revenue laws held country of its origin. And so speak several eminent not illegal. masters of the Roman law, both ancient and modern.2 But the decisions just noticed, validating contracts whose incidental effect is to evade foreign revenue laws, are condemned by the high authority of Pothier,3 of Judge Story, of Chancellor Kent, of Mr. Chitty, of Mr. Westlake, of Mohl, and of Bar.9 Every sovereign, according to well settled principles, 10 has the exclusive right to control the importation of foreign goods, and no sovereign ought to tolerate, it is insisted, acts interfering with this prerogative of other sovereigns. It is argued, also, that when the evasion is attempted through the corruption of officials, this is an offence against good morals, avoiding any contract of which it is an ingredient. In Germany, at least, all contracts of this kind are judicially stamped with illegality.12 At the same time, it is impossible not to feel the force of the position that smuggling, though illegal by local law, may, nevertheless, be stimulated, if not by the laxity of local officials, at least by the oppressiveness of tariffs vexatiously prohibitive; and it is impossible, also, to forget that smugglers have been among the most effective instruments by which the modification of such tariffs has been produced. When a tariff tends to perpetuate an odious and cruel monopoly, foreign courts may be excused for looking on it as a punitive law they are not bound to enforce.13 1 Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R. 466; Planché v. Fletcher, Dougl. R. 251; Lightfoot v. Tenant, 1 Bos. & P. 551; Ludlow v. Van Rensaellaer, 1 Johns. R. 94; Kohn v. Schooner Rénaisance, 5 La. An. 251; Ivey v. Lalland, 42 Miss. 444; Armendiaz v. Serna, 40 Tex. 291. 2 Pardessus, No. 1492; Emérigon, i. c. 8, No. 58; Straccha, cited by Bar, p. 247; and Massé, ii. p. 116. As to contracts to export goods contraband of war, see § 496; and to violate blockades, Ibid. 8 Assur. n. 58. 526 $ 257. 5 III. Com. 266. 61 Chitty on Commerce, 83. 8 Staats recht, &c. i. p. 724 10 Vattel, i. c. 8, § 90. 12 See Judgment of the Superior Tribunal at Cassel, Dec. 13, 1828, given by Bar, p. 417; and see De Herrera v. The Acme, 7 U. S. Int. Rev. Rec. 148; 2 Ben. 386. 18 Supra, § 4. On this point see Fiore, Op. cit. § 286. 9. Local Statutory Bonds. Such bonds territorial. not extra § 485. A bond, executed in obedience to a local statute, imposing a penalty in case of misconduct, is regarded as in the nature of a penal obligation which foreign states will not undertake to execute.1 And in any view, statutes enabling such bonds to be sued on by parties injured concern the remedy, and have no extra-territorial force.2 10. Sales of Prohibited Liquors and Drugs. Sales of liquors or drugs deby place unlawful termined of perform ance. § 486. Where a sale of spirituous liquor is valid by the law of the place of contract, but invalid by the law of the place where the goods are to be delivered, the vendor cannot, in the latter place, recover the price, where he has knowledge that the vendee intends to resell the goods contrary to law, and where he aids in so doing.3 The guilty knowledge, however, of the vendor, and the illegal intent of the purchaser, must be proved in order to avoid in such case the contract, and the knowledge must go to the fact that the sale was specifically to violate the law of the state of delivery. A similar ruling has been made in England as to the sale 1 Pickering v. Fisk, 6 Vt. 102; Hunt v. Pownall, 9 Vt. 411; Indiana v. John, 5 Ham. (Oh.) 217. See McFee v. Ins. Co. 2 McCord, 503. Supra, § 4. 