expresses the sense of the general issue in assumpsit, much better than non assumpsit. For, upon non assumpsit, may be given in evidence a release, or payment, or any thing which shews that there was no cause of action at the time of the action brought; although the form of the issue is, that the defendant did not undertake, whereas the truth may be that he has undertaken and has performed. If we follow precedents, however, we must say this plea is a nullity, and the judgment regular; and therefore I am sorry to say that the rule can be made absolute, only on the terms of the defendant paying the costs. Rule absolute on payment of costs. 1811. BRENNAN บ. EGAN. THIS CLAYTON v. DILLY. Nov. 23. name, and HIS was an action for money paid, and money had and re- A plaintiff ceived, which was tried before Mansfield, C. J. at the West- fendant's auminster sittings after Trinity term 1811, when the plaintiff proved thority lays illegal bets in his having paid 1057. and proved the defendant's hand-writing, the defendant's authorizing the plaintiff to bet for the defendant at Epsom races, losing, pays and proved that he had betted two bets of 50%. each on a horse them without named Pledge, and another bet of 5l. admitted to be legal, all of a subsequent which were lost and paid by the plaintiff; and he now brought tion so to do, this action to recover from the defendant the money he had so advanced for him. The jury found a verdict for the plaintiff, subject to the point, on which Pell, Serjt. in this term obtained a rule nisi for reducing the verdict from 1057. to 5l., viz. that the betting being, by virtue of the statutes 16 Car. 2. c. 7. s. 2. and 9 Ann. c. 14. s. 6., an illegal transaction, to which the plaintiff was himself privy and instrumental, and the defendant having paid the money by the authority of the plaintiff to the winner, the plaintiff could not now recover it from the defendant. [Lawrence, J. observed, that it had been held that a case was not within that section of the statute of Ann, which makes it illegal to bet" on the sides or hands of such as do or shall play as therein aforesaid," unless it were a betting on the sides or hands of persons playing at a game.] Lens, Serjt. on a subsequent day in this term shewed cause against this rule. He admitted, in consequence of the decided cases, the illegality of the two bets in question. Aleinbrook v. Hall, 2 Wils. 309. Blaxton v. Pye, ibid. Goodburn v. Marley, 2 Str, 1159. Although, if the matter were now res integra, the doctrine express direc cannot recover from the deamount of the fendant the money so paid. [*166] 1811. CLAYTON V. DILLY. doctrine of Barjeau v. Walmesley, 2 Str. 1249., would rather be adhered to. But although the transaction was illegal, and although the plaintiff had knowledge of it afterwards, and in that sense was privy to it, yet as the defendant might have exercised all the authority entrusted to him in legal and not in illegal bets, it could not be said that the plaintiff was a party, or instrumen tal to the illegality, and therefore he might recover. He refer red to the cases of Faikney v. Reynous and Richardson, 4 Burr, 2069. Patrie v. Hannay, 3 T. R. 418. " Pell, Serjt. in support of his rule, observed, that all these[167] authorities had lately undergone full discussion in the case of Webb v. Brooke, ante, 3. 6. The rule has been established by the cases of Lacaussade v. White, 7 T. R. 535., and Howson v.. Hancock, 8 T. R. 575., that a person cannot render that legal by employing the agency of another, which he could not legally do directly by himself. The plaintiff comes to ask the Court to assist him, through the medium of another, in the illegal practices of betting and horse-racing. He also referred to the cases of Havelock v. Rockwood, 8 T. R. 268. and Aubert v. Walsh, ante, 3. 277. [Chambre, J. referred to Cotton v. Thurland, 5 T. R. 405.] ་་ [168] The Court gave the parties further time to consider the authorities, and on a subsequent day Heath J. observed that the following cases were relevant. Ex parte Mather, 3 Ves, 373., where Lord Rosslyn, Chancellor, said, "he had often had occasion to think of those cases on lottery insurances, &c., and it never occurred to him to be possible to state a distinction between them and a case repeatedly adjudged; if a man is employed to buy smuggled goods, if he paid for the goods, and the goods come to the hands of the person who employed him, that person shall not pay for the goods." 