1839. The GAS LIGHT and COKE Company v. TURNER. covenant for payment of rent contained in a lease made by the Plaintiffs to the Defendant, and two other persons for twenty-one years from the 13th of August 1833, of certain premises therein described. And in the second count the Plaintiffs declare upon an agreement under seal, bearing date the same day and year as the lease, and made between the same parties as those between whom the lease is made, by which agreement, after reciting the said lease, the Defendant covenanted that he would purchase of the Plaintiffs at least 100,000 gallons of tar yearly, to be paid for and to be deliverable at the places and in the manner and proportions specified in the said agreement; and then proceed to assign three breaches on the said agreement. The Defendant pleads in answer to the first count, that the indenture therein mentioned was made after the passing of the statute 25 G. 3. c. 77., by which it is enacted, that it should not be lawful for any person to distil or boil any turpentine or tar, &c. above the quantity of ten gallons at one time, in any workhouse or place contiguous to any other building, or in any place nearer to any other building than the distance of seventyfive feet at the least, (with an exception, the application of which to this case is negatived by the plea), upon pain of forfeiting for every such offence 100l. And the plea then proceeds to aver, that the said tenements and premises were and are contiguous to other buildings, and in places nearer to other buildings than the distance of seventy-five feet; "and that the said indenture was made and entered into by and between the Plaintiffs and the Defendant, and the other two persons, in manner and form as in the said first count mentioned; and the said tenements and premises with the appurtenances were demised to the Defendant and the said two other persons, for the express purpose of being used for and applied to the boiling of oil and tar together, &c. by the said Defendant and the two other persons, in larger quantities than the quantity of ten gallons at one time of the said commodities respectively, contrary to the form of the said statute, whereby the said indenture was and is wholly void in law." To this plea the Plaintiffs have demurred in law. And it becomes unnecessary to advert to the second count and the plea thereto, as the point raised upon it by demurrer must necessarily be governed by the decision upon the first count. The objection that has been urged on the part of the Defendant is, that this is an action founded upon a contract, and that a court of law will not lend its aid to enforce the performance of a contract between parties, which appears, upon the face of the record, to have been entered into by both the contracting parties for the express purpose of carrying into effect that which is prohibited by the law of the land. And we think, both from authority and reason, this objection must be allowed to prevail. That no legal distinction can be supported between the application of this objection to parol contracts and to contracts under seal, appears the necessary inference from the cases of Collins v. Blantern (a) and Paxton v. Popham (b), in both which cases the principle above laid down was acted upon by the Court, and in each of which the action was upon bond; and it would indeed be inconsistent with reason and principle to hold, that by the mere ceremony of putting a seal to an instrument, that is, by the voluntary act of the parties themselves, a contract which was void in itself on the ground of its being in violation of the law of the land, should be deemed valid, and an action maintainable thereon, in a court of justice. Nor do we see any force in the objection made in the course of the argument, that the plea does not suffi (a) 2 Wils. 348. 1839. The GAS LIGHT and COKE Company v. TURNER. (b) 9 East, 408. b. ER PC. 141. 1839. The GAS LIGHT and CORE Company V. TURNER. ciently allege that the Plaintiffs were parties to the making of the lease for the purpose averred in the plea; for the allegation," that the tenements and premises were demised to the Defendant for the express purpose, &c.," necessarily implies, and even in a more especial manner declares, that the express purpose was the purpose of the party who made the demise, that is, of the Plaintiffs. Now, we cannot distinguish the case before us, upon principle, from that of Lightfoot v. Tenant. (a) In that case the question arose upon a plea, stating the statute 7 G. 1. c. 21., by which it is enacted that all contracts and agreements made by any of his Majesty's subjects for the loan of any money by way of bottomry on any ship or ships in the service of foreigners, and bound or designed to trade to the East Indies; "and all contracts and agreements whatsoever made by any of his Majesty's subjects, or any person or persons in trust for them, for the loading or supplying any such ship or ships with a cargo or lading of any sort of goods or merchandizes, &c.," shall be void; and it was then alleged by the plea in that action, and found by the special verdict, that the plaintiff sold goods to the defendant in London, well knowing that the same were intended to be, and in order that they might be, carried by the defendant to Ostend, to be thence shipped on board ships destined to trade to the East Indies without licence from the East India Company, and to be carried to Calcutta, and there sold; and that the bond which was declared upon was given for the price of these goods; and this plea was held to be an answer to an action for the price of the goods. In that case it was argued, that after the goods were once delivered to the buyer he might change his mind, and use them in a dif (a) 1 B. & P. 551. ferent manner from that which was originally designed; as here, that the tenant might put the premises to a use different from that for which they were let; but it was answered, that the entering into the contract with the illegal intent, tainted the contract with illegality, and prevented an action from lying thereon. And again, the case of Langton and Others v. Hughes and Another (a) lays down the same rule of law. There the sale of drugs to the defendants, which the plaintiffs knew were intended to be used in the defendants' brewery, in violation of the 42 G. 3. c. 38. s. 20., by which the brewer is prohibited from using anything but malt and hops in the brewing of beer, was held to be a contract on which the plaintiffs could not sue. In that case also, it was argued, that the statute neither prohibited the selling the articles nor the buying them, but only the purpose for which they were used; and that the subsequent user was a matter over which the seller had no control. But it was observed by Bayley J., in giving his judgment, "that the case of Lightfoot v. Tenant answers almost all the arguments urged for the plaintiffs ;" and the later authority of Cannan v. Bryce (b) appears to us to go the full length of supporting the principle above laid down. It was observed in the course of the argument for the Plaintiffs, that, as they had granted a lease for twenty-one years, such term was vested in the Defendant, and that he would be able to hold himself in for the remainder of it without payment of any rent. That point is not now before us; but, without giving any opinion how far the position is maintainable, it is obvious that, if an ejectment should be brought upon the breach of any condition in the lease, the action of ejectment would, at all events, be free from the objection 1839. The GAS LIGHT and Соке Company บ. TURNER. 1839. The GAS LIGHT and COKE Company V. TURNER. that the Court was lending its aid to enforce a contract in violation of law. And, further, if an ejectment were brought by the lessors to recover possession, on the ground that the lease was void, it might be difficult for the lessee to maintain his right to hold under the lease, after having pleaded in the present action, in which he and the lessors were parties, that the indenture was void, and obtained the judgment of the Court in his favour on that plea. Without, however, giving any opinion on that point, we think, for the reasons before given, that the Defendant is entitled to judgment on this record. Judgment for Defendant. June 11. In case against Defendant, for negligently driving his cart and horse against Plain tiff's horse, not shew that he was not the person driving, and that the cart did not belong to him. And THE TAVERNER v. Little. HE declaration stated, that the Plaintiff, on the 7th of January 1838, was lawfully possessed of a certain horse of great value, to wit 30%., on which horse a servant of the Plaintiff was then riding in and along a certain public and common highway; and the Defendant was possessed of a certain cart and of a certain horse drawing the same; and which cart and horse of the Defendant were then under the care, government, and direction of the Defendant, who was then driving the same in and along the said highway: nevertheless the Defendant so carelessly and improperly drove, governed, and directed the said cart and horse, that by and through the carelessness, negligence, and improper conduct of the Defendant, the said cart of the Defendant then ran and struck with great force and violence upon and after trial the against the horse of the Plaintiff, and thereby the shaft Court refused permission to amend by substituting another plea. |