50 N.H. 253 | N.H. | 1870
Lead Opinion
The main question in this case is, whether Stewart, represented here by the defendant, an attaching officer, holding the property of Emerson by virtue of Stewart’s attachment, can, as against the plaintiff, claiming title to the same by purchase from' Emerson, hold the property thus attached; the object of Stewart’s suit and attachment being to recover the price of spirituous liquors sold by him to Emerson, and by Emerson re-sold in violation of our laws; — or, in fewer words, whether, under the circumstances of this case, the court will lend its aid towards the enforcement of Stewart’s claim to recover the price of the spirituous liquors thus sold by him.
In order to make a correct application of the principles and rules of law which are to determine this question, it will be necessary to examine with care the peculiar facts of the case.
. Stewart was a dealer in spirituous liquors, residing and doing business in the city of New York: Emerson was a retailer of spirituous liquors at his saloon in Manchester. This establishment, in the hands of Emerson and his predecessors in the same business, was well known to Stewart, who had frequently visited the saloon, and of whom Emerson and the preceding proprietors of the saloon had previously bought liquors which were retailed by them to their customers.
There was evidence from which the jury might have found that, on at least one occasion when Stewart was at the saloon, he virtually solicited orders from Emerson for liquors'; and there was evidence tending to show that when he solicited such orders, and, subsequently, sold liquors to Emerson, Stewart had reasonable cause to believe, and did believe, that EmerSon intended to re-sell them at his saloon in Manchester. Not long after one of these visits, on which occasion he had solicited such orders, Emerson ordered liquors of Stewart by letter (not, however, in pursuance of any previous contract or understanding); and the liquors so ordered were delivered by Stewart to a carrier in New York, directed to Emerson at Manchester, N. H., and were duly received by Emerson.
It does not appear, as matter of fact, that Stewart, when he solic
The ruling of the court in this particular was correct. Ignorance of the law would have furnished no excuse to Stewart. Broom’s Leg. Maxims 190. Every man is presumed to know the laws of the country in which he dwells, or in which, if residing abroad, he transacts business. A foreigner, trading in or to this country, is bound to take notice of our laws ; and a contract made by him in violation of them will not be enforced in our courts. Cambiosoco v. Maffit, 2 Wash. C. C. 98; 1 Bishop on Criminal Law, § 375.
The plaintiff contends that Stewart, by coming into this State and here soliciting orders for liquors, knowing that, if purchased, they were to be sold by the purchaser in violation of our law, committed an indictable offence; that he was an aider or accessory to the offence • of selling the liquors by Emerson; that the contract of sale, upon which Stewart claims as a creditor of Emerson, grows out of and is connected with an immoral and an illegal act, and is therefore not to be protected or enforced by our courts; and that Stewart, therefore, is not, as a creditor of Emerson, entitled to impeach the validity of the alleged sale by Emerson to the plaintiff.
It is an elementary principle that no contract can be enforced, nor any damages recovered, for the breach of a contract or promise which contravenes the principles of the common law, the provisions of a statute, or the general policy of the law. Metcalf on Contracts 221.
And it is well settled in this State, that the consideration agreed to be paid for spirituous liquors sold without license, cannot be recovered. The sale being prohibited by statute, and the vendor being liable to a criminal prosecution for the selling, the traffic is made illegal, and contracts respecting it cannot be enforced. Wherever an indictment can be sustained for the illegal sale, there the price cannot be recovered. Smith v. Godfrey, 28 N. H. 384, and cases cited; Plumer v. Smith, 5 N. H. 553; Met. on Contracts 225.
The reasons which lie at the foundation of these well-established principles are suggested by considerations of sound public policy. The public good and not the defendant’s advantage is the controlling consideration. Beach v. Kezar, 1 N. H. 185. For I apprehend the mor-h al instincts of courts and juries would naturally revolt against the encouragement of a defence so mean, impudent, and contemptible.
“ The objection,” says Lord Mansfield, in Holman v. Johnson, Cowper 348, “ that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, however, that the objection is ever allowed ; but it 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; not for the sake of the defendant, but because the court will
But, generally speaking, the validity of a contract is to be decided by the .law of the place where it was made, unless it was agreed, either expressly or by tacit implication, that it should be performed in some other place; and then the general rule is, that the contract, as to its validity, nature, obligation, and interpretation, is to be governed by the law of the place of performance. Story on Conf. of Laws, §§ 242, 280; U. S. Bank v. Donnally, 8 Pet. 372; Wilcox v. Hunt, 13 Pet. 379; Andrews v. Pond, 13 Pet. 65; Don v. Lippman, 5 Cl. and F. 13; Fergusson v. Fyffe, 8 Cl. and F. 121. Contracts, valid by the law of the place where they are made, are generally valid everywhere, jure gentium, and by tacit consent. 2 Kent’s Com. (ed. 1866) 454.
And if, in the place where the contract was made, the policy of the-local law would enforce it, it will also be enforced in the jurisdiction to which a party may be compelled to resort for the application of his remedy for a breach of the foreign contract.
This rule, it has been said, is founded not merely in the convenience, but in the necessities of nations and States : for, otherwise, it would be impracticable for them to carry on an extensive intercourse and commerce with each other.
“ Jus autem gentium omni humano generi commune est; nam usu exigente, et humanis necessitates.” 1 Inst. Lib. 1, tit. 2, § 2.
Upon the foundation of this doctrine rests the whole system of sales, agencies, credits, and negotiable instruments ; “ and,” says Judge Story, “ no more forcible application can be propounded of this imperial doctrine, than to the subject of international private contracts.” Story’s Conf. Laws, § 242.
With peculiar cogency does the doctrine apply to the positive necessities of a country like ours, composed of thirty-seven distinct sovereignties, in strictness wholly independent of each others’ local laws, but most essentially dependent for their general prosperity upon the deference, respect, and regard for each others’ peculiar policy which the comity of nations demands.
But there is an important exception to the rule, consisting in this : that no nation or State is bound to recognize or enforce contracts which the government of such State or nation may deem injurious to its own interests or the welfare of its own people, or which are in fraud and violation of its own laws. Such contracts are considered as nullities in every country affected by such considerations, although they may be valid by the laws of the place where they are made. Story’s Conflict of Laws, § 244; Andrews v. Pond, 13 Pet. 65.
The exception is important, notwithstanding the imperative necessity which lies at the foundation of the rule ; for, while the comity of na
Viewed in the light of all these suggestions, the principal question presented is, whether the evidence which shows that Stewart knew or had reasonable cause to believe that Emerson, at the time of the sale to him, intended to transport the liquors into this State, to be here kept and sold in violation of our laws, would constitute a defence, if the present suit were brought by the vendor against the vendee to recover the price of the liquors.
In considering this matter, we are not for a moment to lose sight of, nor to underrate the importance, the imperative necessity for the enforcement of the rule ; and we are to admit no given case within the exception, unless by the compulsion of a necessity demanded by local policy or positive law.
It is claimed by the plaintiff that the present case falls within the exception.
The case of Smith v. Godfrey, before cited, must be regarded as decisive to a certain extent of the questions involved in this inquiry; and as fully sustaining the ruling of the judge at the trial term, in refusing to give the first branch of the instructions desired by the plaintiff. It is there held that bare knowledge on the part of the vendor of goods that they are to be sold in another State contrary to the laws of that State, will not make the sale of the same illegal in the State where the sale is not prohibited.” It is also there held that the price of goods sold and delivered in a State where such sale is legal, and where nothing remains to be done by the vendor to complete the transaction, and he is not in any way to be further connected with it, may be recovered in this State, where such sale would be illegal. “ Miter, if it be an ingredient in the contract that the goods shall be illegally sold, or that the seller shall do any act to assist or facilitate the illegal sale.”
In the present case, it is conceded that the sale by Stewart to Emerson was consummated in New York, that the goods were there delivered to Emerson’s agent, and that the sale was not in violation of the laws of that State.
The only remaining question then is, whether this case is brought within the exception alluded5 to, because of the mixture of any ingredient in the original contract of sale providing that the goods should be illegally sold by Emerson, or by any act of Stewart, aiding, assisting, or facilitating the illegal sale in this State. But there is no evi
It does not appear, nor is it suggested, that Stewart advised, requested, or encouraged the sale of the liquors by Emerson contrary to law, in any other way than by soliciting him to purchase them';' nor that he had any participation in the re-sale otherwise than by furnishing the liquors to Emerson for a price which does not appear to have been regulated by any consideration relative to the final disposition of the property by Emerson. Stewart’s connection with the transaction terminated with his delivery of the goods to the carrier, an agent of Emerson, in New York. It does not even appear that Stewart had any actual knowledge of Emerson’s purpose or intentions with regard to the disposition of the liquors. v
The authorities bearing more or less directly upon the subject before us, are quite numerous and somewhat conflicting.
