Beach v. Kezar

1 N.H. 184

Opinion

Woodbury, J.,

delivered the opinion of the court.

■No principle hath’been longer settled than that ex dolo malo, non oritur actio.

Footnotes

•

(1)

A person, claiming the assistance of the law in a particular case, must not, in that very case, have violated the law. This rule is not established to aid defendants, for they are often more criminal than plaintiffs. But it is introduced on account of public policy, which presents every.possible discouragement to the formation of illegal contracts ; and, if formed, interposes all practicable impediments to their being fulfilled. '

It is too late to contend, that direct trade with the enemy during war is not illegal; and, that to furnish them with provisions is not a crime of the most flagrant enormity, Unis't. Const. Treason. — 1 Gal. 303. — 1 Com. C. 36.-8 D. #* E. 548 — 1 Rob. Ad. Rep. 196.

The authorities also are numerous, that a person who sells articles, knowing they are to be converted to an unlawful purpose, and intending to aid the accomplishment of that purpose, cannot recover for their value. 1 East 97. — 4 D. Sf E. 466. — 5 ditto 599, Waywell vs. Reed.

It seems equally well settled, that a contract to pay for past or future services, employed in the promotion of illegal objects, cannot be enforced. 7 D. Sf E. 630. — 1 Peer. Wms. 151. In Clugas vs. Penaluna, 4 D. & E. 468, Butter, J., in a case somewhat analogous to the present one, observes, ‘•here the j plaintiff was assisting in the act of smuggling, “ by means of packing the goods ; for the spirits were delivered in ankers, which are used for the purpose of smuggling ; and if he takes part in the transaction it taints the “ whole of it.” Vide etiam,3 D. & E. 457. — 5 ditto 599. —10 Mass. Rep. 277.

in Littlefort et al. vs. Tenant, 1 Bos. & Pul. 555, where articles had been supplied, knowing that they were to be exported contrary to law, Eyre, J., remarks, that “ very “ probably those who are remotely concerned in furnishing “ the supply, may not be directly within the scope of the “ act. But it will not follow that their contracts will be “ valid. Upon the principles of common law the considera-‘•tiou of every valid contract must be meritorious.” “But “the man who sold arsenic to one who, he knew, intended “ to poison his wife with it, would not be allowed to main- “ tain an action on his contract. The consideration of the “ contract, in itself good, is there tainted with turpitude, “ which destroys the whole merit of it. Other cases, where “ the means of transgressing a law are furnished with know- “ ledge that they are intended to be used for that purpose, “ will differ in shade more or less from this strong case ; but “ the body of the color is the same in all. No man ought “to furnish another with the means of transgressing the “law, knowing that he intends to make that use of them.”

The jury have here found that the hay, grain and barn-room, with the services performed in tending the cattle, were all furnished under full knowledge in the plaintiff that the cattle were destined to the enemy, and with an express design in him to facilitate their passage over the lines, by keeping them on his farm in the vicinity of the frontier, till Bailey could call fjpr them with safety.

The plaintiff’s claim, then, arises ex turpi causa; from knowingly and designedly furnishing another with means to transgress the law.

Were those who minister in the temple of justice compelled by law to assist in adjusting a concern of this description, it would be a task in the highest degree odious and disgraceful.

Let judgment be entered on the verdict.

1 Cow. 843. 2 Wils, 32.