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In what cases fraud upon the legislature, and within the principle granted.
of the above cases(a). And it has been frequently decided, that although, where partners dissolve the partnership, divide the property, assign it by deed, and deliver possession, the joint property thereby becomes the separate property of the party remaining ; yet if it appear that the partners have entered into this contract for the purpose of defrauding the joint creditors, by enabling one party to withdraw property out of their reach ; such contract is invalid(b). Here also may be noticed those transactions which are in fraud of acts of parliament or other legal provisions (c),
(a) Vauxhall Bridge Company v. Earl Spencer, 2 Mad. Rep. 556. (6) Anderson v. Maltby, 4 Bro. C. C. 422. 2 Ves. jun. 244. Ex parte Ruffin, 6 Ves. 119. Ex parte Fell, 10 Ves. 347. Ex parte Williams, 11 Ves. 3. Ex parte Peake, 1 Mad. Rep. 353. Et parte Harris, ib. 583. Ex parte Rowlandson, 1 Rose, 416.
(c) Frauds upon the law of forfeiture. Chaplin v. Chaplin, 3 P. W. 233. Duke of Bedford v. Coke, 2 Ves. 117. Young v. Peachy, 2 Atk. 258. Carte v. Carte, 3 Atk. 180. Amb. 32.Upon the restraining statutes. Dean &c. of Windsor v. Perwin, Moor, 789.-Upon the usury laws. Lawley v. Hooper, 3 Atk. 278. Barker v. Vansommer, 1 Bro. C. C. 149. Browne uv. O'Dea, 1 Sch. & Lef. 115. Drew o. Power, ib. 182. Molloy v. Irvin, ib. 310.- Upon the bankrupt laws. Ex parte Hill, 1 Cox, 300. Ex parte Cooke, 8 Ves. 353. Ex parte Murphy, 1 Sch. & Lef. 44. Et parte Meaghan, ib. 179. Higginbotham 0. Holme, 19 Ves. 88.-Upon the registry act. Curtis v. Perry, 1 Ves. 739. Osborne 0. Williams, 18 Ves. 379. Battersby t. Smyth, 3 Mad. Rep. 110.- Upon the revenue laws. Vicars v. Attorney-general, 6 Bro. P.C. Ed. Toml. 491.-Upon the mortmain act. Adlington v. Cann, 1 Atk. 141. Boson o. Statham, 1 Cox, 17. 1 Eden, 508. Edwards o. Pike, 1 Eden, 267. Muckleston v. Brown, 6 Ves. 52. Stickland'v. Aldridge, 9 Ves. 517. Paine 0. Hall, 18 Ves. 475.— Upon the custom of London. Heron o. Heron, 2 Atk. 160.
frauds upon powers(a), and the cases in which a In what cases bond given to secure one object, is oppressively used granted. to compel another(b).
Though courts of law have a concurrent juris- Discovery. diction with courts of equity in determining upon the legality of the consideration of an instrument, yet it frequently happens that its illegality can only be proved through a court of equity, from the admission of the defendant, or the examination of witnesses residing abroad. As relief is accordingly given in numerous cases of bills or securities, voluntary, and therefore fraudulent as against creditors (c), or affected with usury(d); gaming(e),
(a) Lane v. Page, Amb. 233. Aleyn v. Belchier, 1 Eden, , 132. Lord Hinchinbroke v. Seymour, 1 Bro. C. C. 394. Palmer v. Wheeler, 2 Ba. & Be. 18. Daubeny v. Cockburn, 1 Meriv. 626.
(6) Durston o. Sandys, 1 Vern. 411.2 Ch. Ca. 186. 2 Ch. Rep. 398. Hawkins o. Turner, Pr. Can. 513. Peele v. Capel, 1 Stra. 534. Hillyard v. Stapleton, 1 Eq. Ab. 86. Grey v. Hesketh, Amb. 268. Roy v. Duke of Beaufort, 2 Atk. 190.
(c) Parry v. Carwarden, 2 Dick. 544. Evelyn o. Templar, % Bro. C. C. 148. Pulvertoft v. Pulvertoft, 18 Ves. 84. Buckle r. Mitchell, 18 Ves. 100. Metcalf v. Pulvertoft, i V. & B. 180. But that a voluntary conveyance is binding upon the settlor himself, vide Burke v. Dawson, Sugd. V. & P.569. Johnson o. Legard, ib. 570. 3 Mad. Rep. 273. Smith v. Garland, 2 Meriv. 123. Whether the consideration of marriage extends to collateral relations of the settlor, vide Hale v. Lamb, 2 Eden, 292. Fairfield o. Birch, Sugd. V. P.560. & Appendix, No. 23. Clayton v. Lord Grey de Wilton, 3 Mad. Rep. 302. Johnson v. Legard, sup. Sutton v. Chetwynd, 3 Meriv. 249. Cormick v. Trapaud, 6 Dow. 60.
(d) Ante, p. 16, Note (d).
(e) Blackwell v. Redman, 1 Ch. Rep. 48. Humphreys v. Rigby, 2 Freem. 223. Rawden o. Shadwell, Amb. 269. Graves v. Houlditch, 2 Price, 147.
In what cases stock-jobbing (a), illegal insurance (b), simony (c), granted.
champerty(d), compounding felony(e), marriage(s), or place brokage (g); of bonds to secure future cohabitation (h), or instruments containing conditions contrary to good morals or domestic peace(i): so if a party is suing upon an instrument of this nature at law, a court of equity will, if necessary, grant an injunction till a discovery has been obtained from
(a) Bancroft o. Wentworth, 3 Bro. C.C. 11. Bullock o. Richardson, 11 Ves. 373.
