
    Isaac Wheeler versus John Russell.
    No action lies on a promissory note, the consideration whereof was the sale ol shingles not of the size prescribed by Stat. 1783, c. 15.
    Assumpsit upon a promissory note, dated 13th June, 1816, foi 381 dollars, 6 cents, payable by the defendant to the plaintiff on demand; and a count for money had and received. Trial on the general issue, before Putnam, J., May term, 1820.
    It was in evidence that the consideration of the note was a quantity of shingles sold by the plaintiff to the defendant, which were not of the quality required by the statute of 1783, c. 15. The question of law, arising out of this fact, was reserved for the consideration of the whole Court; it having been proved that the bill of parcels of the shingles, and the promissory note given in payment for them, were both made at Northampton; that shingles are never surveyed when sold in that town; that the shingles in this case were worth about two dollars and a half the thousand, while the best were worth four dollars.
    Besides the ground of defence above stated, it was endeavored to prove fraud in the sale, and a warranty by the plain- [ * 259 ] tiff, and also that the contract had been rescinded. * The evidence on these points was left to the jury; and they by finding a verdict for the plaintiff upon the note, decided that there was no fraud nor warranty, and that the contract had not been rescinded.
    If by law the plaintiff was entitled to recover, judgment was to be entered upon the verdict; otherwise the verdict was to be set aside, and the plaintiff to become nonsuit.
    The arguments of the counsel, on the point saved at the trial, were submitted to the Court in writing.
    
      L. Strong, for the defendant.
    By the 3d and 4th sections of the statute of 1783, c. 15, the sale of shingles, either not of the statute dimensions, or, if not surveyed, of whatever dimensions, is expressly prohibited, and, in each case, under the penalty of forfeiture ; and by the 5th section, both seller and buyer are made liable to a pecuniary penalty, if sold without being surveyed.
    The shingles, for which the note in the case at bar was given, neither had been surveyed, nor were of the statute dimensions; and the consideration of the note, therefore, being a sale prohibited by law, the note itself, as between the immediate parties to it, is illegal and void.
    The general rule seems to be this, that where the undertaking, upon which the plaintiff relies, was either upon an unlawful consid eration, or to do an unlawful act, the contract is void; and this whether the contract be illegal, as being against the rules of the common law, or the express provisions or general policy of any particular statute . The party claiming under such a contract is not to be assisted, since the law will never lend its aid to enforce a contract which the law has forbidden.
    Thus, as to contracts illegal at the common law, where two boxed for a wager, on assumpsit by the winner, it was held that the action could not be maintained . So a sale of the command of a ship employed in the E. J. Company’s * service being [ * 260 ] illegal, it was held that no action could be maintained on the contract of sale. Lord Kenyon. “ A plaintiff, who comes into a court of justice to enforce a contract, must come on legal grounds; and if he have not a legal title, he cannot succeed, whatever the private wishes of the court may be.” Ashurst, J. “ It is a clear rule of law, that no right of action can spring out of an illegal contract” . So where, to induce A to resign an'office, B agreed, if he succeeded him, to pay him a part of the profits, no action could be maintained upon the agreement. Lord Lough-
      
      borough. “ This agreement, resting on private contract and honor, may, perhaps, be fit to be executed by the parties, but can only be enforced by considerations which apply to their feelings, and is not the subject of an action. The law encourages no man to be unfaithful to his promise ; but legal obligations are, from their nature, more circumscribed than moral duties ” .
    So as to contracts illegal by the express provisions or general policy of statutes.
