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Goods obtained by threats.
tract as null, and bring trover for the goods (t); because, if he confirms the contract at all, he must confirm it altogether, and he will not be allowed to substitute a contract different in effect.
Where the vendee obtains the goods by threats, either to the person or goods, even if there have been a colourable sale by the payment of some portion of the value, no property passes by the sale(a). So, where the vendor is under duress at the time, he may afterwards avoid the sale (x).
3. Fraud against Third Parties.
If the sale be fraudulent against third parties, it cannot be enforced. The principal class of cases is, where the conveyance is fraudulent against creditors; but as such sales are the subject of statutory enactment, they have already come under consideration (y). On the same principle, where the sale is merely colourable, in order to protect the goods from an anticipated distress, it is null and void (z).
(0 9 B. & C. 60, per Parke, B. See below, Book II. Part 1, Chap. iv. Of Trover by Vendor.
(u) Simon's Case, 2 East, P. C. 712; 2 Russ. Crim. L. 712.
(x) Bac. Abr. Duress, A; 2 Inst. 483. See Astley v. Reynolds, 2 Stra. 915.
(y) Chap. iii. Part 5 ; p. 98. [Lord Mansfield, C. J. said, that "the principles and rules of the common law are so strong against fraud in every shape, that the common law would have attained every end proposed by the statutes 13 Eliz. c. 5, and 27 Eliz. c. 4," Cowp. 434.]
(z) Howell v. White, 1 M. & Rob. 400.
Where a friend of the defendant had agreed to give the plaintiff a certain sum, which he understood to be the full purchase-money, for goods, in advancement of defendant, it was held, that any secret agreement, between plaintiff and defendant, that the latter should pay a further sum, was a fraud upon the friend, and that the plaintiff could not recover (a). Where there is a fraud upon the real owner of the property transferred, as, where stock is sold under a forged power (6), the property is not changed by the sale. And, even in the case of sales in market overt, although the general rule is, that the property is vested in the purchaser against the whole world, however tortious may have been the possession of the seller (c), yet, if the purchaser be particeps criminis, the sale will not be binding, and the owner may retake the property; as, where the purchaser knows that the seller is not the rightful possessor (d), or where he has given no valuable consideration for the goods (e).
In an action brought against the sheriff for Fraud seizing goods, it appeared, that a voluntary bill of cfown. sale had been made of the goods to the plaintiff
(a) Jackson v. Duchaire, 3 T. R. 551; Pidcock v. Bishop, 3 B. & C. 605. See Cockshot v. Bennett, 2 T. R. 763; Wyburd v. Stanton, 4 Esp. 179.
(6) Marsh v. Keating, 1 Bingh. N. S. 198.
(c) See below, Chap. vi.
(d) 2 Inst 713; 2 Bl. Comm. p. 450.
by his father, the former owner, who was in Newgate at the time, and was afterwards executed for felony:—the Court held, that the sale was void, being with the intent to defraud the king(/). But Holt, C. J., said, that a bond fide sale for valuable consideration would have been valid; because the party had a property in his goods until conviction.
Section II.—Of Sales void on the ground of
immoral Contracts arising out of an immoral transaction,
or entered into for the furtherance of some immoral purpose, cannot in general be enforced (a); for the maxim of law is, " ex turpi causa, non oritur actio" (b). Thus, in a case where the defendant was proved to have given a general order for "all the caricatures that had ever been published," it was held that the plaintiff could not recover the value of prints furnished of an obscene, immoral,
(f) Jones v. Ashurst, Skinner, 357; S. P. Morewood v. Wilkes, 6 C. & P. 144; Shaw v. Bran, 1 Stark. N. P. C. 319.
(a) Walker v. Perkins, 3 Burr. 1568; S. C. 1 Bl. Rep. 517 j Poplett v. Stockdale, 1 Ry. & M. 837; Stockdale v. Onwhyn, 5 B. & C. 173; Gale v. Leckie, 2 Stark. N. P. C. 107.
(b) Yet, in general, however immoral or otherwise illegal a contract may be, if it has been completed and the money paid, no action will lie to recover back the money, when both parties are in pari delicto; on the principle of the maxim, "potior est conditio defendentis." See Hanson v Hancock, 8 T. R. 575; Bull. N. P. 132.
or libellous character (c). So, it has been held to be a good defence to an action for use and occupation, that the house was let for the purposes of prostitution (d); especially if the plaintiff participated in the guilty profits (e).
But the vendor may recover for clothes sold to a prostitute, though he had notice of her abandoned way of life, unless he has done something expressly in furtherance of it, and expected to be paid out of the profits of prostitution (/). So, it was held that a washerwoman might recover for washing clothes for a prostitute, though the articles principally consisted of expensive dresses, and the plaintiff knew to what purposes they were intended to be applied (g).
Section III.—Of Sales void, as being against Public
Sales of goods and chattels, void on the ground of express statutory prohibition, have been already considered (a); but, even where there is no
(c) Fores v. Johnes, 4 Esp. 97.
(d) Jennings v. Throgmorton, Ry. & M. 251; Girardy v. Richardson, 1 Esp. 13 j S. C. 1 B. & P. 340; Crisp v. Churchill, cited 1 B. & P. 340; Appleton v. Campbell, 2 C. & P. 347.
(e) Howard?. Hodges, 1 Selw. N. P. 68, (6th Ed.) (/) Bowry v. Bennett, 1 Campb. 348.
(g) Lloyd v. Johnson, 1 B. & P. 340; See the remarks of Buller, J. (a) Chap. iii. Part 3 : p. 84.
Sales positive enactment, a contract may be void at com
against public policy, mon law, on the ground of being contrary to the
principles of public policy (A). Thus it was held, that no action could be maintained on a contract, for the sale of the command of a ship employed in the service of the East India Company, entered into without the knowledge of the Company (c). So, where the plaintiff had contracted to sell to the defendant a share in a ship destined to export military stores to South America, contrary to an order of council then in force, it was held that, as nothing appeared to prove that the illegal purpose had subsequently been either legalized or abandoned, the vendor could not recover (d). But he might have recovered, had a licence been subsequently obtained, or any other act done to legalize the adventure (e).
(6) See Josephs v. Pebrer, 1 C. & T?. 341; Bristoxv v. Waddington, (in error) 2 N. R. 355; Jones v. Randall, Cowp. 39; Allan v. Hearn, 1 T. R. 56; Atherford v. Beard, 2 T. R. 610; Wyatt v. Bulmer, 2 Esp. 537; Hartley v. Rice, 10 East, 22; Mitchell v. Reynolds, 1 P. Wms. 181; Bridge v. Cage, Cro. Jac. 103; De Begnk v. Armitage, 10 Bingh. 107; Chit. Bills, p. 74, (6th Ed.)
(c) Blachford v. Preston, 8 T. R. 89; see 4 Ves. Jun. 815. And see Card v. Hope, 2 B. & C. 661; Battersby v. Smyth, 3 Madd. 110 ; Garforth v. Fearon, 1 H. Bl. 327; Parsons v. Thomson, 1 H. Bl. 322; Stackpole v. Earle, 2 Wils. 133; Walker v. Chapman, Lofft, 342.
(cf> Holland v. Hall, 1 B. & A. 53.
(e) See Sewell v. Roy. Exch. Company, 4 Taunt. 856; Haines v. Busk, 5 Taunt. 521 ; S. C. 1 Marsh. 191.