the Bath act, was by an appeal to the Quarter Sessions; and secondly, if the action of assumpsit would lie, still notice ought to have been given pursuant to the directions of that act. The court, however, determined against both these objections, and Wood Baron said, "There are two questions to be considered: 1st. As to appeal, it is quite clear that, where a power is given to justices of the peace to determine, it is final, unless an appeal is particularly given; but looking at the appeal clause, this case is I think expressly excepted; there being a particular mode of relief appointed in this case, and as no method of recovering the money adjudged to be wrongfully taken by the collector, is given by the act, therefore the party must apply to his common law remedy. 2dly. As to notice, this is neither within the letter or spirit of the clause; the giving notice generally contemplates tort or trespass; it can never apply where a sum of money had been adjudged; the defendant requires no notice; there can be no defence, and therefore he does not want time. As to the form of the action, you shall not try title, or any thing of that nature, by an action for money had and received; but here there is nothing collateral to be tried; even if the act had said, that the justices should decree restitution, I should be inclined to think that the action for money had and received would lie." 19. OF MONEY RECEIVED BY PARISH OFFICERS FOR THE MAINTENANCE, &c. OF BASTARD CHILDren. An action will lie to recover back money paid to parish officers by a person taken up under a warrant as the putative father of a bastard child, by way of bargain with the parish to be released from all liability respecting the child, against those who received the money; although before the commencement of the action, they may have gone out of office, and accounted with their successors for so much of the money as was not expended on the child and its mother during her lying-in. However, in such action the plaintiff is only entitled to recover the surplus, after these charges have been deducted. This was settled in the case of Townson v. Wilson, (n) in which Lord Ellenborough Ch. J. said, "If any person gets money into his hands illegally, he cannot discharge himself by paying it over to another, and the contract under which this money was paid, was certainly illegal, as it gave the parish an interest in abridging the life of the child. When this question first came before me, on account of its novelty, I consulted the other judges upon it; and I found that they (including a noble friend of mine now no more) were of the same opinion. The chief objection to the action (n) 1 Campb. 396. See also Watkins v. Hewlett, 3 Mo. 211. and Hodgson v. Williams, 6 Esp. Rep. 29. appears to be, that the parties may be represented as in pari delicto; but that cannot be said in this instance, as the plaintiff had been arrested, and was under duress when he deposited the money with the defendants. I am of opinion, however, that there should be a deduction, by way of set off, from the 40%., for so much as the defendants expended about the lying-in of the mother, and the maintenance of the infant." So, if a promissory note is given to parish officers as an indemnity against a bastard child, they can only recover upon it so much as the parish has expended upon the child and its mother. (o) And no action at all can be maintained upon the note, if the parish has not been damnified. (p) 20. OF MONEY RECEIVED UPON AN ILLEGAL CONTRACT OR TRANSACTION, WHICH IS EITHER MALUM IN SE, OR MALUM PROHIBITUM: AND IN WHAT CASES THE PARTIES ARE CONSIDERED NOT ONLY PARTICEPS CRIMINIS, BUT IN PARI DELICTO TO SUCH AN EXTENT AS TO DEPRIVE THE PARTY PAYING THE MONEY FROM RECOVERING IT BACK FROM THE RECEIVER. Where money has been paid upon an illegal contract, it is a general rule, that if the contract be executed, and both parties are in pari delicto, neither of them can recover from the other the money so paid; but if the contract continues executory, and the party paying the money be desirous of rescinding it, he may do so, and recover back his deposit by action of indebitatus assumpsit for money had and received. (q) And this distinction is taken in the books, namely, where the action is in affirmance of an illegal contract, the object of which is to enforce the performance of an engagement prohibited by law, clearly such an action can in no case be maintained: but where the action proceeds in disaffirmance of such a contract; and, instead of endeavouring to enforce it, presumes it to be void, and seeks to prevent the defendant from retaining the benefit which he derived from an unlawful act, there it is consonant to the spirit and policy of the law that the plaintiff should recover. (r) There are, however, some cases, notwithstanding the contract is executed, in which the party who has paid money under it, has been allowed to recover it back again: for though in all illegal contracts there is a degree of delinquency in both the contracting parties, yet it is deemed expedient, upon principles of public policy, in order to prevent the repetition of crimes, or the evasion of a public act of parliament, to allow the party paying the money to recover it back by action. (0) Cole v. Gower, 6 East Rep. 110. (q) Doug. 470. Cowp. 199, 200. 