    
    Thus an inhabitant of Guernsey cannot recover the price of goods sold by him there, if he knew it to be the buyer’s intention to smuggle them into England, and gave him assistance for that purpose. Grose, J. “ If a Guernsey man collude with a person living here, to defeat the laws of this country, he shall not call in aid the laws of this country ” . So where A and B are engaged in a partnership for insuring ships, &c., contrary to St at. 6 Geo. I., A cannot maintain an action against B to recover a share of the money which has been paid by A for losses, the money not having been paid at the request of B. Brooke, J. “ I agree that if the contract be illegal, no action can arise out of it” . So where a bill had been drawn by Wilson, a broker, for differences paid by him for the defendant on certain stockjobbing transactions, and was accepted by him; but the plaintiff, the holder, being acquainted with the facts, it was held that he was not entitled [ * 261 ] * to recover . It being contrary to Stat. 7 8 W. III. for a candidate to furnish provisions to any voters after the teste of the writ, an innkeeper cannot recover against a candidate for provisions so furnished at his request. Eyre, J. “How shall an action be maintained on that which is a direct violation of a public law ? ”  No action can be maintained for the breach of an agreement to dance at the king’s theatre in the Haymarket, no license having been given for that purpose by the lord chancellor; and a statute of Geo. II. having prohibited any acting, &c., or other entertainment of the stage, without such license . B, being employed by A to purchase for him certain shares in an unincorporated company, charged and received from him £25 more than the market price ; held that an action would not lie to recover back that sum, the company being within 6 Geo. L, and the parties in pari delicto 
      . So the 17 Geo. III. having enacted that all bricks made for sale should be of certain dimensions, and giving a penalty on conviction, it was held that if bricks be sold and delivered under the statute size, the seller cannot recover their value . So where an order of council, issued under the authority of an act of parliament, prohibited the exportation of naval stores, under the pain of forfeiting the goods, and treble their value, it was held that an insurance in one policy of goods to the amount of £10,000, comprising naval stores of the value only of £600, was illegal and wholly void, although no fraud or unfairness was imputed to the plaintiff . By St at. 42, Geo. III., brewers are prohibited from using any thing but malt and hops in the brewing of beer; and it was, therefore, adjudged that the plaintiff, a druggist, could not recover the price of certain drugs sold to the defendant, a brewer, knowing that they were to be used in the brewery. Lord Ellenborough. “ It may be taken as a received rule, that what is done in contravention of the provisions of an act of parliament, cannot be made the subject matter of an action.” Le Blanc, J. “ It is an established principle, that the court * will not lend its aid in order to enforce [ * 262 ] a contract entered into with a view of carrying into effect anything which is prohibited by law” . So in this country, in an action against a part owner and master, for the proceeds of a slave-trading voyage, it was held that, the voyage being illegal, the plaintiff could not recover . So a state having prohibited any banking company loaning or negotiating any notes of banking companies not incorporated by this commonwealth, under a penalty of 1000 dollars, it was held that a note payable in such notes was illegal and void . So in New York, no action can be maintained on a contract made for the sale of tickets, in a lottery not authorized by the legislature of that state. Thomson, J. “No case, I believe, can be found, where an action has been sustained, which goes in affirmance of an illegal contract, and where the object of it is to enforce the performance of an engagement prohibited by law” . So in Pennsylvania, a contract for the sale of lands in that state under the Connecticut title was adjudged to be unlawful and void, although the act neither expressly made it so, nor contained any prohibitory clause, but merely inflicted a penalty upon the offender .
    
      In Bartlett vs. Vinor, Holt, C. J., says, “ Every contract made for or about any matter or thing, which is prohibited and made unlawful by any statute, is a void contract; although 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, although there are no prohibiting words in the statute ” .
    In Holman vs. Johnson 
      , Lord Mansfield said, “No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. If, from the plaintiff’s own showing, or otherwise, the cause of action appears to arise ex turpi causa, or the transgression of a positive law, there the court says he has no right to be assisted.” And again in Lowry vs. Bordieu 
      , “This is a gaming policy, and against an act of parliament; [ * 263 ] *and, therefore, it is clear that the court will not interfere, to assist either party; according to the well-known rule, that in pari delecto, &c. Not that the defendant’s right is better than that of the plaintiff, but they must draw their remedy from pure fountains.” So also in Morck vs. Abel 
      , Lord Alvanley said, “ The principle which, I think, must now be extracted from all the cases, is, that no man can come into a British court of justice, to seek the assistance of the law, who founds his claim upon a contravention of the British laws.” In Russell vs. De Grand 
      , the present chief justice said, “ The rule of law is of universal operation, that none shall, by the aid of a court of justice, obtain the fruits of an unlawful bargain.” And in Shiffner vs. Gordon 
       Lord Ellenborough seems to have given the substance of all the cases, when he said, “It is a settled rule, that where a contract, which is illegal, remains to be executed, the court will not assist either party, in an action to recover for the non-execution of it.”
