# Armstrong v. Toler/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
The only point moved by the defendant's counsel to the Court, was, that the evidence was not decisive in favour of the plaintiff. The Court gave this opinion. The charge does not intimate that the testimony was conclusive, but leaves the case to the jury to be decided by them under the control of certain legal principles which are stated in the charge. To entitle the plaintiff in error to a judgment of reversal, he must show that some one of these principles is erroneous to his prejudice.
The main object of the charge is to state to the jury the law of contracts on an illegal consideration, so far as it was supposed to bear on the case before them. To enable them to apply the law to the facts, the Court supposed many cases in which the contract would be void, the consideration being illegal. It is unnecessary to review this part of the charge, because it is entirely favourable to the plaintiff in error.
After having stated the law to be, that where the contract grows immediately out of an illegal act, a Court of justice will not enforce it, the Court proceeds to say, 'But if the promise be unconnected with the illegal act, and is founded on a new consideration, it is not tainted by the act, although it was known to the party to whom the promise was made, and although he was the contriver and conductor of the illegal act. Thus, if A. should, during war, contrive a plan for importing goods from the country of the enemy, on his own account, by means of smuggling, or of a collusive capture, and goods should be sent in the same vessel for B.; and A. should, upon the request of B., become surety for the payment of the duties, or should undertake to become answerable for the expenses on account of a prosecution for illegal importation, or should advance money to B. to enable him to pay those expenses; these acts constituting no part of the original scheme, here would be a new contract upon a valid and legal consideration, unconnected with the original act, although remotely caused by it, and such contract would not be so contaminated by the turpitude of the offensive act, as to turn A. out of Court when seeking to enforce it; although the illegal introduction of the goods into the country was the consequence of the scheme projected by A. in relation to his own goods.'
If this opinion be contrary to law, the judgment ought to be reversed. The opinion is, that a new contract, founded on a new consideration, although in relation to property respecting which there had been unlawful transactions between the parties, is not itself unlawful. This general proposition is illustrated by particular examples, and will be best understood by considering the examples themselves. The case supposed is, that A., during a war, contrives a plan for importing goods on his own account from the country of the enemy, and that goods are sent to B. by the same vessel. A., at the request of B., becomes surety for the payment of the duties which accrue on the goods of B., and is compelled to pay them; can he maintain an action on the promise of B. to return this money? The opinion is, that such an action may be sustained. The case does not suppose A. to be concerned, or in any manner instrumental in promoting the illegal importation of B., but to have been merely engaged himself in a similar illegal transaction, and to have devised the plan for himself, which B. afterwards adopted. This illustration explains what was meant by the general words previously used, which, unexplained, would have been exceptionable.
The contract made with the government for the payment of duties, is a substantive independent contract, entirely distinct from the unlawful importation. The consideration is not infected with the vice of the importation. If the amount of duties be paid by A. for B., it is the payment of a debt due in good faith from B. to the government; and if it may not constitute the consideration of a promise to repay it, the reason must be, that two persons who are separately engaged in an unlawful trade, can make no contract with each other; at any rate, no contract, which, in any manner, respects the goods unlawfully imported by either of them. This would be, to connect distinct and independent transactions with each other, and to infuse into one which was perfectly fair and legal in itself, the contaminating matter which infected the other. This would introduce extensive mischief into the ordinary affairs and transactions of life, not compensated by any one accompanying advantage.
The same principle, diversified in form, is illustrated by another example. If A. should become answerable for expenses on account of a prosecution for the illegal importation, or should advance money to B. to enable him to pay those expenses, these acts, the Court thought, would constitute a new contract, the consideration of which would be sufficient to maintain an action.
It cannot be questioned that, however strongly the laws may denounce the crime of importing goods from the enemy in time of war, the act of defending a prosecution instituted in consequence of such illegal importation is perfectly lawful. Money advanced then by a friend in such a case, is advanced for a lawful purpose, and a promise to repay it is made on a lawful consideration. The criminal importation constitutes no part of this consideration.
It is laid down with great clearness, that if the importation was the result of a scheme between the plaintiff and defendant, or if the plaintiff had any interest in the goods, or if they were consigned to him with his privity, that he might protect and defend them for the owner, a bond or promise given to repay any advances made in pursuance of such understanding or agreement, would be utterly void.
The questions whether the plaintiff had any interest in the goods of the defendant, or was the contriver of, or concerned in, a scheme to introduce them, or consented to become the consignee of the defendant's goods, with a view to their introduction, were left to the jury. The point of law decided is, that a subsequent independent contract, founded on a new consideration, is not contaminated by the illegal importation, although such illegal importation was known to Toler, when the contract was made, provided he was not interested in the goods, and had no previous concern in their importation.
