Rebellion furnished numerous questions respecting sales in aid of the Confederate States. In one case which involved the right to recover for goods sold to a recognized supply-contractor of the Confederate government, the supreme court of the United States, in holding that no recovery could be had, said: "No crime is greater than treason. He who, being bound by his allegiance to a government, sells goods to the agent of an armed combination to overthrow that government, knowing that the purchaser buys them for that treasonable purpose, is himself guilty of treason or a misprision thereof. He voluntarily aids the treason. He cannot be permitted to stand on the nice metaphysical distinction that, although he knows that the purchaser buys the goods for the purpose of aiding the rebellion, he does not sell them for that purpose. The consequences of his acts are too serious and enormous to admit of such a plea. He must be taken to intend the consequences of his own voluntary act." § 1025.. In several cases in the State courts, however, this case has been distinguished on the ground that the sale to the accredited agent of the Confederate government was really a sale to that government itself, and that the rule should not apply in case of sales to private individuals. Following this distinction, they have held that a sale of a horse, for example, to one who was known to be buying it for use as a soldier in the Confederate army, was not illegal, and the price was therefore recoverable.2 1 Hanauer v. Doane (1870), 79 U. S. (12 Wall.) 342, 20 L. ed. 439. Followed in Thomas v. City of Richmond, 79 U. S. (12 Wall.) 349, 20 L. ed. 453; Hanauer v. Woodruff, 82 U. S. (15 Wall.) 439, 21 L. ed. 224; Carlisle v. United States, 83 U. S. (16 Wall.) 147, 21 L. ed. 426; Sprott v. United States, 87 U. S. (20 Wall.) 459, 22 L. ed. 371; Whitfield v. United States, 92 U. S. 165, 23 L. ed. 705; Dewing v. Perdicaries, 96 U. S. 193, 24 L. ed. 654; Keith v. Clark, 97 U. S. 454, 24 L. ed. 1071. So, also, Lewis v. Latham (1876), 74 N. C. 283; Tatum v. Kelley (1868), 25 Ark. 209, 94 Am. Dec. 717; Roquemore v. Alloway (1870), 33 Tex. 461; Milner v. Patton (1873), 49 Ala. 423 (overruling Thedford v. McClintock, 47 Ala. 647). Wallace v. Lark (1879), 12 S. C. 576, 32 Am. R. 516; Tedder v. Odom (1870), 2 Heisk. (Tenn.) 68, 5 Am. R. 25: McGavock v. Puryear, 6 Cold. (Tenn.) 34; Henderson v. Waggoner, 2 Lea (Tenn.), 133, 31 Am. R. 591. § 1026. Sales in aid of violations of liquor laws. The statutes regulating the sale of intoxicating liquors furnish another source of controversy concerning the rules in question. Bearing in mind that we are not now dealing with the sales which are themselves declared illegal by the statute, but only with sales alleged to be invalid because made in aid or furtherance of such illegal sales, it may be said to be the well-settled rule, in this as in the other cases already considered, that a sale of liquors not in itself illegal is not rendered illegal merely because the seller may know that the buyer may or will resell the liquors in violation of the statute; but that it will be illegal if the seller actively co-operates in or aids the buyer's unlawful purpose.1 1027. Conflict of laws.-This question has most frequently arisen where the liquors are sold in one State, where such sales are lawful, to be transported for sale in another State whose statutes forbid the sale. Knowledge that the buyer intends to violate the laws of the latter State will not ordinarily prevent a recovery for the price even in the courts. of that State, though this rule has been changed by statute in 1 Thus, in Woodford v. Hamilton (1894), 139 Ind. 481, where the question was whether there could be a recovery for the price of intoxicating liquors sold to a woman, to be retailed by her, when the law did not permit a woman to keep a saloon, it was said that, "it being a part of the contract of sale made by the appellants that they were to be sold in said saloon in violation of law, the retailing of such liquors was not only without authority of law, but against the express provisions of our statutes, and contrary to public policy. Under this condition of affairs the law will not aid the appellants in an effort to enforce their contract, but will leave the parties in the situation in which they have placed them selves. Hutchins v. Weldin, 114 Ind. 80." To same effect: Terre Haute Brewing Co. v. Hartman, 19 Ind. App. 596, 49 N. E. R. 864. 