Case v. Riker , 10 Vt. 482 ( 1838 )

The opinion of the Court was delivered by

Collamer, J.

This was an action of assu.mpsit, to recover for lottery tickets. The facts are stateflpry the parties. The sale of foreign lottery tickets in this stj den by statute, under severe penalties, the er the pay can be recovered here for ticke state, to be brought into this state for sale ,,.being forbidiestiion is, whethsold. in another

The defendant ordered the tickets sent % mail',- and they were so sent from Rhode Island. This Was a sale and delivery in Rhode Island. The title in the t®.otsNest.ed in the defendant when mailed, as much as if delivered to. the defendant personally there ; and the plaintiff’s debt then became perfect. This was there a legal contract; for that state must be their own judges, and make their own laws to regulate their own police and morals. The same sale made there between two of their own citizens would be enforced here. Indeed, the sale of lottery tickets here, in a lottery here granted would be legal. This, then, is not a case calling on the court to inquire into the exceptions to the lex loci contractus.

But the case shows, that these tickets were there sold to a citizen of this state, and sent into this state by the plaintiff, he knowing they were intended to be here sold; and it is insisted, that a man cannot recover for furnishing another with the means of breaking the law. Courts will never aid a man to recover pay, for aiding another to break the law of the country, to which the court belongs. On this point, it is immaterial where the contract was made. If a man sell another arsenic, knowing he intends therewith to commit murder, he cannot recover for it; and I think this extends to all breaches of law, and includes as well mala prohibita as mala in se.

“ This defence, that is, that the contract, was immoral or illegal, sounds very ill in the mouth of the defendant,” says Lord Mansfield. (Cowp. 343.) “ It is not for his sake it is allowed,” but on' general policy. What then is this policy, and on what principle does it rest ? “ The principle of public policy is this, ex dolo malo non oritur actio. Eyre, C. J., Lightfoot v. Tenant, 1 Bos. &. Pul. 554. It is obvious, therefore, that to bring the case within the principle, the plaintiff must know that the articles sold are to be used contrary to law, or he cannot be said to act in bad faith. In this case, the plaintiff lived in Rhode Island, and sold the tickets there, agreeably to the law of that state. He knew the tickets were to be sold here, but it does not. appear he knew such a sale was illegal here ; and he cannot be presumed to know the prohibitory laws of another government, on a subject not immoral in its nature. He was guilty, then, of no turpitude, and so not within the principle. Again, this defence is founded in the principle “ in pari delicto potior est conditio defendentis. But are the present parties in pari delicto, the defendant knowingly breaking our laws, the plaintiff acting in good faith, not knowing any law was to be broken ? Again, the plaintiff made a sale, legal where made, and he did nothing to violate our law; for the sending or bringing these tickets in this state was no breach of the statute. In the case of Iiolman v. Johnson, Cowper, 341-, it was holden that a sale of goods, even with a knowledge that they were about to be smuggled, that is, that the law was to be violated in a foreign country, was legal. Most clearly then, a sale, without a knowledge that the law was to be violated, must be valid.

Judgment of the county court reversed.