amount of the bill less the discount agreed on between the bill-broker and customer; which rates of discount are not the same. The Judge (Lord Campbell) told the jury, that, on the undisputed facts, though there was no endorsement or guarantee, and therefore no warranty of the solvency of the parties to the bill, there was a total failure of consideration, and the plaintiffs were entitled to recover back the money paid for the bill from the party with whom the transaction was: and he left it to the jury to say whether the transaction was one between the plaintiffs and the defendants, or one between the plaintiffs and A. through the defendants as agents merely. The jury having found a verdict for the plaintiffs, it was held, upon a motion for a new trial,— that the verdict was warranted by the evidence, the contract in such cases being between the capitalist and the bill-broker, and not between the capitalist and the bill-broker's customer,—and that, though A.'s endorsement was genuine, and there was so far recourse on the bill, yet that the undisputed facts showed that the bill was taken as an acceptance of N. & Co., and that the genuineness of their acceptance was the essence of the description, and that consequently the direction that there was a total failure of consideration was right. It is clear, therefore, that there was a total failure of consideration here, and that the plaintiff is entitled to recover back his money, unless his right is defeated by some or one of the points urged by the defendant. Now, *572] the first objection is, that, by reason of the 5th section of the 17 & 18 Vict. c. 83, the documents were not admissible in evidence. The same objection, however, might have been urged in Gompertz v. Bartlett, 2 Ellis & B. 849 (E. C. L. R. vol. 75). [WILLES, J. -And in Milnes v. Duncan, 6 B. & C. 671 (E. C. L. R. vol. 13), 9 D. & R. 731 (E. C. L. R. vol. 22).] In Smart v. Nokes, 7 Scott N. R. 786, 6 M. & G. 911, it was expressly decided that the insufficiency of stamp did not preclude the bill being given in evidence. It will be said that the parties are in pari delicto. The statute, however, casts upon the transferror the duty of cancelling the stamp, under a penalty. [WILLES, J.--The question would equally arise if the seller of the bill were residing at Hull and the buyer in London. This is a mistake of fact, and not of law, and therefore the mere fact of the delay, the party having the means of knowledge of the defect, will not preclude the plaintiff from recovering the money back: Kelly v. Solari, 9 M. & W. 54; Milnes v. Duncan, 6 B. & C. 671, 9 D. & R. 731; Lucas v. Worswick, 1 M. & Rob. 293; Townsend v. Crowdy, 8 C. B. N. S. 477 (E. C. L. R. vol. 98).

Manisty, Q. C., and Wood, in support of the rule.-In Young v. Cole, Gompertz v. Bartlett, and Gurney v. Womersley, the thing agreed to be sold was something altogether different from the thing which was handed over, and therefore the consideration wholly failed. Here, however, the very thing which the defendant undertook to sell was sold. There was no fraud, no misrepresentation. Both parties acted in ignorance of the duties which the Act of Parliament imposed upon them. As to the admissibility of the bills in evidence, it is to be observed that the plaintiff is equally guilty of negligence, and the author of his own loss. The statute says that the person transferring the bill without cancelling the stamp shall be liable to a *penalty of 50%, and the person receiving it shall not be entitled

*573]

"to recover thereon," or "to make the same available for any purpose whatever," unless the stamp be affixed and cancelled. The decision in Smart v. Nokes, 7 Scott N. R. 786, 6 M. & G. 911 (E. C. L. R. vol. 46), turned upon the 19th section of the 31 G. 3, c. 25, which enacted that "no bill of exchange liable to the duties by that Act imposed shall be pleaded or given in evidence in any Court, or admitted in any Court to be good, useful, or available in law or equity," unless duly stamped. [ERLE, C. J.-"Good, useful, or available" as a bill.] Precisely so. Erskine, J., there says: "Looking at the words of the statute, and taking the whole clause together, it is quite clear that the legislature intended to prevent the production in evidence of an unstamped bill or note with a view to relying upon it as a binding and obligatory instrument." The test, as is said in Simpson v. Bloss, 7 Taunt. 246, 2 Marsh. 542, whether a demand connected with an illegal transaction, is capable of being enforced at law, is, whether the plaintiff requires any aid from the illegal transaction to establish his case. [ERLE, C. J.-The party who passes the bill without cancelling the adhesive stamp is regarded by the legislature as the offender, and a penalty of 501. is imposed on him. According to your argument, if the value of the bill exceeds 501., the recipient of the bill incurs the greater loss. The bill becomes a source of delinquency in the hands of every person to whom it comes.] If the stamps had been cancelled, as they would have been if the plaintiff had been as vigilant as he ought to have been, all he could have got for the bills would have been such a dividend as the estate of Gilmore & Co. might produce: whereas, now he is seeking to get back the whole sum he paid for the bills. There has, no doubt, been negligence on both sides: but, superadded to his negligence, the plaintiff has further been guilty [*574 of laches in holding the bills so long without discovering the blemish; and, by this negligence, he has materially altered the posi tion of the defendant, who, if his attention had been called to it promptly, might have remedied it. Stray v. Russell, 28 Law J., Q. B. 279, Russell v. Stray, 29 Law J., Q. B. 115, and Remfry v. Butler, Ellis B. & E. 887 (E. C. L. R. vol. 96), were also referred to.

