29 How. Pr. 489 | N.Y. Sup. Ct. | 1865
This action is brought to recover for three hundred wine roots or plants, sold and delivered by the plaintiff to the defendant, on the 10th day of November, 1863. The defendant sets up in his answer as a deferice, that at the time of the sale set forth in the complaint, the plaintiff was engaged in the business of pedling, and selling and delivering, while traveling from house to house, and from place to place, through different parts of this state, certain articles represented by her to. be wine roots or plants, which the plaintiff conveyed from place to place, as aforesaid, in a wagon drawn by two horses, and sold and delivered the same in divers quantities, to divers persons, and among others, to the defendant, to the number of three hundred, being the same three hundred wine roots or plants mentioned in the complaint—although the plaintiff had neither applied or paid for, nor in any manner obtained or received any license whatever as a dealer or pedler, or otherwise, from any officer or officers of the United States, or the government thereof, and although no license whatever had been granted or issued to her under any act of' Congress—and such agreement and sale referred to in this complaint, was in violation of and contrary to the act
To this answer the plaintiff demurred, on the ground that it does not state facts sufficient to constitute a defence. The act of congress referred to in the answer, provides, " that ñ'om and after the first day of August, 1862, no person, association of persons, or corporation, shall be engaged in, prosecute, or carry on,' either of the trades or occupations mentioned in section 64 of this act, until he or they shall have obtained a license therefor, in the manner hereinafter provided ” (§ 57). By section 64, subdivision 27, pedlers, when traveling with two horses, shall pay $15 for each license, and “ any person (except persons pedling newspapers, bibles, or religious tracts) who sells or offers to sell at retail, goods, wares, or other commodities; traveling from place to place, in the street, or through different parts of the country, shall be regarded a pedler under this act.” By section 59, it is provided, “ that if any person or persons shall exercise or carry on any trade or business hereinafter mentioned, for the exercising or carrying on of which trade or business a license, is required by this act, without taking out such license as in that behalf required, he, she or they, shall, for every such offence, respectively, forfeit a penalty equal to three times the amount of the duty or sum of money imposed for such license.” And by section 24, of the act to amend the revenue law, approved March 3, 1863, “he, she, or they, shall, for every such offence, upon conviction thereof, in lieu of, or in addition to other penalties now imposed by law, at the discretion of the court, be subject to imprisonment for a term not exceeding two years.”
If wine plants are either “ goods, wares or commodities,” the plaintiff was a pedler within the meaning of the act, and the sale of the plants by her to the defendant, was
It is insisted, however, by the plaintiff’s counsel, that inasmuch as the act was passed merely for the purpose of revenue, and the penalty was annexed only to secure the payment of the license duty, the sale in question was not so in violation of the act as to render it void. Notwithstanding the “ courts appear occasionally to have strained a point ” in favor of such a distinction, as was said in Bell agt. Quinn (2 Sandf. 146, 150), and intimated in Griffith agt. Wells (3 Benio, 221), the question, after all, I apprehend is, does the statute prohibit the sale without a license ? If it does, the circumstance that it is prohibited for revenue purposes, is of no consequence, for in such case, as well as in every other, the sale in violation of the prohibition is illegal and void, and no action can be maintained upon it. {Cope agt. Rowland, 2 Mees, Welsh. 149 ; Smith agt. Mawhood, 14 Mees, fy Welsh. 452; Brown’s Legal Max. 580 ; 2 Parsons on Cont. 259 ; Story on Cont. 620.).
In looking at the statute we find a direct prohibition
I am of the opinion that the demurrer is not well taken, and should be overruled with costs, with liberty to the plaintiff to take issue upon the facts of the answer, and go to trial thereon, upon payment of costs of the demurrer within twenty days after notice of the order to be entered herein.