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tow v. Towers (a), and Potts v. Bell (b), are all authorities
in support of the doctrine laid down in Anthou v. Fisher,
and it must he admitted that the principle upon which
they were founded is as just, as the policy which they
were intended to advance is sound. In Brandon v. Nes-
bitt, however, though the Court said that they had not
found a single case in which the action had been supported
in favour of an alien enemy; they added, that though it
was held in Ricord v. Bettenham, that the action by an
enemy on a ransom bill might be maintained, the action
was not brought until peace was restored, which gets rid
of the objection. Now here, not only the action was not
brought till after peace was restored, but it was impossi-
ble that it should be, for not till then did the cause of
action arise. No injury therefore can be sustained in a
national point of view by the allowance of such an action,
because there has been no transfer or interchange of pro-
perty during the war, and no claim attached to either party
till after the restoration of peace, inasmuch as till then no
one of the contracts of sale was complete. [Bayley, J.
The goods were not finally delivered to the purchaser till
after the restoration of peace, but they were sold, some of
them at least, during the continuance of the war]. The con-
tract was not complete till after peace was restored, and
then such a contract will support an action; the rule has
never yet been carried farther, and the Court will not now
extend it, particularly where manifest injustice must be the
result of so doing, as it would be here, for the plaintiffs
are in equity entitled to this money, and at any rate Wad-
dington, or his assignees, can have no possible right to
retain it. [Bayley, J. Does not the original illegality of
the transaction render it void in all its subsequent parts?
That appears to me to be the only question]. It is confi-
dently submitted that it does not, and there are many
cases which seem to warrant the position. It has been
held that an agent cannot set up the illegality of the con-
(a) 6 T. R. 35.
(b) 8 Id. 148.

tract, in defence of an action for money had and received
by his principal; Tenant v. Elliott (a). The illegality

there set up was grounded on a particular statute, but the
principles laid down by the Court were broad and general.
Buller, J., said, "Is the man who has paid over money
to another's use, to dispute the legality of the original
consideration? Having once waived the legality, the
money shall never come back into his hands again. Cân
the defendant then in conscience keep the money so paid?
For what purpose should he retain it? To whom is he to
pay it over; who is entitled to it but the plaintiff?" And
Eyre, C. J., added, "the defendant is not like a stake-
holder. The question is, whether he who has received
money to another's use on an illegal' contract, can be
allowed to retain it, and that not even at the desire
of those who paid it to him. I think he cannot." Here
Waddington was an agent, and stood precisely in the
situation of the defendant in that case; the cases, there-
fore, are parallel. But Waddington, by the accounts
which he rendered after the restoration of peace, ad-
mitted that the plaintiffs had a cause of action against
him, and upon that ground his estate is liable to this debt.
This must be considered in the same light as if it was an
action for money had and received against him. [Bayley,
J. Then the question of the illegality will still remain].
Doubtless it will, and therefore it is contended that the
subsequent admission of Waddington purges the supposed
illegality, and makes him liable at all events; as in Barnes
v. Hadley (b), where it was held, that "after usurious
securities given for a loan have been destroyed by mutual
consent, a promise by the borrower to repay the principal
and legal interest is founded on a sufficient consideration,
and is binding." [Bayley, J. That was on the ground
that there was a good moral consideration for the second
promise that there was, in fact, a new contract, which
purged the illegality of the former]. Here also there is a
(a) 1 Bos. & Pul. 3.
(b) 2 Taunt. 184.

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moral consideration, and in effect a new contract. [Abbott, C. J. In that case the debt was void, here it is illegal; those are distinct terms: besides, there the debt was void upon a statute passed for the benefit of individuals; here it is illegal, as being against public policy]. The distinction between void and illegal seems difficult to be comprehended, for a debt can only be void because it is illegal. Duhammel v. Pickering (b), is another authority in favour of the plaintiffs. [Bayley, J. There the defendant was probably a prisoner in a foreign country, and while in that situation drew the bills; under those circumstances, he was still at liberty to enter into a contract, and might bind himself, if he chose. Besides, there the money was actually advanced, and a debt really created in France; then clearly, after peace was restored, a fresh promise to pay was binding. It seems to me, that there never was any illegality in that transaction, from first to last. Antoine v. Morshead (b), is another case to the same effect,. but they do not appear to me either of them to touch the present]. There are no other authorities that bear upon the point. The rule, so far as it has already been laid down, is sufficiently severe, and the Court will not extend its operation. There is nothing in the plaintiffs' claim, opposed either to morality or to public policy; and the justice of the case is, that they should be entitled to prove their debt.

F. Pollock, for the defendants. No part of this debt is proveable under the commission, because there is no consideration, either express or implied, to support it in a court of law, nor any equitable ground, upon which the creditors could obtain relief in a court of equity. The only question in this case, is, whether there is any consideration, upon which an express contract can be sustained, or an implied contract can be raised, by law. Out of an illegal transaction no legal right can arise. (a) 2 Stark. 90. (b) 6 Taunt. 237. 1 Marsh 558.

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 circumstances, 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.

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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