1841. BRADSHAW บ. BRADSHAW. illegal agreement, but the debtor, after a voluntary payment Exch. of Pleas, according to the agreement, is seeking to recover back the money so paid. [Lord Abinger, C. B.-But suppose it turns out that the plaintiff was compelled to pay the amount of the bills to the holders?] He has not been compelled to pay, nor has he ever paid, this money, which he now seeks to recover back. In Smith v. Cuff, and Alsager v. Spalding, the money was that of the debtor himself. [Rolfe, B., referred to Howden v. Haigh (a).] That also was the case of a creditor seeking to enforce the illegal agreement. Here the debtor, who is the party suing, has only paid the composition, and the money paid beyond it was that of a third person. [Rolfe, B.-Suppose, after Waite paid the £55 to the defendant, and before the plaintiff paid any thing, he had discovered the transaction, could he have resisted payment of his acceptances?] No doubt Knight v. Hunt and Howden v. Haigh are authorities that he might. But how can the payment of the bills give the plaintiff a right of action for this money? He has paid no more than he ought to pay, and, if he recovers in this action, he will have paid nothing. Erle and Bramwell, contrà.—[Parke, B.-There can be no question as to the first point, because there was no payment to the defendant on the part of the plaintiff, but directly the reverse, and no ratification by the plaintiff could adopt it.] Then as to the other point. The only distinction between this case and that of Smith v. Cuff is, that there the plaintiff himself, here his relative, paid the surplus amount beyond the composition. But the foundation of that case is, that the notes given by the debtor were void, and could not be enforced by a creditor; and if the creditor puts them into circulation, and enables a third party thereby to extort from the debtor the money, the VOL. IX. (a) 11 Ad. & Ell. 1033; 3 P. & D. 661. D M. W. Exch. of Pleas, payment of which could have been resisted if they had 1841. BRADSHAW v. remained in the hands of the creditor, as against him the negotiation of them is void, and the money received by BRADSHAW. him is money had and received to the plaintiff's use. The cases of Knight v. Hunt, and Leicester v. Rose, are clear authorities to shew that it makes no difference whether the money be obtained from the debtor, or from a third person: in either case, the favoured creditor is guilty of an extorsive and oppressive fraud. The question really is, whether the agreement between the plaintiff and the defendant was void altogether, or only as against the defendant. It is said the plaintiff has paid no more than he was bound to pay; but if the agreement was illegal and void, he was not bound to pay anything. [Parke, B.— Must he not pay the original debt?] No; as to that, the creditor would be met by the deed of release; and if he alleges that it is void as being in pursuance of the fraudulent agreement, he is met by the answer, that he cannot take advantage of his own fraud. A creditor would be no loser by insisting on an undue preference, if, on being unable to retain it, he were remitted to his original rights. This is not a case of par delictum: the debtor is under oppression, and the payment by him upon the bills is not voluntary. No doubt, however void the transaction were, if the money were paid by the debtor at a time when he might have resisted the payment, he cannot recover it back; but here the payment was made because the plaintiff had no defence against the holder of the bills. Lord ABINGER, C. B.-If I were satisfied that the whole of the points essential to constitute the case of the plaintiff, upon the second ground which has been taken on his behalf, had been made at the trial, I should have been sorry to expose him to the payment of any costs. But, to enable him to recover, it was essential for him to shew, first, that the bills were paid by him, otherwise non constat that the defendant had received more than the amount of his composition; and secondly, that when they were so paid, they were not in the hands of the defendant; because, if they were, they were paid voluntarily, and the case would fall within the authority of Wilson v. Ray. And further, he must have shewn also that they were paid by him; if they were paid by his surety, I do not see how he could convert the defendant's supposed fraud into the means of getting into his own pocket money which he could not otherwise have got. It must be his money-money had and received to his use. He must, therefore, prove that the bills were in the hands of third persons, so that he had no defence to their claim; and that they were paid out of his own funds. If either of these facts failed in proof, then he would not be entitled to recover. I think, therefore, that the cause must go down to a new trial, to give an opportunity to the plaintiff of ascertaining these facts, and to the defendant of setting up any case he may have to meet them. With regard to the costs, we think that if the defendant succeeds, he should have the costs of both trials, but that if the plaintiff succeeds, he should not have the costs of the first trial. The rule will therefore be absolute for a new trial-the costs to abide the event. I may add, that it forms a part of my consideration of the case, that the release given by the defendant is not in the ordinary form, a conditional one, but an absolute one, in consideration of the composition being secured to the creditors by the sureties. PARKE, B.