792. (r) Vide 1 H. Bl. 67. of indebitatus assumpsit for money had and received. We will now consider the cases upon this subject under the following subdivisions: 1. OF MONEY RECEIVED UPON ILLEGAL CONTRACTS IN GENERAL.] If a man gives his agent money to expend upon an illegal transaction, and it is expended accordingly, no action lies to recover it back. Thus, where money was given by way of a bribe, Holt Ch. J. said: "That though he who received it ought to be punished, yet he who gives the bribe ought not to be encouraged by any way to recover it back again." (s) But in the case of Williams v. Hedley, (t) which was an action for money had and received, brought to recover back money paid by the plaintiff to the defendant to compromise a qui tam action of usury, brought by the defendant against the plaintiff on the ground of an usurious transaction between the latter and one Eagleton, who had become bankrupt, it was held that such money might be recovered back by the plaintiff in this form of action. And such recovery might be had, although Eagleton's assignees had before recovered from the defendant the money so received by him, as money received to their use (the money paid by way of composition being at the time stated to be Eagleton's money); there being no evidence, at the trial of this cause, to show that the present plaintiff was privy to that suit. And Lord Ellenborough Ch. J., in delivering the opinion of the Court, stated the case as follows: "This was an action for money had and received, brought to recover the sum of 965l. Os. 8d. as having been unduly obtained by the defendant from the plaintiff under an agreement to compromise a qui tam action for penalties of usury, brought by the defendant against the plaintiff on the ground of certain usurious transactions which had taken place between the plaintiff Williams and Eagleton. This sum of 965l. Os. 8d. was the amount of the debt which had been owing from Eagleton to Hedley and his partner: and the jury to whom the question was left at the trial, found that the payment of this debt of Eagleton by the plaintiff to the defendant was obtained from the plaintiff under the terror of the above-mentioned action of usury brought by the defendant, and then depending against him, and through the means of an agreement between the parties to compromise that action; and the plaintiff thereupon recovered a verdict against the defendant for the amount of the money he had so obtained from him. Upon the motion for a new trial two objections have been taken to the plaintiff's right to recover. The first was, that the plaintiff was in pari delicto with the defendant, as to the illegal compromise of the penal action; and on that account not entitled to recover. The second objection was, that as Eagleton's assignees had, after his bankruptcy, re(t) 8 East Rep. 378. (s) Vide Skin. 412. 1 Salk. 22. Cowp. 792. But see 1 Ld. Raym. 89. See also Doug. 697. in notis. covered this money against the defendant and his partner, as money received by them for the use of the assignees, the plaintiff could not now recover the money against the defendant; the plaintiff having, as was contended on behalf of the defendant, enabled Eagleton's assignees to recover that money from him and his partner, and thereby estopped himself now to recover it from the defendant. But as there was no evidence given at the trial of any act done on the part of Williams, the plaintiff, in order to enable the assignees to recover, or which could be considered as rendering him in any degree privy to that suit, or liable for its consequences, that objection fell to the ground for want of its necessary foundation in point of fact. The first of these two objections is therefore the only one which remains to be considered. The answers given to it on the part of the plaintiff were, first, that the plaintiff, who was defendant in the action for usury, was not prohibited by the statute 18 Eliz. c. 5. s. 4. from agreeing to this composition, and paying the money which Hedley received under it; but that the prohibition and penalties of the statute, in this respect, solely attached upon and were confined