    In the foregoing cases, no distinction is taken between a contract malum in se, and one malum prohibitum; and such a distinction can only arise in cases where the action is in disaffirmance of the contract. There, if the contract be malum prohibitum merely, and the wager has not been decided  ; or has not been paid by the stakeholder to the winner ; or the voyage, upon which an insurance has been effected, has not been completed ; either party in the case of wagers may disaffirm the contract, and recover the money he has paid ; and in the last case, the insured is entitled to recover back the premium, in an action against the underwriter. But if, after the determination of the wager, the money has been paid over to the winner ; or if, after the payment of the premium, the ship has arrived safely ; neither the wager in the one case, nor the premium in the other, can be recovered back. If, however, the contract be immoral, or malum m se, perhaps no action will lie, even in disaffirmance of it . * As [ * 264 J it respects actions in affirmance of illegal contracts, no such distinction has ever been recognized.
    Ilowe, for the plaintiff.
    The object of the legislature in passing the statute, upon which the defendant relies, to avoid his promise, was threefold. 1st. To define or describe what should constitute merchantable lumber, so as to prevent any difficulty which might arise in construing contracts upon the subject. 2dly. To furnish to the purchaser a perfect security against any fraud, by empowering him to procure the articles offered for sale to be surveyed by a person under oath. 3dly. But the principal object of the statute was, to protect the reputation of the state, by preventing the exportation of poor or refuse lumber. This object is most explicitly exposed in the preamble to the additional act, made to supply the deficiencies in the first; and in which no notice is taken of any other shingles than those intended for exportation .
    The last object is the only one which can be said to be founded ,n principles of public policy. There is nothing in the statute which prohibits a dealing in shingles not surveyed, or not conforming to the statute. The contract for the sale might be made before the shingles were manufactured, and they might be afterwards delivered, without ever having been offered for sale; the only thing prohibited in the statute. The plain meaning of the law is, that no shingles shall be offered for sale as merchantable shingles, or in fulfilment of a contract to deliver shingles generally, but of the dimensions prescribed in the statute; and this to prevent any fraud being practised on the buyer. There is no provision in either statute, that contracts in relation to lumber not surveyed shall be void. If they are void, they must be so in the hands of bond fide endorsees, like notes given on a usurious or gaming consideration ; and if a single board, or a solitary package of shingles, formed a part of the consideration of a note ever so large, the whole must be void .
    * This, taken in connection with the fact that shingles [ * 265 ] are never, surveyed in this part of the country, and that they can never be procured here conformable to the statute, wil induce the Court to pause, before they declare void so large a portion of contracts, as must necessarily be affected by supporting the defence in this case.
    We are not disposed to controvert the general rule of law, as stated by the defendant’s counsel, that a contract, entered into for an illegal consideration, or to do an unlawful act, is void. But it is not unlawful to pay money, which is the promise declared on in this case; and the consideration of the promise was the sale and delivery of shingles, equal in value to the money demanded. If this had been a contract for the future delivery of unsurveyed shingles, or if they had been sold for exportation, so as to come within the fifth section of the statute, the reasoning adopted would have been forcible, and the numerous authorities cited in the defence would have been applicable.
    Where the contract is declared void by statute, or is to do a thing directly prohibited under a penalty, or against the policy of the law generally, the case is plain. So where the consideration arises out of, or is indirectly connected with, the violation of some great principle of public policy, the contract is, in many cases, void. But where the consideration arises out of, or is remotely connected with, what is merely malum, prohibitum, the contract is not necessa- ' rily void.
