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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.
Hannah, 3 T. R. 418, the court admitted that no action can be founded upon an illegal contract, but held that he who borrowed money to pay a debt which he owed upon an illegal transaction not malum in se might be sued for the repayment of that loan though the lender knew to what purpose the money was applied; the court considering that the lender's right of action is founded altogether upon the contract of loan between him and the borrower and derives no aid from the illegal transaction in which the borrower had originally been concerned, nor is affected by it. 7 Taunt. 246.
The propriety of the distinction taken in these cases between malum in se and malum prohibitum has been since questioned, Booth v. Hodson, 7 T. R. 405; and the distinction disapproved, Aubert v. Maze, 2 Bos. & Pul. 371. It was not material to controvert its propriety in Clayton v. Dilly, 4 Taunt. 165, or Simpson v. Bloss, 7 Taunt. 246, 2 Eng. Com. Law Rep. 89. But the distinction was afterwards exploded. Cannan v. Bryce, 3 Barn. & Ald. 179, 5 Eng. Com. Law Rep. 155. "It was," says Best, J., "not founded upon any sound principle, for it is equally unfit that a man should be allowed to take advantage of what the law says he ought not to do, whether the thing be prohibited because it is against good morals or whether it be prohibited because it is against the interest of the state. Bensley v. Bignold, 5 Barn. & Ald. 335, 7 Eng. Com. Law Rep. 122, 3. The court is bound in the administration of the law to consider every act to be unlawful, which the law has prohibited to be done. Cannan v. Bryce, 3 Barn. & Ald. 179. This case was under the statute of 7 Geo. 2, c. 8, to prevent stock-jobbing, which prohibits absolutely the paying or receiving, and places in pari delicto those who pay and those who receive; differing in this from the statute of 9 Ann, c. 14, against gaming. Under the statute of George as it is unlawful in one man to pay so it is unlawful for another to furnish him with the means of payment, that is if he furnishes them with a knowledge of the object to which they are to be applied and for the purpose of accomplishing that object. Having acted thus unlawfully in lending his money, he cannot recover it back.
This case then establishes the principle that the repayment of money lent for the express purpose of accomplishing an illegal object cannot be enforced. Foot v. Baker, 5 Man. & Grang. 335, 44 E. C. L. R. 181. Hence in England an action will not lie to recover back money lent for the illegal purpose of gaming there with at the game of hazard; it being illegal to play at this game by the stat. 12 Geo. 2, c. 28, § 2, 3, and
18 Geo. 2, c. 34, § 2. McKinnell v. Robinson, 3 M. & W. 434. The court so decided notwithstanding the decision on the statute of 9 Ann, c. 14, made in Barjeau v. Walmsley.
There the parties tossing up for 5 guineas a time, the plaintiff won all the defendant's ready money. Then he lent him 10 guineas a time and won it till the defendant had borrowed 120 guineas. An action was maintained for the money so lent, although the stat. of 9 Ann, c. 14, makes void "all notes, bills, bonds, judgments, mortgages, or other securities. or conveyances given, granted, drawn, entered into or executed for money knowingly lent and advanced to game with ;" Lee, C. J. observing, there is not in this statute the word contract, as in the statute of usury. 2 Str. 1249. The propriety of this decision is questioned; for the statute making void all securities for such money, might properly be construed as a fortiori making void parol contracts. Young v. Moore, 2 Wils. 67, 3 M. & W. 441. But Barjeau v. Walmsley seems to have been followed in other cases, Alanbrook v. Hall, 2 Wils. 309; Robinson v. Bland, 1 W. Bl. 259, 2 Barr 1080; Wettenhall v. Wood, 1 Esp. 17; Lord Kenyon, in this last case, not having in view the provisions of 12 & 18 Geo. 2, by which all play at certain games is prohibited, and they who play rendered liable to penalties. Since the case of Cannan v. Bryce, it is doubted in England whether Alanbrook v. Hall would now be supported. 3 M. & W. 442.
Robinson v. Bland was followed in South Carolina. Carsan v. Rambert, 2 Bay 560. In New York, the distinction between the security taken and the contract of lending, made. by an association forbidden to make discounts, was recognized in Utica Ins. Co. v. Scott, 19 Johns. 1, and acted on in Utica Ins. Co. v. Kip, 8 Cow. 20; Utica Ins. Co. v. Caldwell, 3 Wend. 302; Utica Ins. Co. v. Bloodgood, 4 Id. 652. And the principle of these decisions was deemed applicable in White v. Franklin Bank, 22 Pick. 185. In Pennsylvania, the propriety of the distinction acted on in Robinson v. Bland, was doubted by Gibson, C. J. in Hess &c. v. Werts, 4 S. & R. 360. And now in New York, the decision in Cannan v. Bryce is approved. Perkins v. Savage, 15 Wend. 412. In Virginia, so far as there has been action by the court of appeals, it is on the same principle. Machir v. Moore, 2 Grat. 257.