Judge Metcalf, in his work on Contracts, pp. 260, 261, uses the following language: “ As ‘ courts will not lend their aid to enforce a contract entered into with a view of carrying into effect anything which is prohibited by law,’ they will not allow a party who sells goods, knowing that the buyer is to use them in contravention of a statute, to recover the price. Thus, where an Englishman in Guernsey sold goods and assisted in packing them, in a particular manner for the purpose of their being smuggled into England, it was held that the seller could not recover pay for them. Biggs v. Lawrence, 3 T. R. 454. And the same doctrine was applied where the seller was a foreigner, who sued on a bill of exchange given for goods which he had assisted in smuggling into England. He could not resort to the laws of England, which he had assisted to evade. Clugas v. Penalula, 4 T. R. 466; Waymell v. Reed, 5 T. R. 599. Where an English merchant chartered a vessel of a merchant in New York, while the non-intercourse laws of the United States were in force, for the purpose of conveying a cargo from New York to Eayal, to be transported thence to England, it was held that he could not maintain an action in this country for the hire of the vessel. Graves v. Delaplaine, 14 Johns. 146.”
The learned author then cites, with apparent disapproval, the antecedent case of Holman v. Johnson, Cowp. 341, where the contract and delivery of goods were complete abroad, and the vendor, a foreigner, did no act to assist the smuggling of them; and he was held entitled to recover pay for them in England, though he knew that they were to be smuggled. “ This case,” he says, “ can be reconciled with the subsequent decisions only on the ground that a foreigner is not bound to guard the revenue laws of England, though he cannot actively assist
It is manifest that if Judge Metcalf’s deductions from the cases cited by him are correct and sustain the view which he adopts, those cases are not in accordance with the view of the law entertained by this court in Smith v. Godfrey. We shall advert to some of these cases again presently.
And it is manifest that Judge Metcalf makes no distinction between a case of bare knowledge of illegal intent on the part of the vendee, and an active participation and assistance in the performance of the illegal intent: — between the act of putting into the party’s possession the means of doing an unlawful act with the belief that such unlawful act will be done, and the furtherance of that unlawful act by actively aiding its accomplishment.
In Gaylord v. Soragen, 32 Vt. 110, the plaintiff, residing in New York, and being authorized to sell spirituous liquors there, sold some there to the defendant, who resided in Yermont, where the sale of such liquors was unlawful, the plaintiff, at the time of the sale, knowing that the defendant intended to sell them in Yermont contrary to law. The liquors were delivered in New York to a carrier designated by the defendant, to be transported to Yermont at the risk of the latter. But, at the defendant’s request, and to prevent the seizure of the liquors in Yermont, the plaintiff marked the casks in a peculiar way, omitting the defendant’s name.
In delivering the opinion of the. court, Aldis, J., said, “ Although mere knowledge of the unlawful intent of the vendee by the vendor will not bar him from enforcing his contract to recover for the goods in. our courts, yet it is well settled that if he in any way aid the vendee in his unlawful design to violate our laws, such participation in the illegal enterprise will disqualify him from maintaining an action on his contract in this State. The participation by the vendor must be active: to some extent; he must do something, though indirectly, in furtheranee of the vendee’s design to violate our laws. Mere omission to act
“ The omission to mark the casks with the defendant’s name, standing alone, would not in our judgment be an act of participation sufficient to bar the plaintiff. But tire plaintiff went further; and the act done, though slight, is significant. He so marked them that ‘the defendant might instantly know his casks on their arrival, and so be enabled to remove them before the officers of the State should have their suspicions awakened. This act, though so slight, gave the defendant an advantage over the officers, and aided him in escaping their vigilance. This was the object the plaintiff and the defendant intended to accomplish by having them so marked. We think the act done tended to secure their design. As the evidence tended to prove that the plaintiff, by his acts clone in connection with the sale and delivery of the liquors, aided the defendant to escape the vigilance of the officers, and so to have and sell the liquors in violation of law, it should have been admitted.”
The decision of this case, then, is put clearly upon the ground of an active participation by the plaintiff in the unlawful act of the vendee,— passive knowledge of intention being regarded as wholly insufficient to affect the validity of the contract. Notwithstanding full knowledge of the unlawful intent of the vendee, there must be something else actively done by him. “ Mere omission to act is not enough.”
In Aiken v. Blaisdell, 41 Vt. 656, the evidence tended to show that, at the time of the sale of the liquors, the plaintiff was informed by the defendant of the existence of the prohibitory law of Vermont; and that the defendant was purchasing the liquor for the purpose of selling it in violation of the law; and that he could not have the liquor come all at once to him, or have it directed to him openly, without risk of seizure ; and that the plaintiff agreed to send the liquor to him in a disguised form, so as to avoid seizure; and, in pursuance of said agreement, he did so send it.
The court, Pierpoint, C. J., expressly affirms the doctrine of Gaylord v. Soragen, that mere knowledge of the defendant’s unlawful intent will not bar the plaintiff’s right of action, but some active participation in the fraud will be required; and the decision of the case against the claim of the plaintiff' is placed upon the ground that such act of the plaintiff is a positive participation in the defendant’s guilt, and that it avoids the previous contract of sale; because it is not a separate transaction disconnected from the original contract, but immediately and directly connected with it, being done in the act of carrying out and executing the contract, by forwarding and delivering the property as required by that contract.
In this connection see Story on Contracts, § 625, and Territt v. Bartlett, 21 Vt. 184.
In McIntyre v. Parks, 3 Met. 207, it was held that a sale made in another State and valid by the law of that State, will not be held void in Massachusetts, f»om the bare fact of the knowledge or belief of the vendor, of the purchaser’s intent to re-sell in Massachusetts in violation of law.
In Finch v. Mansfield, 97 Mass. 89, the order for the liquors, the price of which was the consideration of the promissory notes in suit, was .solicited from the defendant, at his place of residence, by the plaintiffs’ agent, who was a citizen of Connecticut, as were also his principals. The order was transmitted by the agent to the plaintiffs in Connecticut, who filled it there, and forwarded the goodssto the defendant in Massachusetts, who paid the freight in pursuance of his understanding with the agent. The price of the goods was agreed upon between the agent and the defendant at the time of the order. On a previous occasion, the agent had, in like manner, solicited from the defendant and forwarded to the plaintiffs a like order, which was, in like manner, filled by them, and was paid by the defendant; to the agent. It was held that the judge rightly refused to rule, on these facts, that the sale
The peculiar law of Massachusetts, applicable to the case, was not alluded to by counsel or the court; but it manifestly controlled the decision in this, as in the preceding case of Webster v. Munger.
The General Statutes of Massachusetts, ch. 86, § 1, provide that “ no action of any kind shall be had or maintained in any court, for the price of any liquor sold in any other State for the purpose of being brought into this commonwealth, to be here kept or sold in violation of law, under such circumstances that the vendor would have reasonable eatise to believe that the purchaser entertained such illegal purpose.” It was undoubtedly in view of this statute, and not of any independent principle of the common law, that Hoar, J., used this language :— “ The plaintiffs, who were traders in Connecticut, might lawfully sell the liquors there, unless they knew that they were intended to be used in violation of the laws of Massachusetts.”
But finally, this provision of the General Statutes in Massachusetts was repealed; and thereupon the courts proceeded to expound again the doctrines of the common law upon this subject; and Colt, J., delivering the opinion of the court in Adams v. Coulliard, 102 Mass. 167, said, “ The verdict of the jury, in this case, establishes the facts, that the liquors, the price of which the plaintiff seeks to recover, were sold to the defendant in New York; and that the plaintiff' had reasonable cause to believe, but had no knowledge, that they were to be brought into this State for the purpose of being sold here in violation of law.
“The action was commenced May 25, 1868. Under the Gen. Stats., ch. 86, § 61, it could not have been maintained. The statute affects the remedy, and was repealed by the Stat. of 1868, ch. 141, before this suit was commenced. The cause of action still remained, and it arose out of a contract valid by the laws of the place where it was made. It is claimed, on the part of the defendant, that the contract originated in the purpose to violate a known law of this State; and that" our courts will not lend" their aid, and afford a remedy thereon, even after the repeal of such law. To do this, it is said, would violate an elementary principle of the common law. The illegality of the contract must be determined by the law as it existed at the time the contract was'entered into. If then illegal at the place where the contract is sought to be enforced, the rule applies.
