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thing dangerous or revolutionary in the Code, is the Code better every time, and however small is the aid offspring, either of malignant opposition, of ignorance, we have received from him and his colleagues, we have or of prejudice. It would be blindness not to see and remembered the words of Macauley, that "the best disingenuous to deny that American and English law-Codes extant, if malignantly criticised, will be found yers are from the beginning of their studies, nurtured to contain matter for censure in every page," and that with such a diet of prejudice that the chances are the Indian commissioners had done as much against their believing any thing new to be true or could reasonably be expected from them, if they had any thing old to be false. If they would bring them. furnished that which might, by suggestions from exselves to consider the subject with the care with which perienced and judicious persons (like Mr. Carter, for they construct their briefs, they would, I cannot doubt, example), "be improved into a good Code." come to think it a part of their duty to help make the Mr. Carter refers with great satisfaction to the laws of the land more accessible to the people, to the thoughtless criticisms of Mr. Amos, which appear judges and to themseives; and more easily understood after all to rest on a few definitions. How strange when found. But as a general rule we might as soon those words appear by the side of a single sentence of expect a Mohammedan to take a Christian to his those jurists of California who being under the rebosom, as a case-lawyer, or I might say a case-hardened sponsibility of examing for the State as well as themlawyer take a Code to his. These are not pleasant selves, reported that they “found the four Codes, the things for a lawyer who loves his profession and be- Political Code, the Penal Code, the Civil Code and the lieves in its inherent greatness to say, but they are Code of Criminal Procedure, as prepared by the comtrue nevertheless, and being true should be understood missioners, aud enacted by the Legislature, perfect in by the people. The average practicing lawyer is, and their analysis, admirable in their order and arrangebas always been against law reform. His heart may ment, and furnishing a complete body of laws." be as pure as the show newly fallen upou the moun- I may be pardoned for adding, that since Mr. Amos' tain, his philanthropy as clear as that of Howard or work was published, I have had the good fortune to Cooper, yet whenever an amendment of the laws is make his acquaintance, and have seen much of him, and proposed we may find him standing at the gates of re- though I cannot say that he has told me so, I am led to form with a battered shield on his breast and an old think that he has changed his opinion. The works of javelin in his band. Every law reform has, it is true, Mr. Amos and Mr.Pollock however both show that this been brought about by lawyers because none but law-Code has had no inconsiderable influence upon English yers know how to bring it about, but this has been opinion, and upon legislation both in England and in done, be it understood, by the small band of reformers India. An English writer is rather slow find good against the host of obstructives.
out of England, and even Pollock could say nothing These men clamored against the Revised Statutes better of the French Codes, than their showing, that until tbeir voices were drowned in the volume of an imperfect Code was far better than no Code at all. praise; they made themselves hoarse over the Code of But however this may be, the opinion of any numCivil Procedure of 1848, and before they were cured it ber of theorists weigh nothing in comparison with the had made the circuit of the globe; they rejoiced over weight of experieuce. Our Civil Code has been copied the Code of Criminal Procedure as dead; it sprang in California and Dakota, the most central and the into life, and they passed solemn resolutions against most western communities of this continent, and it the Penal Code, which before not many days, they had has been their law for a decade. How they find it let the mortification to retract. No measure of law re- the letters in the appendix show. They were written form has been proposed within my memory which by Messrs. Dwinelle, Burch and Haywood, who bore a they did not at first laugh over, then clamor at, then leading part iu introducing the Codes to California, resolve against, and at last in their despair, predict and may therefore be supposed most anxious to study direful evils from, until the derision, the clamor, the their operations, by Mr. Cadwalader, an eminent lawresolve and the prediction were turned into mourn. yer of California, by Mr. Stewart, formerly senator
