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2. Because Knight was a party in interest, as a member of the corporation."
3. And because the objections made by the defendants to the admission of Knight's declarations, were waived by their calling him.
The copy of Young's deposition was rightly admitted. By the rules of this court, 31 and 43, the party taking a deposition must make his election, whether to use it or not, at the first term. If he leaves it on file after the first term, he has no right to withdraw it, and either party may use it, as a paper in the case.
The evidence offered of the declarations of Bean was rightly rejected. When the objection goes only to the form of the question, the objection should be made before the magistrate ; but when the subject matter of the evidence is the cause of objection, it is rightly made in court.
Bean was no agent of the plaintiff. He was not appointed by him, and was a mere charterer of the vessel." Bean was present in court, and the defendants might have called him; and on this ground, the rejection was right.
The action was continued, for advisement, and the opinion of the court afterwards drawn up and delivered as follows, by
SHEPLEy, J.-One of the questions presented by this bill of exceptions is, whether the contract declared on was under the circumstances a legal contract. To enable us to come to a right conclusion, it is desirable, that the principles by which we must be guided should be, if possible, clearly stated.
Neither the law nor the court can degrade itself by becoming the minister of evil. The consideration of a contract, or the matter out of which it arises, must therefore be legal. The object to be accomplished, or the act required to be performed by it, must also be legal. And although by itself considered, the objects or acts required by it may be legal, yet if the design of the contract be to aid or assist in the accomplishment of an illegal purpose, it partakes of the character of the transaction, with which it thus connects itself, and becomes tainted by it and illegal. To prove property in any thing, it must be shewn, that the law allows that thing to be the subject of property, in the character and under the circumstances in which the claim is asserted; otherwise one can establish no right of property in it. When a contract is formed upon a consideration legal at the time, its validity will not be impaired, though the law should afterwards declare the matter forming the consideration to be illegal. So if the act required to be performed be at the time legal, and the law afterward make the performance illegal, that does not render the contract illegal, though it prevents the performance of it. These are principles alike valuable to the community, as they are necessary to maintain the character of the law and of judicial tribunals. But while they are by no means to be infringed, they must not be pushed to such extremes, as to interrupt or embarrass the complicated transactions of society. These principles do not, nor would it be consistent with the ordinary transactions of life that they should, require all contracts to be considered illegal, which grow out of some matter, or property, in which there had been incorporated, or to which had before attached, some illegal act. The law may declare, that on account of such former illegal ingredient, the article shall no longer be considered the subject of property, and in such case, it cannot afterward form the basis of a legal contract. But if, notwithstanding the illegal actor ingredient attaches to it, the law permits it to be the subject of property, either absolutely or conditionally, until forfeited by some act yet to be performed, it may form the basis of a legal contract. When contracts are formed upon new or collateral considerations, and when they partake of the original illegal act, was much considered, and the cases were collected, in Armstrong v. Toler, (11 Wheat. 258.) The chief justice says, “how far this principle [that of illegality] is to affect subsequent or collateral contracts, the direct and immediate consideration of which is not immoral or illegal, is a question of considerable intricacy, on which many controversies have arisen and many decisions have been made.” This remark must be understood rather as referring to the difficulty of applying the rule of law to the complicated transactions of business, than to any difficulty in comprehending the rule itself. In that case, the consignee of goods, introduced contrary to law by collusive capture, and afterward decreed forfeit, was allowed to recover the money paid on a bond, given for their appraised value. And the rule is there stated to be, that “if the promise be unconnected with the illegal act, and is founded on a new consideration, it is not tainted by the act, although it was known to the party to whom the promise was made.” That case may serve to illustrate the application of the rule, where the new contract does not connect itself with the illegal act. And the case of Cannan v. Bryce, (3 Barn. & Ald. 179) is an illustration of the application of it, when the new contract is connected with the original act. The act of 7 Geo. 2, ch. 8, relating to stock-jobbing, prohibits the payment of any money on account of not transferring stocks in such cases; and it was decided, that one, who lent moneys for the purpose of enabling a person to make such unlawful payment, with a full knowledge of the object to which they were to be applied, and for the express purpose of accomplishing that object, could not recover. Here the lending of the money, by itself