“ It is not necéssary, here, to consider whether the general rule has any modifications, when applied to' contracts made out of the State, or to contracts made solely with reference to a violation of the revenue laws. In order to make the plaintiff, under any circumstances, a participant in' such unlawful sale, at common law, it is necessary that he should, at least, have knowledge of the unlawful purpose. In some early cases it was held that mere knowledge of the unlawful purpose of
With much deference, I am constrained to say that tbe distinction suggested in the foregoing remarks between mere knowledge and mere reasonable cause of belief, seems to me thin and shadowy.
However this may be, the case of Adams v. Coulliard is precisely the case we are now considering, and is an express authority to the point that, at common law, and independent of statutory provisions, reasonable cause of belief on the part of the seller of goods that the purchaser buys for the purpose of carrying them into another State to be there re-sold in violation of law, does not invalidate the sale.
I propose now to revert to the cases already spoken of which are collected and commented upon by Judge Metcalf in his work on Contracts 260, 261. The leading case in England is that of Holman v. Johnson, Cowp. 341, where the plaintiff, residing at Dunkirk, had sold the defendant a quantity of tea, knowing that the latter intended to smuggle it into England, but had himself no concern in the smuggling, and merely sold the tea to the defendant ás he would have sold to any other person, in the ordinary course of trade. The action was brought for the price of the tea; and it was held that the plaintiff could recover. Lord Mansfield, in delivering the opinion of the court, used the following language: “ Is there any law of England transgressed by a person making a complete sale of a parcel of goods at Dunkirk and giving credit for them ? The contract is complete, and nothing is left to be done. The seller indeed knows what the buyer is going to do with the goods, but has no concern in the transaction itself. It is not a bargain to be paid in case the vendee should succeed in landing the goods, but the interest of the vendor is totally at an end, and his contract complete, by the delivery of the goods at Dunkirk.”
The reasoning of this case rests entirely upon the fact that the contract of sale had no reference to or connection with the subsequent disposition of the goods; that mere knowledge of the unlawful intent does not make the vendor a participator in the guilt of the purchaser.
Such also is the principle recognized in Faikney v. Reynous, 4 Burr. 2069. Lord Mansfield, who delivered the opinion in this case also, says “ the seller indeed knows what the buyer is going to do with the goods, but the interest of the vendor is totally at an end, and his contract complete by the delivery of the goods.”
Biggs v. Lawrence, 3 Term R. 454; Clugas v. Penaluna, 4 Term R.466; and Waymell v. Reed, 5 Term R. 599, were all cases in which the plaintiff sold the goods with knowledge that the purchaser intended to smuggle them; and in each case the plaintiff was nonsuited; — but they all differed from Holman v. Johnson in this, that in each of these cases, in addition to knowledge of the purchaser’s criminal intent, the plaintiff did some act in aid of and to facilitate the smuggling of the goods.
In Waymell v. Reed, Buller, J., says, “In Holman v. Johnson the seller did not assist the buyer in the smuggling. He merely sold the goods in the common and ordinary course of trade ; but this case does not rest merely on the circumstance of the plaintiff’s knowledge of the use intended to be made of the goods ; for he actually assisted the defendants in the act of smuggling, by packing the goods up in a manner most convenient for that purpose.”
In Pellecat v. Angell, 2 Crompt. Mees. & Ros. 311, the court held that the plaintiff' could recover the price of the goods, notwithstanding his knowledge, at the time of the sale; that the goods were intended to be smuggled into England; — Lord Abinger said: “ The distinction is, where he takes an actual part in the illegal adventure ; as, in packing the goods in prohibited parcels or otherwise, there he must "take the consequences of his own act.” Again, he says, “ The plaintiff sold the goods: the defendant might smuggle them if_he liked, or he might change his mind the next day: it does not at all import a contract of lohich the smuggling was an essential part.”
In the same case, Alderson, B., says, “ If the plea disclosed circumstances from which it followed that permitting the plaintiff to recover would be permitting him to receive the fruits of an illegal act, the argument for the defendant would be right; but that ground fails, because the mere sale to a party, although he may intend to commit an illegal act, is no breach of the law.”
In Hodgson v. Temple, 5 Taunt. 181, the plaintiffs were distillers, and sold the liquors to the defendants with full knowledge of their intention to retail them contrary to law. In an action to recover the price of the liquors, the defendants insisted that the plaintiff’s recovery was barred because they were participes criminis. But Mansfield, C. J., said, “ This would be carrying the law much farther than it has ever yet been carried. The merely selling goods knowing that the buyer will make an illegal use of them, is not sufficient to deprive the vendor of his just right of payment; but to effect that, it is necessary that the vendor should be a sharer in the illegal transaction.”
The case of Lightfoot v. Tenant, 1 Bos. & Pul. 551, is relied upon by counsel for the plaintiff, here, as being diametrically opposed to the doctrine of these other English cases, and also to that of Cannan v. Bryce, 3 Barn. & Ald. 179; M’Kinnell v. Robinson, 3 Mees. & Wels. 434; Peck v. Briggs, 3 Denio 107; and White v. Buss, 3 Cush. 448, and as sustaining the position that mere knowledge of the purchaser’s intention to make an unlawful use of the goods is sufficient to make the vendor of such goods partieeps criminis with the purchaser.
But Selden, J., in Tracy v. Talmage, 14 N. Y. 173, contends that when the precise ground upon which these cases were decided is considered, they will be found not in conflict with Faikney v. Reynous and Holman v. Johnson, but to support rather than to detract from the doctrine advanced in these cases. “ That ground,” he says, “ is this : that it was the express object of the plaintiffs in these cases (Tenant v.
A reference to Lightfoot v. Tenant confirms this view very clearly. The action was upon a bond given for goods sold. The defendant pleaded that the plaintiff sold the goods “ in order that ” they should be shipped without license, in violation of law. The issue being found for the defendant, upon a motion for judgment non obstante, Eyre, O. J., contended that “ the jury having found that the plaintiff having sold the goods ‘ in order that ’ they should be shipped, &c., it cannot be said that he had no interest in their future destination ; that he may be supposed to have sold the goods for an enhanced price, relying upon the profits to be realized from the illicit trade, for payment.” Bee his extended remarks, 1 JBos. and Pul. 555, 556. And he says again (p. 557), “ The jury having found for the plea, the court cannot say that the plaintiff had nothing to do with the future destination of the goods, unless it was impossible to state a case in which they could have anything to do with it.”
A critical examination of this case must lead, we think, to the conclusion that it is decided upon the consideration that some advantage to the vendor from the future illegal use of the goods was an essential ingredient in the original contract of sale.
And with reference to Lightfoot v. Tenant, Cannan v. Bryce, M'Kinnel v. Robinson, Peck v. Briggs, White v. Buss, and a few others of kindred character, Comstock, J., in his opinion, delivered after a re-argument of Tracy v. Talmage, says: “ I group these cases together because they do not differ essentially in principle. Some of them sustain the position that if the vendor of goods or the lender of money can be connected in intention with the illegal purpose to which the goods or money is to be applied, it is enough to defeat this action, although the unlawful use is not specified in the contract, and although he does no act in furtherance of the design beyond the sale or loan. But further than this they do not go.
“ There is certainly room for a distinction between a case where the seller or lender simply knows of the illegal design, and one where he advances the money or the goods for the express purpose of enabling the other party to effectuate such design. Eor illustration: money may be lent in a gambling house, for the specific purpose of staking it on the result of a game : the law says it cannot be recovered. But suppose a broker or a banker lends money in his office, in the regular course of his business, knowing his customer to be a gambler by habit, and believing that he wants the loan for gaming purposes : if the illegal design does not enter at all into the negotiation of the contract, if it forms no part of the inducement to the transaction, will the knowledge or belief of the lender (and knowledge and belief, for the purposes of this question, are the same) prevent him from recovering the money when it is due ? Such a doctrine, I apprehend, would be highly inconvenient in a commercial community. It would exact a more frequent scrutiny, on the part of dealers, into the habits and designs of
Beach v. Kezar belongs to the same class of cases. It was assumpsit for keeping oxen for the defendant at Canaan in the year 1813;— one ground of defence was, that the cattle belonged to one Bailey, who, from the commencement of the war till the time of the purchase, had resided in Canada, and been employed in procuring beef for the enemy’s troops; that he had made Canaan a rendezvous for the cattle obtained in the United States, and when opportunity offered drove them across the lines; that the plaintiff knew all these circumstances, and kept the oxen, with full information of their destination, and with an'express view to facilitate their passage to the British troops. Wood-bury, J., places the decision of the court, in favor of the defendant, most clearly upon the ground, not of the plaintiff’s mere knowledge of the defendant’s illegal intent, but that the, plaintiff took an active part in the illegal transaction, and that the services performed in tending the cattle were furnished “with an express.design to facilitate their passage over the lines, by beeping them on the plaintiff’s farm in the vicinity of the frontier till Bailey could call for them with safety.” The case furnishes no intimation of a similar result if the cattle had been kept at such a place and in such a way that nothing relating to their subsequent destination and disposition had entered into and become an inducement to and a part of the original contract for their support and keeping.
