Opinion
4 Div. 430.
May 29, 1947.
Cyrus R. Lewis, of Dothan, for petitioner.
One who secures the release of a prisoner lawfullly arrested by the deposit of money as bail, without bail being properly fixed, cannot recover the money after it is declared forfeited for non-appearance of accused, since, although the transaction is illegal, he is in pari delicto. Bryant v. City of Bisbee, 28 Ariz. 278, 237 P. 380, 44 A.L.R. 1495; Moss v. Summit Co., 60 Utah 252, 208 P. 507, 26 A.L.R. 206; Kirschbaum v. Mayn, 76 Mont. 320, 246 P. 953, 48 A.L.R. 1425; 6 Am.Jur. 78, § 73; Hill v. Freeman, 73 Ala. 200, 49 Am.Rep. 48.
L. A. Farmer and J. Hubert Farmer, both of Dothan, for respondent.
The money paid by appellant under a void order still belongs to her and she can maintain an action for its recovery. Butler v. Foster, 14 Ala. 323; Wainwright v. Stuart, 27 Ala. App. 179, 168 So. 457; Reinhard v. City of Columbus, 49 Ohio St. 257, 31 N.E. 35; Eagan v. Stevens, 39 Hun, N.Y., 311; McNamara v. Wallace, 97 App. Div. 76, 89 N.Y.S. 591; Applegate v. Young, 62 Kan. 100, 61 P. 402; Snyder v. Gross, 69 Neb. 340, 95 N.W. 636, 5 Ann.Cas. 152; Brasfield v. Town of Milan, 127 Tenn. 561, 155 S.W. 926, 44 L.R.A., N.S., 1150; 17 C.J.S., Contracts, § 6, p. 322.
It must be conceded that the acceptance by the authorities of the city of Dothan of the sum of $102 in lieu of bail for the appearance of Mrs. Mary Mitchell to answer a criminal charge was without sanction of law. As to her right to maintain a suit for the recovery of the money so paid, the authorities are in conflict. See, Moss v. Summit County, 60 Utah 252, 208 P. 507, 26 A.L.R. 206, notes on page 211; Bryant v. City of Bisbee, 28 Ariz. 278, 237 P. 380, 44 A.L.R. 1495, notes on page 1499; Kirschbaum v. Mayn, 76 Mont. 320, 246 P. 953, 48 A.L.R. 1425, notes on page 1430.
Some of the authorities deny the right to recover money so paid on the theory of estoppel, in that, the party making such a deposit has fully realized the benefits of the agreement and should not be heard to complain. While others deny recovery on the theory that the parties to the agreement are in pari delicto.
In Butler v. Foster, 14 Ala. 323, it was clearly held that money paid into court, on a court order, as a substitute for bail still belonged to the person who paid it.
But we think there is another principle having application here. Although the parties are in pari delicto, yet the court may interfere and grant relief at the suit of one of them, where public policy requires its intervention, even though the result may be that a benefit will be derived by a plaintiff who is in equal guilt with defendant; but here the guilt of the parties is not considered as equal to the higher right of the public, and the guilty party to whom the relief is granted is simply the instrument by which the public is served. However, courts are and should be cautious in affording relief to a fraudulent debtor or other violator of the law under this exception, and should act only where it is evident that greater public good can be subserved by action than by inaction. 17 Corpus Juris Secundum, Contracts, § 278, p. 665; Durr Drug Co. v. Acree, 239 Ala. 194, 194 So. 544; Pace et al. v. Wainwright, 243 Ala. 501, 10 So.2d 755; Mudd v. Lanier, 247 Ala. 363, 364, 24 So.2d 550.
Sound public policy forbids the acceptance of cash in lieu of bail bond. In our opinion greater public good can be subserved by action than by inaction. We are therefore in accord with the holding of the Court of Appeals, and the judgment of that court should be affirmed. It is so ordered.
Affirmed.
All the Justices concur.