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![handle is hein.slavery/ssactsengr1028 and id is 1 raw text is: JONES V. BARKLEY
should have been taken on the demurrer, because the agreement, as proved, was
stated on the record, and, if illegal, the plaintiffs had not shewn a good cause of action.
But they also insisted, that it was not within the sense or intent of the statute. The
object of that Act, like that of all the other bankrupt laws, was to procure an equal
distribution of the bankrupt's effects among all his creditors. This general object
ought to be kept in view in construing them all, and the agreement in this case tended
to secure an equal distribution, and therefore promoted the policy of the statutes.
The Attorney-General, Lee, and Wood, on the other side, insisted, that the objec-
tion did not arise upon the record, the circumstances under which Carr had signed not
being stated in the declaration. As to the objection itself, it was clearly founded in the
words of the statute, which were general enough to extend to the case of a security
for money given to all the creditors, and also within the mischief meant to be provided
against; for the design of the Act was to prevent creditors from taking advantage
[696] of the bankrupt's situation, or practising on the compassion of his relations, in
order to extort money as a price for doing what, it is true, they are not compellable
to do by positive law, but what there is a moral duty upon them to do voluntarily, if
the bankrupt has fairly delivered up his whole property for their behoof. For this
they cited a case of Smith v. Bromley, decided by Lord Mansfield, at Guildhall, at the
sittings after E. 1760 (a).
The Court took time to consider, and on Saturday, the 24th of November, Lord
Mansfield delivered their opinion in favour of the defendant.
His Lordship said, he well remembered the case of Smith v. Bromley, and that
Buller, Justice, had a very good note of it, which he desired be would read, and which
he accordingly did, to the following effect:-
Smith v. Bromley.
Action for money had and received to the plaintiffs use; upon this case: The
plaintiff's 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 spmebody 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
was nonsuited in that action; and now she brought this action against Bromley him-
self; 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 con-
sideration, 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 particeps criminis, had paid it voluntarily
and knowingly, and without any deceit, and so was within the case of Tomkins 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 upoi his creditors; in which case only,
whereby the distribution becomes unequal, is there any iniquity in receiving a con-
(a) Mentioned Law of Nisi Prius, p. 132, Ed. 1775.
441
2 DOUGL 696.](ViewImageLocal?handle=hein.slavery/ssactsengr1028&div=1&collection=&method=preview&ext=.png&size=3)