Jacob Naff v. John Crawford.

would be void; and the Court would give no remedy to the offending party, though both were in pari delicto. Eut Toby, (the payee of the notes,) or his agent, McKinney, had no connection with the person who introduced the negroes contrary to law. Neither of the parties in this case had anything to do with the original contract, nor was their contract in violation of law. The crime committed by those who introduced the negroes into the country does not attach to all those who may afterwards purchase them." admitting the Treasury notes to inally in violation of public policy, without any authority of law, still, the wrong of the parties issuing them does not attach to those who may afterwards, without any connection with, or furtherance of the original design, purchase or circulate such notes.

And so we say, that, have been issued orig

The Court further says, in the above case: "If defendant should be sued for his tailor's bill, and come into Court with the clothes made for him, on his back, and plead that he was not bound to pay for them, because the importer had smuggled the cloth, he would present a case of equal merits, and parallel with the present; but not likely to have the verdict of the jury, or judgment of the Court in his favor." In another case, goods were sold to a man who intended to smuggle them and defraud the revenue, and the vendor knew of the design-it was held that the contract was valid, and the vendor could recover the price; Hlman v. Johnson, Cowp. R., 341. But where goods were sold to a man who intended to smuggle them, and defraud the revenue, and vendor not only knew of the purpose, but put

Jacob Naff v. John Crawford.

them up in a particular manner, so as to enable it to be done; it was held that the contract was void, and the price could not be recovered; Briggs v. Lawrence, 3 Term. R., 454. "If the illegal use to be made of the goods, say the Supreme Court of Massachusetts, enters into the contract, and forms the motive and inducement, in the mind of the vendor or lender, to the sale or loan, then he can not recover, provided the goods or money are actually used to carry out the design-but bare knowledge on the part of the vendor, that the vendee intends to put the goods or money to an illegal use, will not vitiate the sale or loan, and deprive the vendor of all remedy for the purchase money; Doter v. Earl, 3 Gray, (Mass. R.,) 482. See also, Hedges v. Wallace, 2 Bush., (Ky. R.,) 442; and we add that with much more reason it may be held, that a simple knowledge of the fact that an article was manufactured, or originally designed for an illegal or immoral purpose, will not vitiate or contaminate a subsequent contract for its use, in any way neither illegal or immoral, as in the cases of loan or ordinary use of Confederate money, in the States engaged in the rebellion during the late civil war.

The above cases serve well to present the true principle, that is there must be a participation in the illegal purpose by the parties to the contract; the agreement must be in aid of, or furtherance of the illegal end.*

If this be the sound principle, then how can it be held, that the loan by one party, and the borrowing by another, of Confederate treasury notes, was in any way connected with the original wrong of their issuance, if

*See Tedder v. Odum, Nashv., 1870.

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any there were, or that such loan was intended either to further or aid in such issuance, or to aid in the rebellion in which the Confederate States were then engaged. We confess we are totally unable to see any wrong, either public or private, intended by such a transaction; certainly none entered into the minds of the parties at the time, in this case.

We are unable to see how, in fact, the parties in this, and all like cases, can be said to have aided in, or been guilty of, the moral or legal wrong involved in the issuance of these notes, as the wrong had already been done, the purpose attained so far as the notes loaned are concerned, and the amount of such issues was neither increased or diminished by the circulation of the notes, or by the refusal of one party to borrow and the other to loan.

It is insisted, however, that the value of Confederate notes, might have been increased by their circulation, and the parties aided in this circulation by their contract. So it may equally well be said, that the value of the imported negroes depended on their importer being able to sell them, and their purchase by parties encourged their importation.

If the argument is sound, that all acts or courses of action, that indirectly tended to aid and strengthen the military power of the Confederate Government were unlawful, and in violation of public policy, whether done with the purpose or intent so to aid and strengthen this military power, or not, then we ask of what offense were such parties guilty, and by what law is their punishment defined? For instance, the growing of corn, and of wheat, the production of meat, the manufacture

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of cloths of any kind at home, and in fact, all the energetic industries that were wakened into life during the great civil strife, tended directly to strengthen the military power of the Confederate Government, either by supplying its armies with the necessaries thus produced, or by keeping up the heart of the people engaged in the struggle, by meeting these essential needs, the supply of food and raiment. May we not well suspect the soundness of the argument that involves the proposition, that all the industries of the land, during the late war, without which, millions would have perished, were wrong and illegal, and in violation of public policy, as tending directly or indirectly to aid the rebellion, whether so intended or not. We need not pursue this branch of argument further. In support of this view of the question, we refer to the case of Phillips v. Hooker, decided by the Supreme Court of North Carolina; Am. L. Reg., vol. 7, p. 40.

We might cite numerous decisions of several of our sister States, that hold as we have done in this opinion. We content ourselves, however, with only a few cases, which abundantly sustain the views herein maintained.

The Supreme Court of Kentucky, in the case of Martin v. Horton, et al., 1 Bush., 629, decided in the winter of 1865, Judge Williams delivering the opinion of the Court, "that the circulation of Confederate currency,' within the Federal lines, and jurisdiction of the United States, was forbidden by the laws and public policy of the United States; and also, that the circulation of the United States treasury notes was likewise

Jacob Naff v. John Crawford.

forbidden, within the military lines and jurisdiction of the Confederate States,' as against their public policy and laws." The Court then goes on to say, the currency that was recognized by the laws and military authorities of the Confederate States as money, and its circulation encouraged by its policy, and which did so circulate within its lines and jurisdiction, must be regarded as a valuable and not a vicious or illegal consideration, especially when voluntarily received and used. To permit its reception and use, and then to escape from the obligation, by a party, would be to recognize a system of legalized robbery, which would be equally or more odious to the sensitive justice of the law." See also, Rhodes v. Patillo, 5 Bush. Ky. R., 272; Miller v. Gould, 38 Georgia R., cited in Am. L. Reg. for 1869, p. 310.

We need not refer to the late case of Thorington v. Smith, decided by the Supreme Court of the United States, found in 8 Wallace Rep., p. 1, and reaffirmed and explained by Chief Justice Chase, in the case of Head et als v. Talley, Adm'r, reported in Am. Law Times, Sep. 1870, 157, as holding the views held in this opinion, and maintaining them by what we deem unanswerable reasoning. The Court says, in 8 Wallace, p. 11, and after referring to the character of the Confederate Government and its actual "supremacy," as a fact, over its territory during the war; and citing the case of the United States v. Rice, with other cases, too familiar to the profession to be here referred to; that "it was by this Government exercising its powers throughout an immense territory, that the Confederate