The case of the Commonwealth v. Harrington, 3 Pick. 26, to which the plaintiff’s counsel has called our attention, is a case where the letting of a house of ill fame, with the intent of the lessor that it shall be used for purposes of prostitution, is holden to be an indictable offence. No question of contract is raised by the case, and it has no application here, other than such as all those cases have in which the actual intent and design of the party claiming for the price or hire of the thing sold or leased enters into the illegal design and accomplishment of the lessee or purchaser.
In Bowry v. Bennett, 1 Camp. N. P. 348, where the action was brought to recover the price of clothes sold to the defendant, and the defence was that the defendant was a woman of the town, that this was well known to the plaintiff, and that the clothes were purchased to enable tlie defendant to carry on the business of prostitution, Lord El-,; lenborough said : “It must be shown, not only that the plaintiff had; notice, but that he expected to he paid from the profits of the defendant’s prostitution, and that he sold the clothes to enable her to carry it on, so that he might appear to have done something in furtherance of it.” See cases cited in note (pp. 249, 250). See also Cheney v. Duke, 10 Gill & Johns. 11, and Webster v. Munger, before cited.
So a sale of silks and jewels to a prostitute, if it be clearly shown that such sale was made for the express purpose of rendering her person attractive and seductive, and with the view of aiding her unlawful commerce, would be an illegal sale ; but shall the seller of such merchandise be disabled from recovery merely because he knows the buyer to be a prostitute? Is such mere knowledge sufficient to render the contract void ? We cannot believe that public policy requires the exercise of so much scrutiny into the designs of the purchaser, and the imposition of such restraints upon ordinary traffic, as the rule, so broadly stated* in Pearce v. Brooks, would seem to imply ; and directly contrary to such doctrine are the express decisions in Bowry v. Bennett, 1 Camp. 348, Appleton v. Campbell, 2 C. & P. 347, and Hodgson v. Temple, before cited.
Moreover, we must not lose sight of the foreign element which distinguishes the present case from that of Pearce v. Brooks, and those upon which the latter is predicated; for, in so doing, we should become unmindful of the great principle controlling the very question at issue here, namely, the comity which affects the question of the "validity of foreign contracts — a principle which may very properly, in some cases, require the enforcement of a foreign contract, such as would not be regarded as valid if made by our own citizens at home, under a different' policy from that prevailing in the place where the contract was made. Take the common, the invariable, practice of the recognition and enforcement by the courts of every State in the union, of the laws of any and every other State concerning the rate of interest, as an example. Although a contract made in this State for the payment of eight or ten per cent, interest for the loan of money would be re
This court will and ought to be reluctant to enforce contracts manifestly against public policy; but where the public policy of the country is not uniform, but different in neighboring localities and variable in all, it would seem to be assuming rather too much to hold and insist that our own notions of public policy are and must be infallible, to the exclusion of the' opinions and views of other enlightened communities and the subversion of commercial comity.
Said Mr. Chief Justice Best, in Richardson v. Mellish, 2 Bing. 242, “ I am not much disposed to yield to arguments of public policy. I think the courts of Westminster Hall (speaking with deference, as an humble individual like myself ought to speak of the judgments of those who have gone before me) have gone much further than they were warranted in going, on questions of policy.”
joined in the protest of the chief justice “against arguing too strongly upon public policy; it is a very unruly horse, and when once you get astride it, you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.”
In Hilton v. Eckersley, 24 L. J., Q. B. 353, 6 E. & B. 47, the judges-differed in opinion as to what public policy really was in the case before them; and Lord Campbell said, “I enter upon such considerations with much reluctance and with great apprehension, when I think how different generations of judges, and different judges of the same generation, have differed in opinion upon questions of political economy and other topics connected with the adjudication of such cases; and I cannot help thinking that, when there is no illegality in bonds and other instruments at common law, it would have been better that our courts of justice had been required to give effect to them, unless where they are avoided by act of parliament.”
To return from this digression: the case of Tracy v. Talmage, before cited, was considered with very great care. The opinion of the court of appeals, as expressed by Selden, J., was evidently pronounced not until after a most elaborate examination of the whole subject; but, it being subsequently suggested that “ the court, through a misapprehension of the authorities cited in the opinion of Judge Selden, had fallen into manifest error in its decision,” the case was re-argued, and the opinion of the court affirming the prior decision was afterward given by Comstock, J. It is apparent that no pains were spared to' make this final examination of' the case exhaustive and coniplete. The very able argument of counsel and the opinion of the court are both reported at length in 14 N. Y. 162-218.
It is there insisted by both Selden and Comstock, J. J., and we think conclusively shown, contrary to the suggestion of Judge Metcale, before referred to, that neither the place of residence of the original vendor, nor any peculiarity growing out of the matter of the rev
Tracy v. Talmage was a case where the vendor of stocks to a banking corporation, by the contract of sale, agreed to and did receive therefor, notes, payable on time, which the corporation was not authorized to make, and from issuing which it was prohibited under a penalty by statute. Judge Selden, after an elaborate review of the authorities, used the following language: “ I consider it, therefore, as entirely settled by the authorities to which I have referred, that it is no defence to an action brought to recover the price of goods sold, that the vendor knew that they were bought for an illegal purpose, provided it is not made a part of the contract that they shall be used for that purpose; and provided, also, that the vendor has done nothing in aid or furtherance of the unlawful design.”
There can be no doubt that the plaintiff’s general proposition is sound — that the mere soliciting another to commit an indictable offence is itself indictable, — The State v. Avery, 7 Conn. 267; and also that the inciting, encouraging, and aiding another to commit a misdemeanor is itself a misdemeanor, — Russ, on Crimes 46,47; but it is one thing to solicit a person to buy liquors in the ordinary course of lawful trade, and another and very different thing to solicit him to sell them in violation of law; see Finch v. Mansfield, before cited. And it is one thing to furnish a person, by means of a lawful sale and purchase, with articles which the purchaser may, and probably will, apply to an improper use, and another and very different thing to incite, aid, and encourage the purchaser in committing an offence against law, with or by means of the property which he may use for lawful and proper purposes.
It is not spirituous liquors only, but innumerable kinds of merchandise, which may be applied to improper and unlawful uses. And it would be wholly impracticable, as well as unwise and unjust (because restraining to an unreasonable extent the trade and commerce of the country), to require the vendor of all sorts of merchantable goods to scrutinize the plans and pui’poses of the purchaser with regard to the use of the commodity, and to sell only at the peril of forfeiting the price in every case where a jury might find, that the seller had reason to suppose the purchaser intended to make an improper or unlawful use of the article.
Considerations of local policy, of good morals, of the safety of soci
Tried by the principles of a code of ethics merely, or by rules of law subjected to such principles, it would be perilous, for example, for a man to furnish, on credit, an unscrupulous horse-jockey, or the dealer in almost innumerable varieties of deleterious patent medicines and nostrums, with the means of imposing upon, cheating, and harming unskilled and credulous people.
But we may illustrate the practical application of the principle for which the plaintiff contends, by reference to a great variety of penal statutes regulating-and restraining sales of commodities in this State.
Take this example: It is provided by law that “ all soft biscuit offered for sale by any baker or other person shall weigh either four or eight ounces each ; and all loaves of soft bread shall be of the weight of half a pound, one, two, three, or four pounds; and every loaf or biscuit shall be marked with the weight thereof,” &c. And if any baker or other person shall offer for sale any soft biscuit or loaf which does not in weight conform to this requirement, he shall, for each of-fence, forfeit ten dollars.
A wholesale dealer in flour has frequently visited his customer’s bakery, and observed the sale of light and unstamped loaves, and, on one occasion at least, when at the bakery, has virtually solicited orders for flour; and at the time of such solicitation he has reasonable cause to believe that his purchaser will make small biscuits and omit the stamps; — such orders being subsequently filled, is there any principle of law so strict and scrupulous as to forbid the recovery of the price of the flour ? \
Shall not the farmer recover the price of milk which he solicits the retail milk-peddler to purchase of him, if it appear that he has'reasonable cause to believe the peddler’s customers too often get short measure, or measure long enough only because attenuated by dilution ?