from Nevada, by Mr. Sanderson, formerly chief jusMr. Carter has much to say about the rules of gen- tioe of California, and by Judge Sawyer, Circuit judge eral average. Why not have the candor to add that of the United States. The practice of ten years outwhen the Code was first proposed it professed to take weighs in importance the theories of ten professors. the law as it then existed; but that in the legislative The Americans are a practical people, and they want session of 1883, with the sanction of the judiciary com- something they can understand and live by. mittee, the York and Antwerp rules adopted by the association for the reform and codification of the law
In the fourth place, the vilification of the Legislaof nations, were introduced instead? He perbaps does ture is set forth in two remarkable passages of the not know that in order to avoid discussion over a sub-pamphlets I am answering, passages which I will not ject of minor importance in the daily business of life, copy, but which it is amazing that they who desire the the subject has been now omitted. Neither, perhaps, favorable opinions of the members should throw in does he know that in the report of the council of the their faces. association, made at Cologne in 1881, it was stated that
And lastly, why he should vilify me I do not know these York and Antwerp rules “ have become all but universally adopted ;” vor that in the year before it except it be from habit. I have done nothing that I
was not commissioned by the Legislature to do, as any was reported to the association “that the first judgment of the English Queen's Bench and Appeal Courts,
one inay see who will look at chapter 266 of the Laws upon a matter of general average, has not only rati- of 1857, and read it by the light of the Constitution, fied, so far as the subject under consideration is con- and I have done the best I could. It is hardly a miscerned, the principles upon which the York and demeanor to take a commission from the lawgivers of Antwerp rules are based, but has actually pronounced the State; nor yet a felong to lay before them the that the custom or practice, which for at least eighty fruits of obedience. But no matter. His censure does years bad prevailed among English average adjusters,
pot in the least disturb me, and in the language of the and according to which they adopted a contrary system of adjustment, was at variance with the common lawyers, I submit it without argument, to the judges law of England.”
of good taste and good manners. He sneers at the changes which have been made at
DAVID DUDLEY FIELD. successive revisions. Yes, we have tried to make the New York, Feb. 8, 1884.
your courts thereon, and at the same time will thereby SAN FRANCISCO, CAL., Sept. 25, 1877.
do an aot of simple justice to yourself, who have so inHon. DAVID DUDLEY FIELD:
dustriously and disinterestedly labored so long in the
cause of law reform. DEAR SIR–Mr.
has requested me to Hoping, my dear sir, that you may be able to so imwrite to you my opinion as to the Codes of California,
press the Legislature of your State with the advantatheir working, their acceptability, eto.
ges we are to-day enjoying from your labors, and inMy opinion is, that with the amendments adopted duce them to participate therein, in 1874, they contain a body of laws better than those
I remain truly yours, of any other people of British origin or political de
JNO. C. BURCH, scent, and as nearly perfect as any that have ever been
Ex-Code Commissioner. compiled for any people. In administration they work smoothly and well. There is no recalcitration against them, either by the courts or by the legal pro
FIFTH AVENUE HOTEL, fession. On the contrary, they are highly esteemed
NEW YORK, April 24, 1882. and well received by both. By the people at large they MY DEAR SIR-Your letter requesting my views as are held in great repute.
to the operation of the “Civil Code of California" The Civil Code is a hand-book among business men. and the prevailing opinions in regard to it, since the After careful consideration I put my students upon date of my last letter upon the same subject, written the Civil Code the first thing. “ Melius est petere fontes several years ago, was received so near the time of quam rivulos sequari.” It is not pedantio to use the my departure from Sacramento for this city, that my quotation. For with us, hereafter the Codes are the reply necessarily comes from here. This Code still fountains and the well-springs of the law. The thous- meets my approval, and indeed all I said in the letter and volumes of statutes and reports which preceded referred to in regard to its great efficiency I can safely, them now belong ouly to its history and illustrations. and do now, reiterate. We congratulate ourselves that we have been the first The book has stood the test of nine years' use-stood to appropriate in so large a degree the work of your- it so well tnat I do not think a judge or lawyer can be self and of your distinguished associates.