to the informer or plaintiff in the penal action. Assuming, however, that the defendant, the person compounded with, is not within the express prohibitions and penalties of the act, it is still contended, that as the act of the defendant co-operated with that of the plaintiff in producing the mischief meant to be prevented and restrained by the statute in question, it is so far illegal on the part of the defendant himself, as to preclude him from any remedy by suit to recover back money paid by him in furtherance of that object; and that if he be not therefore to be considered as strictly in pari delicto with the plaintiff, he is at any rate particeps criminis, and in that respect not entitled to recover from his co-delinquent money which he had paid him in the course and prosecution of their mutual crime. In respect to the criminal offence of compounding, the plaintiff Williams was the person whose situation was taken advantage of by the other party to the composition; against which party the prohibitions and penalties of the statute of the 18 Eliz. are particularly levelled. It is no answer to this that Williams the plaintiff had been criminal in another matter, and towards another person, viz. Eagleton, in the usurious dealings with him; for that criminality was perfectly collateral to the offence of compounding now under consideration; and his very consciousness of those usurious dealings, and the dread of the consequences which might result therefrom, laid him more completely at the mercy of Hedley, and enabled him to effect the extortion which is the foundation of this action. Indeed if the objection of particeps criminis were allowed to hold in its full extent, none of the cases above-mentioned could have been determined; nor could the party paying usurious interest recover back the excess beyond legal interest, as he is constantly allowed to do; and which is particularly taken notice of by Lord Mansfield in his judgment in the case of Browning v. Morris. (u) Upon the authority therefore of the cases which have been cited, as applied to the facts of the case before us; and founding ourselves upon the distinction taken and relied upon in those cases in favour of the party for whose benefit the provisions of the law, which has been violated, were peculiarly made, and of whose situation advantage has been unduly taken; we are of opinion that this action was, under the circumstances of this case, maintainable; and therefore that the rule for a new trial must be discharged." Money paid in respect of transferable shares in an unincorporated company, cannot be recovered back; the society being illegal and within the statute 6 Geo. 1. c. 18., and the parties in pari delicto. (v) So, in the case of Davis v. Edgar, (w) where the plaintiff, who was not an authorized army agent, negotiated the sale and purchase of a commission between G. C. and the defendant, at a price above that allowed by his Majesty's regulations; and the defendant, who was purchaser of the commission, after having paid a sum exceeding the regulation price to G. C., retained the 387., the remainder of the price agreed upon, with directions from G. C. to pay it over to the plaintiff for his agency, which he promised the plaintiff to do. Held that the plaintiff could not recover against the defendant the 387., as money had and received to his use, for he could not be in a better situation than G. C.; and by 48 Geo. 3. c. 15. s. 100., G. C. could not have recovered beyond the regulation price. So, in the case of Stokes v. Twitcher, (x) where money was paid as a premium for an apprentice by a parent to a master under an indenture, cannot be recovered back if such indenture be void for not having the amount of the premium inserted therein, although the statutes relative to the duties payable on such indentures impose a penalty on the master alone for such omission; as the parent by executing the instrument must be considered to be aware of its illegality, and therefore in pari delicto with the master. So, in the case of Pickard v. Bonner, (y) which was also an action of indebitatus assumpsit for money had and received; the facts were as follow: Mr. Bonner, the defendant, having a considerable place in the post-office, and having occasion to employ several persons as clerks to him; the plaintiff applied to one Morris, who was chief clerk in the defendant's office, to procure him such a situation, and agreed to give 1007. as a consideration for procuring the place. It was agreed that the plaintiff should go into the defendant's office, and continue there six months on trial; that he should have at the rate of 80l. per annum (u) Cowp. 792. (v) Buck v. Buck, 1 Campb. 547. (w) 4 Taunt. 63. (x) 2 Mo. 538. et ante 324. |