By the Court
Johnson, J.The demand upon which the action was brought, was not within the terms or the spirit of the defendant’s bond. By the terms of the bond, the defendant and his sureties agreed to keep the said Hart clear from all liabilities, and save him harmless from all claims, whatsoever, against the said bank of Canandaigua, both of bills or notes of said bank, deposits and liabilities of all kinds.” The only question, therefore, upon the trial was, whether the plaintiff had any legal claim against the bank. If he had any, it must have sprung out of the fact that Sarah Bush-field, as executrix, had, in a certain action, recovered a judgment against the plaintiff. No other foundation for the plaintiff’s claim was alleged or pretended. But this judgment, as clearly appears, was recovered in an action for a fraud practiced by the plaintiff and his former partner, Antis, in turning out and transferring certain promissory notes to the plaintiff’s testator and his assignors, in payment and satisfaction of claims they then had against said bank, for moneys before then deposited to their credits respectively. *449The action upon which this judgment was obtained was not, therefore, for a claim against the bank, but upon a personal claim against this plaintiff and his said former partner for the fraud in procuring the satisfaction and discharge of the claim against the bank. That action necessarily affirmed the transaction of receiving the notes in payment and satisfaction of the claims against the bank for the moneys deposited by the owner of the cause of action. It was in law an election to affirm the bargain and seek redress by-means of the cause of action arising from the fraud.
The defendant’s bond, in its broadest and most comprehensive scope, cannot be taken or held to include claims by former dealers with the bank, against the plaintiff for frauds practiced by him in his dealings with them, either as banker or as the officer or agent of such bank. When the bond in question was given, the claims of these depositors appeared to be satisfied upon the bank books, and it was represented by the plaintiff, as he confesses, to the defendant that they had been so satisfied without any fraud on his part. It is clear, therefore, that these claims were not within the contemplation of the parties to the bond. Apparently no such claims existed when the bond was executed, and it is clear that no such claims have been established against the bank by the former action against the plaintiff. But even if we could hold that this former action against the plaintiff established the fact that these depositors still had claims unsatisfied against the bank at the time of the making of the bond in question, it is clear enough that they had no such claims when this action was commenced. The judgment recovered against the plaintiff, for the deceit, had then been paid, and the payment of that judgment necessarily extinguished the original claim for the moneys deposited. But independent of the question of the judgment and the payment thereof, if the claims of the depositors had any legal existence at or after the execution and delivery of the bond as against the bank, they had such existence solely by reason of the plaintiff’s fraud; and the law does not give him a right of action *450against another, which has its sole foundation in his own fraudulent conduct. The maxim “ ex dola malo .non oritur actio” applies to this case. If the claims, being apparently-extinguished when the bond was executed, were brought within the terms of such bond, by the plaintiff’s fraud, he cannot be allowed to enforce the obligation in respect to such claims'. But if this were not so, the claimants never undertook to enforce any claim against the bank. Another, and quite different claim, was enforced against the plaintiff. He had incurred a liability by means of his fraudulent practices, and the owner of those claims chose to enforce that liability instead of the other.
The payment of that judgment by the plaintiff does. not operate as an assignment of those claims against the bank, but extinguishes them. He did not stand in the position of surety for the defendant, as to anything existing by reason of his own fraud or springing from it. There can be no subrogation .in such a. case. Such claims are not kept on foot to enable the wrong-doer to enforce them against another. Equity can never, interpose to presume claims of a character which it would be inequitable and against conscience to enforce. By paying the judgment against him, the plaintiff ¡has simply made the atonement and satisfaction which the Jaw prescribes for his fraud, and neither law nor equity, in ■such a case, gives him any remedy over, against any other person. The nonsuit was, therefore, clearly right, and a new .trial must be denied.
Hew trial denied.