    This provision of the statute was intended to secure an advantage to the purchaser, which he may waive or insist upon at his pleasure. The shingles, in this case, were made in another state, and the place where they were offered was, in the language of the fourth section of the statute, “ the first place of sale.” It does not appear that they were ever offered for sale. It is not required that they shall be surveyed, &c., before a sale is made, but “ before their delivery they shall be viewed, surveyed, and measured.” [ * 266 ] This is to be done at the expense of the * buyer, and is for his benefit alone; and shall his omission be urged by him as a reason for not fulfilling his agreement ? This note was actually given before the delivery, and for all that appears in the case, it was made in contemplation that a survey should be had. The note, when given, was then valid; and nothing afterwards done or omitted by the defendant can render it void.
    Statutes prohibiting the sale of articles, unless of a particular description or in a particular manner, under a penalty, are frequent, both in England and in this commonwealth, such as St at. 13 Rich. II., c. 9.—15 Rich. II., c. 4, and our own statute of 1799, <. 60; yet no case is to be found, either in the English books or our own, where, in an action to recover the price of goods sold, the defence that they were sold in a manner prohibited by statute was resorted to.
    
      In Hockins vs. Cooke 
      , the contract declared on was a contract to sell a certain quantity of oats, without specifying by what measure. The contract proved was to sell by a measure not conformable to the statute, and expressly prohibited under a penalty. The court held that where a measure was spoken of in the declaration, without any particular qualification, it must be taken to mean statute measure; that the contract proved was different from that declared on; and that the variance was fatal. There is not the slightest intimation that the contract proved was void, as being contrary to law; or that there would have been any difficulty in recovering, if the contract had been duly set forth in the declaration.
    By Stat. 29 Geo. III., c. 68, <§> 70, every person dealing in tobacco is required to be duly licensed; and any sale of spirituous liquors without being duly licensed, exposes a man to a penalty. Yet no case is recollected where this ground of defence was assumed; and, in Johnson vs. Hudson 
      , it was expressly decided that the plaintiff’s not being licensed as a dealer in tobacco, furnished no ground of defence to an action brought to recover the value of the tobacco thus sold by him; there being, as the * court [ * 267 ] say, no fraud upon the revenue law, and, at most, a breach of revenue regulations protected by a penalty.
    In Comyns vs. Boyer 
       it was ruled that a fair holden on Sunday was well enough; for although by Stat. 27 Hen. VI., c. 25, there is a penalty upon the party that sells on that day, it does not make the sale void.
    By Stat. 3 Hen. VIII., c. 11, § 1, no one within the city of London, or seven miles around, is allowed to act as surgeon without being examined, &c., under a penalty of £5 per month. Yet, in Gremore vs. Le Clerc Bois Valon 
      , it was held that a person might maintain an action for services done as a surgeon within those limits, the statute containing no prohibitory clause.
    So our own statute, for the due observance of the Lord’s day, prohibits all secular business under a penalty. Yet, in Geer vs. Putnam 
      , it was decided, that a contract, entered into on that day, was not, for that reason, void.
    The contract, then, is not one declared to be void by any statute, nor prohibited by any statute under a penalty. Nor did the consideration arise out of the violation of any principle of public policy, either at common law, or by statute; the provisions of the statute, in this respect, not being founded in public policy. Nor does it even arise directly from any act prohibited by the statute; for it is the offering for sale, not the sale itself, which is prohibited. And as >t is perfectly clear, that the penalty may be incurred without an actual sale made, so it is apprehended that a sale does not necessarily imply a violation of the statute, since one can be made without incurring a penalty. It is not true that, in all cases where a statute imposes a penalty upon the doing of an act, that every contract, relative to the subject of it, is void, although the parties may be subject to a penalty.
