all the benefit, as well as incurring all the disadvantage, [*218] which may result from such a state of things. For instance,

it is a true proposition, that money paid by a bankrupt to a creditor to induce him to sign the certificate, may be recovered back in an action for money had and received; but, in answer to this case, it is a good defence, that the money had been demanded by, and paid to the assignees before the commencement of the action; for here, upon his own showing, the plaintiff's certificate was obtained by fraud, and the jus tertii, or right of the assignees, having intervened, the plaintiff could not be in a situation to maintain the action.2

In an action of trover, it appeared that the goods in question were seized while in the actual possession of a third party, under an execution against such third party, and sold to the defendant. It further appeared that no claim had been made by the plaintiff after the seizure, and that the plaintiff had consulted with the execution creditor as to the disposal of the property, without mentioning his own claim, after he knew of the seizure, and of the intention to sell the goods: it was held, that a jury might properly infer, from the plaintiff's conduct, that he had authorized the sale, and had, in point of fact, ceased to be the owner; and Lord Denman, C. J., in delivering the judgment of the Court, laid down the following principle, which will be found applicable to a large class of cases, and results directly from the maxim that no man shall take advantage of his own wrong. "The rule of law," said his lordship, "is clear, that, where one, by his words or conduct, wilfully causes another to believe the existence of a certain state of things, and induces him to act on that belief, so as to alter his own previous position, [*219] the former is concluded from averring against the latter a different state of things as existing at the same time."3 So, in Gregg v. Wells, it was held, that the owner of goods, who stands by, and voluntarily allows another to treat them as his own, whereby a third person is induced to buy them bona fide, cannot recover them from the vendee. "A party," said the Lord Chief Justice, "who negligently or culpably stands by and allows another to con

I See Lowry v. Bourdieu, 2 Dougl. 472; Smith v. Bromley, Id. 697, n. (3); Clarke v. Shee, Cowp. 200; Browning v. Morris, Id. 792.

2 Sievers v. Boswell, 4 Scott, N. R. 165.

3 Pickard v. Sears, 6 Ad. & E. 469; E. C. L. R. 33. See Campbell v. Fleming, 1 Ad. & E. 40; E. C. L. R. 28; cited 16 L. J., C. P. 158.

10 Ad. & E. 90, 98; E. C. L. R. 36.

297; Nicholls v. Atherstone, Id. 373.

See Doe d. Groves v. Groves, 16 L. J., Q. B.

tract, on the faith and understanding of a fact which he can contradict, cannot afterwards dispute that fact in an action against the person whom he has himself assisted in deceiving."

The above and similar cases are evidently in principle identical with those in which it has been held that a person, who has expressly made a representation on the faith of which another has acted, shall not afterwards be allowed to contradict his former statement, in order to profit by that conduct which it has induced. Whenever such an attempt is made in the course of legal proceedings, the law replies, in the words of a maxim which we have already cited,' allegans contraria non est audiendus, and, by applying the doctrine of estoppel therein contained, prevents the unjust consequences which would otherwise ensue. We may, therefore, lay it down as a general rule, applicable alike in law and equity, that a party shall not entitle himself to substantiate a claim, or to enforce a defence, by reason of acts or misrepresentations which proceeded from himself, or were *adopted or acquiesced in by him after full knowledge of [*220] their nature and quality; and further, that where misrepresentations have been made by one of two litigating parties, in his dealings with the other, a court of law will either decline to interfere, or will so adjust the equities between the plaintiff and defendant, as to prevent an undue advantage from accruing to that party who is unfairly endeavouring to take advantage of his own wrong.1

If, therefore, the acceptor of a bill of exchange at the time of acceptance knew the payee to be a fictitious person, he shall not take advantage of his own fraud; but a bona fide holder may recover against him on the bill, and declare on it as payable to bearer : and, generally, a person will not be allowed as plaintiff in a court of law to rescind his own act, on the ground that such act was a fraud on

1 Ante, p. 127.

2 Price v. Carter, 7 Q. B. 838; E. C. L. R. 53.; Mayor of Sandwich v. Reg. (in error), 16 L. J., Q. B. 432; Banks v. Newton, Id. 142; Petch v. Lyon, 15 L. J., Q. B. 393, and cases there cited; Braithwaite v. Gardiner, Id. 187.

