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to bind their principals, the other members. Besides, the members may easily provide for making the official knowledge of their officers their own. Certainly actual notice to each individual of hostile legal proceedings seems as sure here as in the common instances of service by publication and substituted service ; yet the constitutionality of both these methods of serving process has often been upheld.12 While the present decision seems the first on the exact point at issue, a similar result has been reached in the case of joint debtors ; 18 and the modern commercial instinct would surely tend towards the decision of the Vermont court.
RECOVERY AGAINST A FRAUDULENT DEFENDANT IN A SUIT BETWEEN PARTIES TO AN ILLEGAL CONTRACT. - As a general rule, parties to an illegal contract cannot maintain a suit either to enforce the contract or recover damages for its non-performance; or to recover money or property transferred to the defendant in accordance with its terins. Certain exceptions to this rule, which do not depend upon the circumstances under which the illegal contract was made, but upon its very nature, concern this discussion but little and will be mentioned only for the sake of clearness. They are, roughly, cases where it is thought that public policy is best served by allowing recovery to one party who is deemed less in fault. Instances are cases of marriage brokerage, 2 and of statutes declaring certain contracts illegal, but imposing a penalty upon one party only.
Turning now from cases where recovery if allowed depends upon the nature of the illegal contract, let us consider the cases where recovery is allowed in the particular suit before the court on account of the peculiar circumstances under which the illegal contract was formed, though apart from such circumstances no recovery would be allowed. Recovery may be had where the defendant occupied such a position that the plaintiff was accustomed to, and did, rely upon the defendant's judgment rather than upon his own, as in the cases of guardian and ward,' and attorney and client.5 But even if there be such a relation, if the plaintiff acted upon his own judgment, he cannot recover. The question now arises whether we shall allow recovery where, without there being any such relation, the defendant has been guilty of fraud in inducing the plaintiff to enter into the contract or of fraud in the performance of it, though the plaintiff had full knowledge of the illegality. It will be seen that this is not a case analogous to the preceding established exception, for that must be based upon a theory of the plaintiff's lack of responsibility for the illegal contract, while in this case there can be no question on that score. The sole question raised here is whether or not the defendant's additional guilt can give basis for recovery by the plaintiff
. But in no case, whether defendant was fraudulent or not, was there any question as to his liability, the fatal objection being as to the plain
12 Mason v. Messenger, 17 Ia. 261 ; Continental, etc., Bank v. Thurber, 74 Hun 632; aff. 143 N. Y. 648. 13 Harker v. Brink, 24 N. J. Law 333.
1 Stewart v. Thayer, 170 Mass. 560.
tiff's inability to recover, in view of his own misconduct. And the plaintiff's misconduct is equally grave in the presence or absence of fraud in the defendant.?
In a recent case, however, the Supreme Court of Missouri held that the plaintiff could recover under such circumstances on the ground of public policy. Hobbs v. Boatright, 93 S. W. Rep. 934.8 This is in accord with a considerable body, possibly the majority, of decisions, the cases being nearly evenly divided. In this case the recovery was in tort, for fraud and deceit. But as the cause of action arises only through the existence of, and the plaintiff's participation in, the illegal contract, it seems that the plaintiff should on principle be barred in tort as well as in contract or quasi-contract. The cases, too, make no distinction in result between the two forms of action. The argument of the court, that on public policy recovery by the plaintiff is desirable, in spite of the plaintiff's wrongdoing, on account of the unusual guilt of the defendants, seems to be open to objection. It would seem better for the court to refuse to interfere in illegal contracts, once entered into by a plaintiff fully responsible for his wrongdoing, than to protect such a plaintiff and thus to encourage the belief that people may enter into illegal contracts and transactions secure in the knowledge that the law will protect them from all fraud. It is not the office of the law to guarantee to the gambler a square deal. The illegal contract should be outlawed in its entirety, and no rights allowed to issue from it in any way, in order to discourage all from entering upon it. The courts are naturally anxious to punish the unscrupulous defendant in these cases, but that should be left to the criminal law.
CONSTRUCTION OF STATUTES AFFECTING THE CONSTITUTIONAL PRIVILEGE AGAINST SELF-CRIMINATION. This question of statutory construction has been raised by a group of recent important decisions. United States v. Armour & Co., 142 Fed. Rep. 808 (Dist. Ct., N. D. Ill.); State v. Murphy, 107 N. W. Rep. 470 (Wis.); Rudolph v. State, 107 N. W. Rep. 466 (Wis.). The statute involved in the federal case was the Act of Feb. 11, 1893, providing that" no person shall be excused from testifying .. the Interstate Commerce Commission ...on the ground that the testimony ... may tend to incriminate him. . . . But no person shall be prosecuted ... on account of any transaction, matter or thing concerning which he may testify ... before said Commission”; and in the other cases a state duplicate of that statute was under consideration. The federal statute was enacted by Congress in deference to a decision of the Supreme Court in Counselman v. Hitchcock 8 holding a prior immunity statute (providing merely that evidence exacted from a witness should not be used against him) unconstitutional, as infringing the fifth amendment to the Constitution, since it did not protect the witness from the indirect use of his testimony against him.
