specific penalty (1). So, it was held by Lord Ellenborough, C. J., to be no defence that the goods were exported without paying the imposed duties, unless the evasion of the duties be proved to form part of the agreement (m). Where both the consideration and the matter to be performed are legal, the plaintiff is not precluded from recovering by an infringement of the law not contemplated by the contract in the performance of something to be done on his part (n).

Where vengoods for il

dee buys the

legal pur

poses, and vendor is

the sale is

void.

Where the goods sold are intended to be applied by the vendee to some prohibited purpose, as for the purpose of being smuggled, although the selling of the goods is in itself a perfectly legal transaction, implicated, if the vendor implicates himself in the vendee's illegality, so as to become particeps criminis, he cannot recover their value. Thus, where one of the plaintiffs (who were partners) sold brandy in Guernsey, and sent it in half-ankers ready slung for the purpose of being smuggled into England, the court refused to set aside the nonsuit (o). So,

(1) Johnson v. Hudson, 11 East, 180; S. P. Brown v. Duncan, 10 B. & C. 93; S. C. 5 Man. & Ry. 114; see 5 B. & Ad. 896. See Wetherell v. Jones, 3 B. & Adolph. 221, where the delivery of an irregular permit by the plaintiff (a distiller) to the buyer was held not to vitiate the sale; and see Dyster, ex parte, 2 Rose's Bankruptcy Cases, 349; Kemble v. Atkins, 7 Taunt. 260. [Meux Humphries, 3 C. & P. 79; S. C. 1 M. & M. 132, is overruled by Brooker v. Wood, 5 B. & Ad. 1052.]

V.

(m) Catlin v. Bell, 4 Campb. 183. See Touissant v. Darlam, 3 B. Moore, 217.

(n) Per Curiam, 3 B. & Ad. 226.

(0) Biggs v. Lawrence, 3 T. R. 454; S. P. Clugas v. Peña

But mere knowledge

of vendor

does not

avoid the sale.

where the vendor assisted the purchaser in shipping the goods as a cargo on board of a vessel intended for an illegal and clandestine traffic, contrary to the provisions of a statute (p), it was held that he could not recover (q). If the seller actually assists in the packing of goods to be smuggled, or does any other act in aid of the buyer's illegal transaction, it is enough to prevent him from recovering, though he may not have been concerned in the profit or risk of the adventure (r).

It is not, however, a sufficient defence to the on the part action that the plaintiff was merely aware of the intention of the purchaser to smuggle the property; it must appear that some assistance was rendered on the part of the vendor. Where the contract and delivery of goods are complete abroad, and the seller does no act to assist the smuggling them into this country, such a contract is valid, and may be recovered on here (s). The same was held, where the vendor knew that the goods were to be employed in an illegal trade, but rendered no assistance beyond selling the goods, and obtaining

luna, 4 T. R. 466; and see Thomas v. Withers, and Hennell v. Perry, cited by Buller, J., 5 T. R. 117; Paxton v. Popham, 9 East, 408. 7 Ves. Jun. 473.

(p) 7 Geo. I. c. 21.

(q) Lightfoot v. Tenant, 1 B. & P. 551. And see Gross v. Lapage, Holt, N. P. C. 105.

91.

(r) Waymell v. Reed, 5 T. R. 599; Bernard v. Reed, 1 Esp.

(s) Holman v. Johnson, 1 Cowp. 341. And see 5 T. R. 600, per Ld. Kenyon, C. J.

permits for their delivery to the purchaser's agent (t).

In one case, however, it was determined that mere knowledge of the illegal intention was sufficient to invalidate the contract. The plaintiff, a druggist, sold to the defendant drugs which he knew were to be used in the brewery of the latter, whereas the statute (u) prohibits the use of any ingredient in the making of beer, other than malt and hops. It was held that he could not recover (a). There may be something in the peculiar circumstances of the case, as the statute was passed for the protection of the public health and of the public revenue (y).

The following prohibitory statutes concerning sales of goods, in respect of which questions have been judicially decided, are chronologically placed. Sale of woollen Cloths, &c.-The stat. 1 & 2 Phil. Sale of & Mar. c. 7, s. 2, prohibits persons not living in cloths, &c.

(t) Hodgson v. Temple, 5 Taunt. 181; Pellecat v. Reynolds, 2 Cr. Mees. & Roscoe, 311.

(u) 42 Geo. III. c. 38. [A statute, subsequent to the period of the above contract, makes the sale of certain drugs to a brewer illegal, 51 Geo. III. c. 87.]

(x) Langton v. Hughes, 1 M. & S. 593.

(y) See ibid. p. 595. It must be observed, however, that the judgment of the Court, and especially of Le Blanc, J., seemed to rest on the mere fact of the vendor's knowledge. The case of Holman v. Johnson does not appear to have been cited or alluded to at all.

woollen

The treating of voters.

any city, borough, town corporate, or market-town from selling, by retail, woollen and linen cloth, haberdashery, grocery, and mercery wares, within the said cities, &c., or their suburbs or liberties.

It was adjudged upon demurrer, that this statute does not extend to prevent the inhabitants of one market-town from selling the specified goods in another (2). The decision was confirmed in a subsequent case (a).

The treating Act.-The treating Act (b) prohibits, on pain of disqualification, candidates, after the teste of the writ and before their election, from giving or allowing directly or indirectly to any person having voice or vote in such election any money, meat, drink, entertainment, or provision, or any present, gift, or reward; or from making any promise, agreement, obligation, or engagement to allow such money, provisions, present, gift, &c. in order (c) to be elected, &c.

An innkeeper cannot recover against a candidate for provisions furnished in violation of the above statute (d); and it was held, that non-resident voters are within the prohibition (e). The statute (z) Davis v. Leving, 2 Lev. 89.

(a) Lee v. White, 1 Dougl. 256.
(b) 7 & 8 Will, III. c. 4.

(c) The words "in order" refer to the last clause only; see 1 B. & P. 265, per cur.

(d) Ribbans v. Cricket, 1 B. & P. 264.

(e) S. C.; Lofhouse v. Wharton, 1 Campb. 550 n.

applies equally to successful and unsuccessful candidates (f); nor is it material whether the canvassing party be the candidate himself, or his authorized agent, or any other person acting in his behalf(g). But the statute does not extend to the case of an entire stranger who is not acting in behalf of the candidate (h). If the plaintiff cannot be proved to have known that the purpose, to which the goods were intended to be applied, was in presents to voters, he will not be barred from recovering (i).

Selling of Game.-The selling of game was Selling formerly prohibited by several statutes (k); but game. they are all repealed by the late Game Act, which makes it lawful for certificated persons to sell game to licensed dealers (1).

It was determined under the old statutes, that the sale of living pheasants was illegal, and passed no property to the purchaser (m)

The stock-jobbing Act.-By Sir John Bernard's Stock-job

(f) Ward v. Nanney (Clerk), 3 C. & P. 399.

(g) Id.

(h) Hughes v. Marshall, 5 C. & P. 150.

(i) Richardson v. Webster, 3 C. & P. 128, coram Best, C. J. (k) 5 & 6 Ann. c. 14, s. 2; 28 Geo. II. c. 12; 58 Geo. III. c. 75.

(2) 1 & 2 Will. IV. c. 32, s. 17.

(m) Helps v. Glenister, 8 B. & C. 559.

bing.