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1815.

The Solicitor General, and Marryat, for the plaintiffs.

Gross and
Another

Best, serjeant, and F. Pollock, for the defendant.

LA Page,

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In the ensuing term, Best, If this had been an insurance serjeant, was about to move on hemp to be imported by the upon the point reserved at the plaintiffs, a question might trial, but the defendant having have arisen whether, in case of neglected to give the previous a loss, the underwriters would notice of the motion to the have been liable? Probably, Judge who tried the cause, in they would not. But there is pursuance of the new rule of an obvious distinction between practice, the Court refused an insurance to facilitate and to entertain the application. cover an illegal traffic in goods,

and a contract for the sale of

those goods. The present was There have been numerous not a contract to indemnify cases, beginning with Holman the plaintiffs against any loss v. Johnson, Cowp. 341. down in the prosecution of an illegal to Waymel v. Reed, 5 T. R. act; but it was a contract for 597, in which the Courts have the purchase of the commo. determined what contracts dity when imported. were illegal, on the ground This case does not seem to fall that they encouraged smug- within the principle of Blachgling, and were in breach of ford v. Preston, 8 T. R. 89. the revenue laws of the coun. Gallini v. Laborie, 5 T. R. try. In the present case there 242.; or Ribbans v. Cricket, 1 was no fraud upon the reve, B. and P. 264. In all which nue, on which ground the cases the contracts were holden smuggling cases were decided ; to be illegal. In Blachford v. nor is there any clause in the Preston, which was the sale, act of parliament making the by the owner, of the command contract of sale illegal; at of a ship employed in the East most, it is the breach of the India Company's service, with, rights of a corporate company. out the knowledge of the Com

1815. pany, the Court held that an - Greaves, the actionwas brought

action could not be maintained by one partner against an ia. Gross and on the agreement, because it surance broker to recover a Another

was in violation of the laws moiety of the loss received by જ.

and regulations, and in fraud the latter from another part. LA Page

of the East India Company; ner; the first having paid the and in contravention, more

whole loss to the assured; but over, of a great system of pub. it was determined that the aclic policy. In Gallini v. La- tion could not be maintained, borie, where it was hoiden that because its object was to enno action could be maintained force an illegal contract of for breach of an agreement partnership. And on the same to perform at an unlicensed principle, that the action was theatre, (the stat. 10 G. 2. c. brought in affirmance of the 28., prohibiting all theatri- illegal contract, was the case cal representations without li- of Mitchell v. Cockburne, ia cense) the decision wasground- which Eyre, C. J. said, that ed upon the obvious reason, the action arose immediately that no man could be com- out of an illegal contract. In pelled to do what must sub. Booth v. Ilodson, the plainject him to legal penalties. In tiff had insured in violation of Ribbans v. Cricket, the plain- the act of parliament, and the tiff was impliedly prohibited claim arose out of that transfrom suing on that particular action. Branton v. Taddy was kind of contract by the 7 and decided upon the same prin8 Wm. 3. C. 4., which forbad ciple. the thing to be done. Neither In the present case the dis. does the present case fall witli- tinction seems to be obvious. in the principle which guided The plaintiffs do not seek to the several determinations in enforce any illegal contract; Sullivan v. Greates, Park on they do not seek to cast any Insurance, 8. Mitchell v.Cock- duty upon the defendant which burne, 2 II, BI. 379. Booth v. would subject him to penalties. Hodson, 6 T. R. 405. Bran- With respect to the contract, ton v. Taddy, 1 Taunt. 6.; and they have violated no law or other cases of the same class. duty; though with regard to Those cases were founded on the importation of the commoagreements and contracts in dity, which was collateral direct violation of the stat. 6 to, and distinguishable from, Geo. 1. c. 18. In Sullivan v. the contract, they have infringed the rights of others. this, though the tobacco were 1815. They may have thus incurred sent to the defendant without, a penalty : but it canoot be a permit, at bis desire. Gross and said to rescind the contract of The decisions on the smug

Another third parties who had no par.. gling cases were here pressed,

LA Page. ticipation or privity in the im. but the Court upheld the conportation. The contract, it is tract, on the ground that there to be remembered, was not to was no fraud upon the reveimport the hemp. Who were nue, and that it was at most to import the hemp was 'no a breach of certain regulations consideration of the parties at protected by penalties. So a the time of the bargain. It person who sells goods, knowwas in fact a contract for the ing that the purchaser intends sale of hemp, to be shipped to apply them in an illegal from Petersburgh before a trade, is nevertheless entitled given day, and the bargain was to recover the price, if he to be concluded upon the ar- yields no other aid to the il. rival of the vessel with the legal transaction than selling goods. Now the sale was not the goods, and procuring percontrary to any law, though mits for their delivery to the the importing of it, by the agent of the purchaser. «To plaintiffs, might be in contra. deprive the vendor of his just vention of the rights of the right of payment (says MunsRussian Fellowship.