2 Pickering v. Fisk, 6 Vt. 102; Dimick v. Brooks, 21 Vt. 569. Infra, $ 747. * Supra, §§ 399 et seq.; Banchor v. Mansel, 47 Me. 58; Wilson v. Stretton, 47 Me. 120; Webster v. Munger, 8 Gray (Mass.), 584; Anstadt v. Sutter, 30 Ill. 164; Dalter v. Lane, 13 Iowa, 538. But see Territt v. Bartlett, 21 Vt. 184; Spalding v. Preston, Ibid. 9. If the delivery is to be to a common carrier within the state of sale where the sale is legal, the fact that the goods are ultimately to be transported to a state where the sale is illegal does not prevent a recovery of the price. Backman v. Jenks, 55 Barb. 469; Boit v. Maybin, 52 Ala. 252; McCarty v. Gordon, 16 Kans. 35; Kling v. Fries, 33 Mich. 275; Roetke v. Philip Best Brewing Co. 33 Mich. 340; Webber v. Donelly, 33 Mich. 469. See Dolan v. Green, 110 Mass. 322; Suit v. Woodhall, 113 Mass. 391. 4 Barnard ". Field, 46 Me. 526; Savage v. Mallory, 4 Allen (Mass.), 492; Frank v. O'Neil, 125 Mass. 473; Bligh v. James, 6 Allen (Mass.), 570; Whitlock v. Workman, 15 Iowa (7 With.), 351. See South. Law Rev. July, 1874; and Alb. L. J. Aug. 10, 1872. As to scienter, see Hill v. Spear, 50 N. H. 253; Boothby v. Plaisted, 51 N. H. 436. Supra, § 483. That the agent's knowledge will be imputed to the principal, see Suit v. Woodhall, 113 Mass. 391. of drugs to be illegally used in the manufacture of beer.1 On the other hand, although in the place where the contract is solemnized the sale is illegal, yet the contract is not invalid if its performance is to be exclusively in a state where the sale is legal.2 teries are 11. Lotteries. § 487. Where lotteries are not illegal at the place of sale, a When lot contract for the purchase of lottery tickets, it has been ruled in Massachusetts, will be supported, although the vendee belonged to a state where the sale is illegal; and the courts of the latter state will sustain an action permitted in place of performance, contracts to be judged for the recovery of the price of the ticket. analogous ruling has been made in New York.4 by that law. So where lotteries are illegal perform And an § 488. The converse was held in Maryland, in 1866, where it was ruled that a court of equity will not entertain a suit based upon a contract involving a violation, in in place of the sale of lottery tickets, of the laws of sister states within their limits.5 In such case, however, it must be shown that the plaintiff knew that the object of the specific contract was to violate the law of the state of performance.6 ance. § 489. On the other hand, we have a case decided by the SuDistinction preme Court at Berlin, on October 16, 1855, in which the lex fori would seem, under such circumstances, to where lot have been taken as the standard. More closely in taken in states teries are 1 Langton v. Hughes, 1 Maule & S. 593. 2 Supra, §§ 399 et seq.; Banchor v. Mansel, 47 Me. 58; Dolan v. Green, 110 Mass. 322, cited supra, § 401. See Kentucky v. Bassford, 6 Hill N. Y. 526. When an executory contract for the sale of intoxicating liquors is made in Massachusetts, to be completed and performed in New York, such contract is not a sale in violation of law" under the Mass. Gen. Stat. c. 86. Abberger v. Marrin, 102 Mass. 70; Ely v. Webster, Ibid. 304. McIntyre v. Parks, 3 Met. 207. When foreign lotteries were prohibited in France, the question was agitated whether an action could be maintained in France on a contract for the sale of such tickets. The negative was held by the Cour Royale de Paris, and such was considered to be the rule by Massé, even in cases where the contract was made in a state where lotteries were lawful. Massé, Droit Com. No. 570. 4 Kentucky v. Bassford, 6 Hill, 526. 5 Paine v. France, 26 Md. 46. See Ibid. 163. 6 Supra, §§ 483, 486. ment insti point, however, is a decision at Lübeck, on September govern11, 1849, in which it was held that as the Frankfort tutions. lottery is a government institution, the Frankfort courts will compel the execution of contracts based on it, though such contracts are to be performed in foreign lands where lotteries are prohibited.1 12. Contracts against Public Policy. contracts inconsistent with home pol icy will not be en forced. § 490. As a general rule, no state will enforce a contract conflicting with public policy. And in England it has Foreign been declared that