1833. MUNK v. CLARKE. Such a declaration of his rights and powers would seem to imply also a similar declaration of his liability; and as an ordinary assignee chosen by the creditors, who should have money in his hands collected from the bankrupt's estate, would be liable to refund the same to the bankrupt as being his money, in case he should be able to disprove the bankruptcy, so, also, we think in the present case, the official assignee, who, if he is the sole assignee, is by that act deemed to be, to all intents and purposes, the same as a sole assignee chosen by the creditors, is liable to the same actions as such assignee where the same circumstances take place. As to the second question above raised, the facts attending the application to the commissioners relative to the appointment of the Defendant as official assignee, are not stated with any degree of precision or accuracy; we can only say therefore, in general terms, that if the Defendant should turn out to have been appointed to the office through the means, instrumentality, or procurement of the Plaintiff, it will be very difficult to say he can have any right to maintain this action. It was the duty of the Defendant, when appointed, to receive the money in question; he had no option under the statute; and this was well known to the Plaintiff at the time of his appointment. Whatever may have been the object or motive of the Plaintiff, whether to enable himself to dispute the commission, or for any other purpose, can make no difference in the duty imposed by the statute on the Defendant; the moment he was appointed, that duty attached upon him. And we think it at least very doubtful, whether the bankrupt, who assisted in or procured the appointment of the Defendant to an office of which the duty was to receive the rents of his estate for the use of the creditors, can afterwards turn round upon him, and charge him with having received those rents to the use of himself, the bankrupt. The The case referred to of Like v. Howe and Another (a) appears a strong authority to that point. A new trial therefore must be had if the parties think it advisable. (a) 6 Esp. N. P. 20. 1833. MUNK v. CLARKE. DE BEGNIS v. ARMISTEAD. The June 11. Plaintiff, being participant in the concern. could not recover money he had paid at the request of the Defendant, in THIS action was brought by an opera singer against Held, that the proprietor of the Amphitheatre at Liverpool, to recover 1677., the amount of a bill of exchange, accepted by the latter in payment of a balance of account. declaration contained also the usual money counts. In September 1831, the parties entered into an agreement to bring out Italian operas and dancing, for a few weeks at the Defendant's theatre at Liverpool. By the an unlicensed terms of that agreement, the Defendant bound himself theatre. to furnish the lights, scenery, orchestra, an efficient corps de ballet and dresses for the dancers; and the Plaintiff contracted to provide the opera singers, and also their dresses. It was further stipulated, that the parties were to divide the receipts, on each night, equally between them; and they were each to have one clear benefitnight. That agreement was acted upon, but the speculation turned out a losing one. On the winding up of the accounts between the parties, a balance of 1671. appeared to be due to the Plaintiff, for which he ultimately obtained the bill in question. The defence was, that the bill was void, as given for an illegal consideration; namely, as a security for money received for performances at the Liverpool theatre, which, from subsequent negotiations respecting a licensed theatre possessed the conduct of 1833. MUNK V. CLARKE. Such a declaration of his rights and powers would seem to imply also a similar declaration of his liability; and as an ordinary assignee chosen by the creditors, who should have money in his hands collected from the bankrupt's estate, would be liable to refund the same to the bankrupt as being his money, in case he should be able to disprove the bankruptcy, so, also, we think in the present case, the official assignee, who, if he is the sole assignee, is by that act deemed to be, to all intents and purposes, the same as a sole assignee chosen by the creditors, is liable to the same actions as such assignee where the same circumstances take place. As to the second question above raised, the facts attending the application to the commissioners relative to the appointment of the Defendant as official assignee, are not stated with any degree of precision or accuracy; we can only say therefore, in general terms, that if the Defendant should turn out to have been appointed to the office through the means, instrumentality, or procurement of the Plaintiff, it will be very difficult to say he can have any right to maintain this action. It was the duty of the Defendant, when appointed, to receive the money in question; he had no option under the statute; and this was well known to the Plaintiff at the time of his appointment. Whatever may have been the object or motive of the Plaintiff, whether to enable himself to dispute the commission, or for any other purpose, can make no difference in the duty imposed by the statute on the Defendant; the moment he was appointed, that duty attached upon him. And we think it at least very doubtful, whether the bankrupt, who assisted in or procured the appointment of the Defendant to an office of which the duty was to receive the rents of his estate for the use of the creditors, can afterwards turn round upon him, and charge him with having received those rents to the use of himself, the bankrupt. The The case referred to of Like v. Howe and Another (a) appears a strong authority to that point. A new trial therefore must be had if the parties think it advisable. (a) 6 Esp. N. P. 20. 1833. MUNK v. CLARKE. DE BEGNIS v. ARMISTEAD. June 11. THIS action was brought by an opera singer against Held, that the proprietor of the Amphitheatre at Liverpool, to recover 1677., the amount of a bill of exchange, accepted by the latter in payment of a balance of account. The declaration contained also the usual money counts. Plaintiff, being participant in the concern, could not recover money he had paid at the request of the Defendant, in the conduct of In September 1831, the parties entered into an agreement to bring out Italian operas and dancing, for a few weeks at the Defendant's theatre at Liverpool. By the an unlicensed terms of that agreement, the Defendant bound himself theatre. to furnish the lights, scenery, orchestra, an efficient corps de ballet and dresses for the dancers; and the Plaintiff contracted to provide the opera singers, and also their dresses. It was further stipulated, that the parties were to divide the receipts, on each night, equally between them; and they were each to have one clear benefitnight. That agreement was acted upon, but the speculation turned out a losing one. On the winding up of the accounts between the parties, a balance of 1677. appeared to be due to the Plaintiff, for which he ultimately obtained the bill in question. The defence was, that the bill was void, as given for an illegal consideration; namely, as a security for money received for performances at the Liverpool theatre, which, from subsequent negotiations respecting a licensed theatre possessed 1833. DE BEGNIS บ. possessed by the Defendant at Manchester, it appeared the Plaintiff knew was unlicensed. The Plaintiff, however, proved that the bill was given in respect of money ARMISTEAD. which he had paid at Defendant's request; viz., 120. for dresses for the dancers; 781. to pay the expence of carrying down the ballet corps and Venafra, the ballet master; and 30%. for Defendant's expences in London. Gaselee J., before whom the cause was tried, held, that if the bill was given to secure payment of the money taken at the doors of an unlicensed theatre it was void in law, and the Plaintiff could not recover: he left it to the jury, however, to say whether it was given for that purpose, or, as stated, on the part of the Plaintiff, for monies paid by the Plaintiff on account of the Defendant. The jury were of the latter opinion, and returned a verdict for the Plaintiff for the amount of the bill. Ludlow Serjt. obtained a rule nisi to set aside the verdict as against evidence, or to reduce it to 30l. on the ground that the residue of the sum claimed by the Plaintiff had been lent or paid in pursuance of an illegal contract for dramatic entertainments at an unlicensed theatre. He cited Gallini v. Laborie (a), where it was held that no action could be maintained for the breach of an agreement "to dance at the king's theatre in the Hay Market, or at such other place as the Plaintiff should appoint," if it appeared that no licence for that theatre was granted by the Lord Chamberlain, as required by the 10 G. 2. c. 28., and that the Plaintiff did not request the Defendant to dance at any other place which was licensed. Wilde and Spankie, Serjts, who shewed cause, after speaking to the sufficiency of the evidence, contended, (a) 5 T. R. 242. that |