there was a circumftance in the report which gave much countenance to the idea that the carrier knew what he was doing, viz. that he was lending his affiftance to an infamous traffic. In that cafe the rule melior eft conditio poffidentis will apply; for if the contract with him be ftained by any thing illegal, the Plaintiff fhall 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 cafe 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 confufion in this cafe has arifen from the Plaintiff having proved too much at the trial. He fhould have fhewn that the Defendant had received fo much money to his ufe, and it was immaterial whether the money were paid on a legal or an illegal contract. The cafes come up to that point; Alcinbrook v. Hall, 2 Wilf. 309., which was the cafe of money lent to pay a bet at a horse-race, and Faikney v. Reynous, Burr. 2069., of money lent to pay differences in a stock-jobbing bargain, where the Defendant was privy to the tranfaction. 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 recover. 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 diftinguifh this cafe 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 infurance, and was privy to the whole tranfaction, and yet the money there was confidered as coming into his hands, to the ufe of another perfon. I look upon the matter in the fame light as if the money had been paid into the hands of a banker who could never be allowed to fay that it was paid in on an illegal confideration. In the cafe of a ftake-holder, the Court would inquire into the tranfaction; but the diftinction is, that whether the confideration be good or bad, a man may recover his own money, though not that of another perfon. The cafe of Barjeau v. Walmsley, Str. 1249., where a party was allowed to recover (a) money lent to another to game withal, is very ftrong. (a) Vid. etiam, Wettenball v. Wood, coram Lord Kenyon, Espin, Caf. N. P. 22. ROOKE J. 1798. FARMER V. RUSSELL. 1798. FARMER ข. RUSSELL. ROOKE J. I agree with my Lord and my Brothers, that there ought to be a new trial in this cafe, though I cannot agree with them in the reafons on which they are inclined to direct it. The Plaintiff is to recover on his own merits, not on the demerits of the Defendant. If he has no merits, or if he difclofes a cafe 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 cafe 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 fecurity 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 commiffion of 2d. in the pound. By thefe means he fecures himself as to the payment, and the Defendants become his agents to fell for ready money; they are inftruments of fraud in the hands of the Plaintiff, and being fuch inftruments, they behave dishonestly to their principal: fhall then the Court affift fuch a principal to recover his money out of the hands of his agents? or fhall it not rather fay, if you will employ agents in a fraudulent tranfaction, you must rely on the fidelity of your agents, for the Court will not affift you? A distinction has been taken between the Defendant's being privy to the fraudulent tranfaction, 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 impreffion on my memory; viz. that fome of the goods were ill-packed, and the packages broken, fo that the Defendants muft probably have known the contents. To clear up this matter, if the Court think the point of law in the Plaintiff's favour (fuppofing the Defendants to have no knowledge of the contents of the packages), it may be right to fend the parties to a new trial, But on the beft confideration I can give this cafe, 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 juftice, founded on a tranfaction for which he ought to be indicted. He disclosed the whole whole tranfaction by his own witneffes in establishing his own EYRE 1798. FARMER v. RUSSELL [302] 1798. FARMER ย. RUSSELL. EYRE Ch. J. If it be poffible to mix the original tranfaction with the contract, on which the action is brought, I agree with my Brother Rooke in all his conclufions. (a) Rule abfolute for a new trial. (b) (a) Vid. Steers v. Lafbley, 6 T. R. 61. Booth v. Hody fon, 6 T. R. 405. money into Court. Vid. tamen Sullivan v. Greaves, Park Inf. 8. June 19th. The Court has no power to difcharge a Defendant out of execution, on the ground of a commiffion of M'MASTER V. KELL. DAIR Serjt. on a former day obtained a rule, calling on the A Plaintiff to fhew caufe why the Defendant fhould not be discharged out of the cuftody of the warden of the Fleet, as to the execution wherewith he flood charged at the fuit of the Plaintiff in this action, on the ground of the Plaintiff having fince bankruptcy hav- fued out a commiffion of bankruptcy against him. The facts were thefe. The Defendant was charged in execution by the Plaintiff in Trinity term 1797, for 609l.; on the 22d of May laft a commiffion of bankruptcy iffued on the petition of the Plaintiff, under which the Defendant was declared a bankrupt; the Plaintiff was the only perfon who proved under the commiffion, and was chosen fole affignee. ing fince been fued out against him by the Plaintiff Clayton Serjt. fhewed caufe, and contended that a petition to the Great Seal had never yet been held to be a fatisfaction of a debt, and though in Burnaby's cafe, 1 Str. 653. charging a debtor in execution was held fuch a fatisfaction 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 fupport of the rule, cited Ex parte Ward, 1 Atk. 153. and Ex parte Lewes, 1 Atk. 154. EYRE Ch. J. Suppofe the Lord Chancellor fhould think fit to fuperfede the commiffion, then we fhall have discharged the debtor, because a commiffion has iffued against him, and the Lord Chancellor will have fuperfeded the commiffion becaufe the party has been charged in execution. There is no inftance of fuch 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, fince that Court (a) Vid. etiam, Coben v. Cunningham, 8 T. R. 123. may may either fuperfede the commiffion, or direct the bankrupt to be discharged out of cuftody. I wish it to be understood that this rule is discharged, on the ground of a want of jurisdiction in this Court. Per Curiam, 1798. M'MASTER V. KELL. Rule difcharged. SANGSTER V. BIRKHEAD. EPLEVIN of goods and chattels. REPL a June 20th. rent underlet it at an advanced rent, he is liable the expences of party-wall, to contribute to built under the 14 G. 3. 6. 78. ; varied by any between the landlord and his Avowry for rent in arrear, and iffue thereupon. One Woodward and his wife being feifed in fee of a houfe in London, by leafe, bearing date 29th of March 1777, demifed it to the Defendant for a term of twenty-one years, which expired at Lady-day 1798, at the yearly rent of 441. deducting the landtax. The Defendant demifed the house for eighteen years and ten months from the 1ft of May 1779 to one Robert Sugden at the yearly rent of 60l., also deducting the land-tax. In this leafe amongst the other ufual covenants on the part of the leffee, there was one to make "all needful and neceffary reparations pair entered into and amendments whatfoever," in which no exception was made as to accidents by fire, nor was there any covenant on the part of tenant. the leffee to infure. The leafe was affigned by Sugden for a valuable confideration, and after feveral mefne aflignments came on 19th of May 1787 to the prefent Plaintiff'; in May 1795 a fire having happened in the adjoining houfe, by which that houfe was entirely confumed, and the roof of the Plaintiff's injured, the owners of the scite of the adjoining house being defirous to rebuild, had the party wall examined by four furveyors, and delivered a certificate to the Plaintiff according to 14 Geo. 3. . 78. 38. that the wall was, by the opinion of the faid furveyors, 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 caufe came on to be tried before Rooke J. at the Guildhall fittings after Eafter 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 fome injury from external violence, but that it was not injured |