2 Webber v. Donnelly (1876), 33 Mich. 469; Hill v. Spear, 50 N. H. 253, 9 Am. R. 205; Feineman v. Sachs, 33 Kans. 621, 7 Pac. R. 222, 52 Am. R. 547; Bowman Distilling Co. v. Nutt, 34 Kans. 724, 10 Pac. R. 163; Gaylord v. Soragen, 32 Vt. 110, 76 Am. Dec. 154; Tuttle v. Holland, 43 Vt. 542; Bank v. Curren, 36 Iowa, 555. So of a sale of oleomargarine consummated in Illinois, where such sales are lawful, to be resold in Pennsylvania, where they are unlawful. Braunn v. Keally (1892), 146 Pa. St. 519, 28 Am. St. R. 811, 23 Atl. R. 389. One who has furnished labor and some States; and the cases are numerous in which it has been held that the seller who has actively aided such unlawful design, as by shipping the goods in a disguised form,3 or in unusual or special packages, or in a fictitious name," will not be permitted to recover. materials for fitting up a bar-room is not precluded from recovery because he knew the place was to be used for illegal sales of liquors. Bryson v. Haley (1895), 68 N. H. 337, 38 Atl. R. 1006. 1 Thus, in Maine, the statute expressly provided that no action should be maintained "for any such liquors purchased out of the State with intention to sell the same or any part thereof in violation" of the statute. In Meservey v. Gray, 55 Me. 540, Mr. Justice Walton said: "It will be observed that our present statute makes the fact that the liquors were purchased with the intention of selling them in violation of law, and not the seller's knowledge of the fact, the criterion by which to determine whether the contract will support an action in this State or not. . . If, therefore, the sale was made in New York, and the plaintiffs had no knowledge of the illegal purpose of the defendant to sell the liquors in this State in violation of law, yet, inasmuch as the evidence satisfies us, as a matter of fact, that they were intended for such illegal sale, the plaintiff cannot recover for them." To same effect: Knowlton v. Doherty (1895), 87 Me. 518, 33 Atl. R. 18, 47 Am. St. R. 349. The court considered the question whether such a statute interfered with the federal power to regulate interstate commerce, but concluded that it did not. 2 Webster v. Munger (1857), 8 Gray (Mass.), 584; Hubbell v. Flint (1859), 13 Gray (Mass.), 277; Galligan v. Fannan (1863), 7 Allen (Mass.), 255; Orcutt v. Nelson (1854), 1 Gray (Mass), 536; Adams v. Couilliard (1869), 102 Mass. 167; Davis v. Bronson (1858), 6 Iowa, 410; Winkelmeyer Brew. Ass'n v. Nipp, 6 Kan. App. 730, 50 Pac. R. 956; Banchor v. Mansel (1859), 47 Me. 58; O'Bryan v. Fitzpatrick (1886), 48 Ark. 487, 3 S. W. R. 527. The rule laid down in Webster v. Munger, supra, was that the sale was void if made "with a view" to their resale in the other State, and this rule is approved in the late case of Graves v. Johnson (1892), 156 Mass. 211, 32 Am. St. R. 446, 15 L. R. A. 834, 30 N. E. R. 818, though it seems evident that the court in the latter case contemplate a more active participation than in the former; otherwise these cases cannot be reconciled with the weight of authority elsewhere. Graves v. Johnson is followed in Wasserboehr v. Morgan (1897), 168 Mass. 291, 47 N. E. R. 126. 3 Aiken v. Blaisdell (1869), 41 Vt. 655, where the liquors were marked "benzine" or "cider vinegar." 4 Ante, 1019, note; Feineman v. Sachs (1885), 33 Kan. 621, 52 Am. R. 547; Aiken v. Blaisdell, supra; Skiff v. Johnson (1876), 57 N. H. 475: Fisher v. Lord (1885), 63 N. H. 514, 3 Atl. R. 927; Hull v. Ruggles (1874), 56 N. Y. 424; Materne v. Horwitz (1886), 101 5 Kohn v. Milcher (1890), 43 Fed. R. 641, 10 L. R. A. 439; Gaylord v. Soragen (1859), 32 Vt. 110, 76 Am. Dec. 154. § 1028.. The fact that the order for the goods is solicited and taken in a State whose statutes forbid the sale of the liquor by the buyer does not of itself affect the validity of the sale to the buyer, consummated by the acceptance and filling of such order in another State where no such statutes exist;1 though it was at one time deemed competent for the former State to declare such soliciting unlawful, and, if it did, that its courts should not enforce a sale made in pursuance of such soliciting, though such sale was made in a State in which like sales are lawful; but this view no longer prevails.2 N. Y. 469, 5 N. E. R. 331. Furnishing De France (1894), 90 Iowa, 395, 57 barrels and kegs to keep the liquors N. W. R. 959. in until sold is a participation. Winkelmeyer Brew. Ass'n v. Nipp, 6 Kan. App. 730, 50 Pac. R. 956. Where the person taking the order has no authority to accept it, but it is sent to his principal in the other State and there accepted and filled by unconditional delivery to a carrier for transportation to the buyer, the sale is made in the latter State, and if there valid will be enforced in the State of the buyer, though, if made there, it would have been invalid. Kling