-
Weston J. delivered the opinion of the Court at the ensuing term in Kennebec.
The position, taken by the counsel for the defendants, that if a part of the consideration for a promise be fraudulent, unlawful or immoral, the promise is void, is undoubtedly law, and is well supported by the authorities cited. Nor are we disposed to find fault with the doctrine, that where the consideration, or a part of it, is malum prohibitum, it vitiates and invalidates the promise, as muclr as if it had been malum in se; both being unlawful, and neither entitled to favor or indulgence. In order to apply the principle to the case before us, it must be made to appear that some portion of the consideration of the note in question was unlawful. The sale of tickets not authorized by a law of this State, was illegal; and if the note was given in part for tickets of this description, it cannot be recovered.
Prior to the fifteenth of March, 1826, there was due from the defendants to the plaintiff, a balance of about three hundred dollars, on an account, in which there was charged to him foreign tickets to a considerable amount. On or before that day, the defendants sent to the plaintiff, to be credited on account, about eight hundred dollars, which left a balance in their favor of five hundred dollars. We
*463 must regard so much of this as was necessary for this purpose, as paid in discharge of the balance before existing against the defendants. The report states that the tickets, delivered prior to that period, were thus paid for. The plaintiff had a right so to appropriate the money ; nor did the defendants, at the time they sent it, or at their final settlement, claim to have it differently appropriated. It does not present a case, in which a question may arise, to which of several debts, a payment had been applied. If the defendants had been indebted to the plaintiff, on lawful charges, to the full amount of the money forwarded, although he gavo no directions at the time, he might perhaps have insisted that it should be so applied. But as it overpaid every species of demand which the plaintiff claimed, there can be no ground of controversy upon this point.There was no liquidation of accounts in form between the parties, on the fifteenth of March 1826, but on that day the plaintiff was the debtor of the defendants. The balance was subsequently changed by new items of charge on the part of the plaintiff, liable to no legal objection. And for the balance thus subsequently accruing, the note, for which the one in question was in part substituted, was given. Upon the facts, it eannot admit of question but that the defendants, on the fifteenth of March 1826, intended to pay and did pay for the tickets unlawfully sold, and although not compellable by law to make the payment, they have no legal title to reclaim it. They were equally guilty with the plaintiff in violating the law, which will lend its aid to neither, either in enforcing contracts of this description, or in recovering back the consideration upon which they may bo founded. Besides, in this case the defendants have as little claim in equity as at law, for they had the full value of the charges, which they think proper at this late period to dispute, after having once paid for them, and after having subsequently given a note at two successive times, on account of lawful tickets, afterwards purchased. The accounts being kept in continuation, does not change the principle.
In Maybin v. Coulon, 4 Dall. 298, the court express a wish that the sum reported to be due from one of the parties, could be distinguished from the general mass of illicit transactions; which they
*464 pronounce impossible, and therefore refused to sustain an award made in favor of one of the parties. It is otherwise here. It manifestly appears that the new balance, after March 1826, in favor of the plaintiff, arises from lawful charges, and to these the consideration of the note must be referred. The motion to take off the default is overruled.
Document Info
Citation Numbers: 7 Me. 461
Judges: Weston
Filed Date: 5/15/1831
Precedential Status: Precedential
Modified Date: 10/19/2024