1798.

FARMER

RUSSELL.

there was a circumstance in the

report which

gave

much countenance to the idea that the carrier knew what he was doing, viz. that he was lending his assistance to an infamous traffic. In that case the rule melior eft conditio possèdentis will apply; for if the contract with him be stained by any thing illegal, the Plaintiff shall not be heard in a court of law.

BULLER J. I think the knowledge and participation of the Defendant is not made out by the evidence reported; nor indeed if it had been, would it have made any difference in the case of an action for money had and received, which is not founded on the illegal contract, but on a ground totally diftinct from it; Walker v. Chapman, cited Doug. 471. ed. 3. It feems to me that all the confusion in this case has arisen from the Plaintiff having proved too much at the trial. He should have shewn that the Defendant had received so much money to his use, and it was immaterial whether the money were paid on a legal or an illegal contract. The cases come up to that point; Alcinbrook v. Hall, 2 Will 309., which was the case of money lent to pay a bet at a horse-race, and Faikney v. Reynous, Burr. 2009., of money lent to pay differences in a stock-jobbing bargain, where the Defendant was privy to the transaction. And it has been faid that if money be lent to pay differences in the Alley, the party lending it with full knowledge of the purpose to which it is to be applied may

Here the money having been paid by another to the Plaintiff's use, the illegal contract is out of the question. I am unable to distinguish this case from that of Tenant v. Elliott.

Heath J. I am of the fame opinion. In Tenant v. Elliott, the Defendant was employed as agent to negociate an illegal insurance, and was privy to the whole transaction, and yet the money there was considered as coming into his hands, to the use of another person. I look upon the matter in the same light as if the money had been paid into the hands of a banker who could never be allowed to say that it was paid in on an illegal confideration. In the case of a stake-holder, the Court would inquire into the transaction; but the distinction is, that whether the consideration be good or bad, a man may recover his own money, though not that of another person. The case of Barjeau v. Walmsley, Str. 1249., where a party was allowed to recover(a) money lent to another to game withal, is very strong.

recover.

(2) Vid. etiam, Wettenball v. Wood, coram Lord Kenyon, Espin, Caf. N.P.22.

ROOKE J.

3798.

ROOKEJ. I agree with my Lord and my Brothers, that there ought to be a new trial in this case, though I cannot agree with them in the reasons on which they are inclined to direct it. The Plaintiff is to recover on his own merits, not on the de merits of the Defendant. If he has no merits, or if he discloses a case of foul fraud on his own part, I think he ought not to be heard, however great the demerits of the Defendant may be. The Plaintiff in this case is concerned in a traffic not merely forbidden, but fraudulent and indictable; viz. the uttering counterfeit tokens, and counterfeit halfpence. He endeavours to carry on this traffic with complete security to himself as to payment. He knows he cannot recover payment as for goods fold and delivered, and therefore contracts with the Defendants to carry the goods, and to engage to receive the money for them on a commission of ad. in the pound. By these means he fecures himself as to the payment, and the Defendants become his agents to sell for ready money; they are inftruments of fraud in the hands of the Plaintiff, and being such instruments, they behave dishonestly to their principal: fhall then the Court allift such a principal to recover his money out of the hands of his agents? or shall it not rather say, if you will employ agents in a fraudulent transaction, you must rely on the fidelity of your agents, for the Court will not aslift you? A distinction has been taken between the Defendant's being privy to the fraudulent transaction, and not being privy to it. I thought at the trial that there was evidence of the Defendants' knowledge, and I told the jury fo. In that, I probably made fome mistake; because neither my own note, nor the memory of counsel, supply me with a fact, which yet makes an impression on my memory; viz. that some of the goods were ill-packed, and the packages broken, so that the Defendants must probably have known the contents. To clear up this matter, if the Court think the point of law in the Plaintiff's favour (supposing the Defendants to have no knowledge of the contents of the packages), it may be right to send the parties to a new trial, But on the best consideration I can give this case, I do not think that this fact, found one way or the other, can vary the ground on which the cause should be decided. The ground on which I form my opinion is this ; that the Plaintiff ought not to be heard to make a claim in a court of justice, founded on a transaction for which he ought to be indicted. He disclofed the

1798.

FARMER

RUSSELL

whole transaction by his own witnesses in establishing his own
cafe, on the ist count, against the Defendant for not receiving
ready money; and having disclosed it, I think the Court ought
not to shut its eyes against it, but to notice the transaction as
fully as if disclosed in a declaration or on a special verdict.
Thedistinction as to the knowledge orignorance of the Defendant,
if allowed, will produce this strange consequence; that if he be
innocent, he shall be answerable in this action ; but if guilty, he
shall be free: his innocence shall work a loss to him, his guilt thall
be his indemnity. This is fo monstrous a doctrine, that though
it may be technically accounted for, on the ground of mutual
privity in a foul transaction, I cannot aflent to it, if I can discover
a principle, by which it may be rejected. I cannot agree that a
Plaintiff' shall be heard, if he alone is party to a foul fraud : and
that he shall be rejected, only when the Defendant is as bad as
himself, and when both are mutually concerned in the fraud. I
think that a man who has been guilty of an indictable offence
ought not to have the aslistance of the law to recover the pro-
fits of his crime; and that whether his agents be innocent or
criminal, privy or not privy, his claim against those agents is
equally inadmissible in a court of law. In this case the Plaintiff
does not come into court with clean hands; he alleges his own
turpitude, and is indictable for his fraud. Suppose a Plaintiff
to itate in his declaration “ I have beaten A. according to the
“ terms of my agreement with B., B. has lodged the money he
o contracted to give me, in the hands of the Defendant, and the
“ Defendant refuses to pay it over to me;" I think the Court
would reject his demand. Tenant v. Elliott, is not precisely in
point; it proceeds on a general principle, to which the circum-
stances of that case may be applicable: but to which the circum-
ftances of the present case form an exception. It is not there
ftated whether the circumstances which support the objection
were proved on the part of the Plaintiff, or on the part of the
Defendant. The assured did not by that contract secure himself
at all events against loss, though he broke the law by ordering
theinfurance in question. Neither the broker nor he could enforce
payment from the underwriter: whereas here is a contract to
secure the Plaintiff against loss in a fraudulent traffic, and the
Defendants (whether privy or not to the fraud) are the agents to
secure him by dealing for ready money only. If the Plaintiff will
employ an agent in such a transaction, he must rely on the ho-
nefty of his agent, and I think the law ought not to aslift him.