    In the case of Webb vs. Bishop, cited for the defendant, the consideration was itself a breach of the peace. In Shirley vs. Sankey, the court rested their opinion upon the previous [ * 268 ] decision in Atherford vs. Beard 
      , which was *an action to recover a wager upon the amount of certain duties, and, in that case, as was remarked by Buller, J., in Good vs. Elliot 
      , the principle was established, that, if an action may lead to improper inquiries, it may be stopped in limine. The case at bar has no resemblance to this. Blackford vs. Preston arose out of a fraud practised upon a third person, viz. the East India Company. Garforth vs. Fearon, and Parsons vs. Thompson, are both cases respecting the sale of offices, which is not only expressly prohibited by statute, but all contracts, in relation thereto, are declared absolutely void. In Crisp vs. Churchill, and Bowry vs. Bennet, the consideration was founded in immorality ; between which and the case at bar, there is a wide difference. Clugas vs. P.enaluna, and WaymeTl vs. Reed, arose out of a violation of the revenue laws—a subject the most sacred, except questions affecting the royal prerogative. Such laws are founded in great principles of public policy, and the community has a deep interest in their strict observance. In Mitchell vs. Cockburn, the plaintiff was nonsuited, because the transaction, out of which the contract directly arose, was a fraud upon xthe two incorporated companies, "and a violation of the contract made with them by the government, upon a valid consideration, that they should enjoy the exclusive right of insuring, except by individuals.
    In Steers vs. Lashly, although the action was upon a bill, the court considered it as standing upon the same ground as if no bill had been given. It was then substantially an action, brought for the non-payment of a sum of money, which the legislature had prohibited the payment of, under a penalty. But in the case at bar there is no such prohibition. That, too, was a stockjobbing contract; which, if not absolutely malum in se, is spoken of in the statute as “ an infamous practice,” and is always regarded by the courts as deeply affecting the welfare of the state.
    * But, in Faikney vs. Renous & Al. 
      , the plaintiff [ * 269 ] was allowed to recover, although the consideration arose out of a transaction prohibited by statute, the action not being brought for what the statute had prohibited, and the act prohibited not being malum in se, but malum prohibitum. Ribbans vs. Cricket grew out of a transaction which the statute considers bribery; an of fence not only malum in se, but most deeply affecting the policy of the government. In Gallini vs. Laborie, the action was for not doing the very thing prohibited, that is, made unlawful by the statute. But, in that case, it is said that an action had been brought against the plaintiff by persons who had entered into the contract sued in the principal case, to recover their salaries, and the objection was not allowed to prevail. If it be said that it was because it was the plaintiff’s duty to procure a license, we say, in the case at bar, it was the defendant’s duty to cause the shingles to be surveyed, the statute having provided that it should be done at his expense.
    The act prohibited by the statute in Buck vs. Buck is declared in the statute itself to be “ a common nuisance,” and “ to manifestly tend to the common grievance, prejudice, and inconvenience of great numbers of subjects.” And further, the statute provides, “that all matters and things whatsoever, for furthering, countenancing, or proceeding in any such undertaking, shall be deemed illegal and void.” So that the very act, upon which the action was founded, might be fairly considered as within the direct prohibitions in the act, it being to recover an excess of premium paid upon the transfer of shares in an unincorporated company .
    In Law vs. Hodson, the making of such bricks as had been sold, is prohibited; and the action was by the maker, to recover the price of them. The statute recites, “that great inconveniences had arisen to the public by frauds committed in lessening the size of bricks,” &c., “ and for the common good and benefit of the subject, * enacts,” &c. Lord Ellenborough says, [*270] “ This was a fraud upon the buyer, whom the legislature meant to protect. He gave credit to the maker at the time that the bricks were of the statutable size, and they turned out to be under that size.” Le Blanc, J., says, “It did not appear that the defendant bought the bricks knowing them to be under size.” And, in Langton vs. Hughes, Lord Ellenborough says the object of this statute was “ for the convenience of building, and, perhaps, for the safety of the revenue.”