3 Vigers v. Pike, 8 Cl. & Fin. 562.

4 See Harrison v. Ruscoe, 15 M. & W. 231, where an unintentional misrepresentation was made in giving notice of the dishonour of a bill; Rayner v. Grote, Id. 359, where an agent represented himself as principal; (citing, Beckerton v. Burrell, 5 M. & S. 383.)

5 Gibson v. Minet (in error), 1 H. Bla. 569; Byles on Bills, 5th ed. 58 (k).

another person, whether the party seeking to do this has sued in his own name, or jointly with such other person.1

In conclusion, we may remark that the rule above illustrated is, in principle, very closely allied to the maxim, ex dolo malo non oritur actio, which is likewise of very general application, and will be treated of more conveniently hereafter in the Chapter upon Contracts. The latter maxim is, indeed, included in that already noticed; for it is clear, that, since a man cannot be permitted to take advantage of *his own wrong, he will not be allowed to found any claim [*221] upon his own iniquity-Nemo ex proprio dolo consequitur actionem; and, as we commenced with observing, frustra legis auxilium quærit qui in legem committit.

ACTA EXTERIORA INDICANT INTERIORA SECRETA.
(8 Rep. 291.)

Acts indicate the intention.

The law, in some cases, judges of a man's previous intentions by his subsequent acts; and, on this principle, it was decided in a wellknown case, that, if a man abuse an authority given him by the law he becomes a trespasser ab initio ; but that, where he abuses an authority given him by the party, he shall not be a trespasser ab initio. The reason assigned for this distinction being, that, where a general authority or license is given by the law, the law judges by the subsequent act, quo animo, or to what intent the original act was done; but, when the party himself gives an authority or license to do anything, as to enter upon land, he cannot for any subsequent cause convert that which was originally done under the sanction of his own authority or license into a trespass, ab initio; and, in this latter case, therefore, the subsequent acts only will amount to trespasses.

2

For instance, the law gives authority to enter into a common inn or tavern, in like manner to the owner of the ground to distrain

1 Per Lord Tenterden, C. J., Jones v. Yates, 9 B. & C. 538; E. C. L. R. 17; Sparrow v. Chisman, Id. 241; Wallace v. Kelsall, 7 M. & W. 264,(*) which cases are recognised, Gordon v. Ellis, 8 Scott, N. R. 305.

2 The Six Carpenters' case, 8 Rep. 290; Van Brunt v. Schenck, 13 Johnson, R. (U. S.) 414. See Jacobsohn v. Blake, 7 Scott, N. R. 772; Peters v. Clarson, 8 Scott, N. R. 384; Wing. Max., p. 108.

[*222]

damage feasant,' and to the commoner *to enter upon the land to see his cattle. But, if he who enters into the inn or tavern commits a trespass, or if the owner who distrains a beast damage feasant works or kills the distress, or if the commoner cuts down a tree, in these and similar cases the law adjudges that the party entered for the specific purpose of committing the particular injury, and, because the act which demonstrates the intention is a trespass, he shall be adjudged a trespasser ab initio ; or, in other words, the subsequent illegality shows the party to have contemplated an illegality all along, so that the whole becomes a trespass.3 For the same reason, if a sheriff continues in possession after the return day of the writ, this irregularity makes him a trespasser ab initio, though it will not support the allegation of a new trespass committed by him after the acts which he justifies under the execution.