13 Ves. 316. Ex parte BulLord Erskine, Chancellor, went largely into the case of Steers and Lashley, 6 T. R. 61., and all the other cases adjudged -in the King's Bench; but in that case, the case Ex parte Mather was not cited. And he observes, that Steers v. Lashley was decided by Lord Kenyon, C. J. in the absence of Grose and Lawrence, Justices. P { Pell referred to the case of Ribbans v. Crickett, 1 Bos. 264. MANSFIELD, C. J. on this day delivered the opinion of the Court. ' Upon the discussion of this rule, a great many cases were cited, and not all reconcileable to each other; but considering this case, upon the inference to be drawn from all the cases, it is impossible that this action can be supported. In Petrie v. Hannay, the plaintiff succeeded upon the ground of an express order to the man to pay the money, that is, the desire of the testator; and he could not have resisted it. In Faikney v. Reynous, there was an order to pay the money, though it was on an illegal contract; and the reasoning of Buller and Grose, Justices, in favour of the plaintiff, in Petrie v. Hannay, would have applied for the defendant in this case. Here is no order from the defendant to the plaintiff to pay the bets that he lost; and though, from the nature of the transaction, it is natural that the plaintiff should pay for the defendant any money he lost, yet that arises out of the nature of the transaction itself, which is an illegal transaction, in which the plaintiff is the principal actor; it is impossible, therefore, to say that the plaintiff can recover this money, which he has paid in pursuance of this illegal transaction. Therefore the Rule must be made absolute. 1811. CLAYTON V. DILLY. HUBBARD V. JACKSON. [169] Nov. 25. effected at four cent. on hemp A policy was guineas per marked R and valued, with of premium upon arrival at and warranted 20th of August, which was a certain returns certain ports, to sail before the THE HE plaintiff, in the first part of his first count, proceeded in declaring in the usual form upon a policy of insurance, effected by himself on the 5th day of June 1807, at and from St. Petersburgh to Chatham, Woolwich, London, Portsmouth, or Plymouth, all, or either, and including risk in craft, upon goods, in the good ship or vessel called "Ship or Ships," warranted to sail on or before the 20th of August 1807, old style, beginning the adventure from the loading thereof on board at St. Petersburgh, valued at 10,000l. on hemp, marked R, valued at 451. per ton, at a premium of four guineas per cent. to return 45s. per cent. if the ships should sail with convoy from the Sound, on such part as should be discharged in the river; 40s. per cent. on such part as might be discharged at Portsmouth, and 35s. per cent. upon such part as might be discharged at Plymouth, and arrive;"onal and and after averring the payment of 20 guineas premium, mutual less for arrival, promises, and the defendant's subscription to the policy for 5007., assured from summer risk and premium. By a memorandum indorsed, the under writer, for four guineas additi return of 5s. absolved the the warranty of sailing before 20th August, so making it a winter risk, and withdrew the mark of the hemp. Held that these were not such alterations of the subject-matter insured, and of the terms of the policy, but that they might be made by stat. 35 G. 3. c. 63. s. 13., without any new stamp. the 1811. HUBBARD V. JACKSON. the plaintiff alleged that after the making of the policy, the plaintiff was desirous to withdraw the mark of the hemp, as specified in the policy, and the warranty of sailing before or at the time in the policy mentioned, whereof the defendant had notice, and thereupon, afterwards, on the 6th of October, in the same year, by a memorandum indorsed on the policy, and subscribed by the defendant, by one P. Selly, his agent duly authorized, it was agreed by and between the plaintiff and defendant, for the consideration of four guineas additional, and allowing 5s. per cent, less return than was stated in the policy, to withdraw the mark of the hemp specified in the policy, and the warranty of [170] sailing; and the policy was thereby declared to be upon the following vessels, viz. the Susannak, Progress, Melantho, and Adonis, that is to say, on hemp to be carried and conveyed by those