In Tracy v. Talmage, 14 N.Y. 162 (1856), the court allowed for a refund of payments made under an improperly drafted, and therefore illegal, banking contract. The court stated that where the parties to a contract or transaction not malum in se, but prohibited by a statute, are not equally guilty, courts may afford relief to the less guilty party. Id. That is, the contract was malum prohibitum because its purpose - buying and selling of stock - was not illegal, but was rendered as such due to technical violations. The distinction between malum prohibitum and malum in se is similar to the distinction between procedural and substantive law, e.g. violating a court rule about timely filing of a motion versus committing murder; one is wrong because it violates an arbitrary code while the other violates the accepted standard of human behavior. Moreover, a party has a claim in restitution for a performance rendered in return for a promise that is unenforceable on grounds of public policy if he is not equally in the wrong with the promisor. (Restatement of Contracts 2d, 197-199.) Further, where a law that creates the illegality was designed for the protection of one of the parties, such party may ordinarily recover the money paid at any time, even though the illegal contract is completed. (Talmage 14 N.Y. at 182.)