8 R.I. 230 | R.I. | 1865
The first question raised by the exceptions is upon the demurrer to the special plea of infancy, and the exception, as stated, is that the plaintiff contended that the plea of infancy was good and ought to be sustained, and the demurrer thereto overruled, but that the court below ruled that the plea of infancy could not avail the defendant in the said action, and sustained the demurrer. This plea is not aided by the statement of facts, but must stand upon its own merits, and upon the facts disclosed by it. Clearly, to an action alleging a conversion, the single allegation that the defendant was at the time an infant, is no bar, nor is it pretended in the argument it could be; and so it is admitted that the court was quite correct in sustaining the demurrer.
Another question has been argued, viz., whether infancy can be a defence to an action of trover when the conversion consists simply of driving a horse beyond the place agreed, in violation of the contract of bailment. This question is, however, not made by the bill of exceptions, and is not, therefore, necessary to be considered. It was only claimed in the court below, that the plea was sufficient, and that the demurrer ought to be overruled. The judge held otherwise. No question of infancy was made in any other way. Infancy was not claimed as a defence except as it was pleaded.
There is another question raised by the exception. This arises upon the plea of not guilty. It appears by the agreed statement of facts, that the horse and carriage, for the conversion of which the suit was brought, was, in fact, let to hire by the plaintiff to the defendant and another, to ride from the city of Providence to a place called Chedel's, in East Providence; that the letting was on Sunday, in the usual course of business and ordinary calling of the plaintiff, and called for neither by necessity or charity, and that the defendant went beyond the *233 place agreed, where he was found the next day by the plaintiff, returning with the horse and carriage.
There is nothing set forth in the agreed statement, as done by the defendant, which of itself constitutes or proves a conversion. There was nothing in the use of the property, or the treatment of it, independent of the terms of the bailment, which was a denial of the title to, or an exclusion of the rightful dominion of, the plaintiff over the property — no misuse — and to prove the conversion, it was necessary to show that the terms upon which it passed into defendant's possession had been violated, and that the bailment had been determined by the defendant by going beyond the place agreed, which the law pronounces a conversion. It was, and is, necessary, therefore, for the maintenance of this action, to put in evidence the agreement for hire. It was part of the plaintiff's case; one of the grounds upon which it rests, and without which it must fail.
That agreement, however, was made against, and in violation of, a statute which prohibits the plaintiff from so contracting on Sunday, the day on which this agreement was made, and the contract was thereby rendered illegal. And now, when the plaintiff offers the required evidence, he is met by the maxim, as a principle of public policy, ex dolo malo non oritur actio, and is told that no court will lend its aid to a man who founds his cause of action upon an immoral or illegal act, and if, upon his own statement of his case, the cause of action appears to arise from the transgression of a positive law, he has no right to be assisted; and though the objection, said Lord Mansfield, inHolman v. Johnson, 1 Cowp. 343, sound ill in the mouth of a defendant, it is allowed, not for the sake of the defendant, but because the court will not lend its aid to such a plaintiff.Gregg v. Wyman, 4 Cush. 322; Fennell v. Ridler, 5 B. C. 406; Smith v. Sparrow, 4 Bingham, 84; Armstrong v. Toler, 11 Wheaton, 258; 5 Selden, 520.
It makes no difference that the illegal act is only one of a series of facts necessary to sustain the claim. The action must equally fail, and a court must exclude it from consideration.Gregg v. Wyman, 4 Cush. 322. *234
