parties, to pass the interest. It was on the ground also of illegality, that deeds of separation were formerly not pleadable in the ecclesiastical court, as a bar to its further proceedings, being considered to be illegal contracts, implying a renunciation of stipulated duties, and an assumption of a false character, contrary to the real status persona (k). The true test whether a demand connected with an illegal transaction is capable of being enforced at law or not, depends on the question, whether or not plaintiff requires any aid from the illegal transaction to establish his case. If he does, he cannot enforce his claim. For, 'Allegans suam turpitudinem non est audiendus' (). If he does not, he can recover, unless he is in pari delicto with defendant; for in the latter case the rule applies, 'In pari delicto potior est conditio defendentis aut possidentis' (m). Thus, plaintiff laid an illegal wager with B., and defendant assumed a part in the bet. Plaintiff won the bet. It was expected that B. would pay on a certain. day, before which time, plaintiff, at defendant's request, lent him his share of the winnings, advancing the money to him. B. died insolvent before the day of payment, and the bet was never paid. (k) See per Sir W. Scott in Mortimer v. Mortimer, 2 Hagg. Consist. at p. 318, cited by Lord Westbury in Hunt v. Hunt, 31 L. J. Ch. 161. (7) 4 Inst. 279. () See per James, L.J., in In re Mapleback, Ex parte Caldecott, Held that, inasmuch L. R. 4 Ch. D. 150. But if money has been paid under compulsion, and so that, though both parties are in delicto, they are not in pari delicto, the money may be recovered back. Atkinson v. Denby, 6 H. & N. 778; 7 II. & N. 934. as plaintiff could not establish his case without the aid of the illegal wager, he could not recover (n). Plaintiff, being in embarrassed circumstances, in pursuance of an arrangement between himself and A., made over to A. all his stock in trade, and fictitious bills of exchange were given by A. in plaintiff's favour. Possession of the goods was given to A., together with an inventory, but no bill of sale was executed by plaintiff. The object of the transaction was to prevent plaintiff's creditors getting hold of the goods, and so g paid in full. Defendant was a creditor for £100, ad was cognizant of what had been concocted between A. and plaintiff. After A. had removed the goods from plaintiff's premises, two meetings of plaintiff's creditors were held, but no compromise was effected with the creditors. Some months afterwards A. executed a bill of sale of the goods to defendant, for the alleged purpose of securing the debt due from plaintiff to defendant, but plaintiff was no party to the bill of sale, nor did he sanction or know of it. Plaintiff having demanded the goods from A. and defendant, brought an action against defendant for their detention. Held, that the fraudulent purpose not having been carried out, plaintiff was not relying on the illegal transaction, but was entitled to repudiate it, and to recover his goods from A., and that defendant had no better title than A., as he knew how A. had become possessed of the goods (o). It must be remembered, however, in applying the (n) Simpson v. Bloss, 7 Taunt. 246. (0) Taylor v. Bowers, L. R. 1 Q. B. D. 291; see also Bowes v. above principle, that the defence of illegality depends partly upon the question whether or not the contract sued upon is executory or executed. For certain contracts, though invalid whilst they remain executory, are considered valid when executed, in accordance with the rule 'Quod fieri non debuit factum valet’(p). Imperfect and void deeds.