris 109. A judgment is an executed contract. " So long as a contract continues executory it may not only be impeached for fraud or mistake, but any illegality which would be a defence at law, would in general be ground for cancellation in equity; as for instance, the illegality of contracts for gaming or smuggling, or aiding prosecution for compounding a felony or for paying usury. But a contract already executed, cannot be set aside as illegal or immoral, and nothing but fraud or palpable mistake is ground for rescinding an executed conveyance:" Nace v. Boyer, 6 Casey 110. See also Hershey v. Weiting, 14 Wright 245; Blystone v. Blystone, 1 P. F. Smith 375, and Steinbaker v. Wilson & Young, 1 Leg. Gazette R. 76. Rule discharged."

The defendants in the judgment then took this appeal and alleged, that the court erred in refusing to open the judgment.

John M. Thompson and W. D. Brandon, for appellants.--The court refused to open this judgment on the ground, that although entered on a warrant of attorney it had the same effect as one entered on the verdict of a jury. We contend, it has not the same sanctity.

The original consideration being illegal, forbidden by law, and against public policy, the note was void. Its collection by law would be a legal wrong. Entering judgment did not remove the taint, nor deprive the court of the power to prevent the commission of an outrage. The judgment thus entered continued under the control of the court, and as subject to its order as the note was. Filing the note simply made a record of what was before a private paper. A deed or mortgage recorded, is still under the power of the proper court, and upon sufficient cause shown, it can be reformed or destroyed as the justice of the case may require. Entering judgment on this note, was filing or recording it in the office of the prothonotary--nothing more. When a judgment is opened on terms that the case be tried on its merits, it does not preclude the defendant from showing that the bond sued on is invalid: Bradley v. Commonwealth, 7 Casey 522; Cochran v. Eldridge, 13 Wright 365; Dorney v Mertz, 8 Phila. 553. A contract which has for its object the performance of an act, which is prohibited by express statute, or the commission of which incurs a penalty, is as much illegal and void, as if the statute in express terms had declared it to be so: Territ v. Bartlett, 6 Wash. 148 (Vt.). A note given in consideration that the obligee shall stop a prosecution...