On this side of the Atlantic, the authority of the older and overruled English eases has, however, been in many instances recognized and affirmed. Thus, in Carsan v. Rambert, 2 Bay, 560, it was held (on the authority of Robinson v. Bland), that the value of a horse lent to stake at a gambling table curing incidentally during the course *of its performance, I will proceed, as I did when could be recovered by the lender, from the borrower. But the principal case is perhaps Armstrong v. Toler, 4 Wash. C. C. 297, and 11 Wheat. 258, where Armstrong and others contrived, during the war, a plan to smuggle into the country goods consigned to Toler, and on their seizure at the port of destination, Toler became security to the government to abide the event of the suit, and delivered to Armstrong his proportion of the goods on his promise of repayment, in case they should eventually be condemned. The goods were condemned, and Toler paid the amount of their appraised value, and in suit brought by him against Armstrong, it was objected that the contract was void, as founded on an illegal consideration; but the court below charged that the subsequent independent contract, founded on a new consideration (viz., that of the delivery of the goods to Armstrong), was not contaminated by the illegal importation, although it was known to Toler when the contract was made, provided the latter had no interest and participation in the importation, and this was left as a fact to the jury, who found that he had no such participation, and the judgment entered on the verdict was affirmed on error, upon the authority of Faikney v. Reynous, and Petrie v. Hannay; and to the same effect are Smith v. Barstow, 2 Dougl. 163; Leavitt v. Blatchford, 5 Barb. 9; Hook v. Gray, 6 lb. 398; Thomas v. Brady, 10 Pa. St. 109; Phalen v. Clark, 19 Conn. 432 (some of which cases also recognized as authority those of Faikney v. Reynous, and Petrie v. Hannay); and in Cheney v. Duke, 10 Gill & J. 11, it was thought by the court to be abundantly settled that the knowledge of the vendor that the subject of the sale was to be illegally employed, could not defeat his recovery of the contract price; and in an action brought for the purchase-money of a slave, bought for the purpose of exportation contrary to a local statute, the plaintiff was, notwithstanding his knowledge of the unlawful exportation was proved, held entitled to recover, on the ground that nothing was done by him in furtherance of the illegal design.
In M'Intyre v. Parks, 3 MetC. 208, a mortgagee was, on the authority of Holman v. Johnson, supra, held entitled to recovery, though the consideration of the mortgage was lottery tickets, whose sale was prohibited in Massachusetts, on the ground that the contract was made in Kew York, where such sales were valid, and notwithstanding the mortgagee knew that they were intended to be sold in the former State, in violation of its laws; while in Scott v. Duffy, 14 Pa. St. 18, money lent in New Jersey to be bet upon the presidential election, was allowed to be recovered in Pennsylvania, on the ground that there was no evidence that such a bet was illegal in Kew Jersey In Steele v. Curie, 4 Dana, 387, the following remarks were made upon this subject by Robertson, C. J., after referring to the different opinions which have been expressed:" We feel that it may be but proper to suggest, in passing, that we would be inclined neither to concur with, nor to dissent from, the doctrine of either party, in extenso and altogether, without limitations or qualification; but should rather incline to the conclusion that, although, as we are disposed to think, a speaking of illegality at common law, to specify some of the instance of most ordinary practical occurrence, simple knowledge, by a vendor, of the fact that a vendee buys an article for the purpose or with an intention of using it in violation of a public law. or a principle of moral rectitude, may, in strong and flagrant cases, such as that supposed by Chief Justice Eyre, be a sufficient reason for withholding, from either party, the aid of the law for enforcing the contract, yet there may be cases of a lighter shade or less degree of enormity, in which the same fact might not, alone, be entitled to the same effect: and in the latter class, we would be inclined to place the beer case decided by Lord Ellenborough. And the reason why we should be disposed to make any discrimination in consequence of the color or degree of the transgression contemplated by the buyer and merely understood by the seller, and why, also, we are inclined to agree with Chief Justice Eyre to some extent, is just because it does seem to us, that no one can sell a commodity, knowing that the buyer intends to use it for any purpose so flagitious as that of murder or treason, or other flagrant violation of the fundamental rights of man or of society, without betraying such a degree of turpitude and recklessness as to implicate him, as a voluntary and active participant in the unlawful design, and, as therefore, quantum in illo, willing and instigating a crime, which it is the civil duty of every citizen to oppose; and that the like knowledge alone, of the buyer's purpose of unlawful appropriation or use, would not necessarily lead to the like deduction, as to the motive or conduct of the seller, in every case of inferior degree,-as the beer case; the case of a purchase of an article with the intention of again making a fraudulent sale or use of it; the case of a loan of money to a person who borrows for the purpose of re-loaning to a stranger at illegal interest; the case of a sale of merchandise by a wholesale merchant, in the regular course of his business, to one who, when he buys, intends to smuggle it into a foreign port, without paying the legal and accustomed duties; and many other cases of a similar kind, in which a citizen may be neutral without being guilty of incivism, or of any intentional participation in the unlawful design. In all such cases, it would seem to us, that in a commercial, busy, and enterprising age, the law should not attempt to establish a morality 60 pure, and exact, and vigilant, as that which would make it the legal duty of every seller of every vendible thing, to become a casuist or censor, so far as to make him responsible for the known motives of the buyer, and an active and guilty co-operator with him in his contemplated violation of law, of principle, or of justice."