WHITMORE v. FARLEY. 1881. was done did not make the affair lawful, there is a decision of the Exchequer Chamber in Keir v. Leeman (ubi sup.) that even a judge of assize cannot lawfully consent to such a compromise of a prosecution for felony. It is said by the appellant's counsel that the judge in the court below has not only denied the plaintiff Compromise of the relief to which she was entitled, but that such judge has criminal proceedings. given the defendant relief, thus ignoring the maxim In pari delicto potior est conditio possidentis, and that no relief ought to have been given to Mrs. Anstruther on the counter-claim set up by her. Independently of the cases which have been cited to me, it has been decided in the House of Lords in Williams v. Bayley (ubi sup.), that where there has been pressure in cases like this the court will grant relief to the person upon whom such pressure has been put. But here what has been done is that a declaration has been made which is a logical result of what was claimed by the plaintiff in the action. Miss Whitmore says: "I have a charge upon Mrs. Anstruther's separate estate." The court declares, in answer to Miss Whitmore's question, that she has no such charge. Thereupon Mrs. Anstruther and her estate are necessarily held to be free from the charge which has been claimed. The court thinking the case a hard one, did even more for the plaintiff than she was entitled to ask should be done, for it made no order as to costs, although it is impossible to say that the action was not unfounded. Having obtained a decision of a competent court on a point which was evidently clearly against the plaintiff, she chooses to bring an appeal from such decision. She does so at her own risk, and, although her case is a hard one, I see no reason for making any exception to the rule as to costs. In my opinion the appeal should be dismissed with costs. BAGGALLAY, L.J. [after stating the facts, continued:]—I am clear that, upon the authorities, it is immaterial whether the charge which was attempted to be compromised was a felony or only a misdemeanour. Any agreement to compound a criminal prosecution for a public offence is illegal, and it is wholly immaterial that such agreement has received the sanction in court of the magistrate before whom the charge was brought. The sanction of the magistrate cannot render valid a transaction which would otherwise be illegal. I am of opinion, therefore, that the appeal must be dismissed. LUSH, L.J.—I am of the same opinion. I share fully in the sympathy which has already been expressed for the plaintiff, but I cannot give legal effect to my sympathy. There is no doubt that to compound a felony is an illegal act, and also a crime which renders the person guilty of committing it liable to punishment. Every agreement, therefore, by which a prosecutor, in consideration of a private benefit, has consented to compound or withdraw from a charge of felony is one which, on account of its illegality, the court will not enforce. There is certainly no legal obligation on a person who has suffered injury by the commission v. FARLEY. 1881. ceedings. of a felony to prosecute the person who has committed the crime; WHITMORE but if he has once instituted the prosecution, he has acted on behalf of the public, and used the name of the Sovereign as representing the public, and cannot legally enter into a binding agreement to discontinue the prosecution. The cases clearly Compromise of establish that any such agreement in consideration of a benefit criminal proto the prosecutor is illegal and cannot be enforced. It is utterly immaterial whether the charge is proved or not, if once it has been made. Although the offence here was a felony, it would not matter if it were a misdemeanour. There are, no doubt, certain cases, as that of an assault, where the parties may compromise the offence without being guilty of an illegal act. But this does not apply to misdemeanours of a serious kind. Embezzlement is only a misdemeanour, yet it is a criminal offence to compromise a prosecution for embezzlement. The principle has been stated by Lord Abinger, C.B., in the case of Davies v. Holding (1 M. & W. 159). The Court there held that an agreement which was illegal and void, as being against the general policy of the law, should not be enforced, and applied the doctrine to an agreement to abandon a fiat in bankruptcy. The doctrine has also been applied in cases where a debtor has entered into a bargain with certain creditors not to oppose him in obtaining a composition with the general body of his creditors. It is a well-established doctrine that an agreement to forego public rights is an illegal agreement. Whether