This is an action to recover the pos~ session of personarJ property. The jury rendered a verdict in favor of the~ laintiff. Defendant moved for a new trial, upon a state rient. The motion was denied, and defendant appeals porn the judgment, and order denying his motion for a n ~w trial.

The statement ~hows that after the jury had been sworn, the plaintiff's attorney stated the issue and his case as follows: -

Mr. McElrath, attorney for defendant, said: “Upon the opening statement of Mr. Chase, we move that he be nonsuited. If Mr. Chase’s statement is correct, it is that the defendant’s brother went to the plaintiff and informed the plaintiff that a man by the name of Williams, and who was a creditor of the plaintiff, was going to attach him, and the plaintiff, for the purpose of hindering, defrauding, and swindling this creditor, transferred his property to the defendant. Of course, I don’t admit such are the facts. I say, upon the plaintiff’s own statement, if those are the facts, the doors of this court-house are closed against him, and he is not entitled to come in here; he is in that condition of fraud that he does not come into court with clean hands. I refer your honor to the case in the 25th California, page 654, Gregory v. Haworth. We move for a nonsuit, and ask a judgment for the value of the property or for its return, and for costs.”

The court, after hearing argument, overruled the motion, and defendant excepted.

According to this statement of plaintiff’s attorney to the jury, the defendant obtained possession of the property sued for, without giving any consideration therefor, by fraudulent misrepresentation. The misrepresentation consisted in defendant’s representing to plaintiff that a creditor of his was intending to attach his property, when in fact the creditor named had no such intention, and plaintiff had plenty of other property to pay his debts. If the property had been placed by the plaintiff in the hands of the defendant for illegal purposes, and the defendant refused to return it, the plaintiff would have to abide the loss, for in pari delicto, melior est conditio possidentis.

But courts, both of law and equity, have held that two persons may concur in an illegal act without being deemed to be in pari delicto. In this case, the defendant alone was guilty of fraud. He cannot avail himself of *73 his own fraud as a defense. ‘"For no man shall set up his own iniquity as a defense, any more than as a cause of action.” (Montefiori v. Montefiori, 1 W. Black. 364, per Lord Mansfield.)

It does not appear that plaintiff consented to the transfer of the property with the intent to hinder, delay, or defraud any creditor. If not, he was simply an innocent victim of the defendant’s wiles.

To permit the defendant to retain what he had thus fraudulently obtained the possession of would be to enable him to take advantage of his own wrong, contrary to the maxim, Nullus commodum capere potest de injuria sua propria.

The maxim, In pari delicto, melior est conditio possidentis, is one of public policy, and public policy could not best be subserved by applying it to this case.

The motion for a nonsuit was properly overruled.

The evidence of the plaintiff tended to prove a stronger case than the statement of his attorney, which we have above considered. We cannot hold that his evidence is insufficient to justify the verdict of the jury, although it conflicts in many respects with the evidence of the defendant.

Judgment and order affirmed.

McFarland, J., concurred.