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with the subsequent decisions only on the ground that a foreigner is not bound to guard the revenue laws of England, though he cannot actively assist in violating them.

Though Mansfield, C. J., in Hodgson v. Temple' said "the merely selling goods, knowing that the buyer will make an illegal use of them, is not sufficient to deprive the vendor, &c.; he should share in the illegal transaction;" yet that point was not necessarily involved in the decision-and in Lightfoot v. Tenant,' it was decided that a person selling goods in order that they might be exported to a place where by statute they could not be exported legally, could not recover, even on a bond given for the price of them. So of drugs sold and delivered to a brewer, the vendor knowing that they were to be used in a brewery, contrary to the statute of 42 Geo. III. though it did not appear that they were so used. So of money lent for the purpose of settling losses on illegal stock-jobbing transactions, and thus applied by the borrower. "If it be unlawful," says Abbott, C. J., "for one man to pay, how can it be lawful for another to furnish him with the means of payment?" So of money lent to ransom a ship, contrary to the statute of 45 Geo. III. In Ex parte Bulmer, lord chancellor Erskine held that if the money be not applied to the illegal purpose, the lender may maintain an action on the loan, and he decreed accordingly. But the court of king's bench decided differently in Ex parte Bell, and the remarks of Eyre, C. J., 1 Bos. & Pul. 556, and of lord Ellenborough, in Langton

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11 Marsh. 5; 5 Taunt. 181, S. C.

2 1 Bos. & Pul. 551.

3 Langton v. Hughes, 1 M. & S. 493. S. P. 6 Hammond, 444.

4 Cannan v. Bryce, 3 Barn. & Ald. 179.

5 Webb v. Brooke, 3 Taunt. 6.

6 13 Ves. Jr. 313.

71 M. & S. 751.

v. Hughes,' show that lord Erskine's doctrine is not recognized as the law of England.

The principle of the decisions last cited is not peculiar to contracts prohibited by statutes, although those decisions were made in cases which turned on statutory prohibitions."

There remains only one more topic in the doctrine of unlawful contracts, which it is proposed to mention in these notes, namely, how far the foregoing principles affect subsequent or collateral contracts, the direct and immediate consideration of which is not illegal. This is a subject somewhat intricate, and the adjudications on it are not easily reducible to any clear elementary proposition. The later cases are manifestly more strict than the earlier ones, as the reader cannot have failed to perceive is likewise true of the decisions on the whole doctrine of unlawful agreements.

It may be taken, however, as perfectly settled doctrine, that if a promise be entirely disconnected with the illegal act, and is founded on a new consideration, it is not affected by that act, though the promisee knew, and even though he were the contriver and conductor, of such act. As if a smuggler sell goods to one who knows they were smuggled, but who had no agency in running them, he may recover pay for the goods. So, where Armstrong, during the war of 1812, imported goods on his own account from the enemy's country, under the false pretext of a capture jure belli, and goods were sent by the same ship to Toler, and on a seizure of the goods, Toler, at Armstrong's request, became surety for the payment of the duties, &c. on Armstrong's goods, and also became responsible for the expenses of defending a prosecution for the illegal importation of the goods, and was compelled to pay them; it was held that Toler might maintain an action on Armstrong's promise to refund

1 M. & S. 596, 597.

2 See 1 Bos. & Pul. 556; 3 Taunt. 12; 1 Esp. Rep. 13.

3 11 Wheat 271. 276.

the money.1 Marshall, C. J. said, "The contract made with the government for the payment of duties is a substantive independent contract, entirely distinct from the unlawful importation, the consideration is not affected with the vice of the importation. If the amount of duties be paid by A for B, it is the payment of a debt from B to the government. The criminal importation constitutes no part of this consideration." It was further held, however, that if Toler had been concerned in the scheme of importing the goods, or had any interest in the goods of Armstrong, or if they had been consigned to him, with his privity, that he might protect them for Armstrong, no action could have been supported.

In Tenant v. Elliott, and in Farmer v. Russell,' it is held that where on an illegal contract between two persons, one of them pays money to a third person for the other, the other may recover the money from such third person. The court said that the demand arose simply from the placing of the money in the defendant's hands to be delivered to the plaintiff, and not from the original unlawful contract. Eyre, C. J., admitted that if it were possible to mix the original transaction with the contract on which the action was brought, the plaintiff could not recover.