the felony could have been proved here or not there is no doubt that a criminal charge was made, and the prosecutrix could not legally withdraw it. The fact that the presiding magistrate consented to such withdrawal of the charge does not make it legal. The claim set up by Miss Whitmore cannot be made the subject of an action. Then nobody can invoke the authority of the court to give effect to an illegal agreement, and there is no doubt that the judge was quite right in interfering and of his own motion pointing out the illegality of the transaction, and the impossibility of allowing the plaintiff's claim. There was, however, quite enough on the pleadings, without the interference of the judge, to set up the defence of illegality. We are quite at liberty, where facts are stated which show an illegal act, to allow a case of illegality to be proved, although it is not expressly stated in the pleadings that the defendant pleads illegality. JAMES, L.J.-I desire to be understood as giving no opinion, either way, on the point decided in the court below as to the Statute of Frauds. That point requires to be further considered if it ever arises again. Solicitor for the appellant, F. Bradley. Solicitors for the defendants, Remnant, Penley, and Grubbe. HIGH COURT OF JUSTICE. QUEEN'S BENCH DIVISION. June 25 and July 2, 1881. (Before Mr. Justice STEPHEN.) WILSON V. STRUGNELL. (a) Bail-Contract to indemnify, illegality of—Municipal Corporation Act 1835 (5 & 6 Will. 4, c. 76), ss. 57, 101-Borough without commission of peace-Jurisdiction of mayor to act as justice of peace. A contract to indemnify bail against the consequences of the nonappearance of an accused person is contrary to public policy, and therefore illegal. was The defendant became bail in 100l. for the appearance of M. upon a charge of embezzlement. M. paid 100l. to the defendant to indemnify him for becoming bail, and then absconded. Held, that the plaintiff, the trustee in bankruptcy of M., entitled to recover that sum from the defendant; for, although the contract to indemnify the defendant was against public policy, yet it remained executory, in the absence of any evidence to show that the liability of the defendant, as bail, had been discharged. The mayor of a borough named in Schedule B. of the Municipal Corporation Act, 1835 (5 & 6 Will. 4, c. 76), which has no separate commission of the peace, has jurisdiction under sects. 57 and 101, to act as a justice of the peace for the borough. F URTHER CONSIDERATION. This was an action tried before Stephen, J. in Middlesex, on the 12th day of May, 1881, and heard on further consideration on the 25th day of June. The facts were as follows:-Manners was charged on the 27th day of September, 1879, before the Mayor of Shaftesbury, with embezzlement, and was by him remanded to appear before the county magistrates at Shaftesbury on the 30th. Manners was bound over to appear, and Strugnell gave bail to the extent of 100l. for his appearance. Strugnell received 1007. from Manners as security for becoming bail. On the 30th Manners did not appear before the county magistrates. Shaftesbury is one of the boroughs in Schedule B. of the (a) Reported by W. E. GORDON, Esq. Barrister-at-Law. WILSON v. STRUGNELL 1881. Municipal Corporation Act, 1835, and has a mayor, but no separate commission of the peace. The county magistrates do not recognise the right of the mayor to remand prisoners for appearance before the county bench. There was no evidence at all as to their having taken any step in consequence of the non-appear- Contract to ance of Manners with reference to the recognisances, but they indemnify bart received an information on oath against him and issued a warrant -Illegality. for his apprehension. He has not since been heard of. On the 18th day of May, 1880, Manners was adjudicated a bankrupt, and Wilson, the trustee in bankruptcy, sued Strugnell to recover from him the 100l. paid to him by Manners. Atherley Jones for the plaintiff.-Assuming that the contract to indemnify bail is contrary to public policy, and therefore illegal (Jones v. Orchard, 24 L. J. 229, C. P.; 16 C. B. 614), the plaintiff is still entitled to recover back this money from the defendant on the ground that the contract remains executory. The doctrine is clearly laid down in Roscoe on Evidence (ed. 14, p. 557), that "where money has been paid in pursuance of an illegal contract, it is generally irrecoverable; and there is no distinction in this respect between mala prohibita and mala in se. But in some cases it is recoverable as money had and received to the use of the party paying it, e.g., when the contract remains executory, though the plaintiff and defendant be in pari