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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 flock-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 queftion. I am unable to diftinguish 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 stake-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. Walmfley, 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 reasons 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 diftinction 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 counfel, 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 must 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 difclofed the

whole

whole tranfaction by his own witneffes in establishing his own cafe, on the ift 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 difclofed in a declaration or on a special verdict. The diftinction as to the knowledge or ignorance of the Defendant, if allowed, will produce this ftrange confequence; that if he be innocent, he shall be anfwerable in this action; but if guilty, he fhall be free: his innocence fhall work a lofs to him, his guilt fhall be his indemnity. This is fo monftrous a doctrine, that though it may be technically accounted for, on the ground of mutual privity in a foul tranfaction, I cannot affent to it, if I can discover a principle, by which it may be rejected. I cannot agree that a Plaintiff' fhall 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 affiftance of the law to recover the profits of his crime; and that whether his agents be innocent or criminal, privy or not privy, his claim against thofe agents is equally inadmiffible in a court of law. In this cafe the Plaintiff does not come into court with clean hands; he alleges his own turpitude, and is indictable for his fraud. Suppofe a Plaintiff to ftate in his declaration "I have beaten A. according to the "terms of my agreement with B., B. has lodged the money he "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 circumftances of that cafe may be applicable: but to which the circumftances of the prefent cafe form an exception. It is not there ftated whether the circumftances which fupport the objection were proved on the part of the Plaintiff, or on the part of the Defendant. The affured did not by that contract fecure 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 fecure the Plaintiff against lofs in a fraudulent traffic, and the Defendants (whether privy or not to the fraud) are the agents to fecure him by dealing for ready money only. If the Plaintiff will employ an agent in fuch a tranfaction, he muft rely on the honefty of his agent, and I think the law ought not to affift him.

EYRE

1798.

FARMER

v.

RUSSELL

[302]

1798.

FARMER

V.

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. Hedy fon, 6 T. R. 405.
(b) The Defendants afterwards paid the money into Court.
Vid. tamen Sullivan v. Greaves, Park Inf. 8.

June 19th.

M'MASTER v. KELL.

3 Bf. Pull. 6.

The Court has ADAIR Serjt. on a former day obtained a rule, calling on the

no power to difcharge a Defendant cut of execution, on the

ground of a commiffion of

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 ftood 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 ing fince been fued out againft were thefe. The Defendant was charged in execution by the him by the Plaintiff in Trinity term 1797, for 609l.; on the 22d of May Plaintiff 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 chofen fole affignee.

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 shall have difcharged the debtor, because a commiffion has iffued against him, and the Lord Chancellor will have fuperfeded the commiffion because 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 difcharged, on the ground of a want of jurifdiction in this Court.

Per Curiam,

Rule discharged.

SANGSTER V. BIRKHEAD.

This caufe came on to be tried before Rooke J. at the Guildhall fittings after Easter term, when the furveyors 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

1798.

M'MASTER

V.

KELL.

REPL

EPLEVIN of goods and chattels.

June 20th.
10 Eaft, 233.
If the leffee of a
houfe at a rack-
rent underlet it

Avowry for rent in arrear, and iffue thereupon.

at an advanced rent, he is liable

to contribute to

the expences of party-wall,

a

tax.

built under the 14 G. 3. c. 78.; nor is the opera

of the ftatute at all varied by any

covenants to re

One Woodward and his wife being feifed in fee of a house in London, by leafe, bearing date 29th of March 1777, demised 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 landThe Defendant demifed the houfe for eighteen years and ten months from the 1ft of May 1779 to one Robert Sugden at the yearly rent of 6ol., alfo deducting the land-tax. In this lease amongst the other ufual covenants on the part of the leffee, there was one to make "all needful and neceffary reparations * and amendments whatsoever," 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 mefine affignments 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 fcite of the adjoining houfe being defirous to rebuild, had the party wall examined by four furveyors, and delivered a certificate to the Plaintiff according to 14 Geo. 3.

pair entered into between the

landlord and his

. 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.

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