    
      In the case at bar, the plaintiff did not make the shingles, and it does not appear that he ever offered them for sale, unless that is implied in his having sold them. The jury have found there was no fraud; and it appears that the defendant knew the shingles were not statutable; and, from their wanting the surveyor’s mark, he knew they had not been surveyed. Indeed, from the manner in which they were brought into the state, he knew they had never been in any town, so that they could be surveyed. If, in Law vs. Hodson, the selling of bricks amounted to a representation on the part of the maker, that the bricks were statutable (and, if he did not give notice to the contrary, this would be a fair inference), and he knew this representation to be false, the sale was a void one upon common law principles. If the ground contended for m this case had been tenable, the court would never have relied upon the fraud, or the other circumstances mentioned by them; and their deciding.it upon these principles implies that the distinction taken in this case is correct.
    In Parkin vs. Dick, the contract related to the exportation of naval stores in a time of war, involving, as the case might be, the very existence of the state; and may be considered no longer as malum prohibitum, but malum in se. It was an insurance upon an illegal voyage. The ship was liable to forfeiture, and this was, in effect, an agreement to indemnify a party against the [*271 ] consequences *of an illegal act, to be done by him thereafter. The same remark applies to the case of Langton vs. Hughes more strongly. Upon the same principle, a promise to indemnify a sheriff for a voluntary escape is void, as against the policy of the law, if made before the escape  ; although a promise to indemnify a sheriff for a voluntary escape, already made, has been held valid .
    In Fales vs. Mayberry, the contract arose out of a traffic of a most detestable character; and the sum sued for was one, the payment of which is expressly prohibited by the statute.
    In the case of the Springfield Bank vs. Merrick, the note sued was “payable in facilities.” “By the statute of 1809, c. 8, it was made unlawful for any bank,” says the chief justice, “ to loan, negotiate, receive in payment, or otherwise deal in the bank-bills of other states.” This action was brought, then, for not doing what the law had expressly prohibited. If the note was void merely because the consideration was facilities, it could make no difference in what it was made payable. Yet this was the point most labored in the argument, and was made the principal, if not the sole foundation for the opinion of the court. That statute also, being intended to regulate the circulating medium of the country, may well be considered as founded in public policy ; and the heavy penalty imposed upon its transgression shows that the legislature considered it of great political importance. Besides, if the note in that case was void, because given in consideration of having received facilities, it was because the plaintiffs had been guilty of a direct violation of the law, in negotiating those facilities, and had thus rendered themselves amenable to its penalties.
    In Holman vs. Johnson, the defence set up was, that the contract was entered into with a view to a future violation of the law ; and the remarks of Lord Mansfield were made with reference to the case under consideration. Those quoted in the defence cannot be true to the extent contended *for; as the [*272] validity of a promise to indemnify a sheriff for an illegal act already committed shows. So a promise in consideration of past cohabitation is good ; and yet it arises “ ex turpi causa,” and “ the cause of action is founded upon an immoral and illegal act.”
    The statute referred to in Hunt vs. Knickerbacker declares the sale of such tickets to be “ a public nuisance.” Besides, the action was brought upon a promise to sell the tickets, which the act had prohibited. It was brought for not doing what the statute had declared to be illegal. “ The action,” says Thompson, J., “ is founded upon the contract, and goes in affirmance of it, and is not brought to recover back the tickets, or the money actually received on the sale of them.” The case at bar does not go in affirmance of an illegal contract, nor is its object to enforce the performance of an engagement prohibited by law, as is said in the defence.
    The case of Mitchell vs. Smith arose out of a transaction of great public interest in the opinion of the court; affecting the very existence of the government: and one of the judges says, he should not hesitate to consider the contract illegal, if no statute had been made upon the subject. In another report of the case , Smith, J., says, “ Case's may occur, in which the legislature may inflict a penalty, or, in other words, lay a duty on contracts between individ uals, of a nature affecting only themselves, and having no influence on the public welfare. Such contracts may be entered into without a breach of moral or political duty; and if so, they ought to be enforced, if the party claiming the benefit of them pays the duty or penalty, or becomes liable to pay them; this being, in fact, matter of contract between such parties and the legislature. Is the contract in question of this nature ? If it be, it is our duty to carry it into execution.” And in the close of his opinion he says, “ I am of opinion, therefore, that this contract is repugnant to the welfare of the state, to sound policy, and that neither [ * 273 ] * party can resort to the laws of the state to assist him in carrying it into execution.”
