That is a general and established rule of law, and the decision in Tenant v. Elliott forms no exception to it; for there the question of consideration was excluded, none being necessary to support that action. But where a consideration must be shewn, in order to support the action, if there appears to be any thing illegal in the origin of the transaction, the contract founded upon it cannot be enforced at law. Where it is not necessary to shew a consideration, a party who receives money for the use of another, is bound to pay it over at all events, because he is merely an agent or banker, and has no right to set up the illegality of the transaction as an excuse for retaining the money. Neither do the cases of Antoine v. Morshead, and Duhammel v. Pickering, at all affect the present, because there the transactions were held to be good, upon the ground of necessity. The distinction between void and illegal, is well founded and important. For instance, the Statutes of Usury prohibit the lending money for more than 57. per cent. interest, and declare that contracts for loans upon any higher rate of interest shall be void, and that the parties receiving such rate of interest shall be subject to certain penalties: but they do not prevent the lender from receiving the legal interest even upon the original loan, if the borrower gives a subsequent promise to pay it, and therefore they do not make the whole transaction ab initio illegal, because if it were so, no fresh undertaking could be grafted on it. But the common law has declared the act of trading with an alien enemy to be absolutely illegal, in toto, and therefore every contract and promise founded upon such a trading, is not only void, but illegal also, and cannot, at any period, or under any eircumstances, be enforced at law. Potts v. Bell (a); The case of the Hoop (b); Ex parte Bousmaker (c) ; Flindt v. Waters (d); Evans v. Richardson (e). The case last cited applies strictly to that portion of this debt which (a) 8 T. R. 548. (c) 13 Ves. 71. (b) Robinson's Adm. Rep. 196. (d) 15 East, 260. (e) 3 Meriv. 469. 1826. OGDEN บ. PEELE. 1826. OGDEN บ. PEELE. is claimed in respect of the cargo of the Benjamin, and is an authority for saying, that that is equally irrecoverable with the rest. [Abbott, C. J. The Benjamin did not sail under any pre-existing contract in respect of her, made during the war]. Certainly not, but the parties had had general dealings and transactions during the war, and the Benjamin must be regarded as mixed up with them. In Evans v. Richardson, it was held, that the general intention of the parties to do that which must be in violation of the law, rendered every contract subsequently made illegal; and in that point of view, the transaction respecting the Benjamin was clearly illegal, and cannot be enforced. That vessel indeed arrived at Liverpool after the preliminaries of peace had been signed; but as she commenced her voyage under an illegal contract, and with an illegal intent, that made no difference. She was liable to capture at the moment of her arrival, and might have been seized as a prize in the port of Liverpool. [Bayley, J. I should doubt that. Hostilities had ceased when she arrived. Littledale, J. Surely she might have been entered on the books of the Custom House]. She arrived in prosecution of a contract made with an alien enemy, and in the actual course of trade with an alien enemy; that contract, therefore, was illegal and void, and the Court cannot imply a new contract made after the cessation of hostilities. The plaintiffs could not have maintained trover for the goods, nor for the bills received in payment for them; for an alien enemy has no property in goods or bills placed in the hands of a subject of this country, under such circumstances, either during the war, or after it has ceased. The present defendants, therefore, as the assignees of Waddington, are bound by law not to allow the plaintiffs to prove this debt, but to divide the money among the English creditors; and, as was held in Evans v. Richardson, even, if they had not raised the objection, the Court would, as a matter of law, have raised it for them. The plaintiffs rely upon the last account rendered by the bank rupt, as an admission at that time, that he was liable for this debt. But, taking it to be such an admission, what is the legal effect of it? It can merely go to shew how the transaction stands as a mattter of account between the parties; it cannot legalise one item in the account, nor the contract, in the execution of which the account arose. Then as the original liability was discharged, and the bankrupt's admission does not operate to revive it, neither can the Court interfere to imply a new promise, and to set up a new liability; Cannan v. Bryce (a). Then are the defendants, in their character of assignees, bound by any thing that has occurred since the bankruptcy? Clearly not. Even if the bankrupt could bind himself by any new promise made since the peace, he still could not bind his estate or his assignees, by any act