and demanding the return of the 210l. and interest, which was refused. If the Court should be of opinion that the Plaintiff's were entitled to recover. back the said sum of 210l. with interest thereon, then the verdict to stand. If the Court should be of opinion that the Plaintiffs were entitled to recover back the said sum of 2101. but were not entitled to interest thereon, then the verdict to be entered for 210l. damages and 40s. costs. If the Court should be of opinion that the Plaintiffs were entitled to recover nothing, a nonsuit to be entered. Bayley, Serjt. for the Plaintiffs. The Plaintiffs' right to recover in this action results from two points, which are both clearly in their favour, viz. 1st, That the bond stated in the case, and upon which the money was advanced is void; and, 2dly, that this action is brought before the event has happened, which the parties had in contemplation at the time of entering into the contract. 1st, That the bond is void, most clearly appears from Atherfold v. Beard, 2 Term Rep. 610. and Shirley v. Sankey, ante, 130. [This was admitted on the other side.] 2dly, The money advanced by the bankrupt was not advanced on a contract which was either malum prohibitum or malum in se, but merely money advanced on a consideration which has failed, the bond given to secure its repayment not being such as can be enforced at law. In Cotton v. Thurland, 5 Term Rep. 405., which was an action to recover a deposit from a stake-holder on a wager respecting the event of a boxing match, it was admitted that as long as the contract is executory, money so paid may be recovered back; and though that case was decided on the ground of the action being brought against the stake-holder, who not having paid it over was justified in refusing to return it, yet Lord Kenyon alludes to the distinction between contracts executory and executed when he says, "this is not like the case of a policy of insurance, where the risk having been run the party has attempted to regain his money again." Indeed, in Lowry v. Bourdieu, Doug., 468., where the insured in an illegal policy attempted to recover back the premium after the risk had been .run, Buller, J., says "there is a sound distinction between contracts executed and executory, and if an action is brought to rescind a contract you must do it while the contract continues executory; and observes that if the action had been commenced before the risk was over, the Plaintiff might have had a ground 1801. TAPPENDEN and Others v. RANDALL. for 1801. TAPPENDEN and Others v. RANDALL. for his demand. With respect to the late case of Vandyck v. Hewitt, 1 East, 96. where it was held that the premium paid on an insurance to cover enemy's property could not be recovered back, there the risk had been run before the action was brought, and the act of insuring enemy's property was an offence against the policy of the state. Indeed in Lacaussade v. White, 7 Term Rep. 535., money paid on an illegal wager was recovered back after the event upon which the wager proceeded had turned out against the Plaintiff, the Court holding it more consonant to sound policy to permit money paid on an illegal consideration to be recovered back by the party paying it, than by denying the remedy to give effect to the illegal contract. Best, Serjt. for the Defendant. It is perfectly clear that where money has been advanced without any consideration it may be recovered back, but if advanced on a consideration which fails because the contract is illegal, then the rule applies in pari delicto potior est conditio possidentis. The only case in which this rule has ever been impeached at all is Lacaussade v. White, and that decision was treated by the Court in Vendyck v. Hewitt as not quite sound, Le Blanc, J., saying it had since been "very much canvassed in Howson v. Hancock (a), where it was considered that money deposited on an illegal wager and paid over to the winner could not be recovered from him." If the contract in the present case be a legal one, the bond is not void but the Plaintiff will have the benefit of the consideration he has advanced when his time comes to demand payment of the annuity; if it be not legal the rule of potior est conditio possidentis applies. It is not necessary that the contract should be immoral, it is sufficient if it be illegal; and indeed in Howson v. Hancock, Lord Kenyon so treats it when he says, "here the money was not paid on an immoral, though an illegal consideration," (viz. a wager on a horse-race,) and yet the Plaintiff was not permitted to recover. Lord ALVANLEY, Ch. J. Without taking time to look into all the cases which have been cited, it does appear to me to be clear that the Plaintiff in this case is entitled to recover back the money which he has advanced. In the present transaction there was no moral turpitude whatsoever: and though it has sometimes been held that where there is moral turpitude in the contract, the Court will not allow the party who has advanced (a) 8 Term Rep. 575. money money on such a contract to recover it back; yet no argument of that sort can be urged in the present case. The simple statement of this case is, that after the money had been paid, but before the time-had arrived at which the event in contemplation of the parties contracting was to take place, it was found out that the contract was illegal; and therefore the money paid was demanded back again. There is hardly any case of this sort in which the distinction between immoral and ille.. gal transactions has not been taken. I do think that there is a material distinction between wagers which are not recoverable on account of some inconvenience which the public may sustain by the open discussion of the questions to which they give rise, and those which are in themselves immoral. In the present case one party has paid money without any consideration and is therefore entitled to recover it back from the party