delicto." The present case bears a striking analogy to that of Bone v. Ekless (5 H. & N. 925; 29 L. J. 438, Ex.), which was decided on the principle that where money, which has been paid over in pursuance of an illegal agreement, has not been applied to the purpose intended, it is open to the parties to demand it back. So here, as the consideration is illegal and the contract has not been executed, the money is recoverable. See also Symes v. Hughes (22 L. T. Rep. N. S. 462; L. Rep. 9 Eq. 475; 39 L. J. 304, Ch.); Tenant v. Elliott (1 Bos. & P. 3). Again, assuming that Manners could not recover this money back, nevertheless there is nothing to prevent the trustee in bankruptcy from recovering it from the defendant: (Midland Counties Assurance Company v. Smith, 6 Q. B. Div. 561; 50 L. J. 329, Q. B.; Re Shepherd; Ex parte Ball, 40 L. T. Rep. N. S. 141; 10 Ch. Div. 667; 48 L. J. 57, Bank.) Lastly, the Mayor of Shaftesbury had no power to take the recognisance here. The local jurisdiction of all magistrates must be derived from the commission of the peace. The borough of Shaftesbury has no commission of the peace, and therefore the mayor had no jurisdiction to take recognisances. The recognisance being invalid, the trustee is entitled to recover this sum, which was paid without consideration as money had and received. He referred to Municipal Corporation Act, 1835 (5 & 6 Will. 4, c. 76), ss. 57, 98, 107, and schedule B.; 11 & 12 Vict. c. 42, s. 16; Summary Jurisdiction Act, 1879 (42 & 43 Vict. c. 49), s. 9. J. Alderson Foote for the defendant.-As to the last point, sect. 57 of the Municipal Corporations Act expressly provides that the WILSON C. STRUGNELL. 1881. mayor, for the time being, of every borough is to be a justice of the peace of such borough. Again, the agreement to indemnify must be against the policy of the law; if such an arrangement could be made, the court would only be able to obtain a surety in the case of rich men who would supply the money to indemnify indemnity bail the bail if the recognisances be estreated. In Jones v. Orchard -Illegality. (sup.), it seems to have been admitted in argument that an agree Contract to ment to indemnify bail is illegal. This case, although not a direct authority, is still in favour of this contention. Cresswell, J. there says (24 L. J., at p. 230, C. P.), "What is the use of requiring sureties for a defendant's appearance if they are entitled to be indemnified by the defendant?" and Jervis, C.J. also remarked that "it cannot be maintained that the plaintiff is entitled to recover if the recognisance was forfeited by reason of the defendant's non-appearance. There cannot be a good express promise to indemnify against the defendant's nonappearance, and therefore a good promise cannot be implied." In the present case it is contended for the plaintiff that, even if the contract to indemnify was illegal, the money could be recovered by the trustee on the ground that the contract remained executory; but the real test, as stated in Broom's Legal Maxims (ed. 5), at p. 722, "for determining whether or not the objection that the plaintiff and defendant were in pari delicto can be sustained, is by considering whether the plaintiff can make out his case otherwise than through the medium, and by the aid of the illegal transaction to which he was himself a party:" Taylor v. Chester (L. Rep. 4 Q. B. D. 309; 21 L. T. Rep. N. S. 359); Firaz v. Nicholls (2 C. B. 501); Simpson v. Bloss (7 Taunt. 246). The trustee is in no better position that the bankrupt, and cannot recover in this action: Nicholson v. Gooch (5 E. & B. 999). The cases cited on behalf of the plaintiff are not in point, because there the money was paid to the defendants, who had to hand it over to some third person, in pursuance of the illegal contract. In the present case the illegality arose as soon as the defendant received the 1007. and became bail. In Bone v. Ekless (5 H. & N. 925) there was nothing illegal in the payment over of the money, the only illegality was bribing the Turkish officials. He also referred to Broom's Legal Maxims, ed. 5, p. 739, citing Holman v. Johnson (Cowp. 343, per Lord Mansfield). Jones replied. Cur. adv. vult. July 2.-STEPHEN, J., after stating the facts as given above, | proceeded :—It was argued for the plaintiff that the Mayor of Shaftesbury had no power to take the recognisances, and that the 100l. was therefore paid without consideration, and could be recovered by Manners' trustee as money paid to his use. This was denied on the part of the defendant. It was also argued by the plaintiff that, even if the recognisance was valid, the consideration for the contract to indemnify had failed, as it did not appear |