(6) Ex-parte Mather, 3 Ves. 373. Knowles v. Haughton, 11 Ves. 168. overruling Watts v. Brooks, 3 Ves. 612.
(c) Lord Kircudbright v. Lady Kircudbright, 8 Ves. 51.
(d) Skapholme v. Hart, Finch. 477. Powell v. Knowler, 2 Atk. 224, Strachan v. Brander, 1 Eden, 303. Wallis v. Duke of Portland, 3 Ves. 494. Stevens v. Bagwell, 15 Ves. 138. Wood v. Downes, 18 Ves. 120.
(e) Johnson v. Ogilby, 3 P. W. 279. Claridge' b. Hoare, 14 Ves. 59.
(f) Arundel v. Trevillian, 1 Ch. Rep. 47. Drury v. Hooke, 1 Vern. 412. Key v. Bradshaw, 2 Vern. 102. Smith v. Bruning, ib. 392. Scribblehill v, Brett, ib. 446. Duke of Hamilton v. Lord Mohun, 1 P. W. 118. Smith 0. Aykwell, 3 Atk. 566. Cole v. Gibson, 1 Ves. 503.
(8) Lawiv. Law, 3 P. W. 391. For. 140. Bellamy o. Burrow, For. 97. Debenham v. Ox, 1 Ves. 276. Morris v. M'Cullock, Amb. 232. 2 Eden, 190. Hanington v. Du Chatel, 1 Bro. C. C. 124. 2 Dick, 581. Hartwell v. Hartwell, 4 Ves. 811. Thompson v. Thompson, 7 Ves. 470. Osborne v. Williams, 18 Ves. 379.
(h) Whaley v. Norton, 1 Vern. 483. Priest v. Parrott, 2 Ves. 160. Lady Cox's case, 3 P. W. 339. Hill o. Spencer, Amb. 641. Franco v. Bolton, 3 Ves. 368. Not where it is given for past cohabitation. Marchioness of Annandale v. Harris, 2 P. W. 432. Spicer v. Hayward, Pr. Can. 114. Cray v. Rooke, For. 153. Clarke v. Periam, 2 Atk. 333. Gray v. Mathias, 5 Ves. 286.
(i) Tenant v. Braie, Toth. 78. Traiton v. Traiton, 1 Vern. 413. Brown v. Peck, 1 Eden, 140.
his answer, or till witnesses residing abroad have In what cases been examined.
granted. A question frequently arises in these cases, and one Relief given which has not yet been completely and satisfactorily discussed, viz. to what extent, a court of equity will particeps
Criminis. give its assistance to one, who is a particeps criminis to an illegal transaction. The maxim in pari delicto melior est conditio possidentis, though frequently adopted, has been almost as frequently departed from : and Lord Thurlow on one occasion declared that in all cases where money was paid for an unlawful purpose, the party, though particeps criminis, might recover; and that the reason was, that if courts of justice meant to prevent the perpetration of crimes, it must be, not by allowing a person who has got possession to remain in possession, but by putting the parties back to the state in which they were before(a).
In cases of relief upon grounds of public policy the objection that the plaintiff is particeps criminis never prevails, the public interest requiring that relief should be given, and accordingly it is given to the public, through the party complaining (6). And the cases are numerous in which, money paid for an illegal purpose, has been decreed to be repaid (c).
There is, however, another class of cases, the principle of which seems recognised in the Treatise
(a) 1 Bro. C. C. 548. (6) 9 Ves. 298.
(c) Goldsmith v. Bruning, 1 Eq. Ab. 89. Morris o. M Cullock, 2 Eden, 190, Amb. 432. Neville v. Wilkinson, 1 Bro. C. C. 543. Osborne v. Williams, 18 Ves. 379.
In what cases on Equity (a), in which relief has been given upon a granted.
similar principle, though great doubt may be entertained as to the correctness of its application, viz. where a party does not come to be relieved from the effect of an illegal transaction; but to obtain, through the assistance of a court of equity, an account of the profits of it. Thus where the plaintiff had drawn a prize of £1000 in an illegal lottery set up by the defendant, it was objected that there could be no relief in equity, the plaintiff and defendant being equal offenders, as two pirates or gamesters(6); Lord Harcourt, however, thought the offences not equal, and that the act of parliament ought not to shelter the defendant from giving satisfaction. Accordingly, as the lot was made
up of two houses, valued at £800, and a silver cistern, valued at £200, he decreed the houses should be taken at that value, though they were only worth £600, because the adventurers might have resorted to them, and seen whether they were of that value or not; but as to the cistern, that never having been bought by the defendant, it was decreed that he should pay the £200 (c). Lord Northington
(a) Lib. 1. c. 4. s. 6.
(6) Mention is made in several books (1 Eden 381. App. to Clifford's report of the Southwark Election, European Magazine, Vol. 2. 360, 2 Evans translation of Pothier 3.) of a bill by a highwayman against his companion for an account of his share of the plunder. The bill, it is said, having been reported scandalous and impertinent, was dismissed, the solicitor fined 501. and the counsel who signed it ordered to pay the costs. This account however was not supported upon a search at the office.
(c) Mince v. Peters, Harg. MSS. No. 112. p. 86.