Delictum

I A crime; a violation of law, either tort or wrong; guilt, fault or blame, v. Ex

Lat. A delict, tort, wrong, injury, or offense. Actions ew delicto are such as are founded ona tort, as distinguished from actions on contract. Culpability, blameworthiness, or legal delinquency, The word occurs in this senge in the maxim, “Jn pari delicto melior est conditio defendentis,” (which see.) A challenge of a juror propier delietum is for some crime or misdemeanor that affects his credit and renders himinfamous. 3 BI, Comm. 363; 2 Kent, Comm. 241.

5 L. A wrong, whether private or public: an offense, a civil injury or tort, a crime; also, simply a failing or fault, blame, guilt, culpability.* Corpus delicto. The body of the offense; the fact of a crime. See further Corpus, Delicti. Ex delicto. Out of fault or a fault; arising from a tort or wrong — misconduct, negligence, crime. Said of the actions of case, replevin, trespass, and trover. Opposed, ex contractu. See Action, 2. Flagrante delicto. The offense still burning; in the heat of the offense: in the very act of perpetrating a crime or the crime. 7 Compare Ceimbn, Flagrans. 1 Summerman v. State, 14 Neb. 509 (1883), Lake, C. J.; Wharton, Homicide, 180. = Craft V. State, 3 Kan. 483 (1866), Crozier, C. J. ' Keenan v. Commonwealth, 44 Pa. 57 (1862), Lowrie, C. J. See 71 Mo. 220; 74 id. 219, 249, 266; 76 id. 104; 23 Ind. 263. * [Bouvier's Law Diet. ' From de-linquere, to leave a person or thing; then, to be wanting in a matter, fail in duty, offend, transgress. Compare Malos, Malum. In pari delicto. In equal wrong: equal in guilt; equally guilty; equally to blame. The first part either of the maxim m pari delicto, melior est conditio possidentis, in equal fault, the better is the situation of the party in possession; or else of the maxim in pari delicto, potior est conditio defendentis, in equal fault, the stronger is the situation of the defendant. Also spoken of as the rule of par delictum, equal wrong: parity of unlawful conduct. Where misconduct is mutual the law will relieve neither party, but leave them where it finds them. While defendants derive advantage from its application, the rule was not adopted for their benefit, but solely as a principle of general policy.' A court of equity will not aid parties in the consummation or perpetration of a fraud; it will not assist a party to the betrayal of a trust to derive advantage therefrom; it will not undertake to unravel a tangled web of fraud to enable one of the parties to consummate his design. A complainant must come before the court with clean hands.'' The court will not enforde alleged rights restmg upon a prohibited contract. In the application of the rule it is necessary to give parties a right to plead and to prove the nature of the transaction.^ Whatever is stated in a contract for an illegal purpose, as, the violation of a statute, the defendant may show as the turpitude of himself and the plaintiff to prevent its enforcement. The objection is allowed on general principles of policy.* Lord Jlansfield, in ITGO, laid down the doctrine, which has ever since been followed, that if the act be in itself immoral, or a violation of the general laws of public policy, both parties are in pari delicto; but •where the law is designed for the protection of the subject against oppression, extortion, and deceit, and the defendant takes advantage of the plaintiff's condition or situation, then the plaintiff shall recover." Where the illegality consists in the contract itself, and that contract is unexecuted, there is a locus pomitentioB, the delictum is incomplete, the contract may be rescinded by either party and money paid recovered. There is no parity where the law protects one party, or one acts under constraint, though the transaction is completed. = i See Holman v. Johnson, 1 Cowp. 34.3 (1775), Mansfield C. J.; Smith, Contr. 27, 203, 263, 296., = Fariey v. St. Paul, &c. R. Co., 14 F. B. 114, 117 (188^), Ti-eat, D. J.; Lewis v. Meier, ib. 311 (1882); 2 Mc Crary, 599. »Funk V. Ga Uivan, 49 Conn. 128-29 (1881), cases; Heineman v. Newman, 55 Ga. 262 (1875), cases; Myers ■u Meinrath,"101 Mass. 368 (1869), cases. * Han-is v. Kunnels, 12 How. 86 (1861), Wayne, J. "Smith V. Bromley, 2 Doug. 697: Thomas v. Eich- If a contract, void as against public policy, is still executory it cannot be enforced, nor will damages be awarded for a breach thereof; but if it is executed the price paid or property delivered cannot be recovered.' The rule is applied to cases of moral turpitude and to acts against public policy; not to cases of innocent mistake." One who bribes an officer of government cannot I'ecover the money.^ In a few special cases, one party, less at fault than the other, has been allowed to maintain an action.* Compare Negligence, Comparative, Contributory. See Actio, Ex dolo, etc.; Contribution; Estoppel; Innocence; Legal, Illegal, 2; Tort, 2; Turpitude; VoLO, Volenti, etc. Propter delictum. On account of wrong — a crime or misdemeanor; as, a challenge of a juror for infamy.^ See Challenge, 4.

I. A crime, offence, fault, v. Challenge. Ex delicto: from tort or wrong, as distinguished from breach of contract.

Lat. [from delinquere, to offend or transgress.] A crime or offence; a violation of law either natural or positive. Liber homo non amercietur pro parvo delicto, nisi secundum modum illius delicti, et pro magna delicto secundum magnitudinem delicti; a freeman shall not be amerced for a small offence, unless according to the measure of that offence, and for a great offence according to the greatness of the offence. Magna Charta, c. 14. Exc Bsat «Mt exte Mvat delie Caai in capi UiUbas «aa4 aaa aperaiar Mem la el Tilibas. That excuses or extenuates an offence in capital cases, which does not operate the same in civil cases. Bacon's Max, 36, regula 7. "The offence was deposited with the voyage, and the delictum ended with the termination of the cruise." 1 Kent's Com, 123. 7 Wheaton's E. 283. "The delictum is completely done away when the blockade ceases." 1 Rents Com, 152. 6 Rob. Adm, E. 387. A tort or wrong, as distinguished from a contract; a private offence, as distinguished from a ciime. The word delictum was extensively used in this sense in the civil law, and as a synonyme of malejicium (malfeasance.) Inst. 4. tit. & pr. Id, 3. 14. 2. From this source it appears to have been introduced into the law of England through Bracton. Ex malejitio vel delicto procedunt injuries et transgressiones; from malfeasance or tort arise injuries and trespasses. Bract, fol. 101. In vis delictis sive maleftiis obligatur ills qui delinquit ei contra quem delinquitur; in those torts or malfeasances, he who commits the offence is boimd to him against whom it is committed, [that is, to make satisfaction.] Id, fol. 101b. Ex delicto (q. v.) is still a common term in the law of actions. Guilt, criminality; fault or blame. la pari delicta patiar cut caadiiia dcfradaatis. In a case of equal guilt, the condition of the defendant is the better one; where both the parties to a transaction are equally guilty or equally to blame, and one of them institutes legal proceedings against the other, the party proceeded against is in the better position, or has the advantage.* Lord Mansfield, Cowp. 199, 200. Digitized by Google Delictum, considered with reference to its derivation (from delinquere, q. v.) properly signifies an omisswn of duty, or neglect to comply with the requisition of the law (quid prcetermissum,) rather than a positive act in violation of it; but the latter has long been the received meaning.