ment containing no provision for refunding the money if the action should fail. The 500l. was accordingly paid, and an action having been brought to recover it back, the jury found for the plaintiff, and that the defendant knew that he had no claim upon the plaintiff. The Court of Queen's Bench discharged a rule for a new trial or to enter a non-suit, on the ground that the arrest, according to the finding of the jury, was fraudulent, and that the money was parted with under the arrest to get rid of the pressure (): it being a true position that, "if an undue advantage be taken of a person's situation, and money be obtained from him by compulsion, such money may be recovered in an action for money had and received" (i). The authorities above cited will sufficiently establish the position, that money paid under compulsion of fraudulent legal process, or of wrongful pressure exercised upon the party paying it, may, in general, be recovered back, as money had and received to his use; and it therefore only remains to add, that, à fortiori, money will be recoverable which is paid, and that an instrument may be avoided which is executed, under threats of personal violence, duress, or illegal restraint of liberty (k); and this is in strict accordance with the maxims laid down (h) Duke de Cadaval v. Collins, 4 A. & E. 858. See Smith v. Monteith, 13 M. & W. 427; De Medina v. Grove, 10 Q. B. 152, 172. (i) Per Coleridge, J., 4 A. & E. 867; Pitt v. Combes, 2 A. & E. 459; per Gibbs, J., Brisbane v. Dacres, Taunt. 156; Jendwine v. Slade, 2 Esp. 573; Follett v. Hoppe, 5 C. B. 226; Green v. Laurie, 1 Exch. 335. (k) See De Mesnil v. Dakin, L. R. 3 Q. B. 18; Clark v. Woods, 2 Exch. 395; Skeate v. Beale, 11 A. & E. 983, 990; Wakefield v. Newbon, 6 Q. B. 276, 280. As to what may constitute duress, see per Lord Cranworth, C., Boyse v. Rossborough, 6 H. L. Cas. 45: Cumming v. Ince, 11 Q. B. 112; Powell v. Hoyland, 6 Exch. 67; Edward v. Trevellick, 4 E. & B. 59. by Lord Bacon: Non videtur consensum retinuisse si quis ex præscripto minantis aliquid immutavit (1), and corporalis injuria non recipit æstimationem de futuro (m). wrong-doer. Lastly, it is worthy of observation, that there are cases Intentional where an intentional wrong-doer will be, to a certain extent, protected by the law through motives of public policy. Thus, a horse with a rider on him cannot be distrained damage feasant, on the ground of the danger to the peace which might result if such a distress were levied ; and, therefore, to a plea in trespass, justifying the taking of a horse, cart, and other chattels, damage feasant, it is a good replication that the horse, cart, and chattels were, at the time of the distress, in the actual possession and under the personal care of, and then being used by, the plaintiff (n). NULLUS COMMODUM CAPERE POTEST DE INJURIA SUA PROPRIA. (Co. Litt. 148 b.)-No man can take advantage of his own wrong. It is a maxim of law, recognised and established, that Rule stated. no man shall take advantage of his own wrong (o); and (1) Bac. Max., reg. 22; post; Nil consensui tam contrarium est quàm vis atque metus, D. 50. 17. 116. (m) Bac. Max., reg. 6. (n) Field v. Adames, 12 A. & E. 649, and cases there cited; Storey v. Robinson, 6 T. R. 138; Bunch v. Kennington, 1 Q. B. 679, where Lord Denman, C.J., observes, that "perhaps the replication in Field (0) Per Lord Abinger, C.B., Fin- T this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure. The reasonableness and necessity of the rule being manifest, we shall proceed at once to show its practical application by reference to decided cases; and, in the first place, we may observe, that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law (p)-frustra legis auxilium Examples. quærit qui in legem committit (q);—and, therefore, A. shall not have an action of trespass against B., who lawfully enters to abate a nuisance caused by A.'s wrongful act (), nor shall an executor, de son tort, obtain that assistance which the law affords to a rightful executor (8). So if A., on whose goods a distress has been levied, by his own misconduct prevent the distress from being realised, A. cannot complain of a second distress as unlawful (t). So B., into whose field cattle have strayed