![]() So if the plaintiff and defendant were to change sides, and the defendant was to bring his action against the plaintiff, the latter would then have the advantage of it for where both are equally in fault, potior est conditio defendentis. ![]() It is on that ground the court goes: not for the sake of the Defendant, but because they will not lend their aid to such a Plaintiff. If, from the plaintiff’s own stating or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law of this country, there the court says he has no right to be assisted. No court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act. The principle of public policy is this ex dolo malo non oritur actio. It is not for his sake, however, that the objection is ever allowed but is founded on general principles of policy, which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so. Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. Knowledge on the part of the plaintiff that the defendant intended to smuggle the goods did not affect the plaintiff’s entitlement to recover the price of the goods, since he was not himself involved in the smuggling. ![]() The plaintiff was met with a defence of illegality. A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England.
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