Sec 343

It has already been incidentally observed that mere knowledge of the illegality of the object to which money or supplies are to be appropriated does not necessarily vitiate the contract. It is true that an eminent English judge has declared it to he "settled law, that any person who contributes to the performance of an illegal act by supplying a thing with the knowledge that it is going to be used for that purpose, cannot recover the price of the thing so supplied."1 But this must be taken with some limitations. To furnish ammunition to a belligerent in violation of a neutrality statute is unquestionably illegal when the ammunition is directly forwarded to the belligerent; but the mere fact that a manufacturer of firearms knowsthat his fire-arms are likely to be used for bellige-rent purposes does not make it illegal for him to put them on the market.2 It may be, also, that an importer of alcohol knows that a large proportion of alcohol sold by him will be illegally peddled; but this will not vitiate sales he may make to intermediate dealers. To annul a contract which promotes an illegal object, not only must there be knowledge that the object is illegal, but there must be complicity in the performance of an illegal act.3 - It has been also said that " the agreement is void not merely if the unlawful use of the subject-matter is part of the bargain, but if the intention of the one party so to use it is known to the other at the time of the agreement."4 It may be that a knowledge of the intention of the party supplied to use the supplies illegally is essential to put the party supplying in the position of a particeps criminis. But the mere knowledge of such intention will not by itself suffice for this purpose. The unlawful intention must have been in some sense executed.1 Cogitationis poenam nemo pa-titur.2 There must be a union of purposes between the party supplying and the party supplied in order to infect the former with the latter's criminality. A money-lender may know that the person to whom he lends money intends to spend this money in gambling or in the purchase of illegal stimulants;-but this will not prohibit his recovery in a suit on the loan. A capitalist may know that it is the intention of a foreign government with whom he is negotiating a loan to apply the money borrowed to belligerent purposes; but this knowledge, if war has not yet broken out, does not infect the lender with complicity. The lender of money on a mortgage on a store is not precluded from recovering it by the fact that he knows the mortgagor intends to open gambling tables, or to store prohibited drugs on the premises. It is not enough, therefore, in order to establish such complicity as defeats a right to recover in such cases, that the party supplying the goods or money knows that the party supplied intends to use them for an illegal purpose. There must be a combination between them to effect such purpose.3 A fortiori, there may be a recovery when the vendor did not know of the illegal purpose.4 - It is submitted with much deference that the later English cases are not so inconsistent with the earlier as is supposed by both Mr. Pollock and Mr. Benjamin.1 "The merely selling goods," said Sir J. Mansfield, in 1813, adhering to the earlier rule, "knowing that the buyer will make an illegal use of them, is not sufficient to deprive the vendor of his just use of payment, but to effect that, it is necessary that the vendor should be a sharer in the illegal transaction."2 - So far as concerns the italicized condition, if "sharer" means "continuing partner," this is no longer the law.3 But in spite of the breadth of expression with which this point has been ruled in the later cases, it can hardly be supposed that it is intended to affix the stigma of illegality to all sales of articles where the vendor, at the time of sale, knew that the vendee intended to put the article purchased to an illegal use. In the first place, knowledge of this kind is always a matter of inference; and unless there be complicity in the illegal transaction, such knowledge, in sales of articles partially prohibited, does not usually impress the party to whom it may occur. If I am prohibited from selling a particular article, then the sale is illegal; but if I am not so prohibited, then the knowledge that a purchaser will violate the law with the article does not make me a party to his conduct unless I combine with him for the purpose. Of course, combination may be inferred when his intention to break the law is known to me, and I give the article to him for this purpose. But knowledge that such an illegal use of the article is probable does not make me a confederate. The illegality rests in such case not on the knowledge, but on the confederacy.4 If mere knowledge, also, more or less imperfect, of probable future.illegal use, invalidates a sale, neither powder, nor fire-arms, nor poison could be sold in bulk.5 No doubt some part of the aggregate of a large sale will be illegally used; and this will vitiate the whole. And a borrower could repudiate all loans whenever he could show that his creditor knew he would be likely to use part of the money in illegally buying liquor, or in other illicit indulgence.1

Mere knowledge that supply goes to illegal purpose does not preclude recovery.

1 Pollock, C. B,, Pearce v. Brooks, L. R. 1 Ex. 213.

2 Infra, sec 479; Wh, Cr. L. 8th ed. sec 154-5, 168.

3 Waugh v. Morris, L. R, 8 Q. B. 202; Feret v. Hill, 15 C. B. 207; Barnard v. Field, 46 Me. 526; Savage v. Mallory, 4 Allen, 492; Adams v. Couil-Jard, 102 Mass. 167; Frank v. O'Neil,.

125 Mass. 473; Whitlock v. Workmen, 15 Iowa, 351; Lewis v. Alexander, 51 Tex. 578.

4 Wald's Pollock, 320, citing Cannan v. Bryce, 2 B. & Ald. 179; Cutler Welsh, 43 N. H. 497; White v. Buss, 3Cush. 443; Ruckman v. Bryan, 3 De-nio, 340; Critcher v. Holloway, 64 N. C. 526, and other cases.

1 Infra, sec 354-5.

2 L. 18 D. de poenas, 48, 13, 2.

3 Wh. Cr. L. sec 225 et seq.; Holman v. Johnson, 1 Cowp. 341; Waymell v. Reed, 5 T. R. 599; Pellecat v. Angell, 2 C. M. & R. 311; Armstrong v. Toler, 11 Wheat. 279; Planters' Bk. v. Union Bk., 16 Wall. 483; McBlair v. Gibbes, 17 How. (U. S.) 236; Brooks v. Martin, 2 Wall. 90; Hill v. Spear, 50 N. H. 253; Aiken v. Blaisdell, 41 Vt. 658; Foster v. Thurston, 11 Cush.322; Mcln-tyre v. Parks, 3 Met. 207; Lestapies v. Ingraham, 5 Barr, 71; Thomas v. Brady, 10 Barr, 164; Powell v. Smith, 66 N. C. 401; Walker v. Jefferies, 45 Miss. 160; Brunswick v. Vallean, 50 Iowa, 120; Williams v. Carr, 80.

N. C. 294; Wallace v. Lark, 12 S. C. 576; McGavock v. Puryear, 6 Cold. 34; Henderson v. Waggoner, 2 Lea, 133; Kottwitz v. Alexander, 34 Tex. 689; Lewis v. Alexander, 51 Tex. 578. That a loan is subject to the same rule, see supra, sec 341; Oxford Iron Co. v. Spradley, 46 Ala. 99; Michael v. Bacon, 49 Mo. 343.

4 Prescott v. Norris, 32 N. H. 101. Where a contract, not in itself immoral, is prohibited by statute, so far as concerns one of the parties only, the other party may recover back from the party so prohibited any money paid under such a contract. Walan v. Kerby, 99 Mass. 1; Schermerhorn v. Talman, 4 Kern. 93.

1 Sales, 3d Am. ed. sec 507. 2 Hodgson v. Semple, 5 Taunt. 181. 3 Langton v. Hughes, 1 M. & S. 593; Cannan v. Bryce, 3 B. & A. 179; Pearce v. Brooks, L. R. 1 Ex. 213; Taylor v. Chester, L. R. 4 Q. B. 309.

4 See Hill v. Spear, 50 N. H. 283; Gaylord v. Soragen, 32 Vt. 110.

5 See infra, sec 446.