(a) Pellecat v. Angell, 2 Cr. M. & R. 811.
(b) As to contracts of which performance has become illegal after the making, see Brown v. Mayor of London, 30 L. J. (C. P.) 225; 31 L. J. (C. P.) 280, in Ex Ch.
1 The cases upon this subject seem to require a somewhat fuller notice. In Rex v. Somerby, cited by the lecturer, a pauper apprentice was moved, by reason of illness, from the parish of Melton Mowbray, to that of Somerby, where he resided forty days, during which time he was employed in selling lottery tickets, and it was held that he had gained a settlement in the latter parish, notwithstanding the unlawful act in which he had been engaged; though it was suggested that if the master and apprentice had conspired together, and moved thither for that purpose, the case might have been different : and this decision is perfectly reconcilable with principle and with all the authorities. But in Pellecat v. Angell it was was held that a foreigner selling and delivering goods to a British subject could recover their price, although he knew at the time of the sale that the buyer intended to smuggle th?m into England, and the decision (which was in accordance with the previous case of Hodgson v. Temple, 5 Taunt. (1 E. C. L. R.) 181, except that the case went farther, both parties being English), to some extent, was rested on the distinction taken in Biggs v. Lawrence, 3 T. R. 454, between merely knowing of the illegal act, and being a party thereto. That case decided that where a smuggler bought brandy in Guernsey, and the vendor packed it in ankers in preparation for smuggling, he could not recover the price of it, because he was aiding in the breach of the revenue laws, while in Holman v. Johnson, Cowp. 342, where the vendor, a foreigner, knew of, but did not actively participate in the smuggling, he was held entitled to recover. Lord Abinger, however, in delivering the opinion in Pellecat v. Angell, did not rely wholly on this distinction between mere knowledge and participation, but to a great extent based his opinion upon the fact of the law which was infringed, being a foreign one to the plaintiff. "It is perfectly clear," said he, " that where parties enter into a contract to contravene the laws of their own country, such a contract is void; but it is equally clear, from a long series of cases, that the subject of a foreign country is not bound to pay allegiance or respect to the revenue laws of this, except indeed that when he comes within the act of breaking them himself, he cannot recover here the fruits of that illegal act. But there is nothing illegal in merely knowing that the goods he sells are to be disposed of in contravention of the fiscal laws of another country." Such a course of reasoning has been, however, seriously questioned by Mr. Justice Story in his treatise on the Conflict of Laws (§ 254, note), who asks, if a Frenchman could be allowed to recover, in England, the price of poison sold in France for the avowed purpose of poisoning the Queen. But it may be remarked of the English cases that for some time, and until a very recent period, contracts connected with a violation of the revenue laws, were rather less severely construed than those in violation of other statutory provisions (see some of the cases, supra, p. *19, note 2), and Pellecat v. Angell, which was decided in 1835, may, so far as concerns the above reasons, for the decision, be classed with these cases.
Now, such being the effect of illegality created by statute, in avoiding an agreement tainted with it, and in which the Legislature has, by express provision, rendered particular contracts illegal [or void].
But upon the other ground, the line of distinction between knowledge and participation, or rather between what is and what is not participation, is at times a difficult one, and it is certain that the older cases have sanctioned recoveries in instances where they would now perhaps be denied. Thus, in Faikney v. Reynous, 4 Burr. 20G9, the plaintiff and one Richardson were jointly concerned in transactions forbidden by the act "to prevent the infamous practice of stockjobbing" (7 Geo. 2, c. 8), and the plaintiff having paid the whole of the loss sustained by the failure of the operation, the Court such being the distinction between illegality stipulated for-contemplated by the contract-and illegality oc(Lord Mansfield, C. J.) held that a suit could be maintained upon a bond given to the plaintiff by the defendants to secure the repa}-ment of Richardson's proportion of the loss, as the illegality did not enter into this new transaction; and in the subsequent case of Petrie v. Hannay, 3 T. R. 418, the facts and the decision were the same way. So, it was formerly held that money lent to pay a gambling debt might be recovered, though the money lost could not: Robinson v. Bland, 2 Burr. 1077; Barjeau v. Walmsley, Str. 1249; Alcin-brook v. Hall, 2 Wils. 309; and these cases were approved in Farmer v. Russell, 1 B. & P. 299, though the decision in that case was on a different ground, viz., that one who had received money for the use of a party engaged in an illegal contract could not defend in an action for money had and received on the ground of illegality, he being considered in the light of a stakeholder (as to which see infra). But a class of cases soon followed, in which the authority of Faikney v. Reynous, and Petrie v. Hannay, was sometimes distinguished, but more frequently queslioned: Booth v. Hodgson, 6 T. R. 405; Lightfoot v. Tenant, 1 B. & P. 551 (where Eyre, C. J., put the case of a druggist who should sell arsenic to one who he knew was going to poison his wife with it): Aubert r. Maze, 2 B. & P. 371, Eldon, C. J.; Langton v. Hughes, 1 M. & S. 593 (where it was held that one who sold drugs to a brewer, knowing that he would use them to adulterate ale with, contrary to a statute, could not recover, though it was not proved that they had been so used): Webb v. Brooke, 3 Taunt. 12; Ex parte Mather, 3 Ves. Jr. 373; Ex parte Daniels, 14 lb. 192; Gas Light Co. v. Turner, 6 Bing. N. C. (37 E. C. L. R.) 324; and in Cannan v. Bryce, 3 B. & Ald. (5 E. C. L. R.) 179, two partners entered into an illegal stockjobbing transaction, by which a heavy loss was sustained, which was paid by a sum of money lent them by Bryce, the defendant, who, as the jury found, was not a partner in the stockjobbing transaction. In consideration of this loan, which had been only secured by a bond, one of the partners assigned to the defendant three cargoes of vessels and soon after, a commission of bankruptcy issued against both of them, and the assignees in bankruptcy wore held entitled to recover the proceeds of these cargoes from the defendant. "If," said Abbott, C. J., who delivered the opinion of the Court, " the defendant acted unlawfully in lending his money to the bankrupts, he could not have sued them for the recovery of payment, because no suit can be maintained upon an unlawful act; and if recovery could not be enforced at law upon the contract of lending, neither could recovery be enforced upon a bond given for the performance of that contract;" nor, consequently, upon the assignments which were to secure the bond; and in M'Kinnell v. Robinson, 3 M. & W. 435, this case was approved, and it was held, in opposition to Alcinbrook v. Hall, that money lent to play hazard with could not be recovered back.