Judgment. 35 Beav. at p. 213, "That it is not honest for the defendant to keep the land." BURTON The evidence of the defendant thus establishes the original trust-it is in fact undisputed, and the learned Judge found in the plaintiff's favour upon that point, and the only answer to that expressly raised in the statement of defence is, that in 1873 he abandoned all claims. There was no plea setting up the illegality now relied on, and my impression is that inasmuch as the plaintiff had succeeded in making out his case without disclosing the alleged fraud, the defendant should not have been allowed to plead it, he being a party to it. In order to apply the rule melior est, &c., governing such cases, it is necessary to consider not only which is plaintiff and which defendant, but whether the fraud is alleged as a defence or as a cause of action; for although it is true in general that the law will not lend its aid to enforce a fraudulent or illegal contract, still if the plaintiff can make out his case without disclosing the alleged fraud, the defendant will not be allowed to shew that he was equally guilty with the plaintiff as a reason why he should not recover. Thus in Roberts v. Roberts, 2 B. & Ald. 367, where the plaintiff at the trial produced a proper deed of conveyance, and proved its execution, and by that established his title to the premises, and the defendant endeavoured to defeat this by shewing that the deed was delivered for the fraudulent purpose of giving to the plaintiff a colourable qualification to kill game, he was not allowed to be heard upon it, no man being allowed to allege his own fraud. In Begbie v. The Phosphate Sewage Co., L. R. 10 Q. B. 491, the plaintiff was not entitled to recover because he could not present his case to a jury without necessarily disclosing the unlawful purpose in furtherance of which the money was paid. See remarks of James, L. J., in Ex parte Ball, 10 Ch. D. at p. 669: "If a plaintiff can prove his case without proving any illegality he can succeed; it is no answer for the defendant afterwards to prove an illegality." See also Evans v. Dravo, 24 Pa. St. 62; Swan v. Scott, 11 Serg. Judgment. & R. at p. 164. Applying these principles to the present case:-The plaintiff did succeed in establishing his case, and it was not competent to the defendant in my opinion to meet that by showing an illegality to which he was himself a party. If there had been a written declaration of trust in this case-putting that in would have established the plaintiff's rights-the defendant, in order to defeat that, alleges and attempts to prove the fraud. In respect to that matterthe real substance of the dispute he is the actor. In attempting to prove it he brings himself within the maxim, that a man is not allowed to allege his own fraud. If I am right it is not necessary to discuss the question of the admission of the evidence which was admitted without any plea of this alleged illegality upon the record. But even on the assumption that such evidence could be received, I think with great deference it falls far short of what should be required in a case of this kind set up for the first time after the institution of these proceedings, nearly twenty years after the alleged frauds are said to have occurred. Some judgments were proved amounting in the whole only to about $1000, but there was no evidence to show that any of them remained unpaid, whereas the plaintiff swears that every one of them was paid. In fact he goes further, and swears that he never contracted a debt which he did not pay, and although his personal property was under seizure for some time it is not shown that even this had to be resorted to for the payment of the claims. The learned Judge at the trial says expressly that he does not prefer the evidence of one brother to the other, but taking the defendant's evidence in connection with the fact that these judgments were proved he must hold the fraudulent intent established. I do not for a moment dispute that a person may have a fraudulent intent imputed to him to defeat or delay creditors if he denudes himself by a voluntary deed of the principal 22-VOL. XVII. A.R. BURTON BURTON Judgment. part of his property and never pays them, but if it is shown that he has other property available for their payment, and does shortly after the execution of the deed pay them, that inference is rebutted. We have a right to accept the uncontradicted evidence of the plaintiff that these debts were all paid and that he had then a considerable amount of personal property. I do not think the evidence of these judgments under the circumstances sufficient to turn the scale; on the contrary it should have supported the evidence of the plaintiff that he was well able to pay his debts. I am therefore of opinion that the evidence was not sufficient to show a fraudulent intent, and that this judgment should have been rendered for the plaintiff who established the trust. In this view it is not necessary to consider a point