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It may be important in Virginia and other states where the statute of 19 Geo. 2, c. 37, has not been enacted, to consider whether at common law a person might have insured without having any insurable interest. The preamble to that statuteand perhaps the enacting part also-furnishes evidence that he could. Crawford v. Hunter, 8 T. R. 23; Abbott v. Lebor, 3 Johns. Cas. 39. The subject was much discussed in Lucæna v. Crawford &c. 3 Bos. & Pul. 75. The judges there were of opinion that an insurance of a ship by a mere stranger would be valid if the owner afterwards ratified it. 5 Id. 291. They said the question always is, whether the policy be a gaming contract? if it be no artifice, how, they ask, can it elude the force of the statute? Id. 297. By this case it was solemnly determined, without even a difference of opinion among the judges, that at common law wager policies, or insurances without interest, were lawful; and that it was impossible to say that any wager which was not contrary to the policy of the law, that is contrary to morality or hurtful in a political point of view, was not a legal contract. Cousins v. Nantes, 3 Taunt. 515.
This determination has given rise to an important distinction between, on the one hand, policies of assurance against marine risks and against fire, which as stated ante, p. 302, are contracts of indemnity, the insurer engaging to make good certain limited amounts-the losses sustained by the insured in their buildings, ships and effects; and on the other hand, the contract commonly called "life assurance," which is a mere contract to pay a certain sum of money on the death of a person, in consideration of the due payment of a certain annuity for his life. It was of a policy against marine risks which is in its terms a contract for indemnity only, that Lord Mansfield was speaking in Hamilton v. Mendes, 2 Burr. 1210. And his doctrine was applied by Lord Ellenborough and his associates in the king's bench to an action on a policy of insurance on the life of Mr. Pitt, by persons who were his creditors at the time the insurance was effected, but whose debts were paid before they brought their action on the policy. Regarding the contract as one of indemnity, the court held they had no ground of action. Godsall &c. v. Boldero &c. 9 East 72. In some subsequent cases in England, the judges do not dispute-some indeed appear to approve of the case of Godsall v. Boldero; but they are cases in which it was not material to controvert it, and in which the questions to be decided were quite independent of the authority of that case. Barber v. Morris, 1 Moo. & R. 62; Phillips v. Eastwood, Lloyd & Goold 270, 10 Cond.
Eng. Ch. Rep. 506; Henson v. Blackwell, 4 Hare 434, 30 Eng. Ch. Rep. 434. In practice, it is said that Godsall v. Boldero, has, in England, been constantly disregarded. The exchequer chamber has not felt bound by its authority; considers that a policy for a life assurance in no way resembles a contract of indemnity; that in an action on such a policy it is unnecessary to prove more than an interest at the time of making the policy; that that interest is sufficient to make the policy valid in point of law. Dalba v. India & London Life Ass. Co. 28 Eng. Law & Eq. 317. In this case the court held, 1, that the contract to pay the fixed sum of £1000 on the death of the Duke of Cambridge would have been unquestionably legal at common law, whether the plaintiff had an interest therein or not; and 2, that the contract was not rendered illegal and void by the statute of 14 Geo. 3, c. 48-that the only effect of the statute is to make the insured value his interest at its true amount when he makes the contract.
11. Thing to be done must be legal. Court will not enforce contract forbidden by the common or statute law.
"In order to found a consideration for a promise, it is necessary," says Ashurst, J., "that the party by whom the promise is made, should have the power of carrying it into effect; and secondly, that the thing to be done should itself be legal." Nerot v. Wallace, 3 T. R. 23. In this case the consideration for the promise was void on both these grounds. The promise was in consideration of a stipulation by assignees of a bankrupt not only for their own acts but also that the commissioners should forbear to examine the bankrupt; a forbearance which the assignees had no legal power to enforce, and an examination which even the commissioners could not legally dispense with. Buller, J., besides concurring with the other judges on these grounds, considered the situation of the contracting parties. Treating the case as one in which the defendant's friendship for the bankrupt was worked upon, and a promise from him obtained by the assignees, who had a power over him, he regarded the parties to the contract as not upon an equality, and was of opinion that the cases of Smith v. Bromley, Dougl. 671, note, and Cockshot v. Bennett, 2 T. R. 763, went the length of determining that the action could not be maintained.
When the contract which the plaintiff seeks to enforce, be it express or implied, is, expressly or by implication, forbidden
by the statute or common law, no court will lend its assistance to give it effect. Parke, B., 2 M. & W. 157.
A lessor stipulating in the lease of his rooms that the lessee may use them as a brothel, could not recover the rent, for such a contract is against good morals, and void as being against public policy. But the way a vendee in fee intended to use his property after becoming the owner of it, would not prevent a recovery of the purchase money by the vendor who has no control over the subsequent use of the land. Armfield v. Tate, 7 Iredell 258.
A contract not made in defiance of law will not be held void merely because it may have some remote connexion with an illegal transaction. It may be that if a building was rented for an office for an illegal purpose, the landlord, if he acted with notice, could not collect the rent; yet if the person keeping the office were to contract for his board and lodging, or for a carriage to ride between the office and another house, it can hardly be pretended that the contract would be invalid, although the other party might know that the defendant was engaged in a pursuit forbidden by the statute, and although the contract might tend in some degree to facilitate the illegal business. Bronson, J. in De Groot v. Van Duzer, 17 Wend. 176, 7.