Questions upon illegal contracts have arisen very often, both in England and in this country; and no principle is better settled, than that no action can be maintained on a contract, the consideration of which is either wicked in itself, or prohibited by law. How far this principle is to affect subsequent or collateral contracts, the direct and immediate consideration of which is not immoral or illegal, is a question of considerable intricacy, on which many controversies have arisen, and many decisions have been made. In Faikney v. Reynous, (4 Burr. 2069.) the plaintiff and one Richardson were jointly concerned in certain contracts prohibited by law, on which a loss was sustained, the whole of which was paid by the plaintiffs; and a bond was given for securing the repayment of Richardson's proportion of the loss. To a suit on this bond, the defendants pleaded the statute prohibiting the original transaction, but the Court held, on demurrer, that the plaintiff was entitled to recover. Although this was the case of a bond, the judgment does not appear to have turned on that circumstance. Lord Mansfield gave his opinion on the general ground, that if one person apply to another to pay his debt, (whether contracted on the score of usury, or for any other purpose,) he is entitled to recover it back again. This is a strong case to show that a subsequent contract, not stipulating a prohibited act, although for money advanced in satisfaction of an unlawful transaction, may be sustained in a Court of justice. In a subsequent case, (6 Term Rep. 410.) Ashhurst, J. said, the defendants were held liable because they had voluntarily given another security.
In the case of Petrie and Another, Executors of Keeble, v. Hannay, (3 Term Rep. 418.) the testator of the plaintiffs was engaged with the defendant and others in stock transactions, which were forbidden by law, on which considerable losses had been sustained, which were paid by Portis, their broker. Keeble repaid the broker the whole sum advanced by him except 84 pounds, which was, in part, the defendant's share of the loss, for which Keeble drew a bill on the defendant, which was accepted. The bill not being paid, a suit was brought upon it by Portis against the executors of Keeble, and judgment obtained, they not setting up the illegal consideration. The executors brought this action to recover the money they had paid, and it was held, by three Judges against one, on the authority of Faikney v. Reynous, that the plaintiffs could maintain their action. A distinction was taken in cases where money was paid by one person for another, on an illegal transaction, by which the parties were not bound; between a voluntary payment, and one made on the request of the party; between an assumpsit raised by operation of law, and an express assumpsit. Although the former would not support the action, it was held that the latter would.
This, also, is a strong case to show that a new contract, by which money is advanced at the request of another, or, which is the same thing, where there is an express promise to pay, may sustain an action, although the money was advanced to satisfy an illegal claim.
In Farmer v. Russell et al. (1 Bos. & Pull. 295.) it was held, that if A. is indebted to B. on a contract forbidden by law, and pays the money to C. for the use of B., a Court will give judgment in favour of B. against C. for this money. In this case, B. could not have recovered against A., but when the money came into the hands of C., a new promise was raised on a new consideration, which was not infected by the vice of the original contract. In this case, Chief Justice Eyre said, that the plaintiff's demand arose simply from the circumstance, that money was put into the hands of C. for his use; and Justice Buller said, that the action did not arise upon the ground of the illegal contract. Yet, in this case, A.'s original title to the money was founded on an unlawful contract, and he could not have maintained an action against B.
The general proposition stated by Lord Mansfield in Faikney v. Reynous, that if one person pay the debt of another at his request, an action may be sustained to recover the money, although the original contract was unlawful, goes far in deciding the question now before the Court. That the person who paid the money knew it was paid in discharge of a debt not recoverable at law, has never been held to alter the case. A subsequent express promise is, undoubtedly, equivalent to a previous request.
In most of the cases cited by the counsel for the plaintiff in error, the suit has been brought by a party to the original transaction, or on a contract so connected with it, as to be inseparable from it. As, where a vendor in a foreign country packs up goods for the purpose of enabling the vendee to smuggle them; or where a suit is brought on a policy of insurance on an illegal voyage; or on a contract which amounts to maintenance; or on one for the sale of a lottery ticket, where such sale is prohibited; or on a bill which is payable in notes issued contrary to law: In these, and in all similar cases, the consideration of the very contract on which the suit is brought is vicious, and the plaintiff has contributed to the illegal transaction. One of the strongest cases in the books is Steers v. Laishley, (6 Term Rep. 61.) where the broker, who had been concerned in stock jobbing transactions, and had paid the losses, drew a bill of exchange for the amount on the defendant, and, after its acceptance, endorsed it to a person who knew of the illegal transaction on which it was drawn, the Court held, that such endorsee could not recover on the bill.
