have been the intention to create a term of ten years, the opera

tion of the statute puts an end to the question. For if it had been clearly intended to grant a lease of ten years, the lease being by parol only, by reason of the non-execution of the deed by the mortgagees, by the express words of the Statute of Frauds the lease is not absolutely void, but has the effect of a lease at will. From the execution of the deed, therefore, or on the attornment by the mortgagor, he became tenant at will to the defendants, and there being a rent of the specified amount of 8007. appearing on the face of the deed, a distress by them for that specific rent would be lawful. I do not, however, enter further into this point; it is sufficient for the decision of the case to say that we agree with the Court of Queen's Bench, that on the true construction of the instrument entered into between the parties, a tenancy at will was created. I say "between the parties," because although the deed was not executed by the defendants, there is ample evidence that its terms were assented to by the defendants, because on the execution by Brown, they proceeded to make the stipulated advances. A tenancy, therefore, was created between the parties, much in the same way as if letters had been written by Brown containing all the terms of this deed, including the contract to pay the 8007. rent, and the defendants had verbally expressed their assent to the terms. That would have been quite sufficient in law to create a tenancy at will between the parties at that rent, notwithstanding the statutes; and Brown having occupied and omitted to pay the rent at the time stipulated, the defendants became entitled to distrain.

As to the point made that this deed came within the Bills of Sales Act, we have no power to draw inferences of fact, and therefore we cannot say, as we might if we were sitting as a jury, whether the transaction is an evasion of the Act or not; and if we were to say, looking at the deed alone, that it was a bill of sale within the Act, we should hold in effect that wherever there was a mortgage including chattels with a power ultimately to take possession or distrain, that that was a bill of sale within the Act. But no such doctrine can be supported; consequently we hold that this point also fails, and we are unanimously of opinion that the judgment must be affirmed.

1869

MORTON

v.

WOODS.

1869

MORTON

CHANNELL and CLEASBY, BB., and BYLES and KEATING, JJ., concurred.

v.

WOODS.

Judgment affirmed.

Attorney for plaintiffs: J. W. Hickin, for Ralph Simey, Sunderland.

Attorneys for defendants: Young, Maples, & Co., for H. B. Wright, Sunderland.

END OF HILARY TERM.

CASES

DETERMINED BY THE

COURT OF QUEEN'S BENCH

AND BY THE

COURT OF EXCHEQUER CHAMBER

ON ERROR AND APPEAL FROM THE COURT OF QUEEN'S BENCH,

IN AND AFTER

EASTER TERM, XXXII VICTORIA.

309

TAYLOR v. CHESTER.

1869

Pledge-Bailment-Immoral Consideration—" In pari delicto potior est conditio April 20.

possidentis."

The plaintiff deposited with the defendant the half of a 501. bank note by way of pledge to secure the payment of money due from the plaintiff to the defendant. The debt was contracted for wine and suppers supplied to the plaintiff by the defendant in a brothel kept by her, to be there consumed in a debauch. The plaintiff having brought an action to recover the half-note :—

Held, that the maxim, in pari delicto potior est conditio possidentis, applied; and that as the plaintiff could not recover without shewing the true character of the deposit, and that being on an illegal consideration to which he was himself a party, he was precluded from obtaining the assistance of the law to recover it back.

THIS was an action to recover the half of a 507. Bank of England note. The pleadings, facts, and course of the trial, are fully stated in the judgment of the Court.

Feb. 2. Hopwood (Holker, Q.C., with him), for the defendant. It is a well-known maxim of law, "in pari delicto potior est con

1869 TAYLOR

V.

CHESTER.

ditio defendentis." If the whole contract contained in the pleadings were set out in a declaration, it would be quite clear that the plaintiff could not recover. In Chitty on Contracts, p. 579, 6th ed., it is stated: "Whenever the contract which a party seeks to enforce, be it express or implied, is expressly or by implication forbidden by the common or statute law, no court will lend its assistance to give it effect. . . . and the test as to whether a demand connected with an illegal transaction be capable of being enforced at law is, whether the plaintiff requires to rely on such transaction in order to establish his case." The contract is allowed to be impeached on grounds of public policy: Holman v. Johnson. (1) In Story's Equity Jurisprudence, s. 298, it is also laid down that where parties are concerned in illegal agreements or other transactions, whether they are mala prohibita or mala in se, courts of equity, following the rule of law as to participators in a common crime, will not interpose to grant any relief; acting upon the wellknown maxim, “in pari delicto potior est conditio defendentis et possidentis." So in Biggs v. Lawrence (2) the plaintiffs could not recover for goods sold to the defendant where they knew that the goods were purchased to be smuggled, and they had packed them for that purpose. Clugas v. Penaluna (3) is to the same effect. The replication is no answer to the plea, and the judgment ought to be entered for the defendant on the whole record.

Feb. 3. Herschell (Pope with him), for the plaintiff. Even if, upon the demurrer, the replication is bad, the plaintiff is entitled to the verdict on the count on detinue. Mason v. Fernell (4) shews that if the defendant has a special property in the subject-matter of the action, he must plead it specially, and cannot rely on the pleas of non detinet and not possessed. The special plea does not set out the whole truth, and was not proved. If the defendant had pleaded the plea according to the truth, it would have been bad; the replication which was proved must be read with it. The jury have found the issue on the replication for the plaintiff, and he is entitled to have the verdict entered on it. But on the question as raised by the pleadings, it is not the plaintiff, but the defendant,

who relies upon the immorality. The plaintiff does not claim to succeed upon any contract, but on his right of property in the half-note. The cases which may be cited against the plaintiff are divisible into two classes-first, where it is sought to enforce an illegal contract; secondly, where the person from whom the illegal consideration has moved relies upon the illegality to recover back the money paid under the contract. But these cases do not apply, because here it is the defendant who, by means of an immoral contract, seeks to detain the note deposited.

[HANNEN, J. Parke, B., in Scarfe v. Morgan (1), says: "If an illegal contract is executed, and a property either special or general has passed thereby, the property must remain."]

That has never been decided; if it were law, the Court would have to go into all the circumstances of the illegal contract to see if the property had passed. If the plaintiff be right in his contention, it will be unnecessary for the Court to consider the question of illegality; and if it decides in his favour, they will not enforce the immoral contract; but if they decide in favour of the defendant, they will uphold an illegal agreement. If the contract to supply the plaintiff with the means to commit immorality be void, the deposit to procure the means is also void: Cannan v. Bryce (2); and on the same principle a covenant to pay for the price of land sold to the covenantor for an illegal purpose has been held not to be enforceable: Bridges v. Fisher. (3)

[MELLOR, J. It is well established by Pearce v. Brooks (4), and the cases there cited, that if a person makes a contract with the knowledge that another intends to apply its subject-matter to an immoral purpose, he cannot recover upon it.]

Those were all cases where the Court was asked to enforce the illegal contract.

[HANNEN, J. If a person lets a house for an immoral purpose, are his enforceable rights gone, so that he cannot bring ejectment? In this case a special property has passed to the defendant, and according to Ferret v. Hill (5), where an interest in realty has

(1) 4 M. & W. at p. 281.

(2) 3 B. & A. 179.

(3) 3 E. & B. 642; 23 L. J. (Q.B.)

(4) Law Rep. 1 Ex. 213.

(5) 15 C. B. 207; 23 L. J. (C.P.) 185.

276.