quality of the thing sold to be other than it is in some particulars, which the buyer has not equal means with himself of knowing; or if he do so in such a manner as to induce the buyer to forbear making the inquiries, which for his own security and advantage he would otherwise have made. But is a buyer liable to an action of deceit for misrepresenting the seller's chance of sale, or the probability of his getting a better price for his commodity, than the price which such proposed buyer offers? I am not aware of any case, or recognised principle of law, upon which such a duty can be considered as incumbent upon a party bargaining for a purchase. It appears to be a false representation in a matter merely gratis dictum by the bidder, in respect to which the bidder was under no legal pledge or obligation to the seller for the precise accuracy and correctness of his statement, and upon which, therefore, it was the seller's own indiscretion to rely, and for the consequences of such reliance, therefore, he can maintain no action."

A representation as to the character, credit, or responsibility of a third person, in order to induce the owner of goods to sell them to the latter on credit, &c., will not furnish a cause of action, however false and fraudulent the representation may be, unless it be reduced into writing, and signed by the party making it, in pursuance of the statute 9 Geo. 4, c. 14, s. 6 (u).

A representation made by a person as to the credit of a firm in which he was a partner, is a representation as to the credit of "another person" within the meaning of that statute (x).

4. OF ILLEGAL SALES OF Goods.

We shall in a subsequent part of this work fully consider the various instances in which contracts are void, in regard to the illegality of their objects, or consideration. It may be laid down as a general rule that where a contract, be it express or implied, is expressly or by implication forbidden by the common or statute law, no court will lend its assistance to give it effect; and we will now consider some of the instances in which contracts for the sale of goods cannot be enforced, by reason of their illegality; 1st, at common law, 2ndly, by statute.

(u) 9 Geo. 4, c. 14, s. 6; ante, 133; Haslock v. Ferguson, 2 N. & P. 269; Swan v. Phillips, 3 N. & P. 447; 8 Ad. & E. 457, S. C.; Lyde v. Bar

E E

nard, 1 M. & W. 101; 1 Tyr. & Gr. 250, S. C.

(x) Devaux v. Steinkeller, 6 Bing. N. C. 84.

1st. Contracts of sale having an immoral object in view, are void in law.―Thus a printseller cannot recover the price of caricatures of an immoral, obscene, or libellous tendency, which he sent to a customer who had given a general order for all the caricature prints that had ever been published (y). And if a tradesman sell clothes to a prostitute, for the purpose of enabling her to carry on her prostitution, and expect to be paid from the profits of it, such a contract is illegal, and cannot be enforced in a court of justice; but a mere knowledge of her way of life will not prevent the tradesman from recovering (z).

Forestalling is the buying, or contracting for, any merchandise or victual coming in the way to market; or dissuading persons from bringing their goods or provisions there; or persuading them to enhance the price there. Regrating is the buying of corn, or other dead victual, in any market, and selling it again in the same market, or within four miles of the place. Engrossing is the getting into one's possession, or buying up large quantities of corn or other dead victuals, with intent to sell them again (a). These are offences at common law (b).

A wager on the future price of goods would not seem to be illegal (c). Nor is a contract for the sale of goods to be delivered at a future day invalidated by the circumstance that at the time of the contract the vendor neither has the goods in his possession, nor has entered into any contract to buy them, nor has any reasonable expectation of becoming possessed of them by the time appointed for delivering them otherwise than by purchasing them after making the contract (d).

Such a contract does not amount to a wager if both the contracting parties are not cognizant of the fact that the goods are not in the vendor's possession, and even if it were a wager, it would not be illegal, because it has no necessary tendency to injure third parties.

Trading with an enemy is also illegal, as injurious to the

(y) Fores v. Johnes, 4 Esp. 97.

(z) Bowry v. Bennet, 1 Camp. 348; Lloyd v. Johnson, 1 B. & P. 340; Jennings v. Throgmorton, R. & M. 251; Appleton v. Campbell, 2 C. & P. 347.

(a) 4 Bla. Com. 148; 5 & 6 E. 6, c. 14, repealed by 12 G. 3, c. 71; 3 Inst. 195; 1 Ilawk. P. C. ch. 80;

public welfare, and of course contracts with them for the purchase or sale of goods cannot be enforced (e).

A contract made by an innkeeper to supply voters at an election with meat, drink, and refreshments, would be illegal if the object were to induce the voters to vote for a particular candidate (f).

Contracts for the sale of goods are illegal, where the goods are bought and sold for the express purpose of being smuggled into this country, and the vendor is either a sharer in the illegal transaction, or assisted in the act of smuggling (g). Where the defendant, an Englishman, living in England, contracted with the plaintiff, a foreigner living at Lisle, for a quantity of lace, which the plaintiff not only knew was to be smuggled into England, but packed in a particular manner, by the defendant's desire, for the purpose of evading detection; the Court held that the price could not be recovered (h). But where the plaintiff, (the vendor), was a resident at and an inhabitant of Dunkirk, and sold and delivered tea at that place, with a mere knowledge that the defendant (the vendee) intended to smuggle it into England; but afforded him no assistance in so doing, and was to be paid whether the attempt were successful or not; the Court held that the price was recoverable (i). The grounds of the judgment were, that the contract was complete, and was performed out of this country; that the vendor had no concern in the transaction itself; and that there was nothing immoral in the contract. Lord Mansfield said, "If the defendant had bespoke the tea at Dunkirk, to be sent to England at a certain price, and the plaintiff had undertaken to send it into England, or had had any concern in the running it into England, he would have been an offender against the laws of this country. But, upon the facts of this case, from the first to the last, he clearly has offended

against no law of England. And the same principle was acted upon in Pellecatt v. Angell (k).