Shall the farmer be required to forfeit the price of the hay which he has sold to another for pressing or exportation, because he may have reasonable cause to believe the latter will evade the law which is intended to regulate the pressing and branding of hay ?
And what would we think of a judicial decision which should prohibit recovery of the price of the enormous quantities of corn, rye, potatoes, and malt, which find their way from the granaries of the Mid- ■ die and Western States into those distilleries of whiskey, far more numerous and extensive than public policy and the safety and welfare of the people require ?
We are not inclined to adopt, without qualification, the reasoning of that case, or the conclusion to which it tends. We think that a person who sells the ordinary subjects of mercantile trade, and, as is almost universally the usage of the mercantile community, invites, solicits, and urges custom in his line of business, is not to be identified with the unlawful subsequent use of the articles sold, and subjected to the consequences of prosecution as an accessory or particeps criminis in the unlawful subsequent sale, merely because he is not shown to have exercised extreme scrutiny and caution with regard to the ultimate destination and use of the goods purchased.
We ai’e inclined, instead, to accept the reasoning of Mr. Justice Comstock with regard to this matter. “ The-case,” he says, “may be put of poison or a deadly weapon purchased for the purpose of murder. The offence intended may be of such enormity that no man having á knowledge of the design can remain neutral, without being, in a just sense, a criminal himself. Where the design is to violate the fundamental laws of society, a positive duty of intervention may arise to prevent the perpetration of the crime. To such cases the rule which we lay down ought not to be applied. But if the question should ever be thoroughly examined, it will, I think, be found to have been far too broadly asserted, in respect to illegal contracts, that the law does not distinguish between acts criminal in their essential nature, and those which are wrong only because they are prohibited. . This distinction cannot be made where the contract itself is prohibited, and the question is directly upon its validity. The inquiry then depends not so much upon the ethics as the logic of the law, which cannot both affirm and prohibit the same contract. But in respect to many incidental questions, the moral feeling and common sense of every man does discriminate, and so, I apprehend, does the law.” 14 Johns. 215.
We do not deem it necessary, however, to base our conclusions, in this case, upon the distinction, alluded to by Mr. Justice Comstock ; and we wish it distinctly understood that although “ the moral feeling and common sense of every man does discriminate,” yet we do understand that there is no valid distinction in the application of the law upon this subject between mala prohibita and mala in se, and that,' if it were ever'regarded, it has been wholly laid aside in the decision of the later English cases.
But with respect to the application of the doctrine for which the plaintiff here contends, as tested by the illustrations taken from our own statutes regulating the sale of various commodities, the language of Mr. Chief Justice Eyre may be appropriately applied, although the cases used for illustration differ in shade from the case now before us,— “ the body of the color is the same in all.”
The very elaborate and exhaustive opinion of Mr. Justice Clifford, in Greene v. Collins, contains a summary and review of many of the authorities to which allusion has now been made. And concerning them, the learned judge remarks, “ Cases very nearly allied, it must be admitted, have been differently decided ; but if they are carefully examined and compared one with another, the particular features by which they were distinguished are, with few exceptions, plain to be seen.” And he points out, by way of illustration, certain expressions in Webster v. Munger, 8 Gray 587, indicating that the organ of the court on that occasion was of the opinion that a sale made with knowledge of the seller that the purchaser intended to use the thing sold, in violation of law, was illegal and void, irrespective of the question whether it was an
In addition to the authorities already cited, the following cases will be found to sustain the views now expressed. Curtis v. Leavitt, 15 N. Y. 15, 47; Story’s Conflict Laws, § 253; McConihe v. McMann, 27 Vt. 95; Backman v. Wright, ib. 187; Jameson v. Gregory, 4 Met. (Ky.) 363; Bligh v. James, 6 Allen 572; and Sortwell v. Hughes, 1 Curt. 245, cited by Clifford, J., ante, in which Judge Curtis uses the following language : “ The other ground of defence is, that if there were not a sale in New Hampshire, the property was sold by the plaintiffs with a knowledge that the defendant intended to sell it in violation of the law of New Hampshire; and no recovery can be had according to the law of that State.
“ Having come to the conclusion that these sales were not made in New Hampshire, and it not appearing that the plaintiffs in any way participated in the defendant’s sales, or did anything except to sell the property in the usual course of their business, the case of Holman v. Johnson, Cowper 341, is directly in point to show that a recovery may be had. I am not aware that this case has been overruled in England; though the extension of the principle to a sale in England, in the case of Hodgson v. Temple, 5 Taunt. 181, has been much questioned. Cope v. Rowlands, 2 M. & W. 149; Langton v. Hughes, 1 M. & S. 593; Cannan v. Bryce, 3 B. & Ald. 179. * * * I am inclined to the opinion, therefore, that I should take the same view of this case, if I were to decide it according to my own judgment of what the law is, as was taken in Holman v. Johnson; but I am relieved from this necessity by the decision of the supreme court of the United States in Harris v. Runnels, 12 How. 79. This decision goes even further than Hodgson v. Temple, and holds that where the sale was an ofience by reason of a statute, but the act itself was not immoral, and the sale itself was not declared void by the statute, there was no implication, from the mere infliction of the penalty, that the contract was forbidden, and so void. I found myself unable to unite in the opinion in that case, but I am bound by it. A fortiori, upon the principles of that decision there is no implication that the statute forbids a sale in another State to a person who intends to bring the property into New Hampshire
Our conclusion will have been anticipated; but it is proper to make a brief practical application of the foregoing considerations.
Stewart resided in New York, and carried on there a lawful business. In the regular course of trade he filled orders for liquors, selling and delivering them in the State of New York, as he might lawfully do. But, when he sold these liquors, ho had reason to believe and did believe that Emerson intended to re-sell them in New Hampshire; and, doing business here, he was bound to take notice that such resale of the liquors by Emerson here would be unlawful. Still, it seems to us too clearly settled to be disputed, that the contract of sale was not invalidated by reason of Stewart’s mere knowledge of Emerson’s unlawful designs.
Stewart’s offence, then, which is said to taint and corrupt the contract of original sale, consists solely in soliciting the purchase of these liquors, with knowledge that, if purchased, Emerson would be likely to re-sell them contrary to law.
I But Stewart did not solicit such a disposition of the liquors by ¡Emerson ; the liquors were not sold to him with a view to such disposition, / or to any disposition of them by Emerson. Stewart neither derived / nor contemplated any advantage from Emerson’s unlawful dealings with the goods; the payment for them was not dependent- upon, nor the price enhanced by, any considerations relating to Emerson’s use of them. His solicitation was that of traders in their general practice, as expressed in their advertisements and circulars — “ Your patronage \ is respectfully solicited” — and Stewart’s connection with the matter [terminated with the delivery of the goods to Emerson’s agent in New York.
We are of the opinion that this solicitation, accompanied by the vendor’s knowledge of Emerson’s course of business and his belief that these liquors would probably be disposed of in accordance with that course of business, does not bring the case within the rule whereby contracts affected by illegal considerations have been invalidated, nor, as we think, does it come within the principle which lies at the foundation of those wholesome maxims of the law which this plaintiff has invoked; none of which are infringed or sought to be impaired by this decision.
Moreover, we cannot lose sight of the fact that there is no evidence, and of course there' can be no presumption in law (but rather the contrary), that these liquors were re-sold by ¡Emerson at all. They may have been used, contrary to the original intent of the purchaser, for personal or family use, or for lawful chemical or mechanical purposes, by the vendee, or they may have been taken by him to a State where the sale of such goods was not prohibited, by law.
“ Intention,” says Mr. Justice Smith, in Bell v. Woodward, 47 N. H. 540, “ is subject to change; and a naked intention, where no act has been done, is not admissible as tending to show a probability that the intention will thereafter be carried into effect.”
Suppose the vendor understands that the vendee wants the liquor for an honest and lawful purpose. Still he puts into his hands the means of violating the law. The buyer in fact intends to, and does, violate the law. Clearly the sale would be legal and valid. Shall the vendor’s misunderstanding of the purchaser’s intentions, then, taint the original contract by retro-action ?
Suppose again, that, for the sake of the argument, we concede that mere knowledge of an existing intention to violate the law by the purchaser renders the contract of sale void. The illegal sale by the original vendor is made; the contract is ended; it is a void contract. But the purchaser changes his mind, becomes converted to the wholesome doctrine of temperance, and destroys the liquor, or uses it for lawful purposes. Does the subsequent diversion of purpose by the purchaser relate back to the original contract, so that now the original vendor can invoke our aid to recover the price fixed by the original invalid and unlawful sale ?
