Tyler v. Carlisle , 79 Me. 210 ( 1887 )

Peters, C. J.

The plaintiff claims to recover a sum of money loaned by him while the defendant was engaged in playing at «cards. The ruling, at the trial, was that, if the plaintiff let the money with an express understanding, intention and purpose that it was to be used to gamble with, and it was so used, the debt so created cannot be recovered; but otherwise, if the (plaintiff had merely knowledge that the money was to be so used. Upon authority and principle the ruling was correct.

Any different doctrine would in most instances, be impracticable and unjust. It does not follow that a lender has a guilty purpose merely because he knows or believes that the borrower has. There may be a visible line between the motives of the two. If it were not so men would have great responsibilities for the motives and acts of others. A person may loan money to his friend,— to the man, and not to his purpose. He may at the same time disapprove his purpose. He may not be willing to deny his friend, however much disapproving his acts.

In order to find the lender in fault, he must himself have an intention that the money shall be illegally used. There must be a combination of intention between lender and borrrower— a union of purposes. The lender must in some manner be a confederate or participator in the borrower’s act, be himself implicated in it. He must loan his money for the express purpose of promoting the illegal design of the borrower; not intend merely to serve or accommodate the man. In support of this view many cases might be adduced. A few prominent ones will suffice. Green v. Collins, 3 Cliff. 494; Gaylord v. Soragen, 32 Vt. 110; Hill v. Spear, 50 N. H. 252; Peck v. Briggs, 3 Denio, 107; McIntyre v. Parks, 3 Met. 207; Banchor v. Mansel, 47 Maine, 58. (See 68 Maine, p. 47.)

Nor was the branch of the ruling wrong, that plaintiff, even though a participator, could recover his money back, if it had not been actually used for illegal purposes. In minor offences, the locuspenitentice continues until the money has been actually converted to the illegal use. The law encourages a repudiation of the illegal contract, even by a guilty participator, as long as it remains an executory contract or the illegal purpose has not been put in operation. The lender can cease his own criminal design and reclaim his money. "The reason is,” says Wharton "the plaintiff’s claim is not to enforce, but to repudiate, an illegal contract.” Whar. Con. § 354 and cases there cited. The object of the law is to protect the public — not the parties. "It best comports with public policy, to arrest the illegal transaction before it is consummated,” says the court in Stacy v. Foss, 19 Maine, 335; see White v. Bank, 22 Pick. 181.

The rule allowing a recovery back does not apply where the lender knows that some infamous crime is to be committed with the means which he furnishes. It applies only where the minor offences, are involved.

Exceptions overruled.

Danforth, Virgin, Libbey, Foster and Haskell, JJ., concurred.