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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.
WHAT IS GENERALLY NECESSARY TO FIX LIABILITY ON A PRO-
1. Defendant must have contracted expressly or impliedly.
The question in all cases in which the plaintiff seeks to fix the defendant with liability upon a contract, express or implied, is, whether such contract was made by the defendant, by himself or his agent, with the plaintiff or his agent. To recover against the defendant, the plaintiff must shew that the defendant contracted expressly or impliedly; expressly, by making a contract with the plaintiff; impliedly, by giving an order to him under such circumstances as to shew that it was not to be gratuitously executed. Pollock, C. B., 15 M. & W. 526.
The owner of a vessel may be liable for necessaries procured on its voyage, for seamen, to enable them to convey the vessel to its destination; but if when the vessel is pursuing its voyage, seamen leave it and obtain board and lodging at a public house, the captain has no implied authority from the owner to pledge his credit therefor. Organ v. Brodie, 28 Eng. Law & Eq. 530.
When medical service is rendered to an apprentice, not at the father's instance, there is no contract by the father, either express or implied, to pay therefor: the relation of master and apprentice imposes it as a duty upon the master to provide such service. Easley v. Craddock &c. 4 Rand. 423.
The law not devolving the responsibility arising from the contract of a prior, on a subsequent, guardian, an action for services rendered and supplies furnished a ward cannot be maintained against the subsequent guardian, when it appears that the contract, if any, for those services and supplies, was made by the former guardian, and that the services and supplies were rendered and furnished before the defendant became guardian, and were rendered and furnished, not at his request, but at the request of the former guardian, and without any express promise on the defendant's part to pay therefor. Young v. Warne &c. 2 Rob. 420.
2. If contract is not by defendant person authorized to bind him. authority.
personally, it must be by a General rule as to agent's
Where the action is on a contract not made by the defendant personally, it must be proved that it was made by an agent of the defendant, properly authorized, and that it was made as his contract. Pollock, C. B., 15 M. & W. 526; Andrews v. Kneeland, 6 Cow. 357; Miller v. Smith, 1 Mason 438.
The agency may be constituted by an express limited authority to make such a contract, or a larger authority to make all falling within the class or description to which it belongs, or a general authority to make any; or it may be proved by shewing that such a relation existed between the parties as by law would create the authority; as, for instance, that of partners, by which relation, when complete, one becomes by law the agent of the other for all purposes necessary for carrying on their particular partnership, whether general or special, or usually belonging to it; or the relation of husband and wife, in which the law, under certain circumstances, considers the husband to make his wife an agent. In all these cases if the agent, in making the contract, acts on that authority, the principal is bound by the contract, and the agent's contract is his contract, but not otherwise. This agency may be created by the immediate act of the party, that is, by really giving the authority to the agent, or representing to him that he is to have it, or by constituting that relation to which the law attaches agency; or it may be created by the representation of the defendant to the plaintiff, that the party making the contract is the agent of the defendant, or that such relation exists as to constitute him such; and if the plaintiff really makes the contract on the faith of the defendant's representation, the defendant is bound; he is estopped from disputing the truth of it with respect to that contract; and the representation of an authority is quoad hoc, precisely the same as a real authority given by the defendant to the supposed agent. This representation may be made directly to the plaintiff, or made publicly so that it may be inferred to have reached him, and may be made by words or conduct. Pollock, C. B. in Reynell v. Lewis, 15 M. & W. 527.
3. General rule as to agency applied in the particular instance of partners.
Upon none of the propositions just mentioned, is there, in
the opinion of the court of exchequer, the slightest doubt. But it may be advisable to state more in detail the operation of the rule in the instance of partners.
It is not essential to a partnership that one partner should have power to draw bills and notes in the partnership name to charge the others; they may stipulate between themselves that it shall not be done; and if a third person having notice of this, will take such a security from one of the partners, he shall not sue the others upon it, in breach of such stipulation nor in defiance of a notice previously given to him by one of them that he will not be liable for any bill or note signed by the others. Gallway v. Mathew &c. 1 Camp. 403; 10 East 264; Rooth v. Quin &c. 7 Price 193.
But in the absence of such stipulation and notice the general rule is that the act and assurance of one partner made with reference to business transacted by the firm will bind all the partners. Sandilands v. Marsh, 2 Barn. & Ald. 678. One partner communicates to the other, simply by the creation of that relation, and as incident thereto, all the authority necessary to carry on their partnership in its ordinary course, (Hawtayne v. Bourne, 7 M. & W. 595,) and all such authority as is usually exercised by partners in the same sort of trade but no more. 4 W. H. & G. 630.
One partner cannot bind another by a guaranty for collateral purposes. It has been argued that he has that power where the guaranty is connected with the partnership business and a reasonable mode of giving effect to a transaction within the scope of the partnership dealings. And the case Er parte Gardon, 15 Ves. 286, has been relied on to establish the doctrine. But this case, in the judgment of the court of exchequer, is not sufficient to establish it. 4 W. H. & G. 630.
That one of two partners engaged in business as merchants had not, by reason of that connection alone, power to bind the other by a guaranty apparently unconnected with the partnership trade, was decided by Lord Ellenborough in Duncan v. Lowndes, 3 Camp. 478, and the court of queen's bench gave a similar decision in a case where the defendants were in partnership as attorneys. Hasleham v. Young &c. 5 Adol. & El. N. S. 833, 48 Eng. Com. Law Rep. 833. No proof was given in either of these cases of the previous course of dealing or practice of the partners, which it is admitted in both cases might be sufficient to prove a mutual authority; nor was any evidence given of the usage of similar partnerships to give such guaranties; nor was there any of a recognition and adoption by the other partners, which would have