Lord v. Chadbourne , 42 Me. 429 ( 1856 )

Appleton, J.

It is well settled, that the common law will afford no aid to a party whose claims can be successfully enforced only by a violation of its principles, or in direct contravention of a statutory enactment. It has, accordingly, been held, that no action could be maintained upon a bond or contract executed upon the Sabbath. Pattee v. Greeley, 13 Met. 284: Lyon v. Strong, 6 Verm. 219. So, the price of spirituous liquors, sold contrary to law, cannot be recovered. Dixie v. Abbott, 7 Cush. 610; Ladd v. Dillingham, 34 Maine, 316. Nor is an action maintainable upon a note given for goods bought to be carried about and peddled, contrary to law. Robinson v. Howard, 7 Cush. 611. Trade with the enemy in time of war, is illegal, and one who knowingly aids another in such trade, cannot recover compensation therefor. Beach v. Kezar, 1 N. H. 184.

The same principle has been regarded as applicable to actions sounding in tort. No action on the case, for deceit in the exchange of horses, made on the sabbath, can be maintained. Robinson v. French, 12 Met. 24. So, a person traveling on -the Lord’s day, neither from necessity nor charity, is not on tilled to recover against a town for an injury received by him while so traveling, in consequence of a defective highway, which the town was by law obliged to keep in repair. Bosworth v. Swanzey, 10 Met. 363. If the owner of a horse knowingly lets him on the Lord’s day, to bo driven to a particular place, but not from any purpose of necessity or charity, and the hirer injures the horse by immoderate driving, an action cannot be maintained against him for such injury, although it is occasioned in going to a different place and beyond the limits specified in the contract. Gregg v. Wyman, 4 Cush. 322. “Courts of justice,” remarks Redfield, J., in Spaulding v. Preston, 21 Vermont, 9, “will not sustain actions in regard to contracts or property, which has for its object the violation of law. If a gang of counterfeiters had quarreled about the division of their stock or tools, a court of justice could hardly be expected to sit as a divider between them. If one had taken the whole in violation of the laws by which such associations subsist, a court of law could not interfere, because it is not presumed to be expert in such questions. And if it were, it is considered to be a scandal that such matters should be discussed or adjusted. Such property is, so to speak, outlawed, and is common plunder. One who sits himself deliberately at work to contravene the fundamental laws of civil government — that is, the security of life, liberty or property, forfeits his own right to protection in those respects wherein he was studying to infringe the rights of others.” “So, too, if a member of the body politic, instead of putting his property to honest uses, converts it into an engine to injure the life, liberty, health, morals, peace or property of others, he thereby forfeits all right to the protection of his bona fide interest in such property before it was put to such use.”

The general principle involved in the cases cited, and the almost innumerable decisions made in entire accordance therewith, is, that the law distinguishes between rights acquired in conformity with, and arising under its provisions, and claims originating in their clear and palpable violation; that it will not enforce claims made in contravention of its mandates, nor protect property held against, and being used for the deliberate purpose of disobeying its enactments. A different course would be suicidal. The law cannot lend its aid to the destruction of its own authority and to the disobedience of its own commands.

The defendant, on the trial at Nisi Prius, offered to prove, at the time of the seizure of the liquors in dispute, by Kim-ball, under the warrant referred to in the report of the case, and for a considerable time previous, that they were kept for sale by the plaintiff, he not being licensed to sell, &c., and that he had been in the habit of selling said liquors habit of selling said liquors in violation of law, but the presiding Judge ruled that this testimony was inadmissible, and excluded the same.

However the common law may be on this subject, the statute of 1851, c. 211, § 16, in clear and distinct terms denies the general right to maintain any action, of which spirituous liquors may in any mode be regarded as the subject matter. It provides, that “no action of any kind shall be maintained in any court in this State, either in whole or in part for intoxcating or spirituous liquors sold in any other State or country whatever; nor shall any action of any kind be had or maintained in any court in the State for the recovery or possession of intoxicating or spirituous liquors, or the value thereof.” The Legislature may pass laws altering or modifying or even taking away remedies for the recovery of debts, without incurring a violation of the provisions of the constitution, which forbid the passage of ex post facto laws. Evans v. Montgomery, 4 W. & S., 218.

“ If the Legislature,” says Hogers, J., in Commonwealth v. M’Cluskey, 2 Rawle, 514, “should pass a law in plain, unquestioned and explicit terms, within the general scope of their constitutional power, I know of no authority in this Court to pronounce such an Act void, merely because, in the opinion of the judicial tribunal, it was contrary to the principles of natural justice.” The right to take away the remedy for the recovery of debts, and for the recovery of compensation in damages for torts, rests upon similar grounds. For a long time usury was a valid defence to a loan of money, made against the provisions of the statute on this subject. So the right to recover has been denied, because regulations as to the survey, or the inspection of articles sold, have been disregarded ; though, in all such cases, the articles sold wore none the less valuable and the seller was none the less, in equity, entitled to compensation for the thing sold. Much more, then, may the aid of the law be denied when the plaintiff seeks compensation for what was held in defiance of its mandates and with the intent to disregard its clearest prohibitions.

