Hoyt v. Allen , 2 Hill & Den. 322 ( 1842 )

By the Court,

Cowen, J.

Admitting the principle of the plea to be correct, ^(a) still it is impossible to support it, if the copy in the demurrer book be correct.

To bring the case within the 2 R. S. 581, 2d ed. §§ 40, 41, forbidding the act of trading in the name of a fictitious firm, the plea should have averred that the plaintiff’s transaction of business as Lucius Hoyt “ & Co.,” the latter being fictitious, related to the very goods in question. Non constat, from the plea, that Lucius Hoyt Sp Co. may not have been a real firm of which the plaintiff was a member when the goods were delivered for transportation. The plea avers in general words that the plaintiff transacted business under the designation of a fictitious firm. That may have been, and yet this particular business have been done when the plaintiff was a member of a real firm which acted under the designation supposed. It is no objection, per se, that the plaintiff delivered his own goods for transportation in the name of his firm, if that firm was a real one. In short the plea no way connects the transaction in question with the offence contemplated by the statute. It says the plaintiff transacted business in the name of a fictitious firm. When he did so, or in respect to what he thus transacted business, or what the business was, does not appear.

There must be judgment for the plaintiff without leave to amend. The general issue is pleaded, and the attempted defence can more properly be shown under that issue than by a special plea, which is rarely a very happy mode of introducing any defence in case against common carriers:

Judgment for the plaintiff.

(a) Every contract made for or about any matter or thing which is prohibited 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 implies a prohibition, though there are no prohibitory words in the statute. (Per Holt, Ch. Justice, in Bartlett v. Vinor, Carth. 252; Skinner 323, S. C.)