Hunt v. Knickerbacker, 5 Johns. 327

Hunt v. Knickerbacker

5 Johns. 327 | N.Y. Sup. Ct. | 1810

Thompson, J.

delivered the opinion of the court. One question made on the argument in this cáse, relates to the legality of the contract, upon which the action is founded, and goes to the whole merits of the plaintiff’s claim. The cause of action arises out of a receipt given by the defendant, on the 16th day of June, 1806, by which he acknowledges to have received, 112 tickets in the Canaan meeting-house lottery, to sell at four dollars each, on a commission of two and a half per cent, and those not sold, to be returned. Both from the declaration and testimony, it is manifest, the tickets were delivered and received, for the purpose of being sold in this state. Our act (Rev. Laws, v.1. 35.) declares, that every lottery, other than such as shall be authorized by the legislature, shall be deemed a common and public nuisance; and the selling or purchasing any ticket or tickets of any lottery, thereby prohibited, subjects the offender, on conviction, to the payment of ten pounds, for every such offence. Every lottery not authorized by the legislature, is a private lottery within the purview of this act. The mischief intended to be guarded against, appears from the preamble. “ Whereas experience has proved, that private lotteries, occasion idleness and dissipation, and have been productive of frauds and impositions.” Although the tickets in question, were in a lottery established in the state of Connecticut, yet the sale of them here, would be productive of many of the mischiefs contemplated by the legislature. The special exception as to lotteries established under the authority of the United States, affords a pretty strong inference, that the prohibition was intended to extend to lotteries established in sister states. It is, at least, against the policy of our statute, to permit the sale of such tickets.

If the contract be illegal, or against the policy and. spirit of the act, courts of justice ought not to lend their aid to enforce it. The present action is founded upon the contract, and goes in affirmance of it; and w *334not brought to recover back the tickets, or the money a¿ * tually received on the sale of them. The plaintiffs claimed, and have recovered the full value of the tickets, at four dollars each, on the ground that the defendant had made them his own by not returning them pursuant to his contract. It is a general rule of law, that all contracts or agreements which have for their object any thing which is repugnant to the general policy tif the common law, or contrary to the provisions of any statute, are void, (1 Comyn on Con. 30.) and not to.be enforced. In the case of Holman v. Johnson, (Cowp. 343.) Lord Mansfield says, the objection that a contract is immoral or illegal, as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not, however, for his sake, that the objection is ever allowed, but it is founded in general principles of policy ; and whenever from the plaintiff’s own stating, or otherwise, the cause of action appears to arise from the transgression of a positive lav/ of the country, he has no right to be assisted. The same principle has been fully recognised by this court, in the case of Belding v. Pitkin. (2 Caines 149.) It is there said to be a principle too salutary and well settled, to be in any measure infringed, that courts of justice ought not to assist an illegal transaction in any respect. It is considered in the English courts, to be illegal, if not immoral, in the subjects of one country td enter into a contract with the subjects of another, to assist the latter, in defrauding the revenue laws of his country; (5 Term Rep. 600.) and they will not sustain, actions upon contracts entered into with that view. A contract, which in its execution, contravenes the policy and spirit of a statute, is equally void, as if made against its positive provisions. (3 Term Rep. 23.) The preamble and provisions of our statute, point out, very clearly, that the intention of the legislature was to prohibit the establishment of any lottery, or the sale- of any tickets not specifically sanctioned by the legal authority of this state."

*335No case, I believe, can be found, where an action has been sustained, which goes in affirmance of an illegal contract; and where the object of it is to enforce the performance of an engagement prohibited by law. Wherever an action has been sustained against a party, to prevent him from retaining the benefit derived from an unlawful act, the action proceeds in disaffirmance of the contract ; and, instead of endeavouring to enforce it, presumes it to be void. (2 Black. Rep. 1073. Cowp. 197. 790. 1 Hen. Black. 65.

Without, therefore, examining the other questions made on the argument, I am of opinion, that the present action cannot be sustained; and that pursuant to the stipulation in the case, judgment of nonsuit must be entered.

judgment of nonsuit»