field, C. J.) it is necessary In Johnson v. Hudson, 11 he should be a sharer in the East, 180, it was holden by illegal transaction.” Hodgson the Court of K. B., that a v. Temple, 5 Taunt. 181. The factor, selling a parcel of prize cases on this point are numemanufactured tobacco, con- rous; and the reader, by re. signed to him from his cor- ferring to them, will be better respondent at Guernsey, of enabled to make up his opiwhich a regular entry was nion on the present case. made on importation, but with- Fackney v. Reynons; 4 Burr. out having entered himself at 2069. Robinson v. Bland, the Excise Office as a dealer 1077. Holman v. Johnson, in tobacco, nor having any lin Cowp. 341. Petrie v. Han. cense as such, might yet main- nay, 3 T. R. 418. Biggs v. tain an action against the Lawrence, 3 T. R. 454. Clugas vendee for the value of the . Penaluna, 4 T. R. 466. goods sold and delivered'; and Wuymel v. Reed, 5 T. R. 597.

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1815. Steers v. Lashley, 6 T. R. 61. unto the said fellowship pera

Booth v. Hodson, 6 T. R. 405. sons to be free of the same; Gross and Mitchell v. Cockburne, 1 H. and that every person or perAnother

Black. 379, and the cases cited sons so to be admitted should, above.

from the time of their admit. LA PAGE.

The following is an abstract tance, be free of the said fel. of the act of parliament which, lowship; and that the said felas it has been seldom adverted lowship should have and enjoy to, and considering the extent the sole trade to all the main of our present trade with Rus, lands, isles, ports, havens, sia, may be of use. It is enti- creeks, and rivers of the Emtled, “ An Act to enlarge the peror of Russia, and to all Trade to Russia."

other lands, &c. &c. &c. menWhereas king Philip and tioned in the said letters paqueen Mary, by their letters tents. And whereas the liberpatents in the first and second ties, powers, and privileges, years of their reign, being wille granted by the said letters paing to animate, advance, and tents, were afterwards, by an further, the persons in the said act of parliament, made in the letters patents named, in their eighth year of the reign of good purpose and profitable Queen Elizabeth, ratified and adventure, for the discovering, confirmed to the said fellowdescrying, and finding out isles, ship and their successors, by lands, and territories unknown, the name of the fellowship of lying to the northward, and English merchants for the disby English subjects before then covery of new trades, with not commonly frequented by power to have and enjoy all sea, as well for the glory of and singular the liberties, priGod as for illustrating the vileges, jurisdictions, powers, royal dignity in the increase and authorities, as well in the of the revenues of the crown said letters patents as act of and the general wealth of this parliament mentioned or conrealm, did incorporate certain tained, with a prohibition that persons by the name of mer. no subject or denizen of this chants' adventurers for the dis- realm should trafic to, visit, covery of lands, &c. &c. &c. or frequent any of the places with powers to make statutes, granted by the said act to the acts, and ordinances, for the said fellowship, but by order, good government of the said agreement, or consent of the fellowship, and also to admit governor, consuls, and assist

ants of the said fellowship, or from and after the 25th day of

1815. the major part of them ; upon March, 1699, every subject of paio that every person and this realm desiring admission Gross and persons so offending should into the said fellowship, known

Another forfeit and lose (ipso facto) by the name of the Russia

LA PAGE: every such ship and ships, with

company, on request in that the appurtenances, and all such behalf to the governor, consuls, goods and things whatsoever, and assistants, or any three of as by any such persons should them, shall be admitted into be by any means, directly or the said fellowship, and shall indirectly, carried, conducted, have, use, and enjoy, all the bought, or exchanged, in, at, liberties, &c. &c. &c. granted or to, through, or from, any to the said fellowship, either of the places prohibited, con- by the said letters patents or trary to the true intent of the act of parliament, the same as said act; one moiety thereof to any

other member may, or can the queen, her heirs, &c. and have, such subject paying for the other to the said fellow. his admission for the use of ship. And whereas the easy the said fellowship only, the admission into the said fellow- sum of five pounds, and no ship will, in all probability, tend very much to the enlarge Sec. 2. And be it further ing the said trade for the pub- enacted, by the authority lic good, and for that there is aforesaid, that from and after no mention made, either in the said 25th day of March, the said letters patents or act the sum of 5l. only, and no of parliament, upon what terms more, shall be demanded or persons shall be admitted, or taken by the said fellowship what certain fine shall be ta. for any admission to the freeken by the said fellowship, for dom thereof; any by-law, sta. the admitting persons to be tute, or ordinance of the said free thereof; therefore for the fellowship made, or to be ascertaining hereafter what made to the contrary thereof, fine shall be taken by the said in any wise notwithstanding. fellowship for the said admis- Sec. 3. And be it, &c. by, sions, and for enlarging and &c. that where any person or encouraging the trade to Rus.

persons residing in any out. sia, and other places men- port, or any other place within tioned in the said charter; Be this realm, dominion of Wales, it enacted, by, &c. &c. that or town of Berwick - upon.

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