2nd. A contract is void if prohibited by a statute, though the statute only inflicts a penalty, because such a penalty implies a prohibition; and though there are some dicta to the contrary, if the contract be rendered illegal, it makes no difference in point of law whether the statute which makes it so has in view the protection of the revenue or any other object (1). The question to be considered is, does the statute prohibit the contract attempted to be enforced?

There are many statutes, the object of which is to raise a revenue, rendering it necessary for persons dealing in specified goods to take out licences for that purpose, and inflicting a penalty on them for their neglect to do so. In these cases there is, however, no intention to prohibit a contract for the sale of such goods, but merely by inflicting a penalty personally on the seller, to secure the receipt of the revenue; and the price of goods sold even by an unlicensed vendor might therefore be recovered.

The

In Johnson v. Hudson (m) the action was brought to recover the price of tobacco and segars: they had been imported into this country from Guernsey, and were sold by the plaintiff to the defendant, and the plaintiff had no licence to deal in tobacco, wherefore it was contended that he could not recover. Court doubting, indeed, whether the plaintiffs, from this single instance, could be considered as dealers, held it not to be such an illegality as to deprive the owner of the goods, who had sold them to another, of his right to recover the price. In this case, however, the contract was not interdicted; the provision of the statute requiring persons dealing in tobacco to take out a licence is a regulation attaching only to the plaintiff personally, and affecting him with the penalty in order to secure the licence duty only, and not forbidding the contract itself (n).

In Brown v. Duncan (n), and Wetherell v. Jones (0), both

(k) 2 C., M. & R. 311; 1 Gale, 187, S. C.

(1) Per Holt, C. J., Bartlett v. Vinor, Carth. 252; per Parke, B., Cope v. Rowlands, 2 Mee. & W. 157.

(m) Johnson v. Hudson, 11 East, 180, as explained by the Court in Foster v. Taylor, 3 Nev. & Man. 244; 5 B. &

Ald. 898, S. C.; and see Brown v. Duncan, 10 B. & C. 98; per Ld. Tenterden, C. J. But see the case observed upon, 2 Stark. on Ev. 886.

(n) Brown v. Duncan, 10 B. & C. 93 5 Man. & Ry. 114.

(0) Wetherell v. Jones, 3 B. & Ad.

221.

cases of violation of the revenue laws, the particular contracts sued upon were not prohibited.

In Brown v. Duncan (p) it appeared that A., B., C., D., and E., carried on trade in partnership as distillers; and C. alone carried on the business of a retail dealer in spirits, within two miles of the distillery, contrary to the 4 G. 4, c. 94, s. 132, 133; and his name was not inserted as one of the partners in the distillery in the excise book, or licence, as required by the 6 G. 4, c. 81, s. 7. It was held, these being mere revenue regulations, the breach of them by one of the partners, with the knowledge of the others, did not render the trade carried on by the five so illegal as to deprive them of the right to recover the price of spirits sold by them; or for the breach of a guaranty for the due accounting of an agent, to whom they had consigned the spirits for sale. This case was decided on the authority of Hodgson v. Temple, and Johnson v. Hudson; and Lord Tenterden said it was quite different from those cases where provisions of acts of parliament had for their object the protection of the public, as the acts against stock-jobbing (q) and usury. In Hodgson v. Temple (r), a distiller had sold spirits to a rectifier, who was (contrary to law) also a retailer, with the knowledge that the vendee filled both characters, and had delivered the spirits not at the place in which the retail trade was carried on, but at the place in which he carried on the business of a rectifier, (and where they were delivered under permits obtained by the plaintiffs,) not in the defendant's name, but in the name of another person. These were certainly strong facts; because the vendors, by obtaining the permits in the name of a third person, &c., assisted the purchaser in concealing his violation of the law. The Court of Common Pleas, however, thought the plaintiffs were entitled to recover. So a brewer, who delivers beer to be used in a public house on the credit of a third person, may main

(p) 10 B. & C. 93. See ante, 420, note (m); and see Owen v. Body, 5 Ad. & E. 36.

(9) In Cannan v. Bryce, 3 B. & Ald. 179, it was held that money lent and applied by the borrower for the purpose of settling losses on illegal stockjobbing transactions, to which the lender was no party, could not be recovered back. Nor can money advanced for the purpose of carrying on

the performance of ballets and operas at an unlicensed theatre be recovered; De Begnis v. Armistead, 3 M. & Scott, 511; 10 Bing. 107, S. C.

(r) 5 Taunt. 181; 1 Marsh. R. 5, S C.; noticed in Brown v. Duncan, 10 B. & C. 98. Sale of spirits when good, though permit irregular, Wetherell v. Jones, 3 B. & Ad. 221. But see 2 W. 4, c. 16, s. 12, and post, 427.