4thly. OF ILLEGAL SALES OF GOODS.

We shall in a subsequent part of this work fully consider the various instances in which contracts are void, in regard to the illegality of their objects, or consideration. We will now point out some of the instances in which contracts for the sale of goods cannot be enforced, by reason of their illegality; 1st, at common law, 2ndly, by statute.

1st. Contracts of sale having an immoral object in view, are void in law.—Thus a printseller cannot recover the price of caricatures of an immoral, obscene, or libellous tendency, which he sent to a customer who had given a general order for all the caricature prints that had ever been published (n). And if a tradesman sell clothes to a prostitute, for the purpose of enabling her to carry on her prostitution, and expect to be paid from the profits of it, such a contract is illegal, and cannot be enforced in a court of justice; but a mere knowledge of her way of life will not prevent the tradesman from recovering (o).

Forestalling is the buying, or contracting for, any merchandise or victual coming in the way to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price there. Regrating is the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. Engrossing is the getting into one's possession, or buying up large quantities of corn or other dead victuals, with intent to sell them again (p). These are offences at common law (q).

It is reported to have been decided, at Nisi Prius, by the late Chief Justice of the K. B., that if two persons enter into a contract under the semblance of a sale of goods, not intending really to buy or sell the commodity, but merely as a gambling speculation, and to pay the difference of the market price, on a particular day, like a time bargain in the stocks, such a contract is illegal and void at common law; and no action will lie to enforce

(n) Fores v. Johnes, 4 Esp. 97.

(0) Bowry v. Bennet, 1 Camp. 348; Lloyd v. Johnson, 1 B. & P. 340; Jennings v. Throgmorton, R. & M. 251; Appleton v. Campbell, 2 C. & P.

347.

(p) 4 Bla. Com. 148; 5 & 6 E. 6, c. 14, repealed by 12 G. 3, c. 71; 3 Inst. 195; 1 Hawk P. C. ch. 80; Rose v. Maynard, Cro. Car. 231.

(q) Rex v. Waddington, 1 East, 142,

167.

it (r); also that if a man sell goods, to be delivered on a future day, and neither has the goods at the time of sale, nor has entered into any prior contract to buy them, nor has any reasonable expectation of receiving them by consignment, but means to go into the market and buy the goods which he has contracted to deliver, he cannot maintain an action for damages for non-performance of the contract; it being, on his part, a wager on the price of the article (s).

It is a general rule that a present grant or assignment of goods not in existence at the time, is without operation. In Robinson v. Macdonnell (t), there was an assignment by deed of the freight, earnings, and profits of a ship. In trover for oil, the produce of whales taken during the voyage, Lord Ellenborough, C. J., in delivering the judgment of the Court, said: "There is another objection to the claim of oil under the deed, which is this, that the oil had no existence, actual or potential, at the time the deed was made; and to make a grant or assignment valid, the thing which is the subject of it must have an existence actual or potential at the time of such grant or assignment; and upon this principle, an assignment of sheep, which a lessee was to deliver to the assignor at the end of the lessee's term, or of the wool which should grow upon such sheep as the assignor should thereafter buy, has been held inoperative, because the assignor had not at the time of the assignment that which he was professing to assign, either actually or potentially, but in possibility only (u)."

Trading with an enemy is also illegal, and of course contracts with them for the purchase or sale of goods cannot be enforced (x).

Contracts for the sale of goods are illegal, where they are bought and sold for the express purpose of being smuggled into this country; and an action for the breach of the contract may be defeated, by shewing either that the plaintiff is a sharer in the illegal transaction, or that he assisted in the act of smuggling (y). Where the defendant, an Englishman, living in England, con

(r) Hilberds v. Pettipierre, Sittings in Guildhall, 1822; and Wardle v. Fowler, MS. Comyn on Contracts, 2nd ed. 58, note (p).

(s) Bryan v. Lewis, R. & M. 386. (t) 5 M. & Selw. 228.

(u) Wood and Foster's Case, 1 Leon.

42; Grantham v. Hawley, Hob. 132. (x) Ante, 150.

(y) Holman v. Johnson, Cowp. 341; Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R. 466; see per Tenterden, C. J., Brown v. Duncan, 10 B. & C. 98, 99.

tracted with the plaintiff, a foreigner living at Lisle, for a quantity of lace, which the plaintiff not only knew was to be smuggled into England, but packed in a particular manner, by the defendant's desire, for the purpose of evading detection; the Court held that the price could not be recovered (z). But where the plaintiff, (the vendor), was a resident at and an inhabitant of Dunkirk, and sold and delivered tea at that place, with a mere knowledge that the defendant (the vendee) intended to smuggle it into England; but afforded him no assistance in so doing, and was to be paid whether the attempt were successful or not; the Court held that the price was recoverable (a). The grounds of the judgment were, that the contract was complete, and was performed, out of this country; that the vendor had no concern in the transaction itself; and that there was nothing immoral in the Lord Mansfield said, "If the defendant had bespoke the tea at Dunkirk, to be sent to England at a certain price, and the plaintiff had undertaken to send it into England, or had had any concern in the running it into England, he would have been an offender against the laws of this country. But, upon the facts of this case, from the first to the last, he clearly has offended against no law of England."

contract.

There are other cases in which the seller of goods has been permitted to recover the price, although he has been aware that the vendee intended to use them, in violation of a mere revenue regulation; no actual assistance or interference in the illegal act, on the part of the vendor, having intervened.