? Abbe v. Marr, 14 Cal. 210; Kitchen v. Greenabaum, 61 Mo. 110.
8 In this case the plaintiff was himself fraudulent, yet recovered on the ground of defendant's fraud. See statement of facts, p. 72.
Catts v. Phalen, 43 U. S. 376; Webb v. Fulchire, 3 Ired. (N. C.) 485. Contra, Abbe v. Marr, supra ; Kitchen v. Greenabaum, supra.
27 Stat. at L. 443, c. 83.
142 U. S. 547
There are dicta in numerous cases to the effect that under this statute the act of testifying wipes out the offense completely as far as concerns the witness, affording an immunity even broader than that provided by the Constitution, which merely provides against incriminating testimony given under compulsion ; but never before, apparently, has the question been directly involved in a decision. In the federal case under consideration Judge Humphrey repeats the sweeping dicta of previous cases, contending for the immunity even where the witness was under no compulsion and when his testimony was not self-criminatory, and refuses to sustain the prosecution. In the two Wisconsin cases the prosecution is supported on the ground that the immunity statute was intended to be only an equivalent for the fifth amendment, and therefore should be confined to cases of incriminating evidence obtained by compulsion.
Judge Humphrey's conclusions are the result of a literal application of the language of the statute, together with an assumption that the primary object of Congress in its enactment was to obtain information as a basis for regulative legislation rather than for purposes of prosecution. However this last may be, a consideration of the line of statutes culminating in that of 1893 indicates that the primary object of Congress was simply to provide an immunity sufficient to satisfy the constitutional requirements as laid down by the supreme court in Counselman v. Hitchcock. Now, although this case does contain statements to the effect that, in order to be constitutional, an immunity clause must protect the witness from any subsequent prosecution, these statements seem to have been made in contemplation of a witness offering self-criminating testimony under compulsion. Moreover, in the statute itself, though the words actually granting the immunity from prosecution are without qualification, they immediately follow the provision that the witness shall not be excused from testifying (thus implying compulsion), on the ground that such testimony may tend to criminate him. There is warrant, therefore, for the contention, in one of the Wisconsin cases, that the clause granting immunity should be read as qualified by the conditions of compulsion and self-crimination. Finally, if the replies of the witness not only lack all self-criminatory character, but are in addition merely negative in effect, there is authority for the contention that they do not form testimony at all, thus not falling within the literal statutory requirements ;? and in any event the result of granting immunity in such cases would be so clearly contrary to the spirit of the enactment as to justify a different construction.s
CONSPIRACY TO COMMIT A CRIME REQUIRING PLURALITY OF ACTORS. When the concurrence of two persons is necessary for the commission of a crime, — bigamy or adultery, for example, — the agreement to commit the crime is said to form part of the crime itself and not an independent conspiracy. In such a case combination, which is the gist of conspiracy, is not in aggravation of the offense, but essential to it; and doubtless, therefore, such an agreement, plus an act in furtherance of the crime, would constitute a mere attempt. The most recent application of this principle was to the giving and taking of a rebate. United States v. Guilford et als., 38 Chi. Leg. N. 411 (Dist. Ct., S. D. N. Y.). In this case an indictment was brought under a federal statute ' which provided that if two or more persons conspired to commit an offense against the United States, and if one or more of the parties did any act to effect the object of the conspiracy, all of the parties should be liable to fine, imprisonment, or both. The defendants had not only agreed to give and take rebates, but had actually given and taken rebates, an offense against the United States punishable only by fine at the time the defendants committed it.*
4 See Brown v. Walker, 161 U. S. 591.
8 Church of the Holy Trinity v. United States, 143 U. S. 457. 1 Shannon v. Commonwealth, 14 Pa. St. 226; Miles v. State, 58 Ala. 390 ; see 2 Whart., Crim. L., 10 ed., § 1339.
