Ingeesoll, J.
It is my opinion there ought to be a new trial, particularly, on the ground that the charge was incorrect, in stating, “ that the embargo laws could have no operation in the transaction.”
I take it to be the opinion of this court, (whatever my private opinion may be,) that it was not necessary for the plaintiff to make a demand of the defendant, to account, before lie commenced his action. I take it, also, to be the opinion, that if the defendant received any of the property mentioned in the declaration, to account for, the jury would he warranted in finding a general verdict, that the defendant /wasbailiff and receiver, in these two particulars, therefore, I he charge was correct.
I shall now make some observations on the question, whether the embargo laws had any operation on the transan-¡'.on, so as to affect the plaintiff’s right of recovery ? I should suppose, if a suit bad been brought by the defendant against the plaintiff, to account for property put into his hands, for [458]*458the purpose of transporting ii to A (rc-Brunswick, and from thence to the U'cst-Indies, there to be sold, nml the avails to he brought or sent home to the defendant ; that it would be vt,ry material to take into consideration what the nature oi the bargain was; and whether the voyage were legal or illegal ? For, surely, it cannot he contended, that a voyage te an enemy's port, in time of war, with a view to trade with that enemy, is a legal voyage ; and that any and every contract to account for the profits of such a voyage, could he enforced in a court of justice. A doctrine directly contrary to this, has been so long established, that it cannot now be questioned. Such voyage being illegal, every action ground ed on any contract to go the voyage, or account for ii. after it has been performed, must entirely fail, and no recovery can possibly be had on it.
Every prohibited voyage stands precisely on the sams ground, with a voyage to trade with an enemy in time of war. There being, then, an embargo in force, when the voyage under consideration was undertaken, it follows, conclusively, that it was undertaken and prosecuted directly in the face of law: I mean to be understood, if the voyage were of tin kind which it was contended to be, by the defendant, it was directly in the face of law. The evidence, then, offered by the defendant, tending to shew, that the voyaee was planned and executed from the United Slates to New-Brunsmck, and from thence to the West-Indies, tended also to shew, that the whole was one voyage, and was an infraction of the embargo laws. If so, as it strikes me, every contract relative to it. was against law, and void. If so, the charge was incorrect ia stating “ that the embargo laws had no operation on the transaction.” The principles, as thus laid down, appear so clear to me, that I must suppose the court, in thus charging the jury, went upon the ground, that the voyage from Ncrv Brunswick to the West-Indies, was a distinct voyage from tin-voyage to Nem-Brimswiclc from the United States ; or at any rate, that the shipment of the cargo home to the defendant, was a totally distinct voyage from each of the former; and though a consequence of a breach of the embargo law-, wa-of itself, no breach of them at all.
[459]*459i aeree, most fully, to the principle, that property being ti;e avails of an illegal voyage, may be sold, and a recovery bad therefor, in the same man/ier, and to the same extent, as if it had been the avails of a perfectly legal voi age. Hut, at the same time, I lay it down as an incontroverii'-:.- principle of law. that every contract, ihe consideration of which is illegal, is void. Not only Ihe engagement to pvrfoini such contrae;, but also, 4 very engagement that may be considered as part and parcel of this contract, is utterly void. To be a little more particular in enforcing this principle ; though 1 confe.-s, it appears to me to be perfectly well founded, and needs very little argument to prove it to be so ; suppose an engagement on the part of the plaintiff, to account for property to he sold by him contrary to the embargo laws, and also, an engagement on the part of the defendant, to account for properly so sold and remitted to him ; both contracts are equally void. A master of a vessel cannot be called upon, by the ow ner, for the avails of a cargo shipped to an enemy’s port, in time of war, and there sold by the former : Nor can the ownor lie called upon, by the master, to account for property shipped from such enemy’s port, being the avails of the cargo cold. The whole being in virtue of one contract, and, therefore, one transaction, it would be absurd to say, that one part of the transaction or bargain is good, and another part is bad. If, however, on the return and settlement of the voyage, the cargo sent, or brought home, be shipped again on a new voyage, in the same vessel, and by the same roaster, to another port, and there sold, the master shall account with the owner for the sale ; and it never shall lie with him to say, that the cargo was imported into the United Slates contrary to law, and, therefore, there was no valid consideration for the contract to account. This can no more he done, than a purchaser of goods can refuse to pay for them, because they were illegally imported. But, as I have before observed, in the present case, the evidence offered tended to shew, that the whole transaction was contrary to the embargo laws. To ship the cargo to Xew-Bruns-mcl,■, certainly, was contrary to those laws. To have sbip-[460]*460peil it directly to the West-Indies, would also have been equally contrary to those laws. Is there, then, any difference between shipping it directly to the West-Indies, or circuitously, by Nm-Brunmick ? Certainly riot.