Not only upon authority, but upon correct principle, we are compelled to disallow the plaintiff’s positions. The substance of the decision in Smith v. Godfrey is, that the vendor’s claim to recover for the price of spirituous liquors, sold with knowledge of the purchaser’s intention to re-sell them contrary to law, will not be denied, unless it be “ an ingredient fii the contract that the goods shall be illegally sold, or that the seller shall do some act to assist or facilitate the illegal sale.”
The present case does not differ from that, unless the mere solicitation by Stewart shall be regarded as an ingredient in the contract that the goods shall be illegally sold, or unless such mere solicitation shall be considered an act assisting or facilitating the subsequent illegal sale.
The term solicitation, here, cannot have any forced or unusual meaning. There is scarcely ever a sale and purchase among traders, without solicitation by the seller. We are unable to regard the circumstance of such solicitation as of any importance whatever, as affecting the subsequent contract of sale by Stewart, much less the later disposition of the goods by Emerson.
It has been urged in argument that the moral sense of this community requires us to place this case within the exception to the rule of comity which is ordinarily applied to foreign contracts, and to apply to the sale of spirituous liquors the principle which should be applied in the case of the sale of a deadly poison to a murderer, with knowledge of his intentions.
We have no disposition to discountenance or oppose the doctrine of the immorality or the positive sinfulness of the indiscriminate sale of
Zealous reformers, constantly agitating this subject, cannot have'been unmindful of the legislation, heretofore alluded to, in Massachusetts and Connecticut, whereby such a sale as this was there made ineffectual, by force of express law.
Nothing could have been easier or simpler than for our legislators to have said, if such had been their will, or such in their judgment the will or desire of their constituents, <{ No action of any kind shall be had or maintained in any court for the price of any spirituous or intoxicating liquor sold in any other State for the purpose of being brought into this State, to be here kept or sold in violation of law, under such circumstances that the vendor would have reasonable cause to believe that the purchaser entertained such illegal purpose.” But they did not say it, as Massachusetts and Connecticut did; and having seen fit to stop short of this point in the progress of reform, it .cannot be required of the courts that they should go further than the law-makers themselves, and usurp their legitimate functions.
It cannot be said that the public policy of this State forbids the en forcement of this contract, and approves the gross immorality and dishonesty which, alone, could prompt such a defence, when made by the purchaser.
In Massachusetts, as we have seen, the mandate of legislative power was laid upon the courts, with respect to contracts like this; and willingly obedient thereto, such contracts were declared illegal, and parties seeking their enforcement were turned out of court. In 1868 the mandate was withdrawn, the statute of 1855 was repealed, the common law revived, and then the vendor of goods, in a State where the sale was lawful, .came to the courts of Massachusetts to recover under such a contract, and under exactly such circumstances as surround the present case, and had his claim allowed.
. This court, it is to be presumed, will not be reluctant to execute the laws in the spirit of their purpose and intent. We sit here not to do our own will, nor to make laws ; nor to administer them according to our own notions, but by prescribed rules.
But so long as the people do not thus express their will, through the forms of constitutional legislation, we are bound to adhere to the principles which lie at the foundation of our commercial prosperity, and to admit no case within the exception to the rule which those principles have established, unless the demand is enforced by stronger considerations than the present case presents to our minds.
Our conclusion is that there was no error in the refusal to give to the jury the instructions desired by the plaintiff.
Judgment on the verdict.
Dissenting Opinion
dissenting. The case finds that the liquors were sold on orders received by the plaintiffs in New York, where they carried on their business, and were delivered to carriers there, directed to Emerson the purchaser. And the first question is, whether the price could be recovered, if the seller knew, at the time of the sale, that they were bought to be sold in this State in violation of our laws, and they were so sold.
Second. Whether the seller could recover if he came into this State and solicited the buyer to purchase liquors, knowing they were to be sold contrary to our laws, and the buyer did afterwards buy the liquors.
Third. Whether the seller could recover, if he encouraged the buyer to buy the liquors, and sell them in this State in violation of our laws.
In the case of Smith v. Godfrey, 28 N. H. 379, it was held that mere knowledge that the liquors were to be sold in this State contrary to our laws, the sale being made in Massachusetts and valid there, would not invalidate the contract; but it is held that if it enter at all, as an ingredient, into the contract that the goods shall be illegally sold, or “that the seller shall do some act to facilitate the illegal sale, the contract will not be enforced. For this doctrine the court cites Holman v. Johnson, Cowp. 341, as the leading case, as it undoubtedly is.
That was decided in 1775. Lord Mansfield lays it down that no court will lend its aid to enforce a claim founded upon an immoral or illegal act; and says the question is, whether the plaintiff’s demand is founded upon the ground of any immoral act or contract, or upon the ground of his being guilty of anything which is prohibited by a positive law of this country. An immoral act, he says, it certainly is not, for the revenue laws, as well as the offence against them, are all positivi juris ; and, on the other hand, the sale is complete by the delivery of the goods in Dunkirk, the place of sale. The seller, indeed,
In another part of the opinion, he says, that no country ever takes notice of the revenue laws of another country.
It is evident, then, that upon the question whether the court should lend its aid here, on the ground that the contract was immoral, the turning point was, that the transaction in which the buyer was ’engaged was malum prohibitum and not malum in se; and there is good reason to believe that the decision would have been different had the transaction been malum in se.
Faikney v. Reynous, 4 Burr. 2069, was earlier than Holman v. Johnson, having been decided in 1767, and it was there held that a bond to reimburse the plaintiff for one half of a sum of money paid by him to compound differences in a stock-jobbing transaction, might be enforced. The opinion was delivered by Lord Mansfield ; and he put it upon the .ground that the offence was not malum in se, but only prohibited by act of, parliament.
This case was cited by counsel in the argument of Holman v. Johnson, and it seems there to have been followed.
The case of Petrie v. Hannay, 3 T. R. 418, decided in 1789, was very much like Faikney v. Reynous, and followed that authority, although Lord Kenton dissented, and Grose, J., yielded to it with great reluctance.
In all these cases the turning point was, that the illegal acts were malum prohibitum only, and not malum in se. Since that time? however, this distinction has been entirely obliterated, both in England and New Hampshire, as I shall proceed to show.
In Lightfoot v. Tenant, 1 B. & P. 551, it was decided that a contract to pay for goods sold to defendant to be shipped to Ostend, and from there to the East Indies, to be sold clandestinely and contrary to act of parliament, the plaintiff knowing the purpose for which they were bought, could not be enforced.
The case was decided in 1796. In the opinion by Eyre, C. J., he puts the strong case of selling arsenic, with the knowledge that it is to be used by the buyer to poison another ; and he says that othei' cases, where the means of transgressing a law are furnished with knowledge that they are intended to be used for that purpose, will differ in shade more or less from this strong case; but, the body of the color is the same in all. No man, he says, ought to furnish another with the means of transgressing the law, knowing that he intends to make that use of them.
In Story’s Conflict of Laws, see. 253, in referring to Holman v. Johnson, and other authorities of that class, he says, the result of these decisions certainly is, that mere knowledge of the illegal purpose for which goods are purchased will not affect the validity of the contract of sale of goods intended to be smuggled into a foreign country, even in the courts of that country; but that there must be some participation or interest in the act itself. It is difficult, he says, however, to reconcile them with the strong reasoning of Lord Chief Justice Eyre,
In Aubert v. Maze, 2 B. & P. 371, decided in 1801, it was decided that where two persons engage in partnership in an illegal business, made so by act of parliament, as insurances for instance, and one pay an entire loss, he cannot recover of the other his share ; and it is put upon the ground that the transaction was a breach of an act of parliament, and the distinction between aets malum in se and malum prohibitum is reprobated. The cases of Faikney v. Reynous and Petrie v. Hannay are seriously questioned, and said to be in opposition to several subsequent decisions.
In Booth & al. v. Hodgson & al., 6 T. R. 405, decided in 1795, the same doctrine was held as in Aubert v. Maze.
In Langton & al. v. Hughes, 1 M. & S. 593, decided in 1813, it was held that one who sells drugs to a brewer, knowing that they were to be used in the brewing contrary to act of parliament, could not enforce the payment of the price. Lord Ellenborough says, that if one sells .the drugs with the knowledge that they are meant to be mixed, he may be said to cause or procure, quantum in illo, the drugs to be mixed. LeBlanc, J., says it is an established principle that the court will not lend its aid in order to enforce a contract entered into with a view of carrying into effect anything which is prohibited by law; so that if a person enter into a contract which is to aid the brewer in the breach of this law, he shall not be permitted to recover.