found who would be willing to dispense with it. I am yours most truly,
Dissatisfaction with it would naturally have ex. JOHN W. DWINELLE. hibited itself in efforts at repeal; yet, living as I do,
at the capital of California, I am not aware of any atSAN FRANCISCO, Sept. 27, 1877. tempts at repeal having been made. Hon. DAVID DUDLEY FIELD:
I send you herewith a volume of what might be "DEAR SIR-The Codes of California, particularly which it is used almost exclusively by bench and bar
called a pocket edition of it. This is the form in the Civil, which is almost wholly your own work, have been in operation in our own State since January,
of my State. All can see how easy it is for a lawyer to
have for his constant companion the stock or essence 1872, and in accordance with a promise made to you
of a great law library. long since to inform you of the manner in which this
Each section of this Code is an admirable model of, latter Code was received and how it has worked, I
and for legislation each is a fairly stated and easily write to inform you that I have been in constant prac
understood proposition, a law of itself, capable (when tice of the law since the completion of our work as a Code commission; that I have, as a matter
of duty interfering with the other sections or the harmony of
desired) of easy amendment or total repeal, without observed the workings of the system, and the result is all that you or I could wish or even expect. Change of
the system. With the same degree of ease and safety any kind is regarded with jealousy by all working
can new rules be added as occasion requires. under a former practice, even if it were not a system.
I intend remaining here until the 1st of the coming
month and will be glad to furnish more specific inThe Codes bad this jealousy to contend with, and I
formation as to my opinion of the great utility of the am very much pleased to say to you that now it has
Civil Code of California, which has been in operation entirely disappeared. Whatever of difficulty has been
since the 1st of January, 1873. experienced by the profession has arisen alone from
Very truly your obedient servant. one fact. Those who informed themselves of what
GEO. CADWALADER. the Code contained had a vast advantage over those
To the Hon. DAVID DUDLEY FIELD, who continued in ignorance of its provisions. I know of
115 Broadway. one student of law who passed the best examination of his class before our Supreme Court,and was introduced into the class by myself on a letter from a brother
SAN FRANCISCO, Sept. 27, 1883. lawyer, and who was remarkable for his clear, lucid, and satisfactory answers, who after admission stated Hon. DAVID DUDLEY FIELD: to me that his thoroughness was the result of his study DEAR SIR_The occasion of
return to and attention to the provisions of a copy of the report Washington, I embrace to assure you, that since my of the California Code commission of the Civil Code. last letter to you on the subject of "The Civil Code of I speak of this fact simply to show how thorough the California and How it is Liked," written in the early Civil Code is, and has been found to be. Here was a part of 1882, I have been in a great variety of situations young man whose only knowledge of the law almost affording opportunities to hear either hypercritical or was obtained from a careful reading of our Civil Code, captious remarks concerning that great compendium and on an examination by justices who had not read of the law uttered by judges, lawyers and litigants, the Code, was pronounced learned in the law. The had they been so inclined, and the fact that within Civil Code works with remarkable smoothness, and it suoh a period I have not heard a disparaging statement is growing in favor daily. As the bar finds how much regarding the scope or the operation of your greatest work has been done for them by the author, they are work-80 we designate it out here-is full of flattering only surprised that they did not learn to appreciate significance, especially as I recall various verbal and know the necessity of it earlier. I sincerely hope tributes of admiration over its great accuracy and the Legislature of your State shall as soon as possible efficiency, from distinguished sources. adopt the Civil Code and put it in force, so that we
Very truly, your obedient servant, here may have the advantage of the adjudications of
SAN BERNARDINO, CAL., Jan. 6, 1883. able, approve their workings and there is now no opMY DEAR SIR-Your favor of December 22, 1882, is position to the system of law reform which the Codes received and contents noted.
represent. The Civil Code of California which has been in force It will always be matter of regret that the great State since March, 1872, has been very beneficial in its opera
of New York did not avail herself of the opportunity tion; the arrangement of the various subjects is orderly offered by your labors, and at once adopt the Codes and convenient; its declarations of the principles of the prepared. Her example would have been followed by common law accurate and comprehensive. The use
sister States, and ere this, Codes would have been the of it in our courts greatly facilitates the administration rule. Of course as a Californian, my regrets are temof justice, while affording authoritative and accurate
pered by the knowledge that New York's opportunity rules in many cases where conflicting decisions of the lost was an opportunity found for my adopted State; courts of the various States had rendered matters un
one which allowed California to to earn and wear the certain.
proud distinction of being the first English-speaking The profession of this State are well satisfied with community to supplement written Constitutions with this Code and would by no means dispense with it.
written laws. There is no probability that it will ever be repealed.