How the case would have stood, if it had appeared on the evidence, that there were in fact two voyages ; one directly to New-Brunswick, where the cargo had been sold, and instead of sending the avails home, that voyage had been settled, and a new one planned, and executed, to the West-Indies; I will not pretend to say. If the court, in giving the charge, proceeded on the ground, that such was the case, in my opinion, they “ leaped before they came to the stile.'' Whether the whole ought to have been considered as one voyage, or whether there were two or more independent voyages, were facts'4» be ascertained by the jury, according as the evidence was. If, however, the court meant to say, that the avails of a cargo illegally exported, mus!, in every case, be accounted for ; to be sure, they did not leap before they came to the stile ; but they made deduction from facts, as I think, not warranted by law.
In proof of the proposition, that every illegal contract is not only void in its inception, but that every engagement which has such illegal contract, as its basis, or is part and parcel of it, is also void, many authorities might he cited. I shall content myself with citing but few. In Mitchell v. Cockburne, 2 H. Black. Rep. 379., the case was, that two partners, by the names of Robertson and Tyler, had been concerned in illegal insurances; that is to say, they had carried on the business of underwriters on marine insurances, as partners, contrary to the act of Parliament, which prohibits all partnerships of this kind, except in two great incorporated companies. They both became bankrupt, and the plaintiffs were the assignees of Robertson, and the defendant was as-signee of Tyler. Robertson
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Ingeesoll, J.
It is my opinion there ought to be a new trial, particularly, on the ground that the charge was incorrect, in stating, “ that the embargo laws could have no operation in the transaction.”
I take it to be the opinion of this court, (whatever my private opinion may be,) that it was not necessary for the plaintiff to make a demand of the defendant, to account, before lie commenced his action. I take it, also, to be the opinion, that if the defendant received any of the property mentioned in the declaration, to account for, the jury would he warranted in finding a general verdict, that the defendant /wasbailiff and receiver, in these two particulars, therefore, I he charge was correct.
I shall now make some observations on the question, whether the embargo laws had any operation on the transan-¡'.on, so as to affect the plaintiff’s right of recovery ? I should suppose, if a suit bad been brought by the defendant against the plaintiff, to account for property put into his hands, for [458]*458the purpose of transporting ii to A (rc-Brunswick, and from thence to the U'cst-Indies, there to be sold, nml the avails to he brought or sent home to the defendant ; that it would be vt,ry material to take into consideration what the nature oi the bargain was; and whether the voyage were legal or illegal ? For, surely, it cannot he contended, that a voyage te an enemy's port, in time of war, with a view to trade with that enemy, is a legal voyage ; and that any and every contract to account for the profits of such a voyage, could he enforced in a court of justice. A doctrine directly contrary to this, has been so long established, that it cannot now be questioned. Such voyage being illegal, every action ground ed on any contract to go the voyage, or account for ii. after it has been performed, must entirely fail, and no recovery can possibly be had on it.
Every prohibited voyage stands precisely on the sams ground, with a voyage to trade with an enemy in time of war. There being, then, an embargo in force, when the voyage under consideration was undertaken, it follows, conclusively, that it was undertaken and prosecuted directly in the face of law: I mean to be understood, if the voyage were of tin kind which it was contended to be, by the defendant, it was directly in the face of law. The evidence, then, offered by the defendant, tending to shew, that the voyaee was planned and executed from the United Slates to New-Brunsmck, and from thence to the West-Indies, tended also to shew, that the whole was one voyage, and was an infraction of the embargo laws. If so, as it strikes me, every contract relative to it. was against law, and void. If so, the charge was incorrect ia stating “ that the embargo laws had no operation on the transaction.” The principles, as thus laid down, appear so clear to me, that I must suppose the court, in thus charging the jury, went upon the ground, that the voyage from Ncrv Brunswick to the West-Indies, was a distinct voyage from tin-voyage to Nem-Brimswiclc from the United States ; or at any rate, that the shipment of the cargo home to the defendant, was a totally distinct voyage from each of the former; and though a consequence of a breach of the embargo law-, wa-of itself, no breach of them at all.