In this case, the broker himself could not recover, being a party in the original offence against the law, and his bill being drawn for the very money which was due on the original transaction, and endorsed to a person having notice, left the endorsee in the same situation with the drawer. Yet, Lord Kenyon said, in this case, that if the plaintiff had lent the money to the defendant to pay the differences, and had afterwards received the bill for the money so lent, he might have recovered on it. The difference between the case decided, and that put by the Judge, is not very discernible, as the one or the other may affect morals, or the policy of the law. The distinction would seem to be founded on this legal ground, that the money lent would constitute a new consideration, and be the foundation of a new contract, which could not be vitiated by a knowledge of the purpose for which the money was lent, and the bill drawn. So Toler's knowledge of the illegal transactions of Armstrong, and that his money was advanced to procure the delivery of goods which had been illegally imported, could not vitiate a contract to repay that money.
In the case of Booth v. Hodgson, (6 Term Rep. 405.) the suit was between the original parties to the illegal transaction, and was bottomed on it.
Supposing the opinions actually contained in the charge to be correct, it is still contended to be liable to exception, because there is a material part of the very case which it does not embrace. The charge, it is said, does not state what the law would be, if Toler knew, previous to the consignment, that Armstrong was engaged in this illicit commerce.
Without entering into the inquiry whether this criticism on the charge be well or ill founded, the Court think it proper to declare, in explicit terms, that the plaintiff in error cannot avail himself of it in this stage of the cause.
To bring all the testimony offered at the trial of a cause at common law, instead of facts, into this Court, by a bill of exceptions, or otherwise, is a practice which, to say the least, is extremely inconvenient. Its tendency is to convert this Court from a tribunal for the decision of points of law, into one for the investigation facts, and for weighing evidence. To look into that testimony for the purpose of inquiring whether the Judge has omitted any thing material in his charge, would be to yield to this practice, and to sanction it in its most exceptionable form. If the defendant's counsel wished the instruction of the Judge to the jury, on any point which was omitted in the charge, his course was to suggest the point, and request an opinion on it. If counsel may, without pursuing this course, spread the whole testimony on the record, and then, by a general exception to the charge, enable himself to take advantage, not only of a misdirection, but of any omission to notice any question which may be supposed, by this Court, to have arisen in the case, such a course would obviously transfer to the Supreme Court the appropriate duties of a Circuit Court, and cannot be countenanced.
It is also contended by the counsel for the plaintiff in error, that the Judge has erred in not answering fully the inquiry made by the jury. That was in these words: 'The jury beg leave to ask the Judges whether Toler must have an interest in Armstrong's goods to constitute him a participator in the voyage? If simply having goods on board will constitute him such?' The Court answered as follows: 'The plaintiff, simply having goods on board, would not constitute him a participator, or affect the contract with the defendant. Being interested in the goods would.'
There is much reason to believe, that the first of these questions was not understood by the jury, or by the Judge, according to the literal import of the words. The inquiry would seem to be, whether, under any possible view of the transaction, Toler could be tainted with the guilt of Armstrong, so as to affect the contract in suit, unless he had an interest in the goods. This was probably not the intention of the jury, because an answer to this question is to be found in the charge. The Judge had stated, that if Toler was the contriver of, or concerned in, a scheme to introduce these goods into the United States, or had consented to become the consignee with a view to their introduction, these circumstances would vitiate the contract. He had already said, therefore, that an interest in Armstrong's goods was not indispensably necessary to make Toler a participator in the voyage, as to all the purposes of the defence. He had stated two cases specially, either of which the jury might consider as proved by the evidence, in which the consideration would be unlawful; and he had said generally, 'that where the contract grows immediately out of, and is connected with, an illegal or immoral act, a Court of justice will not lend its aid to enforce it. And if the contract be, in fact, only connected with the illegal transaction, and growing immediately out of it, though it be in fact a new contract, it is equally tainted by it.' There is much reason to believe that the jury could not have intended to put a question which had been already answered, and that they might design to ask, whether, having goods on board belonging to himself, would place him in the same situation as if interested with Armstrong. The answer of the Court would show, that the questions were understood in this sense, and that answer appears to have been satisfactory to the jury.
However this may be, we think the law was correctly stated by the Court; and we cannot admit, that a judgment is to be reversed because an answer does not go to the full extent of the question. Had the jury desired further information, they might, and probably would, have signified their desire to the Court. The utmost willingness was manifested to gratify them, and it may fairly be presumed that they had nothing farther to ask.
We think that there is no error in the judgment of the Circuit Court, and that it ought to be affirmed, with costs and damages, at the rate of six per centum per annum.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse