In the foregoing case, it will be observed, that the principal transaction was invalidated on the ground of fraud, according to the principle, that a wrongful or fraudulent act shall not be allowed to conduce to the advantage of the party who committed it: nul prendra advantage de son tort demesne (i). It may also be laid down as a general rule, that a party to a fraud is estopped from setting it up as a defence, with this qualification, however, that, where the plaintiff himself alleges the fraud, and proves it, as a part of his own case, there is no rule of law which can prevent the defendant from taking all the benefit, as well as incurring all the disadvantage, 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 (k); 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 shewing, the plaintiff's certificate was obtained by fraud, and the jus tertü, or right of the assignees, having intervened, the plaintiff could not be in a situation to maintain the action (7).

In concluding these observations, it should be remarked, that the preceding rule is, in principle, very closely allied to that respecting par delictum, which is placed next in order, because it was thought that a more clear view of the meaning and application of these two maxims might be obtained by reading them consecutively: for minute information on the entire subject, the reader must, however, be referred to those works which profess to treat in detail of

(i) 2 Inst. 713; Branch, Max., 5th ed., p. 141.

(k) See Lowry v. Bourdieu, 2 Dougl. 472; Smith v. Bromley, Id.

697, n. (3); Clarke v. Shee, Cowp. 200; Browning v. Morris, Id. 792.

(1) Sievers v. Boswell, 4 Scott, N. R., 165.

the law of contracts, and to collect the very numerous decisions relative thereto.

IN EQUALI JURE MELIOR EST CONDITIO POSSIDENTIS. (Plowd. 296).-Where the right is equal, the claim of the party in actual possession shall prevail.

The maxim, thus worded, has been placed at the head of the following remarks, because it comprehends that relating to par delictum, which will be immediately noticed, and the general legal doctrine is, in some cases, more properly expressed in the form above given. "When you will recover anything from me, it is not enough for you to destroy my title, but you must prove your own better than mine; for, without a better right, melior est conditio possidentis (m);" as in ejectment, where the party controverting my title must recover by his own strength, and not by my weakness (n); or where, on motion in arrest of judgment, it appears from the whole record that the plaintiff had no cause of action, the Court will never give judgment for him, for melior est conditio possidentis (o).

Likewise, if a loss must fall upon one of two innocent persons, in this case, both parties being free from blame, and justice being so far in equilibrio, the application of the same principle will turn the scale (p). This application must, however, be made with great caution, and after a careful consideration of the particular circumstances of the case, because it frequently happens, that, where money has been paid and received, without fault on either side, it may

Melior est

conditio pos

sidentis.

yet be recovered back, either as paid under a mistake of fact (q), or in consequence of the express or implied terms of the contract. Thus, in Cox v. Prentice, the defendant received from his principal abroad a bar of silver, and took it to the plaintiffs, who melted it, and sent a piece to an assayer to be assayed at defendant's expense. They subsequently purchased the bar, paying for a certain number of ounces of silver, which by the assay it was calculated to contain, and which was afterwards discovered to exceed the true number: it was held, that the plaintiffs, having offered to return the bar of silver, were entitled to recover the difference in value between the supposed and true weight as money had and received to their use, for this was a case of mutual innocence and equal error, the mistake having been occasioned by the assay-master, who was properly to be considered as the agent for both parties (r). It is seldom the case, moreover, that the scale of justice is exactly in equilibrio; it usually happens, that some degree of laches, negligence, or want of caution, causes it to preponderate in favour either of the plaintiff or defendant. For instance, the defendants, who were bankers in a small town, gave notes of their own to a stranger, of whom they asked no questions, in exchange for a 500l. Bank of England note:Held, that the plaintiffs, from whom the 500l. note had been stolen, and who had duly advertised their loss, might recover the note from the defendants; and it was observed, that, even if the loss of the note had not been duly advertised, yet, if it had been received under circumstances inducing a belief that the receiver knew that the holder had become possessed of it dishonestly, the true owner would be entitled to recover its value from the receiver, the negligence of the owner being no excuse for the dishonesty of (r) Cox v. Prentice, 3 M. & S. 344.