[459]*459i aeree, most fully, to the principle, that property being ti;e avails of an illegal voyage, may be sold, and a recovery bad therefor, in the same man/ier, and to the same extent, as if it had been the avails of a perfectly legal voi age. Hut, at the same time, I lay it down as an incontroverii'-:.- principle of law. that every contract, ihe consideration of which is illegal, is void. Not only Ihe engagement to pvrfoini such contrae;, but also, 4 very engagement that may be considered as part and parcel of this contract, is utterly void. To be a little more particular in enforcing this principle ; though 1 confe.-s, it appears to me to be perfectly well founded, and needs very little argument to prove it to be so ; suppose an engagement on the part of the plaintiff, to account for property to he sold by him contrary to the embargo laws, and also, an engagement on the part of the defendant, to account for properly so sold and remitted to him ; both contracts are equally void. A master of a vessel cannot be called upon, by the ow ner, for the avails of a cargo shipped to an enemy’s port, in time of war, and there sold by the former : Nor can the ownor lie called upon, by the master, to account for property shipped from such enemy’s port, being the avails of the cargo cold. The whole being in virtue of one contract, and, therefore, one transaction, it would be absurd to say, that one part of the transaction or bargain is good, and another part is bad. If, however, on the return and settlement of the voyage, the cargo sent, or brought home, be shipped again on a new voyage, in the same vessel, and by the same roaster, to another port, and there sold, the master shall account with the owner for the sale ; and it never shall lie with him to say, that the cargo was imported into the United Slates contrary to law, and, therefore, there was no valid consideration for the contract to account. This can no more he done, than a purchaser of goods can refuse to pay for them, because they were illegally imported. But, as I have before observed, in the present case, the evidence offered tended to shew, that the whole transaction was contrary to the embargo laws. To ship the cargo to Xew-Bruns-mcl,■, certainly, was contrary to those laws. To have sbip-[460]*460peil it directly to the West-Indies, would also have been equally contrary to those laws. Is there, then, any difference between shipping it directly to the West-Indies, or circuitously, by Nm-Brunmick ? Certainly riot.
How the case would have stood, if it had appeared on the evidence, that there were in fact two voyages ; one directly to New-Brunswick, where the cargo had been sold, and instead of sending the avails home, that voyage had been settled, and a new one planned, and executed, to the West-Indies; I will not pretend to say. If the court, in giving the charge, proceeded on the ground, that such was the case, in my opinion, they “ leaped before they came to the stile.'' Whether the whole ought to have been considered as one voyage, or whether there were two or more independent voyages, were facts'4» be ascertained by the jury, according as the evidence was. If, however, the court meant to say, that the avails of a cargo illegally exported, mus!, in every case, be accounted for ; to be sure, they did not leap before they came to the stile ; but they made deduction from facts, as I think, not warranted by law.
In proof of the proposition, that every illegal contract is not only void in its inception, but that every engagement which has such illegal contract, as its basis, or is part and parcel of it, is also void, many authorities might he cited. I shall content myself with citing but few. In Mitchell v. Cockburne, 2 H. Black. Rep. 379., the case was, that two partners, by the names of Robertson and Tyler, had been concerned in illegal insurances; that is to say, they had carried on the business of underwriters on marine insurances, as partners, contrary to the act of Parliament, which prohibits all partnerships of this kind, except in two great incorporated companies. They both became bankrupt, and the plaintiffs were the assignees of Robertson, and the defendant was as-signee of Tyler. Robertson had paid out a greater sum for losses, than he had received for premiums, and the action ■was brought against the assignee of the other partner to recover the proportion that was justly due, on account of the money so paid out. The court determined, that the insur-[461]*461anees being illegal, the plain!iff should not recover any thing, on the ground of having paid losses lor the other partner. That the fountain being corrupt, the streams were corrupt also. The case of Booth v. Hodgson, 6 Term Rep. 405. was decided on the same ground ; and a case at Nisi Prius, by the name of Sullivan v. Greaves., is cited by the court with approbation, determined by lord Kenyon. It was a case of an insurance partnership, where one partner had paid to an insurance broker, for the use of the other partner, his part of los“es sustained by the firm, which losses had been paid by the partner for whose benefit this money bad been paid to the broker. This partner, who was to receive the money from the broker, brought his action against him for it; but it was determined, that the action could not be maintained, because its object was to enforce an illegal contract of partnership.
The difference I have attempted to make between one voyage ami two or more voyages ; or, in other words, the the different deductions of lavv to be drawn, from considering the present case, as a contract to perforin one voyage to Nerv-Rninsmick, and, round to the West-Indies, home; or considering the property mentioned in the declaration as being the avails merely of a former illegal voyage; is warranted by the opinion of the court, in the case of Bird v. Appleton, 8 Term Rep. 562. The same distinction is also made by the court, in the case of Wilson v. Marryat, reported in the same volume, from page 31. to 46.
