PAETIOEPS OEIMINIS. 59.
writers contend it is, then any co-operation or par- ticipation whatever, direct or indirect, taints with the crime ; and a borrower upon usury is as much particeps criminis as he who dehberately sanctions an act of robbery, adultery, or murder.
Chief Justice Treby seems to have thought .that the crime of usury equally affected both parties, and refused to allow a borrower to recover back money paid upon an usurious bond, and said, " That where one knowingly pays money upon an illegal consideration, the party that receives it ought to be punished for his offence ; and the party that pays it is par- ticeps criminis, and there is no reason that he should have the money again, for he parted with it freely, and volenti non fit injuria."^ But the courts have entirely overruled Chief Justice Treby's opinion, and Lord Mansfield said, in Browning v. Morris, that the party injured might bring his action, and recover back the excess of interest. And the rule is settled, that where the crime and penalty fall on one party only, as upon the lender in usury, and upon the insurer on insurance, then the