considered, was an independent and legal act, but being for the very purpose of assisting to do an illegal act, it became connected with it and thereby illegal. In the law of insurance, an exception to these rules has been established in the most commercial countries of modern times, by declaring those contracts to be legal, which are made with the intention to violate the laws of trade of a foreign country. Such an exception breaks in upon the morality and harmony of legal science; and since the reasonings of Pothier, and of Story, and of Kent, and of other eminent jurists, the exception can only be sustained by allowing private interest to overcome the sense of moral and legal right. Whether the question can be presented so as to enable a court to act upon it de novo, or whether it must remain a blot upon the law, may be doubtful. The policy, in this case, was not upon any particular voyage, but for the term of one year. There is nothing in the case, which shews, that any illegal voyage was contemplated by the contract, or that any such was in fact undertaken. The contract cannot therefore be illegal by reason of any act required by it, nor by reason of any aid intended to be given by it, to the performance of an illegal adventure. The consideration then was, the payment of the premium on the one hand for, and the assumption on the other of, the risk of the legal employment of the vessel for one year. There being nothing illegal in the consideration of the contract, or in the employment of the vessel to be aided by it; the contract can only be illegal by being in some way connected with the prior illegal act, which had by the manner of building, and by the use of the enrollment, attached to the vessel. Is there any such connection shewn By the act of congress, concerning the registering and recording of ships and vessels, ch. 146, sec. 14, it is provided, that when a vessel “shall be altered in form or burden by being lengthened or built upon,” she shall be registered anew by her former name; and that her former certificate of registry shall be delivered up, under a penalty of five hundred dollars. The twenty-seventh section of the same act provides, “that if any certificate of registry or record shall be fraudulently or knowingly used for any ship or vessel not then actually entitled to the benefit thereof, according to the true intent of this act, such ship or vessel shall be forfeited to the United States.” By the act for enrolling and licensing ships and vessels, ch. 153, sec. 2, vessels enrolled are put upon the same footing as to qualifications, and are subjected to the same requisites, as registered vessels. The jury found, that the enrollment by the new name was procured by the plaintiff, “without any fraudulent intent to deceive or defraud;” but that finding does not extend to the after use of it; and the vessel may be regarded as having been liable to seizure and forfeiture. This liability was for a cause in no manner connected with the contract of insurance. It had existed and its influence had been as great upon the vessel, as it could at any time be, before this contract of insurance was made. The act was complete. It neither required, nor could it receive, aid from the new contract. In this respect, it was more entirely free from all connection with the new contract, than the illegal act in the case of Armstrong v. Toler was. It would be very detrimental to the commerce of the country to hold, that a vessel was not the subject of a lawful insurance, because she was liable to seizure and forfeiture for a cause not connected with the policy. The laws of the United States contemplate, that vessels are thus liable for causes arising without wilful negligence or intention of fraud. Cases of that kind are not of unfrequent occurrence, and the secretary of the treasury is authorized by law to remit the forfeiture. It could never have been the design of the statute, under such circumstances, to destroy the legal title or lawful right of employment, until the forfeiture was exacted. The risk is not increased, nor is the loss for such cause within the policy. The assurers cannot place themselves in the situation of the government, and claim to act for it. None can claim a forfeiture, but those authorized by law. Nor can this matter be properly tried collaterally, and by a common law court. The jurisdiction belongs to another tribunal. It is a matter between others, in which the defendants are not interested, and with which they have no concern. There is another aspect in which the same transactions are presented. It is insisted, that the enrollment should not have been admitted in evidence in proof of property, because an unlawful document cannot be used as proof. In considering this question, it will be necessary to bear in mind, that it does not appear in the case, that the vessel was insured as a vessel of the United States. Her national character does not appear to have entered into the contract. If such had been the fact, the plaintiff could not recover, because the laws of the United States declare, that if not registered by the former name, in case she has been built upon, “she shall cease to be deemed a ship or vessel of the United States.” As she was not insured as a vessel of the United States, and as the laws do not for such cause destroy the title to the property, their
* 11 East, 578; 2 Stark. Ev. 41; 16 East, 143; 1 Wilson, 257; 1 Bingham, 45; 10 East, 292, and cases cited in Day's note; 7 Greenl. 51; 2 Pick. 345; 14 Mass. R. 282; 17 Mass. R. 503; 7 Cranch, 299; 5 Mass. R. 80; 1 Pick. 297.
* 4 Greenl. 264; 15 Mass. R. 370; 16 Mass. R. 336,