One consequence of the above doctrine, as to the abuse of an authority given by law, was, that, if a party entering lawfully to make a distress, committed any subsequent abuse, he became a trespasser ab initio; and as this was found to bear extremely hard on landlords,' it was enacted by stat. 11 Geo. 2, c. 19, s. 19,° that, where any distress shall be made for any rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not be deemed unlawful, nor the distrainer a trespasser ab initio, *but the party grieved may recover satisfaction for the damage in a special action of [*223] trespass, or on the case,' at the election of the plaintiff, and if he recover he shall have full costs. Where, in a very recent case, a

1 See Layton v. Hurry, 15 L. J., Q. B. 244. As to pleading a tender of amends, where cattle are distrained damage feasant, see Gulliver v. Cosens, 1 C. B. 788; E. C. L. R. 50.

28 Rep. 291; Wing. Max., p. 109; Oxley v. Watts, 1 T. R. 12; Bagshaw v. Goward, Cro. Jac. 147; Aitkenhead v. Blades, 5 Taunt. 198; E. C. L. R. 1.

3 Per Littledale, J., Smith v. Egginton, 7 Ad. & E. 176; E. C. L. R. 33; which was trespass against a sheriff for assault and false imprisonment.

Aitkenhead v. Blades, 5 Taunt. 198; E. C. L. R. 1.

51 Smith, L. C. 65.

See also stat. 2 W. & M. c. 5; Judgment, Thompson v. Wood, 4 Q. B. 498; E. C. L. R. 45. As to what things may be distrained, see Parsons v. Gingell, 16 L. J., C. P. 227.

7 That is to say, the nature of the irregularity, and the peculiar circumstances of the case, must determine whether the proper form of action be trespass or case. Winterbourne v. Morgan, 11 East, 395, 401; Etherton v. Popplewell, 1 East, 189.

landlord distrained for rent, amongst other things, goods which were not distrainable in law, he was held to be a trespasser ab initio as to those particular goods only.1

Also, by stat. 17 Geo. 2, c. 38, s. 8, where any distress shall be made for money justly due for the relief of the poor, the party distraining shall not be deemed a trespasser ab initio, on account of any act subsequently done by him; but the party grieved may recover satisfaction for the special damage in an action of trespass, or on the case, with full costs, unless tender of amends is made before action brought.

With respect to the second proposition laid down in the Six Carpenters' case, viz., that the abuse of authority or license given by the party will not make a person a trespasser ab initio, it should be observed, that such a license to do an act which per se would be a trespass, is, in some cases, implied by law. Thus, all the old authorities say, that, where a party places upon his own close the goods of another, he, by so doing, gives to the owner of them an implied license to enter for the purpose of recaption; if a man takes my goods and carries them into his own land, *I may justify my

[*224] entry into the said land to take my goods again, for they came there by his own act.3 So, a man may sometimes justify an entry on his neighbour's land to retake his own property, which has by accident been removed thither; as in the instance of fruit falling into the ground of another, or in that of a tree which is blown down, or, through decay, falls into the ground of a neighbour in these cases, the owner of the fruit or of the tree may, by his plea, show the nature of the accident, and that he was not responsible for it, and thus justify the entry. This distinction must, however, be remarked, that, if the fruit or tree had fallen in the particular direction in consequence of the owner's act or negligence, he could not justify the entry."

Another case also occurs, in which the law presumes a license. Thus, if A. wrongfully place goods in B.'s building, B. may lawfully go upon A.'s close adjoining the building, for the purpose of re

1 Harvey v. Pocock, 11 M. & W. 740. As to the effect of ratification by the land

lord of the act of the bailiff, see Lewis v. Read, 13 M. & W. 834.

2 Per Parke, B., Patrick v. Colerick, 3 M. & W. 485; 2 Roll. R. 565, pl. 54.

3 Vin. Abr., "Trespass," (1), a; cited 3 M. & W. 485.

4 Per Tindal, C. J., Anthony v. Haney, 8 Bing. 192; E. C. L. R. 21.

5 Millen v. Hawery, Latch. 13; Vin. Abr., "Trespass," H. a. 2, L. a; per Tindal, C. J., 8 Bing. 192; E. C. L. R. 21.