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property vested in the defendant, it continued at his risk from 1804. that time to the 10th February, and had it been lost he and not SUMMERIL Dawson and Watt would have been the sufferers. After having

V.

so vested, there was no authority in the agents to change the ELDER. rights of the parties. The opinion of the court is that there must be

Judgment for defendant.

WOGLAM and another against BURNES and ADAMS. Thursday,

THE

13th.

September HE matters in variance in this cause between the parties Part of a rewere referred under a rule of court; and at the last term port of referees may the referees reported that there was due from Burnes to the be confirmplaintiffs 117. and from Burnes and Adams to the plaintiffs ed, and the

311. 5s. 7d.

residue set aside. But the court cannot strike

Ross for the plaintiffs moved to set the report aside, as from out a part. the face of it the referees had decided matters not submitted to them, finding a sum due to the plaintiffs from one of the defendants.

Frazer for the defendants replied that the part of the award objected to was surplusage; that there was a perfect finding between the parties in this suit, and that the court might strike out the objectionable part.

SHIPPEN C. J. The court cannot strike out part of an award, but they can confirm a part and set aside the residue, which in this case will have the same effect. That part of the report which relates to Burnes alone must therefore be set aside, and judgment be entered for the joint debt.

Judgment accordingly.

1804.

Thursday, September 13th.

A contract for the purchase and

ticut title is

THIS

MITCHELL against SMITH.

IN ERROR.

HIS was a writ of error to the Common Pleas of Luzerne county, and the record presented the following case. sale of lands Smith, the plaintiff below, brought an action of debt against in Pennsyl. vania under Mitchell upon a sealed note for 483 dolls. 33 cts. dated the the Connec- 11th March 1796 and payable to Smith or order at the expiraunlawful and tion of three years from the date with lawful interest. The devoid, alfendant pleaded payment with leave to give the special matter though the act of 11th in evidence. Upon the trial of the cause before President RuSH April 1795, on the 23d April 1802 it was in evidence that the note was given pressly says for land near Frenchtown in Luzerne, and out of the seventeen so, nor con- townships, which land had been granted to the plaintiff by the prohibitory committee of the Susquehanna company agreeably to a resolve clause, but of the company. That the plaintiff by deed bearing even date flicts a pe- with the note conveyed this land to the defendant. That the nalty upon the offender plaintiff and defendant went together to view the land before the Such a pe- execution of the note or deed, and that upon the completion of nalty implies the contract the defendant was put in peaceable possession of a prohibi

neither ex

tains any

merely in

tion.

the land and had so continued ever since. That the defendant at the time of the contract had full knowledge of the law against intrusions in Luzerne county, and of the general dispute relative to titles in the county.

Upon these facts and the act of 11th April 1795 the counsel for the defendant insisted that he was entitled to a verdict for the following reasons: First, because the consideration upon which the note was given was illegal, and therefore the note was void. Secondly, because the transaction on which the contract originated was against the general policy of the law, and therefore should not be carried into effect. Thirdly, because the consideration on which the note was given had failed. His Honour in delivering the charge of the court stated their opinion upon the several matters of law against the defendant, and told the jury that if they were of opinion the defendant knew and was acquainted with every material circumstance relative to the bargain, it was their duty to make him pay the money with the

1804.

interest thereon; but if they were of opinion he was in any degree imposed upon or purchased ignorantly, in that case they MITCHELL ought to find a verdict in his favour. The jury found for the plaintiff.

To this charge a bill of exceptions was tendered and sealed, and the record removed to this court.

The act of assembly in question enacts, section 1st, "That "if any person shall after the passing of this act take pos"session of enter intrude or settle on any lands within the "limits of the counties of Northampton, Northumberland, or "Luzerne, by virtue or under colour of any conveyance of "half share right or any other pretended title not derived "from the authority of this commonwealth or of the late proprietaries of Pennsylvania before the revolution, such per"son, upon being duly convicted thereof upon indictment in "any court of oyer and terminer, or court of general quar❝ter sessions to be held in the proper county, shall forfeit and "pay the sum of two hundred dollars, one half to the use of the "county, and the other half to the use of the informer; and shall "also be subject to such imprisonment not exceeding twelve "months, as the court before whom such conviction is had may "in their discretion direct." The second section enacts, "That "every person who shall combine or conspire for the purpose "of conveying possessing or settling on any lands within the "limits aforesaid under any half share right or pretended title as aforesaid &c. shall for every such offence forfeit a sum not "less than five hundred nor more than one thousand dollars, one half to the use of the county, and the other half to the use " of the informer; and shall also be subject to such imprison"ment at hard labour not exceeding eighteen months as the court in their discretion may direct." 3 St. Laws 703.