Upon the whole, for the reasons above stated, I am of opinion, that the evidence offered by the defendant was pertinent to the issue, and relevant testimony; and that the court was incorrect in charging the jury, that the embargo laws had no operation on the transaction. I therefore would advise a new trial of the cause.
Swift, Edmond, Brainard and Baldwin, J»., severally concurred in this opinion.
Mitchell, Ch. J. and Reeve, J., dissented
[462]*462Smith, .1.
In oidor io form a corn:''; judgment in lilis case, it becomes necessary to seo what ¡'.re i!;:■ allegations in the plaintiff’s declaration ; for the argument seems to have proceeded on the mistaken ground, that iho action was in fa-vour of Bush, calling on Sturges to account for property received of Norton & Bush ; whereas, it is an action in favour of Spurges against Bush, as surviving partner of Norton & Busk, for property received of Sturzes, as his agent. The declaration states, indeed, by way of description, the voyage which is claimed to be illegal, and in some instances, it appears, that the property which the plaintiff alleges the defendant received to account for, was sent at the same time, and in company with property which the plaintiff held as agent, and which was the avails of the voyage, which is said to be illegal. Rut in every such case, the property for which the plaintiff claims an account, is clearly distinguished from that which he sent by way of remittance : And as if to save n question on this point, he alleges, that it was purchased with his own money.
In this view of the subject, I do not see ‘how the court could do otherwise, than to charge the jury, that the embargo laws had no operation on the case. It will not he contended, I presume, that any law prohibited the sending of properly, purchased with the plaintiff’s own money, or that this came within the scope of the original contract.
If it appeared, in point of fact, that the defendant and his deceased partner, received no property, except what the plaintiff sent by way of remittance, as their accent, the declaration would be found untrue, and there would be no case for the embargo laws to operate upon.
The defendant cannot be subjected to pay back any part of the avails of the cargo, which they had received by way of remittance. Thus far, they received nothing but their own ; and whether the original contract was illegal, or not, could make no difference. But if it should appear, that other and further property was sent, not by way of ¡emit tance, which the defendant received to account for, there ought to be a recovery, and the illegality of the confiad would be equally unimportant.
[463]*463li might., perhaps, tarn out to be necessary before auditors, to go into an investigation of the voyage, which is claimed to be illegal, so far as to ascertain whether the articles, stated in the declaration, were in fact the property of the plaintitf, or whether they were the avails ot the cargo received of (he defendant and his partner, in the first instance. But sucli investigation can never be necessary, or proper, to lay a foundation for a recovery by force of the contract, which is claimed to be illegal. That contract, so far as it respect., (lie rhrlils of the parties, may be laid entirely out of the question ; and if introduced at all, it is merely to ascertain the collateral fad which I have mentioned.
Ro far as it respects a correct decision in this case, therefore, it becomes unnecessary to form any opinion as to the question, how far the embargo laws affect the original contract ? But as that point was the principal one argued before tlie court, I have no objection to give an opinion on that subject. And I feel no insuperable difficulty in saying, that the contract, so far as a fulfilment of it, violates the embargo laws, is void, and cannot be set up to support a recovery, either one way or the other; but that any distinct part of it, which can be performed without infringing the embargo laws, is binding, those laws notwithstanding. A contract may be void, though the act to be done is perfectly lawful; provided the consideration is unlawful; and in these cases, as the consideration is entire, the whole must stand or fall together. So, a contract may be void where the consideration is lawful, provided the objects of it are a breach of law; and in agreements of this kind, as there is no defect in the consideration, an action will lie for the non-fulfilment of every part which might be performed without a breach of law.
I n the present case, there was no illegality in the consideration. The acts to be done, and which were actually done under it, so far as it respects the transportation of provisions from the United States to New-Brunsmick, were a breach of the embargo laws ; and thus far, I would allow of no recovery ; but the property, when in the British dominions, might as well be sold as kept; and to send baek the avails, was no [464]*464more illegal than to send back the property itself. As to this part, therefore, I see no objection to a recovery. To explain myself, I will suppose, that A. the owner of an horse, employs H. to take him for a reasonable reward, and run him at certain races, which are proposed, and in case of success, to sell him, and account for the avails. Now, so far as this contract involves a violation of the laws .'.gainst horsc-racing. it is void ; but if the horse is actually sold, as this part of the agreement violates no law, I see no objection to an account regarding the avails.
Trumbull, J. concurred in this opinion.
New trial advised-