Faith and Others v Pearson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1817 |
| Date | 01 January 1817 |
| Court | Court of Common Pleas |
English Reports Citation: 171 E.R. 180
IN THE COURT OF COMMON PLEAS
S C. with annotation, 4 Camp. 357 Subsequent proceedings with annotation, 6 Taunt. 439
180 FAITH V. PEARSON HOLT US. [113] faith and others v. pearson. (Where a sliip 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 Btachford v. Preston, 8 T. E. 89 ; Galhni v Labone, 5 T. B 242 , or Pubbans v. Cricket, I B. and P. 264. In all which cases the contracts were holden to be illegal In Blachfoid v Pte^tun, which was the sale, by the owner, of the command of a ship employed in the Bast India Company's service, without the knowledge of the com-[108]-pany, the Couit 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 Gallim v La&orie, 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 II. 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. Ill c 4, which forbad the thing to be done Neither does the present case fall within the principle which gmded the several determinations in Sullivan v. Greaves, Park on Insurance, 8 ; Mitchell v. Cockburne, 2 H. Bl 379; Booth v. Hodson, 6 T. E. 405 , Brantonv Taddy, 1 Taunt. 6 ; and other cases of the same class Those cases were founded on agreements and contracts in direct violation of the stat 6 Geo. 1. c. 18. In Sulh'Uan v Greaves, 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 Mitchells. Cockburne, in which Eyre, C. J said, that the aetion 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]-frmged 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 nghte of the Kussian Fellowship. In Johnson v. Hudson, 11 East, 180, it was holdeu 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 seat 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. FAITH V. PEARSON 181 and no action can be maintained at common law, either of trespass for...
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