The language of the statute is most general. Rut in Preston v. Drew, 33 Maine, 562, it was held, and, on the most satisfactory reasoning, and after a comparison of one part of the statute with another, that this generality of language should be limited and restrained to liquors held in violation of law, and which were liable to forfeiture. “ The general intent and declared purpose of the Act,” remarks Shepley, C. J., “ would in no degree be infringed, by regarding the general language to be so limited as to forbid the maintenance of any action for the recovery or possession of such liquors, or their value, which were liable to seizure and forfeiture, or intended for sale in violation of the provisions of the Act.” The correctness of the construction there given cannot be a matter of question. Were it not so, the protection of the law would be withheld from liquors held in accordance with its express provisions. The-town could not enforce their rights to liquors taken from the possession of their agent, nor could the mechanic recover damages for the destruction of liquors purchased for mechanical purposes.

The language of the Act prohibits the maintenance “ of any action of any kind.” It includes all modes of vindicating the possession, if withheld, or of enforcing compensation in damages, if destroyed, subject to the limitation just considered. It equally embraces replevin, trespass, or trover, as assumpsit.

It is not necessary to examine the constitutionality of the search and seizure clause; for if trover or trespass cannot be maintained for the conversion or destruction of prpperty held in violation of law, against the person thus converting or destroying, it is immaterial whethér he be an officer or not, or how, or in what way, or for what purposes, such conversion or destruction took place. If the defendant were acting under a warrant ever so illegal or unconstitutional, that would not place him in any worse condition than if acting without any process whatever; that would not enlarge the rights of a plaintiff who was holding his property in palpable disregard of law, or enable him to recover in avowed disobedience to the provisions of the statute. This was the conclusion to which the Court, upon mature consideration, arrived in Black v. McGilvery, 38 Maine, 288; Nichols v. Valentine, 36 Maine, 327.

Upon the express words of the statute, as well as upon adjudged cases, no action can be maintained for the conversion or for the value of liquors held in, and for, the purposes of the violation of law, and consequently liable to forfeiture and destruction.

Has there been, then, any judicial decision by which the defendant is precluded from setting up, in reduction of damages, facts, which otherwise would be open to him, and which, without such judicial decision, would have been available ?

“ The judgment of a Court of concurrent jurisdiction,” says Gibson, C. J., in 4 Watts, 191, “directly upon the point, is a plea in bar, and is evidence, conclusive between the same parties on the same matter, directly in question, in another Court. But neither the judgment of a Court of concurrent or exclusive jurisdiction, is evidence of a matter incidentally cognizable, nor of any matter to be inferred by argument from the judgment.” Judgments are held conclusive upon the parties only as to that which is directly in issue. “ It is only when the point in issue has been determined, that the judgment is a bar.” Greenl. Ev. § 529. “ So, also, in order to constitute the former judgment a complete bar, it must appear to have been a decision upon the 'merits," &c. Greenl. Ev. § 530. If the suit is discontinued, or the plaintiff becomes nonsuit, or there is no judgment upon the matter in issue, the proceedings are not conclusive.

When the proceedings are in rem, the decree of a Court of peculiar and exclusive jurisdiction, whether of condemnation or acquittal, is binding upon all parties. Gilston v. Hoyt, 13 Johns. 561. A judgment in rem is an adjudication upon the status of some particular subject matter, by a tribunal having competent authority for that purpose. Such adjudication concludes all persons from saying the thing adjudicated upon was not such as is declared by such adjudication. 2 Smith’s Leading Cases, 430.

In the case at bar the judgment was, “ that the complaint be hence dismissed, and that the said Rufus M. Lord have a return of his liquors so as aforesaid seized, returned upon said warrant and in the keeping of said Kimball,” &c.

Whether the officer would or would not be in contempt for disobedience of the order of Court, is not a question presented for consideration.

It is apparent, from the record, that there has been no trial of the guilt or innocence of Lord, nor any adjudication as to the status of the liquors seized. If the proceedings be regarded as in rem, there has been no judgment of condemnation or acquittal.

If, as may be regarded as probable, the complaint was dismissed for want of form, or if, indeed, for want of jurisdiction, there remained no mode by which the status of the liquors could be judicially determined. They were equally liable to seizure again, upon a new complaint, as is a respondent, who may have been discharged upon a not. pros. The status of the liquors was neither tried nor determined. Nor does it appear by the judgment that they have been acquitted. It seems rather to resemble a nol. pros, or nonsuit, in which the judgment is not conclusive.

Rut even if these proceedings were to be regarded as conclusive upon the general question of the right of the 'plaintiff to restitution, yet, as the status of the liquor's has never been judicially settled, they can, in no event, be binding as to the value of the liquors in dispute. _ That question still remains open to the parties. If they were held by the plaintiff to be used in open violation of law, that fact was most material in reference to the question of value. As the question, whether these liquors were held in violation of law, has never been determined, and as their status is a matter essential in determining their value, it must be regarded as still open to the defendant, to show these facts; otherwise his rights will be concluded by a judgment to which he was not a party and in which the status of the liquors neither was nor could be considered.

It was held in Moulton v. Smith, 32 Maine, 406, that in replevin a verdict of non cepit, and a judgment for a return, are not conclusive upon the question of property. They only show, that for some cause, the defendant was uot entitled to possession. Still less would it bind a party as to the question of value. In the present case, the order for a return gives no indication of the status of the goods, nor of their value. There is no judgment, which would be a bar to a new complaint; and, if so, there has been no fact determined inconsistent with the evidence offered and rejected. The complaint may have been properly dismissed and yet the liquors may have been kept for sale in violation of law. If they were so kept, that fact is material in determining the damages to which the plaintiff .would be entitled. Whether they were so kept was an issuable fact, which has never been judicially determined and which is important in the assessment of damages. The evidence offered and rejected should have been received. Exceptions sustained.

Tenney, C. J., and Rice, J., concurred. Goodenow, J., having been of counsel, did not sit.