1 Ala. 34 | Ala. | 1840
— The facts of this case disclose a transaction by which the United States were defrauded of a sum of money; and one of the parties to the fraudulent transaction seeks to recover from another, the amount received from the United States, on the pretence that it was paid to the defendant as agent for the plaintiff, for a demand made out and allowed in his name.
If Barclay’s name had been used without his knowledge or consent, to carry into effect the illegal object to be attained, his right to recover the money received could not be disputed, unless Boyd had been notified by the United States, to retain the money. The sole object of Barclay in seeking a recovery, might
If Boyd, throughout this transaction had acted as the mere agent.of Barclay, and in this character, had received the money, it might be difficult to distinguish this case from those of Tenant v. Elliot (1 B. & P. 3) and Farnur v. Russel (Ib. 295); in the former of which it was decided, that a broker who bad effected an illegal policy of insurance, could not retain the money received by him from the underwriter, against his principal; and in the latter case, a carrier who had received the payment for some counterfeit farthings sent by him to a purchaser, was held accountable for the money so received, to the seller of the counterfeit farthings. These decisions go very far to sustain the position, that if the person receiving money paid on account of a fraudulent or illegal transaction, is the mere agent for another, he will not be permitted to go into evidence of the illegal transaction, unless it is necessarily connected with the implied contract on which the action to compel the payment of the money is founded.
But, we think it is clear from the statement of the evidence, that Boyd’s agency in this transaction was a mere pretence, used
To use the words of C. J. Wilmot, in Collins v. Blantern (2 Wils. 347), “the manner of the transaction was to gild and conceal the truth, and whenever courts of law see such attempts made to conceal wicked deeds, they will-brush away the cobweb varnish and shew the transactions in their true light.”
In this view of the merits of this case, it is clear that the first charge asked for by the defendant’s eounsél ought to have been given. The second and third charges requested, do not seem to be very explicit, and do not call for a particular examination, as we conceive that the opinion we have expressed will sufficiently indicate the rules which must govern,this case.
Let the judgment be reversed and the cause remanded.