Roman v. Mali

Alvey, J., delivered the following opinion, which was concurred in by Judges Bowre and Brent: A careful examination of the record in this case cannot fail for a moment to convince any one that, in the transfer and concealment of the property of Mali, in the name and apparent ownership of Roman, a gross fraud was perpetrated upon the creditors of the former. But, in the view of a majority of this Court, Mali was not less guilty in the [532] intent-and practice of that fraud than Roman; they were clearly, according to our apprehension, in pari delicto. And as this suit is in effect an application to a Court of conscience, hy one of the guilty parties, to have enforced the fraudulent and corrupt agreements, whereby he has succeeded in cheating and defrauding his creditors, we are decidedly of opinion that the Court should withhold its aid. We are not unmindful of the fact, that there are exceptions to the general rule, that Courts of Justice will not actively interpose for the relief of a party who has been particeps criminis in an illegal or fraudulent transaction ; and that one of the exceptions is, where the party suing, although paticeps criminis, is not in pari delido with the adverse party. There may be different degrees of guilt as between the parties to the fraudulent or illegal transaction ; and if one party act under circumstances of oppres-. sion, imposition, undue influence, or at great disadvantage with the other party concerned, so that it appears that his guilt is subordinate to that of the defendant, the Court, in such case, will relieve. But we have examined the record in this case in vain to find any evidence whatever of those circumstances that should entitle Mali to the benefit of the exception to-the general rule. On the contrary, it is most fully and clearly shown that he was a man of intelligence, of large business habits and experience, and of considerable pretensions in the world, and by no means such a person as would be liable or likely to be inveigled, misled, or unduly influenced, by the fraudulent suggestions and advice of Roman. The whole transaction, from the beginning to the end, was the joint scheme of the two, the one co-operating with the other, and both being equally ■guilty, to withdraw and conceal Mali’s property from the pursuit of his creditors; and having accomplished that object, and gotten rid of his creditors hy a composition founded upon his fraud and deception, Mali now seeks to [533] have the property restored to him, through the instrumentality of a Court of Equity; and that too after the lapse of sixteen or seventeen years from, the time of the original perpetration of the fraud, and after the death of his confederate in the transaction. Whether the relation of client and attorney, in its full and proper sense, existed between Mali and Roman at the time of the concoction of the fraud, admits of great doubt, whatever may have been their relation afterwards. Mali has sworn that no such relation did exist, and that Roman held no property in which he, Mali, was interested; and we think he should be forever estopped to deny the truth of his sworn testimony upon the subject. But oven conceding that the relation of client and attorney did exist, we think there is no well established rule of law that requires, under the facts disclosed in this case, that the Court should allow such effect to that relation as to form an exception to the general rule before stated. By so doing the attorneys would form a special class from which assignees would be sought in all cases where parties desired to cheat and defraud their creditors, by the assignment of their property. The general rule, by which all relief is withheld, might deter a party from conveying his property to an unprofessional person, but under the exception to that general rule, sought to be established in this case, if an unprincipled and fraudulent attorney could be found, the party could deal with him with impunity, being secure in the full protection of all the remedies administered by the Courts, for the restoration of the property after the fraudulent object had been accomplished. The general rule to which wc have referred is most salutary and conservative, as a means of suppressing illegal and fraudulent contracts, and nothing should be done by the Courts to weaken its force and operation. The suppression of such illegal and fraudulent transactions is far more likely, in general, to be accomplished by leaving the [534] parties without remedy against each other, and thus introducing a preventive check, than by enforcing them at the instance of one of the parties to the fraud; and no where ..has this doctrine been more unqualifiedly adopted than in this State. Stewart vs. Iglehart, 7 Gill & John., 132; Freeman & Sedwick vs. Sedwick, 6 Gill, 28. Public morals, public justice, and the well established principles of judicial tribunals, alike forbid the interposition of the Court to aid in the enforcement of a transaction like the present. The law leaves the parties to such transactions as it found them -, and if either has sustained loss by the bad faith of a particeps crimihis, it is but a just infliction for premeditated and deeply practiced fraud, which, when detected, should deprive him of all anticipated benefit, or subject him to irrecoverable loss. Bartle vs. Coleman, 4 Pet., 187. (Decided 8th June, 1875.) Whether, the confidential letter of Roman to his wife, exhibited in the record, contains such a declaration of trust in favor of Mali as may be enforced, we are not now called- upon to decide, and in regard to which we intimate no opinion whatever ; but the present bill will be dismissed without prejudice to any right that the appellee may have in that behalf. Decree reversed, and hill dismissed.