    The dictum of Lord Holt, in the case of Bartlett vs. Vinor, was plainly intended to be restricted to cases involving some principle of public policy or morality. Immediately following the words quoted are the following: “ As for instance, in the case of simony, the statute only inflicts a penalty by way of forfeiture, but doth not mention any avoiding of the simoniacal contract. Yet it hath always been held that such contracts, being against law, are bad.” It is said by Lord Colee, that simony is a crime “ alike detestable to God and man.” The act prohibiting it is most clearly founded on principles of public policy ; and if there were no statute on the subject, a con tract involving it would be void, as founded on an immoral con sideration.
    In Lowry vs. Bordieu, and Morck vs. Abel, it was merely decided that, where money had been paid upon a contract which might have been avoided at law, but where the party receiving it was entitled in good conscience to retain it, it should not be recovered back in an action for money had and received.
    In Russell vs. De Grand, the point decided was, that a premium upon a void policy could not be recovered; and this would have been equally true, if the policy had been insufficient or defective in any other way, as well as if it had been illegal. It formed no consideration for the note. Shiffner vs. Gordon was precisely the same point. It was an action for premiums of insurance. “ The underwriters upon the policy,” said Lord Ellenborough, “ never ran any risk; and therefore there is no pretence to say the plaintiffs can recover premiums for it.”
    All the cases cited for the defendant have now been examined. We may fairly lay out of the question all the cases arising upon contracts declared void by statute; all actions brought upon contracts to do what a statute has prohibited; all contracts entered [ * 274 ] into with a view to a * future violation of the law; and all actions founded in fraud, or originating in a violation of the principles of morality or public policy. The case at bar is neither of these. If, by the sale of the shingles in this case, the statute was violated, and the penalty provided in the statute was incurred, still, the statute not being founded in principles of public policy, but intended only to secure an advantage to the purchaser, which he might waive at his pleasure, this contract is not therefore void
    
      If the defence succeeds in this case, it must be upon the ground that when the note was given, there had been such a violation of the law, as to incur the penalty therein provided. Would the facts disclosed subject the plaintiff to the penalty ?
    The third section of the first statute upon this subject provides, that no shingles shall he offered for sale in any town in this commonwealth, that shall be under certain dimensions, upon penalty of forfeiting the shingles ; those that are not of proper size to be burnt, and the residue to be sold, and the money paid into the hands of the town treasurer, for the benefit of the poor of the town. In a prosecution for the penalty in this case, in whatever way pursued, it would be necessary to state that the shingles were offered for sale. There is no evidence of this fact in the case at bar, unless it can he implied from the sale itself. There might be such an offer to sell, as would incur the forfeiture, and yet no sale be made; and we think a sale might be made, without there being any such offer to sell, as would incur the penalty. At any rate, the offer to sell must precede the sale, and is a distinct and separate act. The sale might follow, or might not. Why, then, should the previous com mission of the offence, by which the penalty is incurred, vitiate the subsequent sale, any more than if the plaintiff had been guilty of violating the revenue laws, by smuggling the goods into the country, and had afterwards sold them to the defendant at a fail-price? In such a case the goods might perhaps * continue [ * 275 ] subject to forfeiture, but the sale would be a good one.
    If it be said that the object of the statute should be attended to, and that this was wholly to prevent the sale of such shingles, we think the object ought to be looked to a little further. It was to prevent & fraud upon fhe buyer, by offering and selling such shingles as and for good and merchantable shingles, he not knowing that they were other than statutable shingles. As in Lee vs. Dodson, the plaintiff practised a fraud, say the court, upon the defendant by selling the bricks as statutable bricks; and the circumstance is much relied on, that it did not appear that the buyer knew the bricks were not conformable to the statute. But in our case, it abundantly appears that no fraud was practised, that the defendant knew the shingles were not statutable, and did not pay so great a price as such shingles would command.
