1860. BONE v. EKLESS. ment. The plaintiff remitted to the defendant 60007. The plaintiff paid 3007. to some of the officers; but he did not pay, as he had agreed to do, 2007. to one J. H., an official who had been instrumental in effecting the purchase of the vessel; and the plaintiff still retains that sum in fraud of J. H. I find that 500l. is not an unusual sum to pay on such a sale, and the vessel could not have been sold for the price it obtained unless the plaintiff had agreed to pay that sum. If the Court is of opinion that the defendant is entitled to set off this sum as retained by the plaintiff, the verdict will be reduced by that amount: if not, the verdict will stand. Hannen, for the plaintiff, in this Term (June 5), moved for a rule to shew cause why the verdict should not be entered for the plaintiff for the sum of 4267.—It is submitted that a rule to enter up judgment is a convenient and proper mode of proceeding under the 5th section of the Common Law Procedure Act, 1854, which provides that "the arbitrator may state his award, as to the whole or any part thereof, in the form of a special case for the opinion of the Court, and when an action is referred, judgment, if so ordered, may be entered according to the opinion of the Court ;" and such a form of proceeding is in analogy to the ancient practice of moving to confirm the Master's report. Per CURIAM.-You may take a rule. Rowley now shewed cause.-The plaintiff has received the 6500l. to the use of the defendant, and he cannot retain any part of that money as against the defendant. The 2007. not having been paid over, the defendant is entitled to it. [Bramwell, B.-The Master found that the plaintiff had agreed to pay 2007. to J. H., and that that was an agreement which he was empowered to make by the defendant. Suppose it was a mere debt of honour from him.] As agent, the plaintiff is estopped from disputing the title of his principal to the money. Bovill and Hannen, in support of the rule. The arrangement was that the defendant never should receive more than the 6000l. [Martin, B.-The whole 65007. was the money of the defendant, the owner of the ship.] The plaintiff was to pay 500l. to the officials, and the transaction was a fraud on the Turkish government. No Court will lend its aid to a man who founds his cause of action upon an immoral or illegal act in such case the maxim potior est conditio possidentis applies: Holman v. Johnson (a). The plaintiff having a valid and legal claim for 4267., the defendant must rely on the illegal agreement to cut it down.-They referred to Fisher v. Bridges (b), Fivaz v. Nicholls (c), Simpson v. Bloss (d), Ex parte Bell (e), Farmer v. Russell (ƒ) and McKinnell v. Robinson (g). MARTIN, B.-It is clear that the defendant is entitled to the benefit of the set-off. Whatever right the Turkish government may have to complain of the fraud, the plaintiff in this action cannot set it up. The defendant makes out his title to recover 65001. by proving the sale of his ship for that sum, and it is the plaintiff who is relying on the illegal agreement in order to justify the non-payment of any part of that money. BRAMWELL, B.-I concur with my brother Martin. The (a) Cowp. 341. 343. (e) 1 M. & Sel. 751. 1860. BONE v. EKLESS. 1860. BONE v. EKLESS. defendant does not seek to enforce the illegal contract. The 6500l. was received to the defendant's use, with an authority to apply 500l. in a particular manner. Before the whole had been so applied the authority as to part, viz. the 2007. now in question, was countermanded. The case therefore falls within the principle upon which Hastelow v. Jackson (a) was decided, viz. that where money is paid upon an illegal agreement it may be recovered back before the execution of the agreement, though not afterwards. In McKinnell v. Robinson (b) the money was lent for a purpose prohibited by statute, to be then immediately applied to such purpose, and could not be recovered back because the illegal purpose had been fulfilled. Besides, here the authority was to pay the money, and the authority has not been pursued, for the money has not been paid. CHANNELL, B.-I am of the same opinion. If it were necessary for the defendant to rely on the illegal contract in order to recover this money, he could not do so. But the real nature of the case is, that the plaintiff received the whole of the money upon the sale of the defendant's ship, and now claims to retain part of the money upon the illegal arrangement, which, however, he has not carried out. He might have discharged himself by actual payment of the money, but he has not paid it: the illegality would have been the payment for the illegal purpose. Before that was done the defendant claimed the money, and was entitled to recover it. Therefore the rule will be absolute to enter a verdict for 2261. (a) 8 B. & C. 221. Rule absolute accordingly. (b) 3 M. & W. 434. AN INDEX TO THE PRINCIPAL MATTERS. ACCIDENT. See ASSURANCE AGAINST ACCIDENT. AFFAIRS OF STATE. AFFILIATION, ORDER OF. AGENT. See ATTORNEY, (1). BOND. LANDLORD AND TENANT, AGREEMENT. See CONTRACT, (1), (2). Transfer of Debt by Consent of W. being indebted to the plaintiffs the defendants that they should dis- ALMANACK. 225 (2). Transmission to Court of Case stated by Justices, under 20 & 21 Vict. c. 43, s. 2. By the 20 & 21 Vict. c. 43, s. 2, which empowers justices to state a case for the opinion of the superior Courts, it is enacted, that the appellant "shall within three days after receiving such case transmit the same to the Court named in his application, first giving notice in writing of such appeal, with a copy of the case so stated and signed, to the other party."-Held, that the transmitting the case to the Court, and the giving notice with a copy of the case to the respondent within the time named, are conditions precedent to the right of the appellant to have the case heard; and that an objection arising from the omission to do so cannot be waived. Quare, whether it might not be sufficient, if the appellant had done all in his power to comply with the statute, though he might have failed to give such notice and a copy of the case to the respondent within the proper time, if such failure arose from the respondent keeping out of (1). Award made upon Opinion of Third Party. On a reference to two arbitrators, the parties consented that the arbitrators might consult a third person. The arbitrators agreed to be bound by his opinion on two of the questions referred, and having adopted this opinion without exercising their own judgment upon the matters, made their award accordingly.Held: First, the award was invalid. Secondly, that the defence was admissible under a plea of "nul tiel agard." Whitmore v. Smith, 824 (2). Reference by Judge's Order under the Common Law Procedure Act, 1854. Time for making Award. Setting aside. Practice. On hearing the parties, and by consent, a Judge made an order referring a cause to an arbitrator to be named. On the 1st of July, 1859, on hearing the parties, a further crder was made professing to be under the Common Law Proce |