Thus in Hodgson v. Temple (b), a distiller, had sold spirits to a rectifier, who was (contrary to law) also a retailer, with the knowledge that the vendee filled both characters, and had delivered the spirits, not at the place in which the retail trade was carried on, but at the place in which he carried on the business of a rectifier, (and where they were delivered, under permits obtained by the plaintiffs,) not in the defendant's name, but in the name of another person. These were certainly strong facts;

(2) Wagnell v. Reed, 5 T. R. 599; 1 Esp. R. 91, S. C.

(a) Holman v. Johnson, Cowp. 341; cited by Heath, J., in Hodgson v. Temple, 5 Taunt. 181; 1 Marsh R. 5, S. C. In Potten v. Tubb, 1 Esp. Dig. 57, 4th ed., it was held that the payee of a bill might sue the acceptor, although the latter had accepted it for

the price of goods sold upon a smuggling transaction between him and the drawer.

(b) 5 Taunt. 181; 1 Marsh R. 5, S. C.; noticed in Brown v. Duncan, 10 B. & C. 98. Sale of spirits when good, though permit irregular, Wetherell v. Jones, 3 B. & Ad. 221.

because the vendors, by obtaining the permits in the name of a third person, &c., assisted the purchaser in concealing his violation of the law. The Court of Common Pleas, however, thought the plaintiffs were entitled to recover. In Johnson v. Hudson (c), the action was brought to recover the price of tobacco and segars: they had been imported into this country from Guernsey, and were sold by the plaintiff to the defendant, and the plaintiff had no licence to deal in tobacco, wherefore it was contended that he could not recover. The Court doubting, indeed, whether the plaintiffs, from this single instance, could be considered as dealers, held it not to be such an illegality as to deprive the owner of the goods, who had sold them to another, of his right to recover the price.

In Brown v. Duncan (d), it appeared that A., B., C., D., and E., carried on trade in partnership as distillers; and C. alone carried on the business of a retail dealer in spirits, within two miles of the distillery, contrary to the 4 G. 4, c. 94, s. 132, 133; and his name was not inserted as one of the partners in the distillery in the excise book, or licence, as required by the 6 G. 4, c. 81, s. 7. It was held, these being mere revenue regulations, the breach of them by one of the partners, with the knowledge of the others, did not render the trade carried on by the five, so illegal as to deprive them of the right to recover the price of spirits sold by them; or for the breach of a guaranty for the due accounting of an agent, to whom they had consigned the spirits for sale. This case was decided on the authority of Hodgson v. Temple, and Johnson v. Hudson; and Lord Tenterden said it was quite different from those cases where provisions of acts of Parliament had for their object the protection of the public, as the acts against stock-jobbing (e), and usury.

But where the object of a statute is the protection or general benefit of the public, or the prevention of a fraud, the price of goods, sold with a knowledge of the intention to contravene the provisions of the act, and in furtherance of the illicit object, cannot be recovered.

The case of Langton v. Hughes (f), seems to be sustainable on

(c) 11 East, 180; cited in Brown v. Duncan, 10 B. & C. 98, per Lord Tenterden, C. J.

(d) 10 B. & C. 93. See ante, 333, note (b).

(e) In Cannan v. Bryce, 3 B.& Ald. 179, it was held that money lent and d by the borrower for the

pose of settling losses on illegal stockjobbing transactions, to which the lender was no party, could not be recovered back.

(ƒ) 1 M. & Selw. 593; cited by Abbott, C. J., Cannan v. Bryce, 3 B & Ald. 185.

the former ground. A statute, as a revenue regulation, and to protect the public health, prohibited brewers from using, or causing to be used, any ingredients except malt and hops in making beer. It was held that a druggist who sold drugs to a brewer, knowing the illegal object to which they were to be applied, could not recover the price.

A statute required that bricks for sale should be of certain dimensions. A penalty was inflicted for the neglect to observe the provision; the object of which was the prevention of fraud on the purchaser. It was held, that if bricks be sold and delivered, under the statutable size, unknown to the buyer, the seller cannot recover the value (g). The coal acts contain various provisions, calculated to protect the vendee of coals from fraud. And in Little v.Poole (h), it was held, that as the act of parliament which made it imperative on the vendor of coals to deliver a vendor's ticket, signed by the meter, was passed to protect the buyer against the frauds of the seller, a vendor of coals, who had delivered a vendor's ticket to the purchaser, which was not signed by the meter, could not recover the price of such coals from the purchaser.

So in Tyson v. Thomas (i), it was held, that as a contract for the sale of corn by the hobbett was in contravention of the statute 22 Car. 2, c. 8, s. 2 (k), passed to preserve proper measures, &c., no action could be maintained thereon.

A brewer who supplies beer to a public house, cannot charge any person as a primary debtor, but the person licensed to keep the house; and if beer be so supplied on the credit of a person not licensed, the brewer cannot recover against such the ground that it is a fraud on the excise (7).

person, on

2. It is enacted by the statute 29 Car. 2, c. 7, s. 1, that no tradesman, artificer, workman, labourer, or other person whatsoever, shall do or exercise any worldly labour, business,

(g) Law v. Hodson, 11 East, 300; cited by Lord Tenterden, in Browne v. Duncan. suprà.

(h) 9 B. & C. 192; see 1 & 2 W.4, c. lxxvi.

(i) M'Clel & Y. 119.

(k) See 5 G. 4, c. 74; 6 G. 4, c. 12; for establishing the uniformity of weights and measures. By the 15th section of the 5 G. 4, contracts for sale by weight or measure, shall be

deemed to relate to the standard; unless the contrary be specified. Semble, since this act, an agreement to sell by Winchester bushel, not containing any declaration of the proportion which that measure bears to the imperial bushel, is void; Watts v. Friend, 10 B. & C. 446.

(1) Meux v. Humphreys, M. & Mal. 132; 3 C. & P. 79, S. Č.