Cur. adv. vult.

ERLE, C. J.—This was a rule to enter a verdict for the defendant. The facts were, that the plaintiff, in April, 1860, bought of the defendant for 3231. certain foreign bills of exchange purporting to be drawn by Meyer, in Brussels, on Gilmore & Co., of London: the defendant omitted to cancel the adhesive stamp, according to the 17 & 18 Vict. c. 83, s. 5, when he delivered them to the plaintiff (the cancellation having escaped the attention of each party at the time of the sale). Gilmore & Co. before the maturity of the bills became bankrupt. In April, 1861, they proposed a dividend; and these bills were tendered for proof, but rejected because the stamp was not cancelled. Then the plaintiff demanded, and brought this action for, the sum which he had paid to the defendant for the bills, on the ground that the consideration had wholly failed,-citing Young v. Cole, 3 N. C. 724 (E. C. L. R. vol. 32), 4 Scott 489 (E. C. L. R. vol. 36), where the purchaser of Guatemala bonds was held entitled to rescind the purchase and recover back the price, because they were not stamped with a Guatemala staip,--and Gurney v. Womersley, 4 Ellis & B. 133 (E.

C. L. R. vol. 82), where the plaintiff rescinded the contract and recovered the purchase-money paid for some bills which purported to be accepted by one Van Notter, but which (as to that name) were forgeries.

In answer to this claim of the plaintiff, the *defendant has

*575] relied on two grounds,-first, that the consideration for which the plaintiff paid his money has not failed; on the contrary, the specific things which were the subject of the contract of sale were delivered and received, viz., the bills drawn by Meyer & Co., of Brussels, on Gilmore & Co., of London. At the time of the contract, they had all the qualities of the things which the defendant intended to sell and the plaintiff to buy. The defect arose in the process of delivery.

When foreign bills sold are delivered, the Stamp Act, 17 & 18 Vict. c. 83, commands the seller to cancel the adhesive stamp before he delivers, and the buyer to see that this has been done before he receives them. Each party in this case omitted to perform the duty so commanded: and the statute has declared the consequences which are to follow from this inattention, viz., the seller is to forfeit 50l. to the Queen, and the buyer is to lose the capacity of making the bills available for any purpose. Although the cancelling is required from the seller, the seeing that it has been done before he receives it is required from the buyer. Each of the actors has his duty enforced by the above-mentioned consequences from neglect: and the defendant contended upon the argument before us that there was nothing in the statute which laid the whole of the loss on the seller.

If this ground failed, then the second ground on which the defendant relied was, the time that had elapsed before the plaintiff claimed to rescind the contract and to recover back the purchase-money, and the change in the circumstances of the parties during that time. The plaintiff had kept the bills for a year; the defect was always apparent if he had known the law; and his ignorance of the law would be no excuse for his omitting to make his claim. During that time the

*576] *acceptors had become bankrupt, and the drawer had not been

made to pay; and the situation of the defendant may have been materially altered for the worse by the delay; while the plaintiff, by rescinding the contract, would gain so much more than he would have got with a valid transfer, as the price he paid exceeds the divi dend he would receive under the bankruptcy. If any action lay, it would be more reasonable to sue in such case for the true loss rather than for the original price as money had and received.

Under these circumstances, we are all of opinion that the plaintiff' had no right to rescind the contract of sale, and that the defendant is entitled to succeed on the second ground above mentioned.

My Brother Keating and myself are also of opinion that the defendant is entitled to succeed on the first ground as above stated; but from this opinion my Brother Williams dissents.

WILLIAMS, J.-I agree with my Lord and my Brother Keating that this rule onght to be made absolute, but on the second ground only.

If the plaintiff had, within a reasonable time after he had received the bills from the defendant, and without any delay prejudicial to the latter, required him to take and return the purchase money, on the

ground that he had omitted to cancel the stamps, I think the plaintiff might have maintained this action, because I think there was an implied understanding when the bills were sold they were to be not merely foreign bills of exchange, but negotiable and available bills, as both parties believed they were; and they have turned out not to be such bills, by reason of the defendant's neglecting to cancel the stamps before he parted with the bills, as required by the statute. I think, therefore, the plaintiff would have had a right to recover back the purchase-money, either by reason of the consideration having totally failed, or by reason of his having paid it in [*577 mistake of facts, as put by Lord Campbell in Gompertz v. Bartlett, 2 Ellis & B. 849 (E. C. L. R. vol. 75). I am strengthened in this view of the case by considering, that, if the vendee of a bill sold and delivered under such circumstances could be compelled to keep it, the bill must by the terms of the statute be wholly unavailable in his hands; whereas, if he be allowed to return it to the vendor, the latter may at all events sue the acceptor on it. Some doubt, perhaps, may exist whether he could, by transferring it subsequently to another vendee, or another holder for value, render it available in the hands of the latter, because the statute says that no person who shall take such a bill from another shall be allowed to make it available, unless at the time he takes it it shall bear a stamp cancelled in the manner directed, i. e. (as it might, perhaps, be contended), cancelled by the first holder before he has delivered the bill out of his hands to any one. But I can find nothing in the Act which would prevent the vendor, though he may have transferred the bill, in violation of the statute, without cancelling the stamp, from afterwards suing the acceptor on it, if the bill gets back to his (the vendor's) hands.