where a court of one country is called upon to enforce a contract entered into in another, it is not enough that the contract should be valid according to the law of the latter; for if any part of the contract is inconsistent with the law and policy of the former, the contract will not be enforced even as to another part of it, which may not be open to this objection, and may be the only part remaining to be performed.3 That a state will not recognize foreign distinctions of status or caste conflicting with its distinctive policy we have already seen.1 § 491. An agreement entered into in France, but intended to be carried out in England, of such a nature that if Illustrated entered into in England it would have been void for by chamchamperty, cannot be enforced in England.5 pertous contracts. § 492. Gaming debts, as founded on an immoral consideration, are, according to Savigny, governed by the law of the By gaming place in which the suit is brought. This, alone, is to debts. 1 Bar, p. 248. 2 Smith v. Stotesbury, 1 W. Bl. 204; 2 Burr. 924; Fores v. Johnes, 4 Esp. R. 97; Walcot v. Walker, 7 Vesey, 1; Southey v. Sherwood, 2 Meriv. 435; Forbes v. Cochrane, 2 B. & C. 448; Andrews v. Pond, 13 Peters, 65; Armstrong v. Toler, 11 Wheat. 258; S. C., 4 Wash. C. C. 297; Smith v. Godfrey, 8 Fost. 382; Bliss v. Brainerd, 41 N. H. 256; Greenwood v. Curtis, 6 Mass. R. 376; Blanchard v. Russell, 13 Mass. 1; Com. v. Aves, 18 Pick. 193; Merchants' Bank v. Spalding, 12 Barb. determine, according to its own precepts, as to the validity or the invalidity of the obligation, no matter where it may have been assumed.1 To the same effect is the Scotch law.2 On the other hand, it was ruled by Lord Lyndhurst that money won at play, or lent for the purpose of gambling, in a country where the games in question are not illegal, may be recovered in the English courts, though the authority of this decision has been subsequently somewhat impugned.4 Contracts § 492 a. Whether a contract in restraint of trade is to be enforced depends, not on the law of the place of contract, in restraint but on the law of the place of performance. And the courts of the latter place, if appealed to, will not enforce a contract conflicting with their policy in this respect. 5 of trade determined by place of perform ance. tested by § 493. No state, also, will enforce a contract contrary to good Immorality morals; the question being determinable by the lex the lex fori. fori. The French law, on the ground that public policy and morality require that no suit should be sustained whose basis is illicit cohabitation, positively interdicts such suits; and as this law is of that positive and coercive character which has been already referred to as exclusive, it overrides all foreign law. In Germany the decisions conflict. 8 By the law of Scotland, the obligation to maintain a natural child is not considered as ex delicto.9 By the English common law, foreign contracts made in con 1 Savigny, viii. § 374. 2 Bruce v. Ross, M. 9523, 3 Pat.; O'Connell v. Russell, 1864, 3 Macph. 89; Paterson v. Macqueen, 4 Macph. 602, cited by Guthrie in his note to Savigny, in loco. trade or commerce," will not be upheld in another state. Hope v. Hope, 8 De G., M. & G. 731; Armstrong v. Toler, 11 Wheat. 258; Windsor v. Jacob, 2 Tyler, 192; Greenwood v. Curtis, 6 Mass. 358; 3 Quarrier v. Colston, 1 Ph. 147; 6 Phinney v. Baldwin, 16 Ill. 108. Jur. 959. 4 Wynne v. Callander, 1 Russ. 293. 5 Roussillon v. Rousillon, L. R. 14 Ch. D. 351. See Morris Run Coal Co. v. Barclay Coal Co. 68 Penn. St. 173, cited supra, § 485, where it was held that a statute which makes it a misdemeanor for " persons to conspire to commit any act injurious to 7 Code, art. 340; La recherche de la paternité est interdite. The judges are positively commanded to quash all suits affected by this taint. Savigny, viii. § 374, note (bb). As to German and French law, see Bar, §§ 110, 362–364. Note to Savigny, p. 206 (bb). |