So in Cannan v. Bryce, 3 B. & Ald. 179, it was held that money lent, and applied by the borrower, for the express purpose of settling losses on illegal stock-jobbing transactions, cannot be recovered back by him, even though the lender was no party to such transactions.
who delivered the opinion of the court, says, the authority of Faikney v. Reynous and Petrie v. Hannay has been questioned in several subsequent cases, and the distinction between malum prohibitum and malum in se was disallowed in Aubert v. Maze; and he says, we think no such distinction can be allowed in a court of law; the court is bound, in the administration of the law, to consider every act as unlawful which the law has prohibited to be done.
He goes on to say, as the statute in question has absolutely prohibited the payment of money for compounding differences, it is impossible to say that’ the making such payment is not an unlawful act; and if it be unlawful in one man to pay, how can it be lawful for another to furnish him with the means of payment ? and he says he is speaking of a case wherein the means were furnished, with a full knowledge of the object to which they were to be applied, and for the express purpose of accomplishing that object; and he thinks the case cannot be distinguished from Langton & al. v. Hughes. In Ritchie v. Smith, 6 M. G. & S. 462, it was decided that an agreement entered into for the purpose of enabling one of the parties to it to contravene a statute passed for the protection of public morals, cannot be enforced in a court of law.
If this be so in respect to furnishing the place for carrying on Such illegal traffic, for a much stronger reason would it apply to the furnishing the very thing itself for the purpose of being illegally sold.
These authorities show clearly that the distinction between acts malum in se and malum prohibitum, adopted in Faikney v. Reynous, Petrie v. Hannay, and Holman v. Johnson, is no longer recognized in England.
The case of Biggs v. Lawrence, 3 T. R. 454, holds that in respect to brandy, sold by a firm residing mostly in England, but the brandy delivered in Guernsey, and for the purpose of being smuggled into England, the price could not be recovered in the English courts. The brandy was sold by one of the partners living in Guernsey, but the court regarded it as a contract made in' England, and in that way distinguish it from Holman v. Johnson, which is recognized as law. This case shows clearly that the furnishing the subject of an illegal traffic stands on the same footing as furnishing a place to carry it on, although the illegality is the result of positive law; and it shows also a disposition not to extend the doctrine of Holman v. Johnson. In fact, it repudiates the distinction between contracts malum in se and malum prohibitum.
Of the same general character is Clugas v. Penaluna, 4 T. R. 466. There, the goods were sold in Guernsey, by a resident there; and the court said the only question was, whether there was sufficient evidence to go to the jury of this being a smuggling transaction; and Lord Kenyon says, that although the mere selling of the liquors might not be immoral, yet if they were sold there by a subject of this country, with a view to evade the laws of this country, it savors strongly of immorality : and it was held, that although it might perhaps not be against the laws of Guernsey, payment cannot be enforced by judicial process in any court in this country. Ashurst, J., was of opinion that although this might be a legal contract that could be enforced in the courts of Guernsey, it could not be in England. Buller, J., thought the case distinguished from Holman v. Johnson by the fact that here the brandy was packed in ankers, which are used for smuggling.
said that if a Guernsey man collude with a person living here to defeat the laws of this country, he shall not call in aid the laws of this country.
Lord Kenyon also placed stress upon the fact that the plaintiff was á subject of Great Britain, whereas it was otherwise in Holman v. Johnson.
It will be observed that two of the judges are of the opinion that no
In Waymell v. Reed & al., 5 T. R. 599, the plaintiff was a foreigner, living at Lisle, and sold lace which he knew was intended to be smuggled into England, and which he packed in a peculiar manner to facilitate that object; and it was held that he could not recover.
These cases limit very materially the doctrine of Holman v. Johnson, and show a disposition of the English courts to seize upon slight circumstances of distinction.
The circumstance of packing the goods in a peculiar manner is said to assist or facilitate the breach of the laws of the country into which they ai’e to be introduced; but after all, this is only evidence of the knowledge of the seller of the purpose of the buyer, and adds nothing of any importance to the substantial nature of the assistance in violating the laws of another country, which comes from furnishing him with the very means of doing it, with the knowledge that they are to be so applied.
The mode of packing is a mere incident to the subject matter of the contract, without which the law could not be violated; and I think the adoption of that distinction is due to a desire in the English courts to limit the application of Holman v. Johnson, which, under the influence of the great name of Lord Mansfield, they are reluctant to overthrow.
In our own State it is decided that money knowingly lent to game with, cannot be recovered — Cutler v. Welsh, 43 N. H. 497. Bell, C. J., in that case, says the law is well settled to that effect; and he cites many authorities to that point, and among them Langton v. Hughes, 1 M. & S. 593, and Cannan v. Bryce, 3 B. & Ald. 179.
So it is in Massachusetts, White v. Buss, 3 Cush. 448, where Shaw, C. J., lays it down as well settled, that any promise, contract, or undertaking, the performance of which would tend to promote, advance, or carry into effect an object or purpose which is unlawful, is in itself void, and will not maintain an action. He says the law which prohibits an end, will not lend its aid in °promoting the means designed to carry it into effect; and in this respect the law gives no countenance to the old distinction between malum in se and malum prohibitum. That which the law prohibits in terms, or by> affixing a penalty to it, is unlawful, and it will not promote, in one form, that which it declares wrong in another; and' he cites for this doctrine Aubert v. Maze, 2 B. & P. 371, and Cannan v. Bryce, 3 Barn. & Ald. 179, before cited. So it was held that money lent to ransom a ship, contrary to act of parliament, could not be recovered. Webb v. Brooke, 3 Taunt. 6.
The doctrine that there is now no distinction between acts malum in se and malum prohibitum, is recognized in U. S. Bank v. Owens & al., 2 Peters (U. S.) 527, and in Harris v. Runnels, 12 How. (U. S.) 79.
In White v.Buss, Shaw, C. J., says, that the reason why such a contract is void is, that it is to give effect to a proceeding prohibited by law as against public pólióy. See, also, Emery v. Kempton, 2 Gray 257. It will be observed, also, that since the decision in Cutler v. Welsh, before cited, the doctrine there held has been incorporated into the Gen. St., chap. 254, § 9.
As to contracts among our own citizens, there can be, since the decision in Cutler v. Welsh, no controversy, for the doctrine there announced is broad and of general application.
/* The question then is, whether our courts are required, as matter of comity, to enforce a contract made abroad in favor of a citizen of another country, which it would not enforce in favor of one of our own citizens, upon the ground that it was a contract knowingly made to furnish the means of violating a positive law of our own State, and contrary to public policy.
In considering this question, it is readily conceded that the authority of Smith v. Godfrey should not hastily be disregarded or overthrown without the most cogent reasons for it; but there are circumstances to be considered that in my judgment materially diminish its weight at the present time.
That decision was in 1854; and since then the law in respect to the traffic in spirituous liquors has undergone a great change, so that there can now be no question "that the traffic in such liquors, contrary toTaw, is immoral. Immoral, not only because it is a violation of positive law,which is everywhere, of late years, coming to be regarded as of itself immoral; but immoral, because in its consequences it is highly destructive to the peace, good order, and morals of society, the fruitful parent of crime, poverty, insanity, and almost every form of human debasement and suffering. Intemperance, indeed, is the master vice of the age, and imperatively calls for the united exertions of all the wise and the good in the community to find some remedy for its great and growing evils; and I cannot but regard the illegal traffic in spirituous liquors as clearly immoral.
It is also to be observed, that since the decision in Smith v. Godfrey, the case of Cutler v. Welsh was decided, settling fully the doctrine that furnishing means to violate a positive law of the State is in itself illegal, though the act is not malum in se, and a contract arising out of it cannot be enforced in this State; thus repudiating the doctrine of Faikney v. Reynous and Petrie v. Hannay, and qualifying materially the doctrine of Holman v. Johnson.
Looking at the question in its broadest aspects, it is this : whether a sale of liquors, made by a citizen of another State, in that State, to a citizen of this State, to be brought here and sold in violation of our laws, the seller knowing that such is the purpose, is to be regarded by our courts as valid and to be enforced.
The purpose of the buyer in this purchase is, to violate our laws, to' commit an indictable offence; and the seller knows it. Is he not then himself morally guilty of the same offence, when he knowingly puts into the hands of another the means, of committing it ?
