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The Solicitor General, and Marryat, for the plaintiffs.

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

[Attornies, Rivington and Co.--Tilson and P.]

1815.

GROSS and
Another

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LA PAGE.

In the ensuing term, Best, serjeant, was about to move upon the point reserved at the trial, but the defendant having neglected to give the previous notice of the motion to the Judge who tried the cause, in pursuance of the new rule of practice, the Court refused to entertain the application.

There have been numerous cases, beginning with Holman v. Johnson, Cowp. 341. down to Waymel v. Reed, 5 T. R. 597, in which the Courts have determined what contracts were illegal, on the ground that they encouraged smuggling, and were in breach of the revenue laws of the country. In the present case there was no fraud upon the reve nue, on which ground the smuggling cases were decided; nor is there any clause in the act of parliament making the contract of sale illegal; at most, it is the breach of the rights of a corporate company.

If this had been an insurance on hemp to be imported by the plaintiffs, a question might have arisen whether, in case of a loss, the underwriters would have been liable? Probably, they would not. But there is an obvious distinction between an insurance to facilitate and cover an illegal traffic in goods, and a contract for the sale of those goods. The present was not a contract to indemnify the plaintiffs against any loss in the prosecution of an illegal act; but it was a contract for the purchase of the commo. dity when imported.

This case does not seem to fall within the principle of Blachford v. Preston, 8 T. R. 89. Gallini v. Laborie, 5 T. R. 242.; or Ribbans v. Cricket, 1 B. and P. 264. In all which cases the contracts were holden to be illegal. In Blachford v. Preston, which was the sale, by the owner, of the command of a ship employed in the East India Company's service, without the knowledge of the Com

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1

pany, the Court held that an action could not be maintained on the agreement, because it was in violation of the laws

LA PAGE and regulations, and in fraud of the East India Company; and in contravention, moreover, of a great system of public policy. In Gallini v. Laborie, where it was holden that no action could be maintained for breach of an agreement to perform at an unlicensed theatre, (the stat. 10 G. 2. c. 28., prohibiting all theatrical representations without license) the decision was grounded upon the obvious reason, that no man could be compelled to do what must subject him to legal penalties. In Ribbans. Cricket, the plaintiff was impliedly prohibited from suing on that particular kind of contract by the 7 and 8 Wm. 3. c. 4., which forbad the thing to be done. Neither does the present case fall within the principle which guided the several determinations in Sullivan v. Greaves, Park on Insurance, 8. Mitchell v. Cockburne, 2 H. Bl. 379. Booth v. Hodson, 6 T. R. 405. Branton v. Taddy, 1 Taunt. 6.; and other cases of the same class. Those cases were founded on agreements and contracts in direct violation of the stat. 6 Geo. 1. c. 18. In Sullivan v.

Greaves, the action was brought by one partner against an insurance broker to recover a moiety of the loss received by the latter from another partner; the first having paid the whole loss to the assured; but it was determined that the action could not be maintained, because its object was to enforce an illegal contract of partnership. And on the same principle, that the action was brought in affirmance of the illegal contract, was the case of Mitchell v. Cockburne, in which Eyre, C. J. said, that the action arose immediately out of an illegal contract. In Booth v. Hodson, the plaintiff had insured in violation of the act of parliament, and the claim arose out of that transaction. Branton v. Taddy was decided upon the same principle.

In the present case the distinction seems to be obvious. The plaintiff's do not seek to enforce any illegal contract; they do not seek to cast any duty upon the defendant which would subject him to penalties. With respect to the contract, they have violated no law or duty; though with regard to the importation of the commodity, which was collateral to, and distinguishable from, the contract, they have in

fringed the rights of others. They may have thus incurred a penalty but it cannot be said to rescind the contract of third parties who had no participation or privity in the importation. The contract, it is to be remembered, was not to import the hemp. Who were to import the hemp was no consideration of the parties at the time of the bargain. It was in fact a contract for the sale of hemp, to be shipped from Petersburgh before a given day, and the bargain was to be concluded upon the arrival of the vessel with the goods. Now the sale was not contrary to any law, though the importing of it, by the plaintiffs, might be in contravention of the rights of the Russian Fellowship.

In Johnson v. Hudson, 11: East, 180, it was holden by the Court of K. B., that a factor, selling a parcel of prize manufactured tobacco, consigned to him from his correspondent at Guernsey, of which a regular entry was made on importation, but without having entered himself at the Excise Office as a dealer in tobacco, nor having any license as such, might yet maintain an action against the vendee for the value of the goods sold and delivered; and

this, though the tobacco were sent to the defendant without a permit, at his desire.

