Smith v Bromley
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1813 |
| Date | 01 January 1813 |
| Court | Court of the King's Bench |
English Reports Citation: 99 E.R. 441
IN THE COURT OF KING'S BENCH
Smith v. Bromley. " Action for money had and received to the plaintiff's use; upon this case : The plaintiffs brother having committed an act of bankruptcy, the defendant, being his chief creditor, took out a commission against him, but, afterwards, finding no dividend likely to be made, refused to sign his certificate. But on frequent application, and earnest entreaties, made by the bankrupt to one Oliver, a tradesman in town, who was an intimate friend of the defendant, who lived in Cheshire, he got Oliver to write to the defendant several times, and he at last prevailed on the defendant to send him, (Oliver,) a letter of attorney, empowering him to sign the certificate, which Oliver would not do, unless the bankrupt, or somebody for him, would advance £40, and give a note for £20 more, and which, on Oliver's signing the certificate for the defendant, the plaintiff, (who was the bankrupt's sister,) paid, and gave to Oliver accordingly, who thereupon gave her a receipt for the money, promising to return it, if the certificate was not allowed by the Chancellor. The certificate was allowed. The plaintiff afterwards brought her action against Oliver to recover back the £40 from him, but, that action coming on to be tried before Lord Mansfield, at Guildhall, at the sittings after last Trinity term, and it then appearing that Oliver had actually paid over, or accounted for, the £40 to Bromley, and his Lordship being clearly of opinion, that this action would not lie against the plaintiff's own agent, who had actually applied the money to the purpose for which it was paid to him, the plaintiff waa nonsuited in that action; and now she brought this action against Bromley himself ; which coming on to be tried, it was proved, that the money was received by Oliver, and paid over to the defendant. " It was contended for the plaintiff, that this money was paid, either without consideration, or upon one that was illegal, and, in either case, was recoverable back by this action. For the defendant, it was argued, that there was certainly a consideration for the payment of the money, to wit, the signing of the bankrupt's certificate ; that, if this consideration was illegal, the plaintiff was parbiceps criminis, had paid it voluntarily and knowingly, and without any deceit, and so was within the case of Tomkiiis v. Bernet, (H. 5 Will. 3, at N. Pr. before Treby, Chief Justice, 1 Salk. 22); but that there was nothing illegal in it; for it was the money of a third person, and so no diminution of the bankrupt's effects, or fraud upon his creditors; in which case only, whereby the distribution becomes unequal, is there any iniquity in receiving a oon- (a) Mentioned Law of Nisi Prius, p. 132, Ed. 1775. 442 JONES V. BARK.LEY 2 DOUOL. 697. sideratton for signing the certificate; that, if the Legislature had intended that money paid upon such consideration should be considered as illegally paid, they would have made it part of the clause in 5 Geo. 2, c. 30, which makes void bonds, bills, and other securities given for this purpose (b), in the same manner as, in the statute against gaming (c), there is an express provision for the recovering back of money lost at play (3) [E^]; that Courts of Justice had always construed that clause of 5 Geo. 2, c. 30, m a strict manner, as appeared by the case of the Lewis v. Chase, Cane. E. 1720, 1 P. Will. 620, and which case, as to the merits, seemed to be less favourable for the creditor, [697] than the present; for, there, the bankrupt himself, not the third person, gave a bond for the whole debt, in consideration of a creditor's withdrawing a petition te had preferred to the Great Seal against the allowance of the bankrupt's certificate; that, in the present case, if there was any guilt, the plaintiff was more...
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