v. Fries, 33 Mich. 275; Monaghan v. Reid, 40 Mich. 665; Boothby v. Plaisted, 51 N. H. 436, 12 Am. R. 140; Lynch v. Stott, 67 N. H. 589, 30 Atl. R. 420; Tegler v. Shipman, 33 Iowa, 194, 11 Am. R. 118; State v. Colby, 92 Iowa, 463, 61 N. W. R. 187; Westheimer v. Weisman, 60 Kan. 753, 57 Pac. R. 969. An agreement made in Iowa that beer should be shipped from Wisconsin whenever ordered by defendant in Iowa is but a conditional agreement for future sales and does not bind defendant to order any, and a sale and delivery of beer in Wisconsin, on orders given there, are made in Wisconsin. Miller Brewing Co. v. Neither can the purchaser recover back the money he has paid for the liquors under such circumstances. Wind v. Iler, 93 lowa, 316, 61 N. W. R. 1001; Bollinger v. Wilson, 76 Minn. 262, 79 N. W. R. 107. But in Starace v. Rossi (1897), 69 Vt. 303, 37 Atl. R. 1109, the court held that, from the fact that the order was taken in Vermont and thence transmitted to New York, where it was filled, the contract was in part made in Vermont and was therefore unenforceable. Backman v. Wright, 27 Vt. 187, and Backman v. Mussey, 31 Vt. 547, were cited ap provingly. 2 The New Hampshire statute (L. 1876, ch. 33) made the taking of orders "with knowledge or reasonable cause to believe that the liquors will be transported to this State and sold in violation of law" a criminal offense. A traveling agent having taken such an order in New Hampshire with such knowledge sent it to his principals in Boston, who shipped the goods. Held, they could not recover for them in the courts of New Hampshire. "Having aided, abetted, procured and hired their agent to $ 1029. Though the seller resides in a State where the sale is lawful, still if the sale is made or is to be performed in a State where such a sale is unlawful, the courts of the latter State will not enforce it. And if the sale is invalid in the latter State because the goods are to be delivered there, though ordered from another State where the sale would have been valid, it is held that the contract is invalid everywhere and will not be enforced in the State from which the goods were ordered.2 violate our laws by soliciting and taking orders for the very liquors embraced in this contract, they cannot with any grace invoke the remedy afforded by our laws to recover the price. No rule of comity requires us to enforce in favor of a non-resident a contract which had its origin in the open violation of law, and which would not be enforced in favor of our own citizens, especially when it is offensive to our morals, opposed to our policy and injurious to our citizens. Its enforcement would tend to nullify the statute which the plaintiffs have caused to be violated. The law which prohibits an end will not lend its aid in promoting the means designed to carry it into effect. It does not promote in one form that which it prohibits in another." Jones v. Surprise (1886), 64 N. H. 243. Following this case is Lang v. Lynch, 38 Fed. R. 489, 4 L. R. A. 831. But Jones v. Surprise, and Dunbar v. Locke, 62 N. H. 442, to the same effect, were expressly overruled in Durkee v. Moses (1891), 67 N. H. 115, 23 Atl. R. 793. 1 Gipps Brewing Co. v. De France (1894), 91 Iowa, 108, 58 N. W. R. 1087, where the goods were to be delivered by the seller in the State whose statutes forbade such sale; Wasserboehr v. Boulier (1892), 84 Me. 165, 30 Am. St. R. 344, 24 Atl. R. 808, where the sale was not to be complete until the buyer had had opportunity to test the goods and had approved them at his place of business; United States v. Shriver, 23 Fed. R. 134, 31 Alb. L. J. 163, where the goods were sent C. O. D., to be returned to the seller if the buyer did not accept and pay for them; [but see ante, § 793; State v. Carl, 43 Ark. 353, 51 Am. B. 565; Pilgreen v. State, 71 Ala. 368; Com. v. Fleming, 130 Pa. St. 138, 17 Am. St. R. 763, 5 L. R. A. 470, 18 Atl. R. 622; Com. v. Hess, 148 Pa. St. 98, 23 Am. St. R. 810, 17 L. R. A. 176, 23 Atl. R. 977; Dunn v. State, 82 Ga. 27, 3 L R A. 199, 8 S. E. R. 806; Pearson v. State, 66 Miss. 510, 4 L. R. A. 835, 6 S. R. 243; contra, so far as criminal liability, at least, is concerned, though even as to this point the cases are not in harmony, as, for example, Bagby v. State, 82 Ga. 786, 9 S. E. R. 721 (distinguishing Dunn v. State, supra); People v. Shriver, supra; State v. O'Neil, 58 Vt. 140, 2 Atl. R. 586. See also State v. Basserman, 54 Conn. 88, 6 Atl. R. 185.] Gipps Brewing Co. v. De France is supported by Suit v. Woodhall, 113 Mass. 391, and approved in Winkelmeyer Brewing Ass'n v. Nipp, 6 Kan. App. 730, 50 Pac. R. 956. 2 Hamm Brewing Co. v. Young |