The decisions on the smuggling cases were here pressed, but the Court upheld the contract, on the ground that there was no fraud upon the revenue, and that it was at most a breach of certain regulations protected by penalties. So a person who sells goods, knowing that the purchaser intends to apply them in an illegal trade, is nevertheless entitled to recover the price, if he yields no other aid to the illegal transaction than selling the goods, and procuring permits for their delivery to the agent of the purchaser. "To deprive the vendor of his just right of payment (says Mansfield, C. J.) it is necessary

he should be a sharer in the illegal transaction." Hodgson v. Temple, 5 Taunt. 181. The cases on this point are numerous; and the reader, by referring to them, will be better enabled to make up his opinion on the present case. Fackney v. Reynons, 4 Burr. 2069. Robinson v. Bland, 1077. Holman v. Johnson, Cowp. 341. Petrie v. Han nay, 3 T. R. 418. Biggs v. Lawrence, 3T. R. 454. Clugas v. Penaluna, 4 T. R. 466. Waymel v. Reed, 5 T. R. 597.

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Steers v. Lashley, 6 T. R. 61. Booth v. Hodson, 6 T. R. 405. Mitchell v. Cockburne, 1 H. Black. 379, and the cases cited above.

The following is an abstract of the act of parliament which, as it has been seldom adverted to, and considering the extent of our present trade with Russia, may be of use. It is entitled, "An Act to enlarge the Trade to Russia."

Whereas king Philip and queen Mary, by their letters patents in the first and second years of their reign, being will ing to animate, advance, and further, the persons in the said letters patents named, in their good purpose and profitable adventure, for the discovering, descrying,and finding out isles, lands, and territories unknown, lying to the northward, and by English subjects before then not commonly frequented by sea, as well for the glory of God as for illustrating the royal dignity in the increase

of the revenues of the crown and the general wealth of this realm, did incorporate certain persons by the name of merchants' adventurers for the discovery of lands, &c. &c. &c. with powers to make statutes, acts, and ordinances, for the good government of the said fellowship, and also to admit

unto the said fellowship persons to be free of the same; and that every person or persons so to be admitted should, from the time of their admittance, be free of the said fellowship; and that the said fellowship should have and enjoy the sole trade to all the main lands, isles, ports, havens, creeks, and rivers of the Emperor of Russia, and to all other lands, &c. &c. &c. mentioned in the said letters patents. And whereas the liberties, powers, and privileges, granted by the said letters patents, were afterwards, by an act of parliament, made in the eighth year of the reign of Queen Elizabeth, ratified and confirmed to the said fellowship and their successors, by the name of the fellowship of English merchants for the discovery of new trades, with power to have and enjoy all and singular the liberties, privileges, jurisdictions, powers, and authorities, as well in the said letters patents as act of parliament mentioned or contained, with a prohibition that no subject or denizen of this realm should traffic to, visit, or frequent any of the places granted by the said act to the said fellowship, but by order, agreement, or consent of the governor, consuls, and assist

ants of the said fellowship, or the major part of them; upon pain that every person and persons so offending should forfeit and lose (ipso facto) every such ship and ships, with the appurtenances, and all such goods and things whatsoever, as by any such persons should be by any means, directly or indirectly, carried, conducted, bought, or exchanged, in, at, or to, through, or from, any of the places prohibited, contrary to the true intent of the said act; one moiety thereof to the queen, her heirs, &c. and the other to the said fellowship. And whereas the easy admission into the said fellowship will, in all probability, tend very much to the enlarging the said trade for the public good, and for that there is no mention made, either in the said letters patents or act of parliament, upon what terms persons shall be admitted, or what certain fine shall be taken by the said fellowship, for the admitting persons to be free thereof; therefore for the ascertaining hereafter what fine shall be taken by the said fellowship for the said admissions, and for enlarging and encouraging the trade to Russia, and other places mentioned in the said charter; Be it enacted, by, &c. &c. that

from and after the 25th day of March, 1699, every subject of this realm desiring admission into the said fellowship, known by the name of the Russia company, on request in that behalf to the governor, consuls, and assistants, or any three of them, shall be admitted into the said fellowship, and shall have, use, and enjoy, all the liberties, &c. &c. &c. granted to the said fellowship, either by the said letters patents or act of parliament, the same as any other member may, or can have, such subject paying for his admission for the use of the said fellowship only, the sum of five pounds, and no

more.

Sec. 2. And be it further enacted, by the authority aforesaid, that from and after the said 25th day of March, the sum of 51. only, and no more, shall be demanded or taken by the said fellowship for any admission to the freedom thereof; any by-law, statute, or ordinance of the said fellowship made, or to be made to the contrary thereof, in any wise notwithstanding.

Sec. 3. And be it, &c. by, &c. that where any person or persons residing in any out. port, or any other place within this realm, dominion of Wales, or town of Berwick-upon

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