Trusting that at this hour New York may reclaim Yours truly,
as far as possible the opportunity thrown away; acWILLIAM M. STEWART.
knowledging our great obligations to yourself-with Hon. DAVID DUDLEY FIELD,
kindest wishes for your success, I am, 115 Broadway, N. Y.
Hon. DAVID DUDLEY FIELD,
115 Broadway, N. Y.
SAN FRANCISCO, CAL., Dec. 21, 1882. swering, but hastily, your favor of December 14. So
Hon. DAVID DUDLEY FIELD, New York City : far as my observation extends, the Codes have all
MY DEAR SIR-I have been shown the report of a worked well in this State. The Civil, Political and Criminal Codes all went into operation January 1,
special committee of the Bar Association of New York, 1873. This was three years after I ceased to be Chief
urging the rejection of the proposed Civil Code. To Justice of the Supreme Court of the State, and became
this report are annexed extracts from two letters writUnited States Circuit Judge for the ninth circuit.
ten by John T. Doyle of this city, to Albert Matthews, Since I have ocoupied the position of United States
one dated April 22, and the other May, 28, 1882. Circuit Judge, the class of questions litigated has been
Having been chairman of the commission which to a great extent different from those arising in the
framed the Codes of California, or rather which State courts and I have had much less to do with State adapted your work to the laws of California, I may statutes, and so favorable an opportunity of observing
be fairly presumed to have some knowledge of their the practical operation of the Code. But as far as my
history. experience and observation go, the result seems de
Prior to the appointment of the committee of which cidedly favorable to the Code; and I think such are
I had the honor to be chairman, a revision committee
had xeisted in California, but that commission did very the views of our leading lawyers and State Judges. I have spokeu to several attorneys upon the subject,
little work, if any. When the law was passed providing and this is the view generally expressed. It really
for the commission of which I afterward became a seems remarkable to me that the changes could have member, it was feared that no better results would folbeen made, however desirable, without producing low, and for this reason the existence of the commis
sion was limited to about twenty months. To do the greater temporary inconvenience. The fact that so little inconvenience resulted argues well for the Codes.
work in that period required the constant, untiring Of course it is impossible, in view of our limited in- efforts of every member of the commission, and it was tellectual powers, to provide specifically for every con
not and could not be expected that that work should junction of circumstances that is possible to arise ;
be perfect. At the request of the commission, and but as to the great body of the laws, the Codes present
prior to the presention of its work to the Legislature,
Governor Booth named two very distinguished gena more definite, concise, specific and unmistakable statement of the laws in force, which is also more
tlemen as an advisory committee—Sidney Johnson, readily found and understood, than is possible to be
who had formerly practiced at New Orleans and was a found in the common-law system iudependent of
civil lawyer of great ability, and Charles A. Tuttle, Codes. If a case arises which is not clearly provided
whom you know. for, the courts will of course, as heretofore, be com
After the adoption of the Codes it was thought ad
visable by the governor of the State and by the compelled to determine the case upon the nearest analogies, and even to resort perhaps, to the analogies of the
mission, that a careful and thorough revision should common law.
be made, and again, at the suggestion of the Code comAs for myself, I should not hesitate to adopt the
inissiou, the governor appointed a commission conCodes. I think it will simplify the laws, and greatly
sisting of Mr. Justice Field, Mr. Jackson Temple, a facilitate their administration.
justice of the Supreme Court of California, and John Respectfully yours,
W. Dwinelle, an eminent member of the legal profesLORENZO SAWYER.
sion, to examine the Codes and to suggest such amendments as their judgment might dictate.
