98 A. 516 | N.H. | 1916
In answer to the elementary proposition that no right can be founded upon a transaction which involves a violation of law (Piper v. Railroad,
Assuming that these positions are well taken, they do not the plaintiffs. In effect, the claim is that the legislature did not intend in the statute, which it is agreed the plaintiffs violated, to prohibit the transaction upon which their rights depend. "Where the purpose is to prohibit an act, there is no power in the court to allow the act to be the foundation of a right to recover." Gilchrist, J., in Lewis v. Welch,
"Where a contract is prohibited by statute, it is immaterial to inquire whether the statute was passed for revenue purposes only, or for any other object. It is enough that parliament has prohibited it, and it is therefore void." Benj. Sales (Bennett), s. 538.
Upon the question whether a prohibition of the contract intended, the purpose of the legislature in imposing material, and, if it appears that the statute is purely a revenue one and that the penalty is imposed solely for the protection of the *219
revenue, the conclusion that it was not intended to prohibit the contract so as to render it void may be reached. Benj. Sales, Ib.; Mandelbaum v. Gregovich,
The penal provisions of the act are found in section eight: "whoever goes about from town to town, or from place to place in the same town, carrying for sale or exposing for sale any goods, wares, or merchandise contrary to the provisions of this chapter, shall be punished by a fine." From this language it can be argued upon the authorities before cited that no fine could be imposed for a mere sale of goods, wares or merchandise which were not carried about or exposed for sale. If this be so, it is very clear that the prohibition against going about selling was not devised for the purpose of raising revenue.
The plaintiffs suggest that the action is trover, not assumpsit to recover upon the contract of sale. But the plaintiffs' alleged title rests upon the lease given in execution of the illegal contract of sale. Their real grievance is the breach of the defendant's promise of payment. Their claim is through the illegal contract, and they cannot avoid the effect of its illegality by varying the form of the remedy. Woodman v. Hubbard,
The case refers to s. 1, c. 123, P. S., which was repealed by c. 65, s. 9, Laws 1893, but as counsel cite c. 76, Laws 1897, the act in force March 7, 1912, the reference in the case is assumed to be an error.
Exception sustained: judgment for the defendant.
All concurred. *220