¶1delivered the opinion of the Court:
¶2This was an action of assumpsit, brought by Skeels against Phillips. The declaration contained only the common counts. Skeels sought to charge Phillips for work and labor performed for him in 1861, and for the amount due on a mare and colt sold to him in 1862. He also sought to charge him for money received by him in 1864, when provost marshal of the Thirteenth Congressional district of this State, under circumstances to be hereafter stated. The jury found for the plaintiff a verdict of $264, and the court gave judgment for that amount. The plaintiff, claiming a much larger sum, has brought a writ of error. The jury evidently found their verdict upon the transactions of 1861 and 1862, ignoring the matters connected with the provost marshalship in 1864, and it is the claim growing out of this last transaction that we are now asked to enforce.
¶3We must say, in the beginning, that this .claim, as stated in the testimony of the plaintiff himself, belongs to a class which parties rarely have the audacity to seek to enforce in a court of justice.
¶4The plaintiff states that he went to Cairo September 1,1864, and entered upon what he supposed to be the duties of deputy provost marshal, and performed the same until October 2,1864. On that day the defendant, then provost marshal, called the witness into his private office, and said he was about to broach a thing he would propose to no other man living; that there was not a provost marshal in the State who had not made more or less out of his position, while he had made nothing outside of his salary; that he was in debt and wished to make money to pay off his debts; that if witness would make $2000 for him, and see that he obtained it in such a way that no one would know it, he would give witness all the advantages in his power as provost marshal, for putting in substitutes when the drafted men came to report under the pending draft, and that witness should have exclusive control of trains for the purpose of passing substitutes. In accordance with this arrangement, the plaintiff swears he had the exclusive privilege of furnishing substitutes for about two weeks. Of course with this monopoly thus basely and unlawfully furnished to him by the defendant, he could charge for the substitutes any sum which the means of his victims would enable them to pay, and we are, therefore, not surprised when the plaintiff coolly tells us, in his testimony, that in less than a fortnight he had made and deposited with a Mrs. Goodwin over $6,000, which he and Phillips divided. But, besides this, he says large sums were paid directly to Phillips in this substitute business, on the order of plaintiff, and that Phillips is now indebted to him over $6,000 for his share of these ill-gotten spoils, which Phillips refuses to disgorge.
¶5The defendant was also sworn, and his account of the transaction does not differ materially from that of the plaintiff, except as to the mode in which they were to divide the spoils. The defendant swears that plaintiff was his agent, and was to have only $100 per month, much more than which sum he paid him, as the plaintiff would draw upon him and he did not dare to dishonor his drafts. He says the plaintiff was to pay what money he received to Mrs. Goodwin, so that he might be able to swear, in case of prosecution, he had never paid any to defendant.
¶6Both these parties have voluntarily placed themselves upon the stand for the purpose of testifying to their own dishonor. By the testimony of both, they entered into a combination by which the great official power that had been entrusted to one of them, under the emergencies of war, was to be perverted to purposes of oppression and plunder, and the pair having quarreled, this court is now asked to sit as umpire and divide the spoils. If we could compel both parties to disgorge, for the benefit of the public treasury, we should be glad to do so, but, as between the parties themselves there are no rights growing out of such a transaction which the law can stoop to enforce. “ Ex turpi causa non oritur actio ” is a very familiar maxim.
¶7Judgment affirtned.