maxim now under consideration was inapplicable, for, one of the plaintiffs not being in delicto, the defendant ought not, as against him, to be allowed to set up his own fraud (e). And where defendant entered into a composition-deed, together with the other creditors of plaintiff, under an agreement that plaintiff should give defendant his promissory notes for the remainder of the debt, which were accordingly given, and the amount thereof ultimately paid by plaintiff, it was held, that he might recover such amount from defendant in an action for money paid and money had and received; for, as observed by Lord Ellenborough, this was not a case of par delictum; it was oppression on one side and submission on the other: it never can be predicated as par delictum, when one holds the rod, and the other bows to it (f). Where, however, money has been paid by one of two parties to an illegal contract to a third person, for the use of the other party, an action for money had and received will lie against such third person to recover it (g). For instance, where money was paid by an underwriter to a broker for the use of the assured, on an illegal contract of insurance, it was held, that the assured might recover the money from the broker, on the ground, that the broker could not insist on the illegality of the contract as a defence, the obligation on him arising out of the fact, that the money was received by him to the use of the plaintiff, which created a promise in law to pay (h). If, however, the money has actually been paid over by such third party, it (e) Skaife v. Jackson, 3 B. & C. 421. See Tregoning v. Attenborough, 7 Bing. 97. (f) Smith v. Cuff, 6 M. & S. 160; Turner v. Hoole, Dow. & Ry., N. P. C., 27; Alsager v. Spalding, 4 B. N. C. 407; Horton v. Riley, 11 M. & W. 492; 2 Dougl. R., 4th ed., 697 a, n. (F. 7). See Browning v. Mor. ris, Cowp. 790. (g) 1 Selw. N. P., 10th ed., 89; per Bayley, J., Hastelow v. Jackson, 8 B. & C. 224. (h) Tenant v. Elliott, 1 B. & P. 3. See M'Gregor v. Lowe, Ry. & M. 57. i Joint tortfeasors. cannot, agreeably to the principles above stated, be recovered back, though it may be so recovered, if not actually paid over, as where credit only has been given for it in account; for, in cases of illegal transactions, money may always be stopped while it is in transitu to the person who is entitled to receive it, and the Court will not assist an illegal transaction in any way (i). In one case, for instance, which is peculiarly illustrative of this doctrine, it appeared that an illegal wager had been laid, in which the plaintiff and the defendant were jointly interested; the money was to be paid by the loser on a future day; before that day arrived, the sum which the defendant was entitled to receive as his share of the profits of the bet was paid over to him by the plaintiff in anticipation of the expected payment of the bet,—an expectation which, in the result, was not realised. This was held to be, in fact, a partnership in the profits of an illegal adventure; if the plaintiff had received the whole, the defendant could not have recovered his share. The defendant did, in fact, receive a sum of money as his share of the profits, but it turned out that there were no profits; and, under such circumstances, the law would not lend its assistance to adjust the profits of the partnership, or to settle the claims of the parties engaged in it (k). To the above maxim respecting par delictum may also be Contribution, referred the general rule, that an action for contribution cannot be maintained by one of several joint wrongdoers against another, although the one who claims contribution may have been compelled to pay the entire damages recovered as compensation for the tortious act (7). It is, however, expressly laid down, that this rule does not extend to cases of indemnity, where one man employs another to do acts not unlawful in themselves for the purpose of asserting a right (m); and it is also clear, from reason, justice, and sound policy, that this doctrine applies only where the person seeking redress must be presumed to have known that he was doing an unlawful act. For instance, if a man buys the goods of another from a person who has no authority to sell them, he is a wrongdoer to the person whose goods he takes, yet he may recover compensation from the person who sold the goods to him, although the latter did not expressly warrant that he had a right to sell, and did not know that he had no right to sell (n): moreover, the rule as to non-contribution between wrongdoers must be further qualified in this manner, that, where one party induces another to do an act which is not legally supportable, and yet is not clearly in itself a breach of law, the party so inducing shall be answerable to the other for the consequences (o). QUI PRIOR EST TEMPORE, POTIOR EST JURE. (Co. Litt. 14. a.)