197 F. 237 | E.D. Pa. | 1912
In harmony with the authorities, it is agreed by both parties that neither a plaintiff nor a defendant may found his case, either in whole or in part, upon a fraudulent transaction, although his antagonist may have participated therein. It is no doubt true that, although both may have joined in the fraud!, a plaintiff may nevertheless recover if he is able to make out his case without calling upon the fraud for help; but he must fail if such help is indispensable. In the present dispute the plaintiff is receiver of the insurance company that was party to the fraud in question, and'it is obvious I think that, although to some extent he may he the representative of creditors, he must accept the consequences of the undeniable fact that the company did participate in the fraudulent transaction. Whatever burden that fact imposes, he must of necessity bear; otherwise, his appointment would in effect transform- the fraud into an innocent agreement, thus making a new contract between the company and the defendant. The case now under examination differs from
It may be added that the fraud did not succeed, and that the plaintiff’s failure to recover will simply leave the parties where they were. The collateral deposited with the note has probably no value whatever; but, even if it has, the defendant may easily be compelled to surrender it to the plaintiff for the benefit of the insurance company or the creditors. It will no doubt be voluntarily handed over.
The motion is refused.