Sales

against public policy, void.

positive enactment, a contract may be void at common law, on the ground of being contrary to the principles of public policy (b). 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).

(b) See Josephs v. Pebrer, 1 C. & P. 341; Bristow 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 Begnis 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.

(d) 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.

It has been held, that where a brewer enters into an agreement with a publican to supply him with beer, and the latter agrees to take all his beer, the agreement cannot be enforced, unless the brewer can prove that he has supplied good liquor, and such as to give general satisfaction to customers (ƒ). A publican cannot recover the value of beer furnished to third parties by the order of a person who has been in the habit of becoming intoxicated in his house (g).

speculation.

A gambling contract cannot be enforced. Where Wagering the agreement is, that the goods shall be delivered by a certain day, and the vendor, at the time of the contract, neither has the goods in his possession, nor has any reasonable expectation of obtaining them by consignment, but intends to go into the market and buy them, this, it seems, will be considered a wagering and improper speculation, and the vendor cannot maintain an action for nonperformance of the contract (h). On a similar principle the sale is void, when it is proved to have been merely colourable, and intended to cover an usurious loan (i).

(f) Holcombe v. Hewson, 2 Campb. 391. See Cooper v. Twybill, 3 Campb. 286, n.; Hartley v. Pehall, Peake, 131; Thornton v. Sherratt, 8 Taunt. 529.

(g) Brandon v. Old, 3 C. & P. 440; cor. Best, C. J.

(h) Bryan v. Lewis, 1 Ry. & M. 386. See M'Gregor v. Lowe, 1 Ry. & M. 57; Hibberd v. Pettispierre, and Wardle v. Fowler, cited Comyn, Contracts, 58, note (p).

(i) Hargreaves v. Hutchinson, 2 Ad. & Ell. 12.

Trading

with an enemy.

Legalized by a licence.

Trading with an alien enemy is now decided to be illegal, as being contrary to public policy; and no action can be maintained on any contract arising out of such commerce (k). The question of who is to be considered an alien enemy is not an abstract question of either law or fact to be decided by a court of justice, but depends on the declared will of the government. "It belongs to the government of the country to determine, in what relation of peace or war any other country stands towards us"(); therefore, when the king, by an order in council, declared certain ports, formerly hostile, to be not hostile, this declaration, though made for collateral and limited purposes, was held to have the effect of legalizing a trading to such ports, without the aid of any special licence (m). So, even where a state was in the military possession of a hostile power, but the government chose to recognize the subjects of such state as neutrals, a trading with them was held legal (n).

On this principle, by a licence granted by the crown to any merchant or company to carry on

(k) Potts v. Bell (in error in K. B.), 8 T. R. 548, reversing the decision of C. P. in Bell v. Gilson, 1 B. & P. 345. See Gist v. Mason, 1 T. R. 85, per Ld. Mansfield, C. J.; Willison v. Patteson, 7 Taunt. 439; 2 Rol. Abr. 173.

(1) Per Ld. Ellenborough, C. J., 15 East, 90.

(m) Blackburne v. Thompson, 15 East, 81; Johnson v. Greaves, 2 Taunt. 344.

(n) Hagedorn v. Bell, 1 M. & S. 450.

trade with the subjects of an enemy's country, the adventure will be legalized (0); provided that the party, seeking to protect himself under the licence, has conformed to its requisitions (p). The licence will have the effect of legalizing the whole transaction, and will therefore protect the rights of an enemy-vendor, and empower him (or his agent) to stop the goods in transitu, in the event of the insolvency of the consignee (q).

tion of li

Such a licence may be granted, not only to ConstrucBritish subjects, but to neutrals resident here or cence. abroad (r), or even to alien enemies (s). The Courts will give it a liberal construction; and if its terms are general in respect of the persons privileged, it will be held to extend to the merchants even of hostile countries (t). So, if the terms are general as to the property privileged, the Courts

(0) Vandyck v. Whitmore, 1 East, 475; 43 Geo. III. c. 153, s. 16; 48 Geo. III. c. 126, s. 2; Long, p. 94.

(p) Vandyck v. Whitmore, 1 East, 475.

(g) Fenton v. Pearson, 15 East, 419. See Kensington v. Inglis, 8 East, 273; Morgan v. Oswald, 3 Taunt. 554.

(r) Anthony v. Moline, 5 Taunt. 711; Schnakoneg v. Andrews, 5 Taunt. 716.

(s) Usparicha v. Noble, 13 East, 332; Robinson v. Morris, 5 Taunt. 720; Waring v. Scott, 4 Taunt. 605; Grigg v. Scott, 4 Campb. 339; S. C. Holt, N. P. C. 129.

(t) Flindt v. Scott (in error), 5 Taunt. 674; Feise v. Bell, 4 Taunt. 4; Robinson v. Touray, 1 M. & S. 217; Hagedorn v. Reid, 1 M. & S. 567; Hullman v. Whitmore, 3 M. & S. 337; Rucker v. Ansley, 5 M. & S. 25; Fayle v. Bourdillon, 3 Taunt.

L

Extent of licence.

will not confine it to the property of the licensee (u). But, if the licence is expressly restricted to the property of the licensee, no property in which he has not an interest will be protected (x); even if he have assigned the licence to the owner of such property (y). And even in the case of a general licence, the party, seeking to protect himself under it, must give some evidence to connect his own particular adventure with such general licence (*).

In order to legalize the adventure, the licence must extend through the whole period. If it has not been obtained until after the adventure has commenced, it will not legalize the voyage by a retrospective effect (a). If, by the terms of the licence, it is to expire within a specified time, it is not sufficient that the goods have been shipped. within the time; the voyage will not be protected, unless the ship has sailed (b), and received her

(u) Deflis v. Parry, 3 B. & P. 3; Timson v. Merac, 9 East, 35; Morgan v. Oswald, 3 Taunt. 554.

(x) Feise v. Waters, 2 Taunt. 248; Busk v. Bell, 16 East, 3. It is sufficient if he have a mere qualified interest; 2 Taunt. 251; Rawlinson v. Jansen, 12 East, 223.

(y) Feise v. Thomson, 1 Taunt. 121; Feise v. Newnham, 16 East, 197.

(z) Barlow v. M'Intosh, 12 East, 311.

(a) Henry v. Staniforth, 4 Campb. 270. See Hobbs v. Hannam, 3 Campb. 95.

(b) Vandyck v. Whitmore, 1 East, 475.