vessels on the voyage in the policy mentioned, of which the defendant had notice, and in consideration thereof, and that the plaintiff had paid him the premium of 20 guineas, being after the rate of four guineas per cent. for the assurance of 5001. upon the premises in the policy and memorandum mentioned, that is to say, on hemp to be carried by the Susannah, Progress, Melantho, and Adonis, on the voyage in the policy mentioned, and that the plaintiff had promised the defendant to perform every thing in the policy mentioned on his part, except as to the mark on the hemp and the warranty of sailing therein mentioned, the defendant undertook to become an insurer to the plaintiff for 500l. on the premises in the policy and memorandum mentioned, viz. on hemp to be carried by the Susannah, Progress, Melantho, and Adonis, on the voyage on the policy mentioned, valued as aforesaid, and would fulfil all things in the policy on his part contained, as such assurer, except that the return of premium in the events in the policy mentioned was to be 5s. per cent. less than in the policy was mentioned. The plaintiff then averred, that the ships were in safety at Petersburgh, and that hemp to the value of 20,000l. was there put on board, viz. 128 bundles of hemp, value 60007., on board the Susannah; 97 bundles, value 4500, on board the Progress; 157 bundles, value 7000, on board the Melantho; and 89 bundles, value 3000, on board the Adonis that the plaintiff was interested to the whole amount; that the ships sailed on the voyage, and that the Melantho, Progress, and Adonis, with their cargoes, were lost by capture, and that the Susannah was afterwards so taken likewise. In the second count, the plaintiff declared on the policy and memorandum 3 1811. HUBBARD JACKSON. randum indorsed, as follows: he alleged, that on the 6th of October 1807he effected a policy, purporting thereby and con❤ taining therein in substance and to the effect following; that the plaintiff made assurance at and from St. Petersburgh to Chatham, Woolwich, London, Portsmouth or Plymouth, all or either, includ [171] ing risk in craft, upon goods by ship or ships, valued at 10,000l., on hemp, valued at 451. per ton, at the premium of eight guineas per cent. to return 40s. per cent., if the ship sailed with convoy from the Sound, on such part as might be discharged in the river, 35s. per cent. on such part as might be discharged at Portsmouth, and 30s. per cent. upon such part as might be discharged at Plymouth and arrive; and that the insurance was by the said policy declared to be on the following vessels, viz. Susannah, Progress, Melantho, and Adonis; that is to say, on hemp to be carried by those ships on the voyage in the policy mentioned: he then proceeded with his declaration as in the former policy. There were also the usual money counts. Upon the trial of this cause, at the sittings in London after Trinity term 1811, before Mansfield, C. J., it appeared, that the policy and the memorandum indorsed thereon were of the dates and to the effect averred in the first count of the declaration, and were respectively subscribed by the defendant, through his broker, and the respective premiums paid. It appeared in evidence that the Melantho, one of the ships upon which the interest was declared, soon after the subscribing of the policy of 5th June, arrived in England in August with a cargo of hemp belonging to the plaintiff, but it was not marked R., and had sailed again for another, but that this circumstance was not disclosed to the underwriters at the time they subscribed the indorsed memorandum. ^`The person, however, who shipped the hemp, "swore that the hemp which he instructed the plaintiff to insure was different hemp from that which he shipped on the first voyage. The vessels sailed on the voyage from Petersburgh with a cargo of hemp, part of which was marked R, in November, and [172] were captured. For the defendant it was contended that the plaintiff could not recover, because either the policy was originally intended to attach on the second voyage, and if it were, then there was a fatal concealment from the underwriters of a material circumstance, viz. that the Melantho had been at home 40 late in the summer; because that would clearly have shewn that the risk would be a winter risk, for which the underwriters always demanded a higher premium: or, if the policy was originally |