It was argued on behalf of the defendants, that it is unjust to allow the plaintiff to recover back the whole price of the bills, because he will thereby be put into a better plight than if the defendant had complied with the statute; in which case the defendant would only have been able to obtain a dividend under the acceptor's bankruptcy. But the answer to this argument is, I think, that, in truth, the defendant is merely remitted to the condition of being the holder of the bills of which, by reason of his own neglect to cancel the stamps, he has in the result never legally ceased to be *holder. And no [*578 injustice is done to him thereby, if he is so remitted without any injurious delay.

In the present case, however, I agree with the rest of the Court in thinking that the action is not maintainable, because the vendee of the bills neglected for an unreasonable time to return them to the vendor, and must, under the circumstances, have thereby prejudiced the vendor as to his position in respect both of the drawer and the acceptors of the bills.

WILLES, J.-Not having heard the whole of the argument, I take no part in the judgment in this case. Rule absolute.(a)

(a) By the 33d section of the 24 & 25 Vict. c. 91, it is enacted, that, "in any case where an adhesive stamp used for denoting any stamp duty required by law to be cancelled by any person by writing thereon his name or the name of his firm, it shall be sufficient, if, instead of the name in full, the initials thereof shall be so written, or shall be stamped or impressed in ink thereon, together with any other particulars specially required by law to be written thereon, provided that by means thereof the stamp shall be effectually obliterated and cancelled so as

not to admit of its being used again, anything in any Act to the contrary notwithstanding; and, where the adhesive stamp on any foreign bill or promissory note shall, on such bill or note being received by any person who shall be or become the bonâ fide holder thereof, be effectually obliterated, and shall purport and appear to be duly cancelled, the same shall, so far as relates to such holder, be deemed to be sufficiently cancelled: Provided, that where any such bill or note when so received by any such person as last aforesaid shall have affixed thereto a proper and sufficient adhesive stamp, but such stamp shall not be duly cancelled, it shall be competent to the holder to cancel the same as if he were the person first negotiating the bill or note; and, upon his so doing, such bill or note shall be deemed to be duly stamped, and shall be as valid

and as available by such holder and any prior or subsequent holder as it would have *579] been if the stamp had been affixed and cancelled as by law required by the first holder,

anything in any Act to the contrary notwithstanding; but nothing herein contained shall relieve any person who ought to cancel such stamp from any penalty incurred by not cancelling the same as required by law."

PARRY v. The CROYDON COMMERCIAL GAS AND COKE COMPANY. Jan. 25.

By the Croydon Improvement Act, 10 G. 4, c. lxxiii., a penalty of 2002. is imposed upon any gas or other company for suffering any impure matter to flow into any stream, &c., to be sued for by any common informer. By the 21st section of the Gasworks Clauses Act, 1847 (10 & 11 Vict. c. 15), a like penalty is imposed for the same offence,-such penalty (by s. 22) "to be recovered by the person into whose water such substance shall be conveyed, or whose water shall be fouled by any such act:"_

Held, that, the latter provision was pro tanto a repeal of the former.

THIS was an action by a common informer against the Croydon Commercial Gas and Coke Company, upon the 10 G. 4, c. lxxiii. (the Croydon Lighting and Improvement Act), for permitting offensive matter to flow into certain streams.

The declaration stated, that the defendants, within six calendar months next before the commencement of the suit, to wit, on the 2d of August, 1861, they then being persons making, furnishing, and supplying gas used and burnt for lighting divers highways, streets, and houses, manufactories, buildings, and other premises within the limits of an Act made in the 10th year of the reign of King George the Fourth, intituled "An Act for lighting, watching, and improving the town of Croydon, in the county of Surrey, for providing lodgings for the Judges at the assizes holden in the said town, and for other purposes relating thereto, did drain and convey, and caused and suf fered to be drained and conveyed and to run and flow divers washings and other waste liquids, substances, and things which arose and were made in the prosecution of the said gasworks, into certain rivers, brooks, and running streams, canals, reservoirs, aqueducts, feeders,

*ponds, and spring-heads, and into divers drains, sewers, and

*580] ditches communicating with them, the said rivers, brooks, and running streams, canals, reservoirs, aqueducts, feeders, ponds, and spring-heads, and did and caused to be done divers annoyances, acts, and things to the water contained in them, whereby the water contained in them, and divers parts thereof, were spoiled, fouled, and corrupted, contrary to the form of the statute in such case made; whereby and by force of the said statute the defendants forfeited and became liable to pay to the plaintiff 2001; yet the defendants had not paid the same: and the plaintiff claimed 2007.