This commission spent several months in the work, SAN FRANCISCO, CAL., May 2, 1882.
and suggested the amendments which were adopted at Mr DEAR SIR-Your favor of the 24th of April is at the first session of the Legislature thereafter, and to hand. I avail myself of the opportunity to renew a which Mr. Doyle in his letter refers. correspondence, which when maintained was a source Very many of these amendments relate simply to both of pleasure and profit to myself.
changes in the language; for instance, as you will reWhen the Codes were adopted in California there member the words "primary evidence," were used in was some opposition to the system, but much less than your draft of New York Codes in the place of “prima was anticipated. After ten years experience the bench facie" evidence. The Code commission, of which I and bar of the State, with a unanimity most remark- was a member, followed your draft. The last commis
sion, out of deference to the opinion of the profession the subject, and this change of view was the result of in this State, which did not seem to like the change, his observations of the working of the Codes. restored the words “prima facie.” As the word “pri- It is unusual now to hear any one object to the sysmary" was used in very many sections this change tem; on the contrary, there is a very strong feeling in alone necessitated many amendments.
the profession, growing every day, that there should Mr. Doyle seems to think that the fact that the most be a constitutional amendment passed, under which a of the legislation the State is in the shape of amend permanent Law commission should be established, the ments to the Code is an evidence that the Codes have members of which should hold office for long terms, not fulfilled the purpose for which they were adopted and be disqualified from holding any other office, and My idea has always been that, when the time shall to which commission all bills introduced into the Legcome that no other bills are introduced in a legislative islature should be referred for form and style. That body than amendments to existing Codes, we shall by the commission such bills should be placed in the have a set of laws as nearly perfect as mankind can form of amendments to the Codes. I am satisfied that make them. When that time comes the Codes will but a short time will elapse before something of this have covered the whole field of legislation.
kind will be introduced into the fundamental law of Mr. Doyle complains that the Legislature, by amend California. ing one section of a given Code, may do great injury If you desire it, I think I could get a concurrence in by reason of the Legislature not having kuowledge of these views from nearly all the leading members of other provisions of the same Code. If this objection the profession in this State. can be urged against a Code system, it is overwhelm- With kind regards, I am very truly, ing when urged against. the system which existed in
Your friend, California prior to the adoption of the Codes. Thou
CREED HAYMOND. sands of statutes and the whole body of the common law of England, so far as it was applicable, were in
THE ARLINGTON, force in California, and the average member of the
WASHINGTON, D. C., Feb. 2, 1883.
} Legislature was then utterly at a loss to determine what the effect upon that immense body of laws any
Hon. David DUDLEY FIELD, New York: given legislative act would have.
MY DEAR SIR-I have seen and read the letter of The political Code of California contains about 4,500 the Hon. Creed Haymond to you, under date Decemsections, and covers almost every subject of legislation
ber 21, 1882, in relation to the Codes of California and relating to governmental affairs. California, in terri
the estimation in which they are held by the legal protorial extent, is an empire; its Legislature deals with
fession and the people of that State. I take occasion every interest kuowu to other States in the Union,
to say that I concur fully in all that Mr. Haymond has and with many that are elsewhere unknown.
said. The adoption of the Code system in California The political Code treats of the sovereiguity of the
has been a step in advance which the people of Calipeople of the State, of their political rights, of the per
fornia will never retrace. suns subject to its jurisdiction, political divisions, seat
Yours truly, of government, legal distances, the public officers, their
8. W. SANDERSON. duties, of elections, of education, State militia, of the public institutions for the insane, deaf, dumb and blind, State library, Supreme Court library, and var
AGENT LIABLE TO PRINCIPAL FOR PROCEEDS ious other public institutions, of the public ways, of
OF ILLEGAL CONTRACT. immigration, preservation of the public health, registries of birth and marriage, of dissection, of cemeter
SUPREME COURT, JANUARY TERM, 1883. ies, lost and unclaimed property, marks and brands, weights and measures, hours of labor, time, money of
NORTON v. BLINN.* account, auctions, fires and firemen, licenses, the pub
While courts will not enforce an illegal contract between the lic lands of the State, Yosemite Valley, and Big Tree
parties, yet if an agent of one of the parties has, in the Grove, State burying ground, of revenue in every
prosecution of the illegal enterprise for his principal, re
ceived money or other property belonging to his princiform, the government of cities and the duties of offi
pal, he is bound to turn it over to him, and cannot shield cers thereof.