-It is clear that the plaintiff could not have recovered on the first ground taken at the trial, because the money paid by Waite to the defendant was not money had and received to his use; the payment was not with the plaintiff's money, but on the contrary, was to be kept secret from him. As to the other point, the question is, in what situation the plaintiff will be, if it turn out that the Exch. of Pleas, 1841. BRADSHAW บ. BRADSHAW, 1841. BRADSHAW Exch. of Pleas, payment was made by him involuntarily, out of his own funds, and in discharge of a bonâ fide claim. That raises a very important question, on which it will probably become necessary to take the opinion of the Court; but the case is not yet ripe for that decision. v. BRADSHAW. GURNEY, B., and ROLFE, B., concurred. Rule absolute. Nov. 11. The defendant ordered goods of H., the del credere agent of the plaintiff, at a stipulated price, to be paid for on de livery; and on receiving notice that the goods had arrived at H.'s warehouse, went there, and BILL V. BAMENT. ASSUMPSIT for goods sold and delivered, and on an The defendant ordered of one Harvey, who was an agent of the plaintiff under a del credere commission, a quantity of goods, including twenty dozen hair-brushes and twelve dozen clothes-brushes, to be paid for on delivery, at a stipulated price; but no memorandum in writing of the bargain was made at the time. On receiving notice from certain mark on Harvey that the brushes had arrived at his warehouse, the goods. On the defendant's the defendant, on the 22nd of March last, went there, and directed a boy, whom he saw there, to alter the mark directed a boy whom he saw there to put a refusal to re ceive the goods by reason of a dispute about the price, an action was com "No. 1," upon one of the packages, to "No. 12," and to send the whole of the goods to the St. Catharine's menced against Docks. The next day, an invoice was delivered to the defendant, charging the brushes respectively at the rate which, at H.'s of 8s. and 12s. each. The defendant objected to this him by the plaintiff; after request, the defendant wrote in H.'s ledger, at the bottom of a page, containing the statement of the goods in question and headed with the plaintiff's name, the words "Received the above," which he signed: -Held, that there was no evidence to go to the jury of a delivery and acceptance, sufficient to satisfy the Statute of Frauds. A memorandum in writing of a contract, to satisfy the Statute of Frauds, must have been made before action brought. 1841. BILL V. BAMENT. price, alleging that by the contract, as he had under- Exch. of Pleas, stood it, the above were to be the prices of the brushes per dozen; and refused to pay for them. On the 24th of March, the plaintiff commenced the present action for the price. On the 27th, the defendant, at Harvey's request, wrote in Harvey's ledger, at the bottom of the page which contained the statement of the articles ordered by the defendant, and which page was headed "Bill & Co.," the following words:-"Received the above, John Bament." The rest of the goods were sent to and received by the defendant. It was objected for the defendant, that there was no evidence of any contract in writing, or of any acceptance of the brushes, sufficient to satisfy the 17th section of the Statute of Frauds. The Lord Chief Baron reserved the point, and the plaintiff had a verdict for the amount claimed, leave being reserved to the defendant to move to enter a nonsuit. Erle having obtained a rule nisi accordingly, Thesiger and Martin now shewed cause.-First, the defendant's receipt in the ledger, although written after the commencement of the action, amounts to a memorandum in writing sufficient to satisfy the statute, or, at all events, is evidence of a previous acceptance of the goods within the 17th section. That section requires that one of three matters-part acceptance of the goods, earnest or part payment, or a memorandum in writing of the bargain, shall occur, in order to shew a reality in the contract, beyond that which parol evidence would establish; but there is nothing in the statute to shew that these must all have existed before action brought. The statute does not make the contract in itself illegal and void, but only says that no contract shall be allowed (that is, by the Court on the trial) to be good, except one of these three things shall It has been decided that the memorandum need appear. |