which was not taken upon the argument, but which may be not without weight, viz., that there was no estate or interest in this land which was exigible under execution, and that an assignment therefore of such a description of property could not be fraudulent within the statute of Elizabeth. I am of opinion that the appeal ought to be allowed and judgment given for the plaintiff, and the defendant ordered to reconvey the lands, and to account for the rents. and profits received. OSLER, J. A. : I do not see my way to reverse the judgment so far as it stands upon the facts of the plaintiff's indebtedness at the date of the conveyance, and of the intention to defraud creditors. I think there is abundant evidence to support the learned Judge's findings upon both of these points. The appellant relies upon a trust; and that being so, the onus is upon him to show what the trust was: In re Great Berlin Steamboat Co., 26 Ch. D.616. That was a question of fact and if the trust was what Ferguson, J., finds it, OSLER J.A. the plaintiff is necessarily making out his title through the Judgment. illegal transaction, and is within the rule, potior est conditio defendentis. I do not see that at this stage of the case anything can turn upon the omission of the defendant to plead the fraud expressly in his statement of defence; he ought to have done so, and I daresay if this objection had been taken at the trial the evidence would have been excluded, for where a defendant puts forward a dishonest defence he ought, as has been said, to write himself rascal on the record, and against his opponent's objection he shall not be permitted to give evidence of such a defence if he has not pleaded it. But here I am inclined to think that there was no surprise. Both parties seem to have anticipated that some such defence would be entered. upon as the learned Judge gave effect to, and therefore the case must be treated as any other case which has been defended without objection on a ground not expressly pleaded. If it be thought the defence is proved, the application to amend the pleading must be allowed. But a defendant who opposes such a defence to what if it fails is a right and just demand, must make it out very clearly indeed in all its essentials, and here I think he has not succeeded in showing beyond all reasonable doubt that the deed of January, 1858, could have had the effect of defeating any right or interest in the land which could then have been the subject of legal or equitable execution at the suit of any of his creditors. The land was not patented, though I do not rely at all upon that, for if the plaintiff himself had been located by the Crown under the usual contract for purchase, I do not see why his interest in the land could not have been got at by his creditors: Yale v. Tollerton, 13 Gr. 302; Ferguson v. Ferguson, 16 Gr. 309. The locatee and purchaser was the plaintiff's father, who died intestate before the Act abolishing the right of primogeniture. His interest in the land would therefore descend to his eldest son, who was not the plaintiff. It may be that there was some family arrangement entered into before OSLER Judgment. the father's death for a division and allotment of the property among his children which would be binding upon the eldest son and prevent him from asserting any claim to this land, and one may surmise from what the plaintiff says that this was probably the case, but the evidence falls far short of establishing it. If there was nothing but a voluntary arrangement, and the tangible proof does not go beyond that, the conveyance was not one by which any creditor could be defrauded, defeated, and delayed, and there is no principle upon which the plaintiff should not have the relief he asks. On this ground, I concur in reversing the judgment. MACLENNAN, J. A. : I am of opinion, with great respect, that the judgment ought to be reversed. The learned Judge thought there was nothing to choose between the plaintiff and the defendant in point of credibility, and that leaves us free to form our own opinion upon the question of fraud, and the evidence in support of it, and I am not satisfied that an intention to hinder and delay creditors is made out. There were debts, it is true, but they amounted to no more than from $800 to $1,000 altogether, and the plaintiff says he paid them. There is no attempt to shew the contrary-viz., that any one was hindered or delayed. If the intention had been to defraud, it was a very clumsy attempt. It was in the form of a sale for $5,000, subject to the debt to the Crown. If he had sold on the terms mentioned in the impeached instrument, the sale of this property alone would have produced fivetimes the amount of all the debts he owed as far as appears. The plaintiff says the deed was made because he was making arrangements to remove to the United States. He did not go then, but he did go some years afterwards; and there is no evidence whatever that he owed anything when he went away. These were the |