to whom he paid it. HEATH, J. I am of the same opinion. It seems to me that the distinction adopted by Mr. Justice Buller between contracts executory and executed, if taken with those modifications which he would necessarily have applied to it, is a sound distinction. Undoubtedly there may be cases where the contract may be of a nature too grossly immoral for the Court to enter into any discussion of it; as where one man has paid money by way of hire to another to murder a third person. But where nothing of that kind occurs I think there ought to be a locus pœnitentiæ, and that a party should not be compelled against his will to adhere to the contract. ROOKE, J. This is an action brought by assignees to recover back money paid by way of consideration for a bond which. clearly could not be put in force, and I think this action may well be supported. There is nothing criminal in the contract which was entered into between these parties; nor has that contract been executed; nor indeed is this a case where money which has been paid over by a stake-holder is sought to be recovered. I therefore see no reason to prevent the present Plaintiffs from recovering: and I wish it to be understood that I fully accede to the doctrine laid down by Mr. Justice Buller respecting contracts executory and executed. If in this case any money had been paid upon the bond I should have felt great difficulty respecting the right of the Plaintiffs to recover. CHAMBRE, J. Undoubtedly there is a great deal of refinement in the discussion which arises out of this species of action: but still 1801. TAPPENDEN and Others v. RANDALL. par still I think that the nature of this contract is not such as to Postea to the Plaintiffs. It was then suggested to the Court that it would be necessary for them to give an opinion respecting the amount which the Plaintiffs were entitled to recover; upon which the Court observed that in an action for money had and received, nothing but the net sum advanced without interest could be recovered (a), and that the verdict must therefore be entered for the lesser sum. (a) Vide Moses v. Macferlan, 2 Burr. 1005. and Walker v. Constable, ante, vol. I. p. 306. Marshall v. Poole, 13 East, 98. Slack v. Lowell, 3 Taunt. 157. June 20th. Prima facie a right to take the sea-shore be BAGOTT v. ORR. Project has TRESPASS. The 1st count was for breaking and entering the Plaintiff's closes, called the Foot-Muscle-Skear, fish found upon the Great-Out-Muscle-Skear, and the Sea-Shore, in the patween high and rish of Keysham, and Plaintiff's shell-fish and shells there low water-mark; finding, catching, taking, and carrying away and converting but such general right may and disposing thereof to Defendant's own The 2d abridged by the count was for breaking and entering the same closes, and existence of an with Defendant's feet and the feet of his servants in walking, treading up, trampling upon, subverting and spoiling Plaintiff's soil, earth, and sand, and with the feet of cattle and with be exclusive right in some indivi dual. Quære. If there be a pri má facie right use. in the subject to take fish-shells found on the sea-shore between high and low water mark? (a) (a) Vide Rogers v. Allen, 1 Campb. 309. 312. Marshall v. Poole, 13 East, 98. Blundell v. Catterall, 5 B. & A. 268. the the wheels of carriages and the keels of boats treading up, trampling, &c. and Plaintiff's shell-fish and shells, breaking, crushing, and destroying, and with spades, shovels, mattocks, pickaxes and other instruments, digging and making holes and pits, and turning up, &c. Plaintiff's earth, soil, and sand, and digging up, raising up, and getting up divers large quantities of Plaintiff's shell-fish and shells, and carrying away the same and converting and disposing thereof to Defendant's own use. There were several other counts for breaking and entering Plaintiff's several fishery and his free fishery, on which issues in fact were joined. The Defendant pleaded, 1st, the general issue. 2dly, As to the trespasses mentioned in the two first counts that the closes therein severally mentioned were the same, "and that the said closes in which, &c. at the said several times when, &c. were and still are and from time immemorial have been part and parcel of a certain arm of the sea, in which every subject of this realm at the said several times when, &c. of right had, and of right ought to have had and now hath, and of right ought to have the liberty and privilege of fishing and catching, digging for, raising, getting, taking and carrying away shell-fish and shells there, therefore Defendant being a subject of this realm at the said several times when, &c. entered into the said closes in which, &c. so being part and parcel of the said arm of the sea to fish therein and to catch, dig for, raise, get, take, and carry away the shell-fish and shells there, and did then and there fish, and caught, took, and carried away the said shellfish and shells in the first count mentioned, and also dug up, raised up, and got up, took and carried away the said other shell-fish and shells in the second count lastly mentioned, as it was lawful for him to do, and for the digging up and carrying away of the said shell-fish, he entered the said closes in which, &c. by himself and with other persons, and with the said cattle, carts, waggons, and other carriages, and the said boats, lighters, and other vessels, the same being reasonable, proper, and necessary in that behalf, and in so doing he necessarily and unavoidably with his feet and the feet of those other persons in walking a little trod up, trampled upon, subverted and spoiled the soil, earth, and sand in the second count mentioned, and with the feet of the said cattle, and with the wheels of the said carts, waggons, and other carriages, and with the keels of the said boats, lighters, and other vessels a little trod up, trampled upon, tore up, 1801. BAGOTT v. ORR. |