position, hardship, undue influence, or great inequality of condition or age, so that his guilt may be far less in degree than that of his associate in the offense." In such a case they are, perhaps, in delicto, but not in pari delicto. The act may indeed be substantially that of the one party. Thus the law forbids the payment of usury; but if the borrower seeks equity for relief, it will be afforded; or if he has paid it, he may recover it back. The rule particeps criminis does not apply. He is not in pari delicto. He is the slave of the lender, is in vinculis,-and must submit to his necessities.

A court of equity will interpose and set aside an instrument as between the parties to it, although it was intended to defeat the law, if the parties did not stand upon an equal footing, and if the one influenced and controlled the conduct of the other; and when a relation of trust and confidence exists, the party in whom it is reposed, and who has obtained a benefit, should show an undoubted right to it. The onus is upon him to make it appear that the transaction was fair and proper; and relief will not be denied to the one least in fault, if he has been led into it in violation of confidence and by exciting false alarms or fear of legal consequences. If the mind of one of the participants in the transaction exercises an undue influence over that of the other, whether by imposition or threats upon the one side, and confidence or weakness upon the other, equity will grant relief to the latter. Even if the party had sufficient capacity to contract, yet if, through trusting confidence, the other has led him into the illegal act, and then imposed upon him, such relief will not be refused.

In Osborne v. Williams, 18 Ves. 382, a father and son entered into a contract in violation of a statute. It had been executed by the son, and the father had derived a benefit therefrom. Both parties having died, the representatives of the son sued those of the father for an account, and relief was granted upon the ground that while the parties were in delicto, yet they were not in pari delicto.

In Pinckston v. Brown, 3 Jones Eq. 494, a mother, upon the advice of her son, executed a deed of trust for the payment of her debts, but which left out one of her creditors and secured several fictitious notes executed to the son, in whom she had implicit confidence; she having paid all of the bona fide indebtedness, the deed of trust was vacated at her instance, the court saying that "the mother and son were in delicto, but not in pari delicto."

See also the cases of Boyd v. De la Montagnie, 73 N. Y. 498; 29 Am. Rep. 197; Barnes v. Brown, 32 Mich. 146; O'Conner v. Ward, 60 Miss. 1025; Freelove v. Cole, 41 Barb. 318; and Anderson v. Merideth, 82 Ky. 564, where it is held that if the mind of one of the actors in a fraud exercises an undue dominion over that of the other by reason either of physical or intellectual weakness, or from a confidence admitting of imposition, then the general rule that equity will not aid either party to it does not apply.

In the case now presented, the parties did not stand upon an equal footing. They were not dealing at arms'-length. The son had the confidence of his widowed mother. Such a relation existed as gave him special power over her; but the filial love due to her seems to have cringed to self-interest, and he is found practicing on the weakness and confidence of his aged mother. She was not in debt; no creditor was to be defrauded; and under the circumstances, the deed must be regarded as the creature of the false alarm of legal consequences in her mind, but of which he was the author, and is, therefore, his act, rather than that of the mother.

Judgment reversed, with directions to render a judgment annulling the deed of September 27, 1881, and directing a reconveyance to the appellant of the property described in it, and for further proceedings in harmony with this opinion.