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⚫ The cause was argued in March and September terms 1803 by W. Tilghman and M'Kean (attorney general) for the plaintiff in error, and by Rawle for the defendant in error.

For the plaintiff in error it was contended that the transaction on which the debt arose was forbidden by the law of this state, and therefore that no court of this commonwealth would sustain an action for carrying it into effect. The act of 11th April 1795 imposes a penalty of fine and imprisonment upon persons who,

υ.

SMITH.

V.

1804. under colour of a conveyance of half share rights, intrude and MITCHELL settle upon lands in Luzerne out of the seventeen townships, or who combine or conspire for the purpose of conveying possessSMITH. ing or settling them. The lands sold by Smith are of this description; the conveyance and the possession were confessedly under colour of a half share right; and the naked question is whether the contract having this effect in view is not absolutely void in all its parts. Such a contract violates the principles of morality and decency, by producing a contempt for the laws of the country, and thereby creating habits of disobedience and licentiousness; it opposes the principles of sound policy, by nourishing a spirit of hostility to the rights of this state over a portion of her territory solemnly adjudged to be hers by the decree at Trenton, and which she has endeavoured to defend by a great variety of laws; and it tends to contradict or evade the particular law in question, a law of extensive and important concern. Under each of these points of view the contract is void.

1. The common law prohibits every thing contra bonos mores. Jones v. Randall. (a) It was upon this principle that a wager as to the sex of the chevalier d'Eon was held to be void in Dacosta v. Jones; (b) and so of a bond given to a woman to live in a state of concubinage, in Walker v. Perkins. (c) Courts of justice should be preserved in perfect purity, and should refuse all countenance and support to transactions of this kind.

2. In like manner all contracts militating against the general policy of the laws, are prohibited and void. For this reason a wager between two voters with respect to the event of an election before the poll begins is illegal, and no action can be sustained upon it. Allen v. Hearn. (d) So marriage brocage bonds are void; and the courts set them aside not for the party's sake, but for the benefit of the public. Debenham v. Ox. (e) It is the same with all contracts in restraint of marriage. Lowe v. Peers. (f) A promise to indemnify a gaoler for letting a prisoner escape is void, because the consideration is against law; Martin v. Blithman; (g) and so are general restraints on the exercise

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1804.

of a trade, whether by bond covenant or promise, with or without consideration; they are a public mischief. Mitchell v. Rey- MITCHELL nolds. (a) It is not necessary that to make the contract void it v. should be against the policy of the common law; it is equally SMITE. illegal if it violates the policy of statutes. A promise made by the friend of a bankrupt to pay money in consideration that the assignees and commissioners would forbear to examine him on certain points, is void as being against the policy of the bankrupt laws, Nerot v. Wallace; (b) and where an English subject in Guernsey sells goods, knowing it to be the buyer's intention to smuggle them into England, he cannot maintain an action in England for the price; it is against the policy of the revenue laws, as well as immoral. Clugas v. Penaluna. (c) And even if a foreigner, not subject to the English laws, sells goods with a knowledge that they are to be smuggled into England, and assists in the transaction by packing them in a convenient way for smuggling, no court in England will sustain an action for the price. Waymell v. Reed. (d)

3. But it would be sufficient if the case stood merely upon the ground of its being a contract to do a thing which is made. unlawful by act of Assembly. It is true that the act does not say that contracts to give possession of land under half share rights, or for the conveyance or purchase of them, shall be void; there was no necessity for it. It prohibits the possession and the combination to convey, and inflicts a severe penalty upon the offenders, and that is enough. "Every contract" says chief justice Holt" made for or about any matter or thing which is prohibit"ed and made unlawful by any statute, is a void contract, "though the statute itself doth not mention that it shall be so, "but only inflicts a penalty on the offender; because a penalty แ implies a prohibition, though there are no prohibitory words "in the statute." Bartlett v. Vinor. (e) The consideration is illegal, and the assumpsit or obligation void. Allen v. Rescous (ƒ), Sullivan v. Greaves (g), Mitchell v. Cockburne (h), Stackpole v. Earle (i), Baker v. Rogers (k).

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