himself from liability therefor upon the ground of the Every change made in the revenue system, every
illegality of the original transaction. change relating to the duties of a publio officer in the
CTION to recover moneys advanced to make purState, every change relating to our great commercial A interests, must be by way of an amendment to the po
chases and profits on purchases made. The facts litical Code. Taxes are levied every two years and
were these : and the levy is made by an amendment of a given sec
About the first of May, 1872, Chester Bliun placed in tion of the Code. It follows therefore that a vast field
the hands of Jesse S. Norton, at Toledo, Ohio, the sum of legislation is covered by that Code, and that when
of $500 to be by him invested as agent for Blinn in amendments to it become unnecessary we shall have
options on wheat at Milwaukee, Wisconsin, or Chino further use for the legislative bodies. This it seems
cago, Illinois, with iustructions to invest the money as to me, is an argument in favor of rather than against
he would his own. Norton, through his brokers, the Code system.
James Keller & Co., immediately purchased in his own The Civil Code of California, although a new Consti
name, but for the sole benefit of Blinu, five thousand tution, has been adopted, stands about as it did when
bushels of wheat at seller's option for June delivery at the work of the last commission was completed, and
$1.42% per bushel, and deposited the money of Blinn as an evidence of the satisfaction of the people with it
as a margin of ten cents per bushel. At the date for 1 can point to the fact that at the last session of the delivery the price of wheat had advanced so that a legislature but one single amendment to that Code profit of $325 was realized on the transaction. This was adopted, and that amendment related to religious,
money, principal and profit, was reinvested by Norton social and benevolent corporations.
in subsequent transaction of like nature for Blinn's You were well acquainted with the late Judge Delos benefit, but by reason of a decline in the market price Lake, one of the ablest lawyers of our State, one of
of wheat in the latter part of June, the whole amount the most violent opponents of a Code system. Prior
was lost. to his death he had materially changed his views upon
* Appearing in 39 Ohio State Reports.
These transactions were mere speculations or ven- the agent is a particeps criminis. In offenses against tures ou the future price of wheat, without any inten- trade, and the like, the law, regulating the administiou that the wheat would be either paid for or deliv- tration of penal justice, does not recognize the relaered, but with the intention that settlement between tion of principal and agent, unless the agent be an inthe buyer and seller would be made ou the difference nocent instrument merely. In such cases the guilty between the price stated in the contract and the offenders against the law are all principals; hence as market price at the date named for delivery. Such between such, with some show of reason it might be transactions were unlawful in the States of Illinois and said, that the law will afford uo redress by civil remeWisconsin, as well as in the State of Ohio.
dies. The original suit was brought in the Court of Com
The rulings upon this question however have been mon Pleas of Lucas county by Blinn against Norton to so uniformly the other way, it becomes our duty to recover the sum of $825 (the sum advanced and profit follow them, unless we find them totally repugnant to on the first venture), with interest.