If a party sued for his tailor's bill should come into court with the clothes made for him on his back, and plead that he was not bound to pay for them, because the importer had smuggled the cloth, he would not, Mr. Justice Grier thinks, be likely to have the verdict of the jury or judgment of the court in his favour. 11 How. 521.
A contract is void if prohibited by a statute, though the statute inflicts a penalty only, because such a penalty implies a prohibition. Lord Holt, Bartlett v. Vinor, Carthew 252; Mitchell v. Smith, 1 Binn. 118; Badgeley v. Beale, 3 Watts 263. Notwithstanding what is said in Johnson &c. v. Hudson, 11 East 180, Hodgson &c. v. Temple, 5 Taunt. 181, 1 Eng. Com. Law Rep. 167, and Brown &c. v. Duncan, 5 M. & Ry. 114, 10 Barn. & Cress. 93, 21 Eng. Com. Law Rep. 29, it may be safely laid down, that if the contract be rendered illegal, it can make no difference in point of law whether the statute which makes it so has in view the protection of the revenue or any other object. "The sole question is whether the statute means to prohibit the contract." Cope v. Rowlands, 2 M. & W. 157.
A druggist having sold to a brewer, for the purpose of being mixed with beer, certain drugs which the latter was prohibited by an act of parliament from mixing with beer, it was
decided that the druggist could not recover the price of the drugs sold for that unlawful purpose. Langston &c. v. Hughes &c. 1 M. & S. 594; Abbott, C. J., 3 Barn. & Ald. 179.
The statute of 17 Geo. 3. c. 42, enacts that all bricks made for sale shall be of certain dimensions; an action has failed in England for bricks sold and delivered, when they were all under the size required by the statute. The plaintiff failed to maintain the action, though the defendant had received and used the bricks; it not appearing that he bought the bricks knowing them to be under size. Law v. Hodgson, 11 East 300; Lord Tenterden, 10 Barn. & Cress. 93.
The case of Gremare v. Le Clerc Bois Valon, 2 Camp. 144, is not considered a binding authority. Parke, B., 2 M. & W. 160. Notwithstanding that case, an action cannot be maintained for work and labour done, or for materials provided, where the whole combined forms one entire subject matter, made in violation of a statute. It makes no difference whether the thing be prohibited absolutely, or only under a penalty; nor is there any distinction between those cases where a statute requires a thing to be done, and where it prohibits it from being done.
The statute of 39 Geo. 3, c. 72, § 27, requires that every person who shall print any paper or book, shall print upon the first and last leaves of such paper or book his name and place of residence. Where the printer's name was not printed upon a pamphlet as required by this statute, it was decided that he could not recover for the labour done, or the materials used in printing it. Bensley &c. v. Bignold, 5 Barn. & Ald. 335, 7 Eng. Com. Law Rep. 121.
Notes may be executed, but if they be given on a contract to do a thing forbidden by law, they will be void; the court will give no remedy to the offending party, though both be in pari delicto. Grier, J., 11 How. 520; Safford v. Wyckoff, 1 Hill 11.
12. Cases in which it was considered the statute did not mean to prohibit the contract.
Under an act of parliament, a party who carries on the business of a dealer in or seller of tobacco, is liable to a certain penalty if the house in which he carries on the business shall not have his name &c. painted on it in letters publicly visible and legible, and at least an inch long, &c. It was considered that the object of this act was not to prohibit or vitiate a contract for the sale of tobacco, but only to impose a penalty on the party carrying on the business without com
plying with the requisites of the act.
14 M. & W. 463.
Smith &c. v. Mawhood,
A statute of Maryland provides that when a person shall purchase a slave within this state for the purpose of exporting or removing the same beyond the limits of the state, it shall be the duty of the purchaser to take from the seller a bill of sale for said slave, in which the age and distinguishing marks as nearly as may be and the name of such slave shall be inserted, which bill of sale is to be acknowledged and recorded within 20 days in the county where the sale shall be made. This statute provides for a sale for the benefit of the county of any slave purchased in violation of its provisions. On the part of a purchaser it has been contended that a suit for the purchase money of a slave cannot be sustained if the seller knew at the time of the sale that the purchaser intended to remove the slave beyond the limits of the state without taking a bill of sale; but the court of appeals of Maryland held otherwise; it gave judgment for the purchase money. Cheney v. Duke, 10 Gill & J. 23.
Under a statute of Mississippi, passed in 1832, slaves were not to be brought in that state without a previous certificate signed by two respectable freeholders in the county and state from which the slaves were brought, (and signed, acknowledged and certified in a prescribed mode) containing a particular description of the stature and complexion of such slaves, together with their names, ages and sex; and certifying that they had not been guilty or convicted of murder, burglary, arson or felony within the knowledge or belief of such freeholders. This statute subjecting both seller and buyer to a penalty of $100 for every slave so sold or purchased, was construed to mean that this penalty only, without any other loss. to either the seller or the buyer, should be inflicted; the seller therefore recovered on a note given for the purchase of slaves notwithstanding the penalty was incurred. Harris v. Runnels, 12 How. 79. The contract in this case was prior to the Mississippi act of 1837, which repealed the act permitting slaves to be brought into the state for sale, and in addition to the penalty declared in terms that all contracts in contravention of it should be void.
13. Distinction taken in Faikney v. Reynous, 4 Burr. 2069, and Petrie v. Hannah, 3 T. R. 418, between mala in se and mala prohibita is now exploded. The repayment of money lent to accomplish an illegal object cannot be enforced.
In Faikney v. Reynous &c. 4 Burr. 2069, and Petrie v.