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![handle is hein.slavery/ssactsengr0569 and id is 1 raw text is: FAITH V. PEARSON
[113] FAITH AND OTHERS V. PEARSON.
(Where a ship is seized by the commander of one of his Majesty's vessels as prize,
and is afterwards released without any suit being instituted against her, if
the plaintiff have any ground of complaint, his redress is in a Court of Admiralty ;
on hemp to be imported by the plaintiffs, a question might have arisen whether, in
case of a loss, the underwriters would have been liable ? Probably, they would not.
But there is an obvious distinction between an insurance to facilitate and cover an
illegal traffic in goods, and a contract for the sale of those goods. The present was
not a contract to indemnify the plaintiffs against any loss in the prosecution of an
illegal act ; but it was a contract for the purchase of the commodity when imported.
This case does not seem to fall within the principle of Blackford v. Preston,
8 T. R. 89 ; Gallini v. Laborie, 5 T. R. 242 ; or Ribbans v. Cricket, 1 B. and P. 264.
In all which cases the contracts were holden to be illegal. In Blachford v. Preston,
which was the sale, by the owner, of the command of a ship employed in the East
India Company's service, without the knowledge of the coin-[108]-pany, the Court
held that an action could not be maintained on the agreement, because it was in
violation of the laws and regulations, and in fraud of the East India Company;
and in contravention, moreover, of a great system of public policy. In Gallini v.
Laborie, where it was holden that no action could be maintained for breach of an
agreement to perform at an unlicensed theatre (the stat. 10 Geo. 11. c. 28, prohibiting
all theatrical representations without license), the decision was grounded upon the
obvious reason, that no man could be compelled to do what must subject him to
legal penalties. In Ribbans v. Cricket, the plaintiff was impliedly prohibited from
suing on that particular kind of contract by the 7 and 8 Win. III. c. 4, which forbad
the thing to be done. Neither does the present case fall within the principle which
guided the several determinations in Sullivan v. Greaves, Park on Insurance, 8;
Mitchell v. Cockburne, 2 H. Bl. 379 ; Booth v. Hodson, 6 T. R. 405 ; Braiton v. Taddy,
I Taunt. 6 ; and other cases of the same class. Those cases were founded on agree-
ments and contracts in direct violation of the stat. 6 Geo. I. c. 18. In Sullivan. v.
Greavcs, the action was brought by one partner against an insurance broker to
recover a moiety of the loss received by the latter from another partner ; the first
having paid the whole loss to the assured ; but it was determined that the action
could not be maintained, because its object was to enforce an illegal contract of
partnership. And on the same principle, that the action was brought in affirmance
of the illegal contract, was the case of Mitchell v. Cockburne, in which Eyre, C. J. said,
that the action arose immediately out of an illegal contract. In Booth v. Hodson,
the plaintiff had insured in violation of the Act of Parliament, and the claim arose
out of that transaction. Branton v. Taddy was decided upon the same principle.
In the present case the distinction seems to be obvious. The plaintiffs do not
seek to enforce any illegal contract ; they do not seek to cast any duty upon the
defendant which would subject him to penalties. With respect to the contract,
they have violated no law or duty ; though with regard to the importation of the
commodity, which was collateral to, and distinguishable from, the contract, they
have in-[109]-fringed the rights of others. They may have thus incurred a penalty :
but it cannot be said to rescind the contract of third parties who had no participation
or privity in the importation. The contract, it is to be remembered, was not to
import the hemp. Who were to import the hemp was no consideration of the parties
at the time of the bargain. It was in fact a contract for the sale of hemp, to be
shipped from Petersburgh before a given day, and the bargain was to be concluded
upon the arrival of the vessel with the goods. Now the sale was not contrary to
any law, though the importing of it, by the plaintiffs, might be in contravention
of the rights of the Russian Fellowship.
In Johnson v. Hudson, 11 East, 180, it was holden by the Court of K. B., that a
factor, selling a parcel of prize manufactured tobacco, consigned to him from his
correspondent at Guernsey, of which a regular entry was made on importation, but
without having entered himself at the excise office as a dealer in tobacco, nor having
any license as such, might yet maintain an action against the vendee for the value
of the goods sold and delivered; and this, though the tobacco were sent to the
defendant without a permit, at his desire.
The decisions on the smuggling cases were here pressed, but the Court upheld the
HOLT 113.](ViewImageLocal?handle=hein.slavery/ssactsengr0569&div=1&collection=&method=preview&ext=.png&size=3)