-A person, by executing a deed, is not estopped from showing that the deed is imperfect or void. Thus, in an action on a covenant contained in a lease by indenture, where the counterpart had been executed by the lessee (defendant), but the original lease had only been executed by two out of the four lessors, held, that defendant was not estopped by his execution of the counterpart, from showing, under a plea of non est factum, that only two lessors had executed the original lease (2). It does not appear, however, that this rule, though applied as above to a covenant contained in a lease by deed, would be applicable to a covenant contained in an ordinary deed. For, in Pitman v. Woodbury (r), Parke, B. draws the following distinction between the two cases. He says, "The cases establish, that a covenantee in an ordinary indenture, who is a party to it, may sue the covenantor who (p) Ayerst v. Jenkins, L. R. 16 Eq. 280, and for a list of older cases where relief was granted or refused in equity under similar circumstances, see Benyon v. Nettlefold, 3 Mac. & G. 100, at pp. 100, 101; and for further information, see the notes to Marriott v. Hampton, and Merry weather v. Nixan, in Smith's L. C. (8th ed.), vol. ii., p. 551. (g) Wilson v. Woolfryes, 6 M. & S. 341; Cardwell v. Lucas, 2 M. & W. 111; see, however, Cooch v. Goodman, 2 Q. B. 598; Aveline v. Whisson, 12 L. J. C. P.58. (r) 3 Ex. 11; see also Swatman v. Ambler, 8 Ex. 72. executed it, although he himself never did: for he is a party, although he did not execute, and parties to an indenture may sue, though strangers cannot; and it makes no difference that the covenants of the defendant are therein stated to be in consideration of those of the covenantee. Of this there is no doubt, nor that a covenant binds without consideration. But with respect to leases by indenture, the older authorities show that the covenants, which depend on the interest of the lease, and are made because the covenantor has that interest, such as those to repair and pay rent during the term, are not obligatory if the lessor does not execute; not because the lessor is not a party, but because that interest has not been created to which covenants are annexed, and during which only they operate; as such covenants undoubtedly do not, if the term ends by surrender, and are suspended by eviction by the lessor, so they do not begin to operate unless the term commences. The foundation of the covenant failing, the covenant fails also. Unless there be a term, a covenant to repair during it is void. But with respect to collateral covenants not depending on the interest in the land, it is otherwise, and they are obligatory. This rule of law is to be found in the older authorities, which are collected in Com. Dig. 'Covenant' (F)." Again, a person is not estopped by a statement contained in a deed which he did not execute, unless he claims under a person who executed it (s). And neither party to a deed is estopped, by executing it, from ob (s) Doe d. Shelton v. Shelton, 3 A. & E. at p. 283. jecting to its validity, that it is not properly stamped (†). Further, no estoppel arises out of a void deed (u). 2. Infants and Married Women. These are not estopped, by executing a deed, from pleading their infancy or coverture respectively. Thus an old writer says (x), "If an infant delivers a deed which bears date two years after, and at the end of the two years he is of full age, he shall not be estopped to show the delivery before the date, neither shall a feme covert." So if a feme covert were bound by the name of A. S., widow, or if an infant were bound by the name of J. S., of 30 years old, yet the feme might plead coverture, and the infant infancy (y). Again, if a feme covert or infant joined in granting a lease, the lessee was not estopped from pleading nil habuit tenementis for estoppels must be mutual, and as the feme covert or infant could not be estopped, neither would the lessee (z). A married woman is, however, bound by estoppel by a recital in a deed duly executed and acknowledged by her (a). (t) Steadman v. Duhamel, 1 C. B. 888. (u) Per Parker, C.J., in Mitchel v. Reynolds, 1 P. Wms. 196. And a recital in a void bond raises no estoppel. Norfolk's Case, Hardres, 464. But it is otherwise in the case of deeds which are merely voidable; see Dunn v. Wyman, 51 L. J. Q. B. 623. (x) Plowden's Queries, p. 121. (y) Vin. Ab. Estop. p. 474, citing Bro. Estop. pl. 98, and Vin. Ab. Estop. p. 432, citing Linch v. Hooke, 6 Mod. 311. (2) Brereton v. Evans, 2 Cro. Eliz. 700; see also a note in James v. Landon, 1 Cro. Eliz. 36. A feme covert might, however, be estopped by a record, e.g., a fine recorded. Hume v. Burton, 1 Ridgway's P. R. at p. 567. But even this estoppel only continued to operate during her coverture. Com. Dig. Estop. p. 195. (a) Jones v. Frost, L. R. 7 Ch. App. 773. |