EYRE

[ 302 ]

1798.

FARMER

EYRE Ch.J. If it be possible to mix the original transaction with the contract, on which the action is brought, I agree with my Brother Rooke in all his conclufions. (a)

Rule absolute for a new trial. (6)

RUSSELL.

(a) Vid. Steers v. Lasbley, 6 T. R. 61. Boob v. Hodg for, 6 T. R.405.
(6) The Defendants afterwards paid the money into Court.

Vid. Camen Sullivan v. Greaves, Park Inf. 8.

1

4

June 19th.

M-MASTER v. KELL. 3 85.6 Pull.6 'The Court has ADA

DAIR Serjt. on a former day obtained a rule, calling on the no power to dif

Plaintiff to shew cause why the Defendant should not be charge a Defendant out of exe. discharged out of the custody of the warden of the Fleet, as to cution, on the the execution wherewith he stood charged at the fuit of the ground of a commission of

Plaintiff'in this action, on the ground of the Plaintiff having fince
bankruptcy hav- sued out a commission of bankruptcy against him. The facts
ing since been
sued out against were these. The Defendant was charged in execution by the
him by the Plaintiff in Trinity term 1797, for 609l.; on the 22d of May
Plinciff.

last a commission of bankruptcy issued on the petition of the
Plaintiff, under which the Defendant was declared a bankrupt;
the Plaintiff was the only person who proved under the com-
mission, and was chosen fole assignee.

Clayton Serjt. thewed cause, and contended that a petition to
the Great Seal had never yet been held to be a satisfaction of a
debt, and though in Burnaby's case, i Str. 653. charging a
debtor in execution was held such a satisfaction to a creditor, as
to prevent him from petitioning on that debt (a), yet that the
converse did by no means follow.

Adair Serjt. in support of the rule, cited Ex parte Ward, 1 Atk. 153. and Ex parte Lewes, i Atk. 154.

EYRE Ch.J. Suppose the Lord Chancellor should think fit to supersede the commission, then we shall have discharged the debtor, because a commission has issued against him, and the Lord Chancellor will have superseded the commission because the party has been charged in execution. There is no instance of such an application to a Court of law, and I am not disposed to make a precedent. Indeed I do not know that the principle has ever been recognized as one upon which a Court of law can act; it is much fitter for the Court of Chancery to interfere, since that Court

(a) Vid. etiam, Cober v, Cunningban, 8 T. R. 123,

may

1798.

may either supersede the commission, or direct the bankrupt to
be discharged out of custody. I wilh it to be understood that
this rule is discharged, on the ground of a want of jurisdiction
in this Court.
Per Curiam,

Rule discharged.

M MASTER

KELL.

to contribute to

built under the

SANGSTER V. BIRKHEAD.

June 20th.

10 East, 233. EPLEVIN of goods and chattels.

If the lefree of a R

house at a rackAvowry for rent in arrear, and issue thereupon.

rent underlet it One Woodward and his wife being feised in fee of a house in at an advanced London, by lease, bearing date 29th of March 1777, demised it to rent, he is liable the Defendant for a term of twenty-one years, which expired at the expences of Lady-day 1798, at the yearly rent of 441. deducting the land- a party-wall, tax. The Defendant demised the house for eighteen years and 14 G. 3. c. 78. ; ten months from the ift of May 1779 to one Robert Sugden tion of the

nor is the operaat the yearly rent of 6ol., alfo deducting the land-tax. In this tatute at all lease amongst the other usual covenants on the part of the leffee, varied by any there was one to make “ all needful and neceffary reparations pair entered inte " and amendments whatsoever,” in which no exception was made between the

landlord and his as to accidents by fire, nor was there any covenant on the

part

of tenanti the lessee to insure. The lease was assigned by Sugden for a valuable consideration, and after several mesne aslignments came on 19th of May 1787 to the present Plaintiff'; in May 1795 a fire having happened in the adjoining house, by which that house was entirely consumed, and the roof of the Plaintiff's injured, the owners of the feite of the adjoining house being desirous to rebuild, had the party wall examined by four surveyors, and delivered a certificate to the Plaintiff according to 14 Geo. 3. 6. 78. f. 38. that the wall was, by the opinion of the said surveyors, condemned as decayed and ruinous. It was accordingly rebuilt and the Plaintiff called upon for a moiety of the expence. This he paid, and deducted out of the rent due to the Defendant, who diftrained for rent in arrear to that amount.

This cause came on to be tried before Rooke J. at the Guildhall fittings after Easter term, when the surveyors gave in evidence, that they had condemned the wall as ruinous and decayed; that it was probably built foon after the fire of London ; that they could not decide whether it were originally ill-built, or had received some injury from external violence, but that it was not

injured