RELIEF OF GRANTOR FROM A CONVEYANCE, THE OBJECT OF WHICH WAS TO EVADE SOME LAW, OR TO ACCOMPLISH SOME UNLAWFUL PURPOSE. —It is an established general principle, that as between parties in pari delicto, standing upon an equal footing, no relief will be given by the courts. In such a case, the parties will be left in the position where they have knowingly and willfully placed themselves: See Boyd v. Barclay, 1 Ala. 34; 34 Am. Dec. 762, and note 765; Hooker v. De Palos, 28 Ohio St. 251; Kahn v. Wallon, Sup. Ct. Ohio, 1889; Solinger v. Earle, 82 N. Y. 393; Harvey v. Varney, 98 Mass. 118; Booker v. Wingo, Sup. Ct. S. C., 1888; Shaw v. Carlile, 65 Tenn. 594, 605; Goudy v. Gebhart, 1 Ohio St. 262; Fletcher v. Fletcher, 2 McAr. 38. But the rule is not one of universal application, and even where the parties are in pari delicto, the court may interfere and grant relief, where public policy requires its intervention, though the result may be that a benefit will be de rived by a plaintiff who is in equal guilt with the defendant. In such cases, the guilt of the respective parties is not considered by the court, which looks only to the higher right of the public, the guilty party to whom relief is granted being only the instrument by which the public is served: See Holman v. Johnson, Cowp. 341; Osborne v. Williams, 18 Ves. 379; Reynell v. Sprye, 1 De Gex, M. & G. 660; W. v. B., 32 Beav. 574; Clemens v. Clemens, 28 Wis. 637; 9 Am. Rep. 520; Tracy v. Talmage, 14 N. Y. 162; 67 Am. Dec. 132, and note 153. And it is said that "courts are and should be cautious in affording relief to a fraudulent grantor, or other violator of the law under this

exception, and should act only where it is evident that some greater public good can be subserved by action than by inaction": Cooper, J., in O'Conner ▼. Ward, 60 Miss. 1025, 1037; and see Renfrew v. McDonald, 11 Hun, 254. But unless the parties are strictly in pari delicto as well as in delicto, the courts are not disposed to apply the maxim rigidly. And where the party seeking relief is less to blame than the other, or if it appears that one party may have acted under circumstances of oppression, imposition, undue inflaence, or great inequality of condition, so that his guilt may be far less than that of his associate in the offense, the court will weigh the degrees of guilt, and afford relief to the more innocent party: Roman v. Mali, 42 Md. 513; Anderson v. Merideth, 82 Ky. 564; Freelove v. Cole, 41 Barb. 326; 41 N. Y. 619; Harrington v. Grant, 54 Vt. 236; Poston v. Balch, 69 Mo. 115. Recent decisions afford numerous illustrations of the application of this doctrine. Thus where a husband represented to his wife that she was liable for certain debts, for which in fact she was not liable, and that the creditors would take her property therefor, and in that belief, and with the purpose of defrauding such creditors, she transferred her property to her husband, the conveyance was set aside: Boyd v. De la Montagnie, 73 N. Y. 498; 29 Am. Rep. 197. So where a mother was induced by the statements and persuasion of her daughter to believe that she was in danger of losing her land through litigation of her son's wife unless she conveyed it to her daughter, and she did convey it for the purpose of protecting it therefrom, such representations being untrue, and such apprehensions in fact groundless, the deed was set aside: Kleeman v. Peltzer, 17 Neb. 381; and see Harrington v. Grant, 54 Vt. 236. So of a conveyance, where the parties thereto were brothers, and the grantor was a cripple, weak in body and mind, and under the control of the grantee, by whom his fears were operated upon by making him believe that he was in danger of losing his property by reason of a threatened suit for breach of promise, for which there was no foundation in fact, and there was no consideration paid and none to be paid, and the conveyance was induced by the fears of the grantor and the promise of the grantee to reconvey the land: Holliway v. Holliway, 77 Mo. 392. So where a person who was ignorant and of weak intellect, under the influence and advice of another, executed to the latter a note and mortgage in fraud of his creditors and without consideration, it was held that he was not debarred from relief: Davidson v. Carter, 55 Iowa, 117. And the doctrine was asserted that where a stronger mind takes advantage of a weaker, and by persuasion and influence procures the unlawful act, the maxim in pari delicto ceases to be applicable: Id. 119. Where a conveyance, in fraud of creditors, was made to an attorney, in accordance with and pursuant to his advice, it was held that the grantor could recover back for his own use the property transferred, such a case constituting an exception to the general rule that the fraudulent grantor cannot undo, for his own benefit, the transfer he has made: Ford v. Harrington, 16 N. Y. 285; and see Barnes v. Brown, 32 Mich. 146. It is, however, held that if the parties to an illegal transaction are in pari delicto, the mere fact that at the time of such transaction the relation of attorney and client existed between them will give the latter no claim to the aid of a court of equity to have restored to him the property of which the former has become possessed by their joint fraud. The relation of attorney and client alone will not except the case from the general rule: Roman v. Mali, 42 Md. 513.