(g) Ante, p. 122.

the receiver; but it was further remarked, that the negligence of the one might be an excuse for the negligence of the other, and might authorise the receiver to defend himself according to the above maxim (s).

Further, it is a well-known rule of law, that, in pari Par delictum. delicto, potior est conditio possidentis-where each party is equally in fault, the law favours him who is actually in possession. If a party come into a court of justice to enforce an illegal contract, two answers may be given to his demand the one, that he must draw justice from a pure fountain, and the other, that potior est conditio possidentis (t). Agreeably to this rule, where money is paid by one of two parties to such a contract to the other, in a case where both may be considered as participes criminis, an action cannot be maintained after the contract is executed to recover the money (u). If A. agree to give B. money for doing an illegal act, B. cannot, although he do the act, recover the money by an action; yet, if the money be paid, A. cannot recover it (x). The plaintiff and defendant having laid a wager on the event of a horse-race, prohibited by stat. 13 Geo. 2, c. 19, s. 2, and having deposited the money in the hands of certain persons as stakeholders, the money was paid over to the defendant, after the event was decided, with the consent of the plaintiff, who afterwards brought an action to recover it: but it was held, that the action would not lie; for, although the law would not have enforced the payment of the money, yet, having been paid, it was not

(8) Snow v. Peacock, 3 Bing. 406, commented on, Foster v. Pearson, 1 C., M. & R. 855.

(t) Per Buller, J., Munt v. Stokes, 4 T. R. 564; 2 Inst. 391. See Fitzroy v. Gwillim, 1 T. R. 153, observed upon by Tindal, C. J., 7 Bing. 98; Argument, 10 B. & C. 684; 2 A. & E. 13.

(u) 1 Selw. N. P., 10th ed., 90; 1 Phillipps on Evidence, 8th ed., 760, n. (1).

(x) Webb v. Bishop, cited 1 Selw. N. P., 10th ed., 92, n. (42); Browning v. Morris, Cowp. 792; per Park, J., Richardson v. Mellish, 2 Bing. 250.

Payment

over.

against conscience for the defendant to retain it (y). So, the premium paid on an illegal insurance, to cover a trading with an enemy, cannot be recovered back, though the underwriter cannot be compelled to make good the loss (z). Nor can money fairly lost at play be recovered back in an action of debt for money had and received, not founded on the statute (a).

Again, it is a general rule, that, where money deposited upon an illegal wager has been paid over to the winner by the consent of the loser, the latter cannot afterwards maintain an action against the former to recover his deposit (b); but, if the contract be executory, and the plaintiff dissent from or disavow the contract before its completion, he may, on disaffirmance thereof, recover money paid over to the other party, under the common count for money had and received, there being in this case a locus pœnitentiæ, and the delictum being incomplete (c). So, if money be deposited with a stakeholder, in pursuance of a wager as to the event of a battle to be fought by the parties laying the wager, and it be not paid over, although the battle be fought, each party may recover his deposit from the stakeholder (d).

But, where there were two plaintiffs in an action for money had and received, and the defendant set up a receipt, which had been fraudulently obtained by him, with the privity of one of the plaintiffs, the Court observed, that the

(y) Howson v. Hancock, 8 T. R. 575; Clayton v. Dilly, 4 Taunt. 165.

(z) Vandyck v. Hewitt, 1 East, 96; Lowry v. Bourdieu, Dougl. 468; Andree v. Fletcher, 3 T. R. 266; Lubbock v. Potts, 7 East, 449; Palyart v. Leckie, 6 M. & S. 290; Cowie v. Barber, 4 M. & S. 16. See Edgar v. Fowler, 3 East, 222.

(a) Thistlewood v. Cracroft, 1 M.

& S. 500. See Hodson v. Terrill, 1 Cr. & M. 797.

(b) Howson v. Hancock, 8 T. R. 575.

(c) Chit. Contr., 3rd ed., 637, and cases there cited; 2 Dougl. R., 4th ed., 697 a, n. (F. 7).

(d) Cotton v. Thurland, 5 T. R. 405.