—He has the better title who was first in point of time. pancy. Occupancy, according to Sir W. Blackstone, is the true Title by occuground and foundation of all property: hence, it is a rule of the law of nations, suggested by natural reason, that he who can first declare his intention of appropriating to his & R. 83; Farebrother v. Ansley, 1 Camp. 342, cited Shackell v. Rosier, 2 B. N. C. 647. (m) Per Lord Kenyon, C. J., 8 T. R. 186, cited, 8 Bing. 72. (n) Judgment, Adamson v. Jarvis, 8 Bing. 72, 73. The principle of this rule is, that, if the vendor affirms (0) Per Lord Denman, C. J., Betts own use that which before belonged to nobody, and, in pursuance of such intention, actually takes it into possession, shall thereby gain the absolute property in it (p): quod nullius est, id ratione naturali occupanti conceditur (q). This rule, however, does not hold true with respect to land according to the law of England; for, wherever a tenant dies intestate, and no other owner of the lands is to be found, in this case the law vests the ownership in the king, or in the subordinate lord of the fee by escheat (r): quod nullius est, est domini regis (s). On the maxim, prior tempore potior jure, likewise depends the right of property in treasure trove, in wreck, waifs, and estrays, which, being bona vacantia, belong by the law of nature to the first occupant or finder, but which have, in some cases, been annexed to the supreme power by the positive laws of the state (t). “There are," moreover, "some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common, being such wherein nothing but an usufructuary property is capable of being had, and therefore they still belong to the first occupant during the time he holds possession of them, and no longer: such (among others) are the elements of light, air, and water, which a man may occupy by means of his windows, his gardens, his mills, and other conveniences. Such also, are the generality of those animals which are said to be feræ naturæ, or of a wild and untameable disposition, which any man may seize upon, and keep for his own use or pleasure. (p) 2 Bla. Com. 258. Possession is sufficient to support trespass against a mere wrongdoer. See the cases cited, Broom, Parties to Actions, 200 et seq. (q) Pandect., lib. xli. (r) 2 Bla. Com. 261. (s) Fleta, lib. 3; Bac. Abr. "Prerogative," (B.) (1) The reader is referred for information on these subjects to 1 Bla. Com. 291 et seq. The finder of a jewel has such a property as will enable him to retain it against all but the rightful owner. (Armory v. Delamirie, 1 Stra. 504. See Mortimer v. Cradock, 7 Jurist, 45). All these things, so long as they remain in possession, every man has a right to enjoy without disturbance; but, if once they escape from his custody, or he voluntarily abandons the use of them, they return to the common stock, and any man else has an equal right to seize and enjoy them afterwards" (u). ture. In accordance with the above maxim, the rule in descents Primogeniis, that, amongst males of equal degree, the eldest shall always inherit land in preference to the others, unless, indeed, there is a particular custom to the contrary; as in the case of gavelkind, by which land descends to all the males in equal degree together; or borough English, according to which the youngest son, and not the eldest, succeeds on the death of the father (r). This right of primogeniture does not, however, exist amongst females; and therefore, if a person dies possessed of land, leaving daughters only, they will take jointly as co-parceners (y). Further, it is a general rule of law, that, whenever there are two conflicting titles, the elder shall be preferred, and of this one instance has already been noticed in considering the law of remitter; thus, if a disseisor lets the land to the disseisee for years, or at will, and the latter enters, the law will say that he is in on his ancient and better title (z). So, where there are conflicting rights as to real property, courts of equity will inquire, not who was first in possession, but under what instrument, and when, is the right dated in point of time; or, if there be no instrument, they will ask, when did your right arise--who has the prior right? (a). It forms, therefore, the general rule between incumbrancers (u) 2 Bla. Com. 14; Holden v. Smallbrooke, Vaugh. 187. See Acton v. Blundell, 12 M. & W. 324, 333. (x) 2 Bla. Com. 83, 84. (y) Id. 187. (z) Noy, Max., 9th ed., p. 53; Co. Litt. 347. b.; Wing. Max., p. (a) Argument of Sir E. Sugden in 239. The elder ferred. title pre |