JAMES'S ADMINISTRATOR v. TRUSTEES OF HARRODS

BURG.

[85 KENTUCKY, 191.]

CORPORATIONS. FAILURE ON PART OF MUNICIPAL CORPORATION TO PROVIDE MEANS for abating a nuisance wholly on private property, and caused by the act of the owner alone, or the omission of its officers to abate the nuisance when the means are provided, gives no cause of action against the corporation to one who is injured by such neglect of duty. Thomas C. Bell and Phil. B. Thompson, for the appellant.

O. S. Posten and R. P. Jacobs, for the appellees.

PRYOR, C. J. The appellant's intestate was seriously injured by a stone thrown by a blast of powder, that was made on the lot of one of the residents of the town, preparatory to the erection of a building upon it by the owner.

An action was instituted by the person injured against the town of Harrodsburg, in which it is alleged that the excavation was made on the lot by the consent of the city, and the blasting of stone permitted for several days, the stones falling in the streets of the city, so as to endanger the lives of its citizens and those passing; and finally, one of the stones striking the plaintiff on the foot, crushing it, rendering him a cripple for life. It is alleged that the blasting, as it was conducted, was a nuisance, and so known to the officers of the city government, and they neglected to abate it, or take any steps for the protection of those passing against the danger. The plaintiff died, and the action is here in the name of his personal representative, who has appealed from a judgment sustaining a demurrer to the petition and dismissing the action.

It is not alleged that the nuisance was committed under or by the direction of the trustees of the town, or that the town had any interest in the lot or the excavation that was being made upon it. The lot formed no part of the public streets or alleys of the town, was not used as a park or pleasure-ground by the town, and the town was in no manner connected with the wrong, except in consenting to the erection of the building. It is not alleged that the building or excavation was a nuisance, or endangered the lives of the people, but it is averred only that the mode of blasting the rock, conducted by the owner, or those in his employ, was dangerous to the passers-by, and resulted in the injury complained of. The legislative power of the town may have authorized the abatement of nuisances,

and the imposition of penalties by the authorities on those who create a nuisance on their own lots, and yet we are aware of no rule that would make the town liable in a civil action for a failure to pass ordinances for the suppression of such nuisances, or to enforce these laws through the proper officers when enacted. The public streets of the town, under the immediate control of the trustees or the municipal authorities, must be kept unobstructed, and when an injury results to the citizen by reason of a neglect of duty in this regard by the proper authorities, a civil action may be maintained; and so of other property within the corporate limits and belonging to the corporation. Here an action is attempted to be maintained by a private citizen against the town because of the negligent conduct of the owner on his own lot in making an excavation by the use of powder that had become dangerous to the adjoining property, or to persons passing on the street adjacent.

The city might have notified the owner to cease blasting, but the failure of the owner to comply with the request would not make the city liable for failing to take such action as was necessary to abate the nuisance. The town may have had no ordinance on the subject, and the remedy, if adopted, not adequate to suppress the wrong; and still, for the failure of either legislative or judicial department of the town to perform its duty in this regard, no action would lie. The owner would be liable to an indictment at the instance of the public, and also to an action by the party receiving a private injury by reason of the wrong, but as to the town no liability would exist. The power of a town or city to suppress or abate a nuisance, like all other powers, is derived solely from the legislature; and that a town is responsible for not abating a nuisance, both to the public and to the private citizen who has received a special injury, may, as a general rule be conceded; but in all such cases the injury complained of must arise either from the neglect of the town in the attempt to discharge a public duty for the benefit of the public, such as improving its streets, digging its public wells, or erecting other public works, or in omitting to keep such improvements in a condition that protects the public or the private citizen from danger. In all such cases the town, if a nuisance is caused by the neglect of its officials, or by others on its public grounds, is answerable in damages, either to the state or the citizen, or both, when a special injury accrues to the latter.