Several cases on this point have arisen upon the statute of 7 Geo. II. c. 8, "to prevent the infamous practice of stockjobbing." The fifth section of that statute enacts, "that no money or other consideration shall be voluntarily given, paid, had or received, for the compounding, satisfying or making up any difference for not transferring any public stock, or for not performing any contract or agreement stipulated to be performed; and all and every person,

1 Armstrong v. Toler, 11 Wheat. 258. See the case on the seizure of the goods, 1 Wheat. 408; 2 Wheat. 278.

21 Bos. & Pul. 3.

3 1 Bos. & Pul. 296, Rooke, J. dissenting.

who shall voluntarily compound, make up, pay, satisfy, take or receive such difference money, &c. shall forfeit the sum of one hundred pounds."

The first case, which arose on a collateral contract connected with the transactions prohibited by this statute, is Faikney v. Reynous.' Faikney and Richardson were jointly concerned in stockjobbing transactions, and Faikney voluntarily paid £3000 to divers persons for compounding differences for not delivering stock. Richardson and Reynous gave a bond to Faikney to reimburse him a moiety of the sum thus paid by him; and in a suit on this bond, the court held the defendants liable, on the ground that the bond was not given for payment of the composition money, but for reimbursing the plaintiff a debt of honor paid on Richardson's account. The next case is Petrie v. Hannay,* in which an action was sustained on a bill of exchange accepted for reimbursement of a moiety of a sum paid to a broker with the privity and consent of the defendant; the broker having been employed by the plaintiff and defendant to pay differences in a stockjobbing transaction in which they were jointly concerned. Lord Kenyon dissented; but the other judges felt bound by the decision in Faikney v. Reynous. In both these cases, the court proceeded (partly at least) on the distinction between contracts for the doing of things mala in se, and things merely prohibited by law. This distinction, it has before been seen, is now exploded; though lord Erskine recognized it in Ex parte Bulmer, heretofore cited. In Petrie v. Hannay, a distinction was also taken between an express request to advance money in payment of an illegal demand, and an implied contract; and the same distinction was suggested by Heath, J. in 2 H. B. 382, and by Mansfield, C. J. in 4 Taunt. 167. But lord Eldon denied that any such distinction existed, and

14 Bur. 2069.

VOL. XXIII.-NO. XLV.

2 3 D. & E. 418.
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3 2 Bos. & Pul. 373.

Marshall, C. J. said that an express promise to pay is tantamount to a previous request.' The real ground of the decisions in Faikney v. Reynous, and Petrie v. Hannay, was that the plaintiffs' rights of action were taken by the court to be founded altogether on the contract of loan, &c. between them and the defendants, and derived no aid from the illegal transactions in which the parties had been previously engaged, and were not affected by them.

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In Booth v. Hodgson, Ashhurst, J., says the ground of decision in Faikney v. Reynous was that the defendant had voluntarily given another security; "but it does not follow that the plaintiff could have recovered on the original contract for money paid to the use of the defendant." The same remark is applicable to Petrie v. Hannay, where a bill of exchange had been accepted by the defendant. But can this be a valid ground of claim, in any case of this sort? Would it not bind a defendant, in all cases, to pay an unlawful demand, if he should make an express promise to pay-and thus legalize all contracts, however vicious?

The cases of Faikney v. Reynous and Petrie v. Hannay were never favorably received-have often been questioned by the highest authority-and may now be considered as wholly overturned. In Mitchell v. Cockburne, Eyre, C. J., said the latter of these cases was decided on the authority of the former, "but perhaps it would have been better if it had been decided otherwise; for when the principle of a case is doubtful, I think it better to overrule it at once, than build upon it at all." In Booth v. Hodgson, lord Kenyon, who dissented from the other judges, in Petrie v. Hannay, said he wished to avoid making any other observation on those two cases, than that they were distinguishable from the case then before him. In Aubert v. Maze, lord Eldon

1 11 Wheat. 274.

2 6 D. & E. 410.

3 2 H. B. 379. See also 10 Bing. 110.

5 2 Bos. & Pul. 373.

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4 6 D. & E. 409.

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