thousand dollars, and endorsed by one Randal and another Culver-son. This note, in addition to the matter usually had in such instruments, recited that it was given in accord with a certain agreement of even date therewith, made and entered into by the parties to the said note. The case coming on for trial, the defendants, by their attorney, appeared and filed their plea exhibiting the said agreement, maintaining that the said note was given for money loaned for the purpose of being used in a gambling venture, and was, therefore, void at law. An issue being had upon the said plea, the case was put to trial, and the said agreement having been admitted, the defendants, by their attorney, moved this court to exclude the evidence, and direct the jury to find for the defendants; which motion this court took time to consider.
"The facts herewith concerned are involved in no controversy, and the agreement being couched in plain terms, admits of no doubtful construction. It would seem that the defendant Hergan called at the gambling house of one Crawley, a resident of this State, and requested a private interview with the said Crawley and the plaintiff; that in this interview Hergan explained that he was considering what it pleased him to denominate 'a gambling venture in oil,' and solicited the two men to join him in the venture. This they declined to do, but suggested that they would advance to Hergan such money as he might need upon a promissory note with good security.
"It appears that some controversy arose as to the rate of interest to be paid; and a division of the profits was suggested in lieu of the larger per cent. This matter was finally concluded by the plaintiff and the said Crawley advancing the said sum, and taking therefor the note filed in this cause, and in addition thereto entering into this agreement in writing with the said Hergan, wherein it is set forth that the money loaned is to be used by the said Hergan for the express purpose of 'a gamble in oil,' and for no other purpose; and that if any profit should result from said gambling venture, the said plaintiff and the said Crawley were to receive one-eighth of said profits. It seems that the money was paid and presumably used by Hergan for the purpose as stated. Afterward the note was presented for payment, and being refused, was duly protested, and later sued upon in this court.
"It is maintained by the defendants that this transaction was contrary to public policy, and that the money, having been loaned for a known illegal purpose, cannot be recovered in a judicial tribunal, but falls Within the purlieus of those matters which are par se ex turfe causa, and for which the law provides no remedy. On the contrary, it is urged by counsel for the plaintiff that the transaction as between the parties to this suit was entirely commercial and innocent; that the plaintiff is a mere lender of money in a bona fide transaction, and is in no wise a party to any illegal proceeding, and that the mere use to which the money was put is a matter of no moment.
"The law, being for the welfare and the protection of human society, refuses to recognize and enforce certain contracts had among its citizens, when those contracts are founded in moral turpitude or inconsistent with the good order or solid interests of society.
"'No people,' declares Chancellor Kent in his Commentaries, 'are bound or ought to enforce or hold valid in their courts of justice any contract which is injurious to the public rights or offends their morals or contravenes their policy or violates a public law.' Hence contracts having an illegal or immoral consideration, or tending to the violation of law or the debauching of public morals, are held to be contra bonas mores, and are void.
"It is said that the object of all law is to suppress vice, and to promote the general welfare of society, and it does not give its assistance to persons to enforce a demand originating in their breach or violation of its principles and enactments. It is not necessary that the law expressly prohibit or enjoin an act. It may impliedly prohibit or enjoin it. In either case a contract in violation of its principles is void under the wholesome maxim ex turpi causa non oritur actio.
"It may happen, and, indeed, frequently does happen, that the individual suffers great hurt from this sweeping policy of the law, but it is held that the good of the commonwealth rises above the mere benefit of the individual citizen, and that where the welfare of the whole of society is involved, the law will not pause to consider the injury entailed upon the mere unit. Hence the policy of government in the exigencies of war, when protection must be had against violence, and the policy of government in the peaceful administration of the law, when protection must be had against vice.
"Thus gambling, wagering, and all gambling and wagering contracts and transactions are illegal as against public policy, since they are repugnant to the well-being of society, fraught with vice, pregnant with demoralization, and corrupting alike to the youth and to the aged, as they inspire a hope of reward without labor.
"It is significant that in matters of this nature human society has been progressive. Under the common law of England wagers were not unlawful or unenforceable, but the statute of 9th Anne followed and altered the common law, and the statutes of 8th and 9th Victoria altered it yet farther, and in the United States every separate Commonwealth has its respective statute striking at this vice.
"I think it will not at this day be denied that all transactions in stocks, by way of margin, settlement of differences, and payment of gains or losses, without intending to deliver the stocks, is a gambling or wagering operation which the law does not sanction, and will not carry into effect; and it has been held in the Supreme Court of the United States in the case of Irwin vs. Williar, 'If under the guise of a contract to deliver goods at a future day the real intent be to speculate in the rise or fall of prices, and the goods are not to be delivered, but one party is to pay to the other the difference between the contract price and the market price of the goods at the date fixed for executing the contract, the whole transaction is nothing more than a wager, and is null and void.' And that 'Generally in this country wagering contracts are held to be illegal and void as against public policy.'
"Indeed the courts of the land have gone to the extremity of denouncing in no uncertain terms the dangerous character of these illegal ventures. Judge Blauford, in the case of Cunningham vs. The National Bank of Augusta, in speaking of these transactions termed 'futures,' declares: 'If this is not a speculation on chances—a wagering and betting between the parties, then we are unable to understand the transaction. A betting on a game of faro or poker cannot be more hazardous, dangerous, or uncertain. Indeed it may be said that these animals are tame, gentle, and submissive compared to this monster. The law has caged them and driven them to the den. They have been outlawed; while this ferocious beast has been allowed to stalk about in open mid-day with gilded signs and flaming advertisements to lure the unhappy victim to its embrace of death and destruction. What are some of the consequences of these speculations in 'futures'? The faithful chroniclers of the day have informed us, as growing directly out of these nefarious practices, that there have been bankruptcies, defalcations of public officers, embezzlements, forgeries, larcenies, and deaths. Certainly no one will contend for a moment that a transaction fraught with such evil consequences is not immoral, illegal, and contrary to public policy.'
"In so far as this doctrine is concerned with the case at bar, it is certain that the parties understood and intended that the money loaned should be used for the purpose of engaging in an illegal speculation in oil,—'a gamble in oil,' as it is termed in the agreement, and that such gambling transactions are against public policy and the law of the land. But it is contended by learned counsel that all this can have no bearing upon the case at bar for the reason that in the cases heretofore cited announcing these conclusions of law, the litigants were the parties who dealt with or for each other, and were the immediate parties engaged in an unlawful gambling venture, and the ones to gain or lose directly by the venture, and not a mere stranger who loaned money to another to engage in such transactions, and having but an undetermined interest in the result; and that the law will not lend its aid to a further wrong. The defendant having committed one wrong cannot be permitted to use his first wrongful act as an instrument whereby to effect a second wrongful act.
"The objection is ingenious, but I judge fully met by the declaration of Lord Mansfield in Holman's case: 'The objection,' said the learned judge, 'that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is allowed, but it is founded on the general principle of policy which the defendant has the advantage of, contrary to the real justice as between