Take the case of money lent to game with, or weapons furnished to commit a crime with, or to make war on a nation with whom we are at peace: can the character of the act depend on the locality of the State line, whether on the one side or the other of the parties, when making the contract ?
In foro conscientice, it is undeniable that there can be no difference. If the- acts were done in this State, it is clear that no court here would enforce a contract growing out of them; and so it would be if done out of the State, but by citizens of this State, as is shown by the cases of Biggs v. Lawrence and Clugas v. Penaluna, before cited.
What principle then of comity requires us to enforce such a contract in favor of a citizen of another State, when his contract is made with full knowledge of its object, and has the same moral taint that would deprive a citizen of our own State of all remedy ?
The purpose of the buyer being to break our laws, the seller, having knowledge of it, must be regarded as participating in the offence, — as a party to a sale, made to defraud creditors, is held to participate in that intent if he had knowledge of it, whether he really had any purpose to defraud any body or not.
And so it is generally in such things, — a person having knowledge of an act of fraud and in any way lending his aid to effect it, is deemed a party to' it, whatever his real motive.
As to Holman v. Johnson, it is clear that Lord Mansfield considered the contract not to be immoral, and upon the ground that the revenue laws, as well as the offences against them, are all joositivi juris, and not malum in se. His view of the subject is seen in the expression, that no country ever takes notice of the revenue laws of another.
Had that great judge regarded the contract as immoral, there can be no doubt that his decision would have been the other way.
Whatever might have been the view in respect to the breach of a revenue law by a citizen of a foreign country, we can entertain no doubt that it is an immoral act in such citizen to aid in a violation of the laws for the suppression of intemperance, by furnishing the means to do it; and even in respect to the revenue laws, any aid furnished to facilitate such violation, as by packing the goods in a peculiar way for that purpose, would invalidate the contract.
It is to be observed, also, that the doctrine of Holman v. Johnson was applied in a case where, according to the habits of the times, the breach of the revenue laws, especially by a citizen of a foreign country, was regarded as involving less moral turpitude than a breach of almost any other law, although now such distinctions are in law not recognized.
It should also be considered that, owing to the insular condition of Great Britain, a doctrine that might not be productive of great mis
I am aware that it is said that the person who buys these liquors does not deserve any protection against the claims of the seller; and that is admitted to be true: but this is a totally inadequate view of the subject. It is not for the sake of such buyers, but to suppress an immoral and mischievous traffic by refusing to enforce contracts growing out of it.
So long as this rule in Holman v. Johnson is recognized, we shall continue to have upon us an army of liquor dealers in the neighboring States, using all the skill which experience has gathered to induce our citizens to violate the laws, and to teach jhem how to do it with the best chance of impunity.
From such a power and from such doctrines great mischief is to be apprehended; and I cannot conceive that we are under obligation, as matter of comity, to enforce contracts of that kind. It is a case, indeed, where we are excused upon the ground that the traffic is highly injurious to us.
If the authority of Smith v. Godfrey is too firmly established to be shaken, and mere knowledge in the seller is not enough to render the contract invalid, the question then is, whether the coming into this State and soliciting orders for these liquors, or encouraging the defendant to buy and sell the liquors in this State in violation of law, would render such sale invalid.
The coming into this State and soliciting orders for liquors, and encouraging the party to buy and sell contrary to law, is to my mind a more direct participation in the violation of the law, than the packing the goods in a convenient way for smuggling, inasmuch as here is a direct request, or what is equivalent to it, to break the law.
In Territt & al. v. Bartlett, 21 Vt. 184, the order for the liquors was given in Vermont, but the sale completed in New York, the seller knowing that they were to be sold in violation of law; — it was held that for all practical purposes it must be considered that the sale was made in Vermont; and the plaintiff could not recover. . A similar doctrine was held in Howe & al. v. Stewart, 40 Vt. 145.
In Wilson v. Stratton, 47 Me. 120, where orders for liquors were given in Maine, and the goods delivered in Boston, the court speaks in this wise, after saying that plaintiffs could not be ignorant of the existence of their laws prohibiting this traffic. “ Yet, in the face of these laws and of the known and settled policy of the State, they send their agents into the State to seduce our citizens to enter into contracts, looking directly to their violation; and after having succeeded by such solicitation in inducing them to enter into such a contract, they come before .our courts and ask them, on the principle of comity, to enforce them on the technical ground that they were completed in another State. Such proceedings are manifestly in fraud of the laws of the State, and cannot be upheld upon any sound principle of comity.” In Webster v. Munger, 8 Gray 584, it was held that a sale made in one State, with a view to a re-sale in another contrary to law, is invalid, and would not be enforced in the latter State ; and Thomas, J., holds that mere knowledge of the purpose would defeat ijb. From these cases, as well as the others cited from the law reports, it is evident that the courts, both in England and this country, are disposed to lay hold of slight circumstances to avoid the doctrine of Holman v. Johnson; and I think the coming into this State and soliciting orders, and encouraging the sale of liquors contrary to law, is a much more decided participation in the illegal act than many of the cases reported, where it is held to make the seller a party.
If I understand aright the opinion of Mr. Justice Clifford in Greene v. Collins, the distinction he makes is between a case of mere knowledge in the seller, and acts done by him to facilitate the violation of the law; and he illustrates his view by reference to the English case of Brown v. Bennett, 1 Camp. 849, where the plaintiff furnished articles of equipage or dress to a female keeping a house of ill-fame, for the purpose, and of a character, to enable her to make a display; and he says that the decision was upon the ground that the act of supplying a female engaged in such immoral practices would warrant a jury in finding that the articles were intended to facilitate the objects of her vocation; and lie says that sales under such circumstances may well be presumed to have been made with the intent to facilitate the objects of the purchaser, and if so, then the contract is clearly void.
He also says that different rules have been sometimes applied in the construction of contracts made for the sale of goods in one country, intended to be exported into another in violation of its revenue laws; but he declines to enter that field of inquiry, as such a question is not raised, although the liquors, the subject of the suit, were sold in Rhode Island to be used in Massachusetts, the sale being valid by the laws of the State where it was made.
If the liquors were sold with the full knowledge that the buyer was
What, indeed, could more decisively aid in such breach of the law than to furnish him upon credit with the very means to do it, knowing that they are to be so used.
It would be a reproach to the intelligence of a jury to suppose that they could hesitate so to find it, or to find that this was encouraging the buyer to violate the law.
The fact is, that in all cases where one man furnishes another with the means to commit a crime, knowing that they are to be so used, the law deems him to be a participant in the guilt of the offence ; and this applies in its full force to the case under consideration. Nor is it any answer to say that the original intention of the buyer may be abandoned, and the liquors sold elsewhere, and lawfully; but if the law is in fact broken, and the seller furnishes the means to do it knowing that they are to be so used, he cannot be excused by the fact that the means ■might have been otherwise used,- any more than, in case he had furnished another with arsenic to poison a man, he could be excused by alleging that it might not have been used for the purpose for which it was furnished, or that it might not have'been effectual. In truth, when liquor dealers across the line of our State are habitually aiding our citizens in the violation of laws made for the protection not only of the public morals but of the very lives of our people, there is an impudence in coming to our courts, and asking them to enforce contracts growing out of such traffic, that is almost sublime.
It is obvious that- they are doing all they can do to render inoperative a law which the courts are bound to enforce so long as it remains on the statute book; and then they ask the same courts to pr.otect them in these efforts to break down our laws, by treating their contracts as meritorious and legal.
To do this would be extending the doctrine of comity to a point altogether inconsistent with the public safety.
By our laws no spirituous liquors can be sold here except by agents duly appointed by law; and to ensure the sale of pure liquors only, these agents are required to purchase of persons designated by the governor alone; and those persons are required to give bonds to ensure the furnishing of pure, unadulterated liquors. With a full knowledge of these provisions and in utter disregard of them, liquor dealers across the line systematically endeavor to nullify these provisions, and deprive us of all security against the introduction of adulterated and poisonous liquors; and the argument is, that their conspiracies against our laws are carried on beyond the limits of this State, and therefore we are bound -to regard them as not only not illegal, but of such a character that our courts are bound to enforce contracts made to accomplish this nullification of our laws.
, If this be so, it is due to a decision made long ago by a very eminent judge in a matter involving few of the moral aspects' of the present question, and’ upon views and doctrines which have since been dis
I feel sure, however, that this doctrine cannot stand the test of a eareful examination upon principle, and I therefore am ready to hold that comity does not require us to enforce the contract now in question. Upon these views I am compelled to dissent from the opinion of the°majority of my brethren.