done since his bankruptcy. Upon these grounds, it is contended, that no part of this debt is proveable by the plaintiffs under the commission issued against Waddington. Tindal, in reply. With respect to the Benjamin, a fact has been imported into the case in argument, which is not to be found there, namely, that she sailed under an illegal contract. The Court will not presume such a fact, in order to vitiate a contract apparently good; and in the absence of such a fact, the whole train of argument on that point utterly fails. As to the general principle, no case has ever yet decided that the foreign merchant has no claim upon his consignee in this country, for the proceeds of his goods after hostilities have ceased; for though Evans v. Richardson seems, at first sight, to warrant that position, it does not, in fact, do so; because, though it was there held, that the foreigner could not recover, even after the restoration of peace, it was upon the ground that the plaintiff there relied on the original contract; which the present plaintiffs do not. On the other hand, the case of Tenant v. Elliott seems not to be distinguishable (a) 3 B. & A. 179. 1826. OGDEN υ. PEELE. from the present, and must decide it in favour of the plaintiffs and with respect to the proceeds of the Benjamin's cargo, it is clear that their debt is proveable, because they came into the bankrupt's hands after the cessation of war, and in the course of a transaction untainted with the original illegality. Cur. adv. vult. The following certificate was afterwards sent by the Judges of this Court to the Vice Chancellor : "THIS case has been argued before us by counsel, and we are of opinion, that the plaintiffs are entitled to prove for the proceeds of the Benjamin, only; but we cannot judge whether payment has been made of sufficient amount to over-reach this part of the demand, and under circumstances that may enable the defendants to apply them in discharge of it. С. Аввотт, G. S. HOLROYD, claration al HOWELL V. YOUNG, gent, one, &c. In an action CASE, against an attorney, for negligence. The first on the case for count of the declaration stated, that plaintiff had agreed negligence, where the de- with one John Olive and one Ralph Olive, to lend them leges a breach the sum of 30007., the repayment of which was to be seof duty, and a cured by a warrant of attorney and a mortgage of certain special consequential da- freehold premises, provided such warrant of attorney and mage, the mortgage should be found to be a good and sufficient security; that plaintiff retained, &c., defendant for reasonable fees, &c., to ascertain whether such warrant of attorsequential da- ney and mortgage would be a good and sufficient security; mage, and the cause of action is the breach of duty and not the con Statute of Limitations runs from the time when the breach of duty is committed, and not from the time when the consequential damage accrues. that defendant having then and there accepted such retainer, &c., it became and was his duty to use due and proper care and diligence to ascertain whether the said warrant of attorney and mortgage would be a good and sufficient security; nevertheless, plaintiff in fact saith, that defendant, not regarding his duty in that behalf, but contriving to deceive and defraud plaintiff in this respect, did not, nor would, use due and proper care and diligence to ascertain whether the said warrant of attorney and mortgage would be a good and sufficient security, but wholly neglected and omitted so to do, and on the contrary thereof, on, &c., at, &c., falsely and deceitfully represented and asserted, and caused and procured plaintiff to believe, that the said warrant of attorney and mortgage were a good and sufficient security. It then proceeded to state, that plaintiff, confiding in defendant's representation and assertion, advanced 3000l. to J. and R. Olive; that they gave him a warrant of attorney, dated 1st March, 51 Geo. III.; and executed indentures of lease and release, dated 9th and 10th March, and an assignment, dated 9th March, in the same year; and that those securities were not good or sufficient, whereby plaintiff had lost the interest of his money, and was in danger of losing the principal. Second count similar, only omitting all mention of the warrant of attorney. Third count also similar, only stating the money to have been lent on a security, without specifying its nature. Fourth count describing the security to have been the warrant of attorney only. Pleas, first, the general issue, not guilty, upon which issue was joined; second, not guilty within six years, to which there was a special demurrer (a); and, third, that the cause of action did not accrue within six years, upon which issue was joined. At the trial, before Burrough, J., at the last Monmouthshire assizes, August, 1825, the case was this: In the year 1814, the plaintiff having a sum of 30007., which he wished to place out upon good freehold security, applied to the (a) See Dyster v. Battye, 3 B. & A. 448. 1826. HOWELL v. YOUNG. |