The agreement between the giver and the taker of a rebate, since concert of action between these two is indispensable to the commission of the offense of rebating, may be admitted not to constitute an independent conspiracy; but from this the conclusion does not follow that an agreement between three takers and two givers, as in this case, is not a conspiracy; and still less does this follow when to these five persons are added two more, who were go-betweens and agents both for the receivers of the rebates and for certain outsiders who shared in the benefits of the transaction. To hold, as the court does, that the agreement between these seven men was not a conspiracy, seems an extreme application of the principle which has been adduced from the idea of plurality of actors. The understanding between one giver and another, between one receiver and another, and between all of these and the two agents, is not that sort of agreement which simply makes possible the act of giving and taking, but is a complete, independent, and formidable conspiracy. The court relies somewhat on the fact that only the givers and the receivers of the rebate were indicted; but the prosecution is not bound to indict all the conspirators, nor any particular conspirator. The court objects also that under this indictment the defendants are liable to imprisonment, whereas Congress has provided for the imposition of only a fine for the actual giving and taking of rebates. But the prosecution was for the distinct offense of conspiracy, not for the crime which was the object of the conspiracy; and, under the same statute, certain conspirators who failed to accomplish the purpose of their combination have been held liable to punishment more severe than could have been inflicted had they committed the contemplated crime and been indicted therefor. The defendants in the principal case ought not to be better off because they have accomplished their object. Further, no question of merger can arise here, because, whatever may be said for the doctrine of merger where the conspiracy is a misdemeanor and the object thereof is a felony, that doctrine has no application to this case where both are misdemeanors." Nor does it seem that the language of the Elkins' Act * -- which made it unlawful for any person or corporation to offer, grant, or give, or to solicit, accept, or receive any rebate will warrant a construction that prevents the agreement of the seven persons involved in this case from being indicted and punished as a conspiracy.8
2 Cf. 2 Bish., Crim. L., 8 ed., $ 184, n. 4.
32 U. S. Stat. at L. 847, Elkins' Act.
INFANT ENJOINED FROM BREACH OF CONTRACT. - It has long been the general rule that an infant's contracts are voidable at his election. The courts give him this privilege to protect him from the improvidence and lack of judgment usually ascribed to youth. Where the contract is entirely executory the rule is easy of application, for the adult loses nothing but his contract right. But where the contract is wholly executed we face a new situation. There are in this class of cases two considerations : first, the policy of the law to protect the inexperience of the infant; and, secondly, to make him conform to the principles of common honesty. Hence it is everywhere agreed that if the infant still has the consideration in specie, he must return it in order to disaffirm.3 Where, however, the infant has disposed of or spent the consideration, the authorities are not in accord. The view of the decided majority is that the infant still retains his right to disaffirm without being responsible for the dissipated consideration. The rule is the same in equity as at law, and the trend of modern authority is toward the majority view.8 It is submitted that this view is the better, for otherwise we should make the very improvidence from which we seek to protect the infant the reason for holding him to his contract.
If the contract, however, is executed only on the part of the adult, it may well be doubted if, even in the jurisdictions where the minority rule is held, the infant would be compelled to complete his contract though he has disposed of the consideration. Their rule has always been applied to wholly executed contracts where the infant, as the active party, seeks the return of his consideration, and they have made him do justice when seeking to avail himself of his right to disaffirm and recover. But the doctrine of an infant's right to refuse to carry out his contracts is too fundamental and well established in the law for it to be maintained that in case he has spent the consideration he must complete his executory contract.
What has been said with regard to the cases where the infant has disposed of the consideration is equally applicable to the cases where he retains it, but it is of such a character that he cannot return it. No real difference can be seen between them. Therefore it seems logically indefensible for a court to enjoin an infant from soliciting the trade of his late employer's customers where by the contract of service he had expressly agreed not to do so during a certain period after the cessation of employment. Yet a recent New York case, decided by the Appellate Division of the Supreme Court, following the English authorities, has held to the contrary. Mutual Milk and Cream Co. v. Prigge, 112 App. Div. 652. The decision cannot even be supported on the ground that the infant could have been enjoined independently of contract, for it is well settled that a servant may, in the absence of a contract to the contrary, set up in the line of business of his late employer and solicit the trade of the latter's customers, whose good will he has secured bona fide in the course of and during his service.
1 Gaffney v. Hayden, no Mass. 137.
4 Price v. Furman, 27 Vt. 268; New York Building Loan Banking Co. v. Fisher, 23 N. Y. App. Div. 363. Contra, Johnson v. Life Ins. Co., supra ; Valentini v. Canali, L. R. 24 Q. B. 166.
5 Eureka Co. v. Edwards, 71 Ala. 248. 6 Walsh v. Young, 110 Mass. 396 ; cf. Breed v. Juld, 1 Gray (Mass.) 455. 7 Allen v. Lardner, 78 Hun (N. Y.) 603. 8 Evans v. Ware, [1892) 3 Ch. 502 ; see also De Francesco 7'. Barnum. 43 Ch. D. 1659 Irish v. Irish, 40 Ch. D. 49; see also Robb v. Green, (1895) 2 Q. B. 1, 13.