through defect of fences, which he was bound to repair, cannot distrain such cattle damage feasant in another field, into which they have got by breaking through a hedge which had been kept by him in good repair, because B.'s negligence Co. Litt. 148 b.; Jenk. Cent. 209; "No man is allowed to take ad- It is contrary to all legal principle" that "the plaintiff can take advantage of his own wrong." Per Willes, J., Ames v. Waterlow, L. R. 5 C. P. 55. See also Dean, &c., of Christchurch v. Duke of Buckingham, 17 C. B. N. S. 391. (p) 1 Hale, P. C. 482. (r) Dodd. 220, 221. See Perry v. Fitzhowe, 8 Q. B. 757. -(8) See Carmichael v. Carmichael, 2 Phill. 101; Paull v. Simpson, 9 Q. B. 365. (1) Lee v. Cooke, 3 H. & N. 203; S. C., 2 Id. 584. was causa sine qua non of the mischief (u). So if a man be bound to appear on a certain day, and before that day the obligee put him in prison, the bond is void (x). Hyde v. Watts (y) is strikingly illustrative of the maxim, that a man shall not be permitted to take advantage of his own wrong. That was an action of debt for work and labour, to which the defendant pleaded a release under an indenture or trust deed for the benefit of such of his creditors as should execute the same. The replication set out the indenture in hæc verba, by which it appeared that the defendant covenanted, inter alia, to insure his life for 1500l., and to continue the same so insured during a period of three years; and, in case of his neglect or refusal to effect or to keep on foot this insurance, the indenture was to be utterly void to all intents and purposes whatsoever :-breach, that the defendant did not insure his life, whereby the said indenture became utterly void. The material question in the above case was, whether the deed, in case of a neglect on the part of the defendant to effect or keep alive the policy for 1500l., was absolutely void, and incapable of being confirmed as to all parties, or only void as against the plaintiff, who was a party to the deed, if he should so elect; and the latter was held by the Court of Exchequer to be the true construction, by reason of the absurd consequences which would follow, if the defendant, against the consent of all other parties interested in the validity of the indenture, could avail himself of his own wrong, and thus absolve himself (u) Singleton v. Williamson, 7 H. & N. 410. (x) Noy, Max., 9th ed., p. 45; Arg. Williams v. Gray, 9 C. B. 737. (y) 12 M. & W. 254, and cases cited, Id. 262, 263. Landlord and tenant. and the trustees from liability on their respective co venants. The cases of Weir v. Barnett (≈), and Weir v. Bell (a), are illustrative of the subject before us. There the question was whether directors, acting on behalf of the company of which they were directors, were liable for the acts of their sub-agents in issuing a fraudulent prospectus. The Exchequer Division and the Court of Appeal held that the directors were not liable, but on different grounds. Cockburn, C. J., in delivering the judgment of himself and Brett, L. J., in the Court of Appeal, considered that although, as a general rule, an agent is not responsible for the acts of a sub-agent employed by him, yet if the latter in the course of his employment is guilty of fraud or misrepresentation, and the agent, with knowledge of the fraud, derives a material benefit from it, the case becomes analogous to that of a principal who profits by the fraud of his agent; because he who profits by the fraud of one who is acting by his authority, though committed without his authority, adopts the act of the agent and becomes responsible to the party who has been imposed upon, and has sustained damage by reason of it (b). The learned judge then proceeds to state that as it was shown that the defendant had not derived any benefit from the fraud, on that ground he was not liable to the plaintiff. The following instances, may also serve further to illustrate the same general principle:-If tenant for life or years fell timber-trees, they will belong to the lessor; for the tenant cannot, by his own wrongful act, acquire a greater (z) 3 Ex. D. 32. (a) 3 Ex. D. 238; 47 L. J. Ex. 704; 38 L. T. 929, (b) See also per Lord Coleridge, Swift v. Jewsbury, L. R. 9 Q. B. 301, at pp. 312-13. |