public policy and morality. Upon a careful examinaOu the trial testimony was offered by the plaintiff tion of the authorities, we find no such repuguancy tending to prove that defendant had no authority to -iudeed they commend themselves to our judginvest plaintiff's money save in a single purchase, ment. namely, the purchase of 5,000 bushels as above stated, In the first place the rule which denies civil remewhereupon the plaintiff requested the court to instruct dies in such cases applies only to the parties to the the jury as follows:
illegal transaction. Public policy does not require “If the jury shall find from the testimony, that on that one engaged in an unlawful enterprise should, by or about the time stated in the petition, the defendant pleading it, shield himself from liability for the wages received from the plaintiff the sum of $500 of the of his employees, ageuts or servauts. It is enough money of the latter, under an arrangement that the that the rule should be enforced as between those same should be invested by the defendant in wheat who have some interest in the enterprise as princitransactions, of the illegal character mentioned in the pals. answer, for the benefit of the plaintiff; that said In the second place, it is contrary to public policy money was so invested by the defendant, and a profit and good morals, to permit employees, agents, or serrealized thereon; and that before the commencement vants to seize or retain the property of their principal, of this action said sum of $500, and the profits so made, although it may be employed in illegal business and came into and are still in the hands of the defendant; under their control. No consideration of public polor that he received credit therefor in the final settle- icy can justify a lowering of the standard of moral ment of his accounts with the brokers through whom honesty required of persons in these relations. said business was transacted, then the plaintiff is en: And again if parties to an illegal contract waive the titled to recover said money from the defendant; nor illegality, and honestly account as between themselves, in such case, can the defendant avoid his liability to no other person can be heard to complain of such acaccount for said moneys by showing that by the un- counting. Hence we think, that if in making such derstanding between the plaiutiff aud himself, said settlement one of the guilty parties should deliver money was to be employed in illegal transactions in property or money to an agent of another to be delivwheat of the nature stated in his answer; and that ered by the agent to his principal, such agent is bound said money was employed, and said profits realized in to account therefor to his principal. such transactions."
A leading case on this questiou is Tenant v. Elliott, 1 Which charge the court refused to give, and to such Bos. & Pul. 2, where the defendant, a broker, affected refusal the plaintiff excepted.
an illegal insurance for the plaintiff on a ship, and The verdict of the jury was in favor of the defend- after a loss the underwriters paid the amount of ant, and judgment was rendered accordingly. This the insurance to the defendant, who refused to pay judgment ou petition in error was reversed by the Dis- the same over to plaintiff, on the ground that the iutrict Court, and this proceeding is to reverse the judg. surance contract was illegal. Judgment for the plaintment of the District Court.
iff. Eyre, C. J., said: “The defendant is not like a Haynes & Potter, for plaintiff in error.
stockholder. Whether he who has received money to
another's use on an illegal contract, can be allowed to C. H. Scribner and J. M. Ritchie, for defendant in
retain it, and that not even at the desire of those who
paid it to him? I think he cannot." MCILVAINE, J. While it has ever been the policy In Brooks v. Martin, 2 Wall. 70, it was held by the of the law to leave the parties to an illegal transaction Supreme Court of the United States, that “After a where it finds them by refusing relief to either in re- partnership contract confessedly against public policy spect thereto, it has on the other hand never regarded has been carried out, and money contributed by one property or money employed therein or produced of the partners was passed into other forms-the rethereby as common plunder to be seized or retained sults of the contemplated operation completed, a partby others in no way interested in such business.
ner in whose hands the profits are, cannot refuse to The question however in this case, arising on the re- account for and divide them on the ground of the illefusal of the Court of Common Pleas to charge the jury gal character of the original contract. as requested by the plaintiff is: May an agent who In Baldwin v. Potter, 46 Vt. 402, it was held that has trausacted illegal business for his principal and agent is bound to account to his principal for money has received money belonging to his principal and ac- received in the course of his agency, for goods sold by cruing from such business, defend himself, in a court his principal on orders obtained by him as such agent of law, against liability to account therefor, by show- on commission, although such sales as between the ing such unlawful business and his connection there- principal and purchaser be illegal and void." with as such agent?
Iu Evans v. Trenton, 4 Zab. 764, it was held “the If the agent receiving such money had not been em- mere agent of a party to an illegal transaction cannot ployed in conducting such business, it would seem to set up the illegality of the transaction in a suit by his be quite plain, upon principles of purest morality, that principal to recover money that has been paid to such he should account to his principal therefor; but where agent for his principal ou account of the illegal transthe sole employment of the agent was to manage and action. This defense can be set up only by a party to couduct the unlawful transactions, it seems to me, a the illegal transaction.” In this case the illegal transmuch more difficult question arises. In the latter case action was accomplished through the agent.