    The statute prohibits the offering for sale in any town. The penalty is to be paid to a town officer, and for the poor of a town. It would be necessary therefore, in a prosecution for this penalty, to allege that the offer was made in a town, and in what town; so that it might appear how the penalty was to be appropriated. Alleging the sale to have been in a particular town would not be enough; for the offer to sell might be made in one town, and the sale in another. There is nothing in the case to show, with certainty, that an offer to sell was ever made in any town ; and in point of fact, the shingles never were brought by the plaintiff within the limits of any town, until after they were sold, and the note was given.
    The provisions of the fourth section are somewnat different, and apply, as it is conceived, solely to shingles intended for exportation. But if not, what are the provisions ? That shingles made in any town, or when made elsewhere and brought into any town for sale, shall be surveyed by a sworn surveyor, and the town brand set upon the hoop of the bundles, upon pain of forfeiting the [ * 276 ] shingles, *in the same manner as is provided in the third section. In this section, the penalty is incurred, not by selling, but by offering to sell; and the price of surveying is to be paid by the purchaser. The provisions of this section appear somewhat inconsistent, and cannot be rationally understood but by supposing that the legislature intended to provide differently for shingles made in any town, and those made abroad and brought in for sale. In the first case, they are to be surveyed at the place of manufacture, and before a purchaser is found, and of course at the peril and expense of the maker. In the second case, they are to be surveyed when sold, at the peril and expense of the purchaser; so as to prevent any sales, among the citizens of the state, of unsurveyed shingles, and at the same time not discourage importation from abroad. At any rate, it is necessary that they be brought into some town for sale, before the statute requires them to be surveyed. For this must be done by a sworn surveyor, whose power is confined to the limits of the town ; and the town brand is to be set upon the hoop of the bundle. The penalties are appropriated as in the third section.
    If, then, any penalty can be incurred, by a person bringing shingles from abroad, under this section, it is by not applying to the town surveyor to have them surveyed, when he intends to offer them foi sale in any town. He might have them in twenty towns, if he did not intend to sell them, without any risk. But when he intends to sell, he must then apply to the town surveyor. This he cannot do, but where there is such a surveyor, and only in a town, to the use of which the penalty is to be applied. Does it then appear in the case at bar, that the shingles were ever brought into any town, so that they could have been surveyed; and that they were afterwards offered for sale in any town, so as to incur the penalty ? Nothing is to be left to inference in such a case as this. I * 277 ] Penal statutes ate to be construed strictly ; and * before a party is made to suffer under them, it must most clearly appear that he has been guilty of a violation of their requirements.
    The plaintiff in this case was an inhabitant of the state of New Hampshire. The shingles were made in that state, and were transported by him down the Connecticut river, and were never brought within any town in this commonwealth. The defendant, a citizen of the commonwealth, meets him on this common highway, out of any town, contracts for the shingles, and gives his note for them; and they are afterwards delivered to him at Northampton, on the bank of the river. The sale was completed upon the river, and before the shingles had been brought into the place where the selling, or offering them for sale, is prohibited. “In certo loco merces quísdam prohibits sunt. Si vendantur ibi, contractus est nullus. Verum, si mens eadem alibi sit vendita, ubi non erat inter-dicta, emptor condemnabitur, quia contractus inde ab initia validus flit” 
      .
    
      Strong, in reply. Two distinct questions are presented for the consideration of the Court by the case at bar. 1. Whether the sale, upon which the contract now sought to be enforced is founded, was prohibited; and, 2. If so, whether the Court will lend its aid to effectuate a transaction, which the law has forbidden.
    The statute of 1783 provides that no shingles shall be offerea for sale in any town in this commonwealth, except, &c. And it is objected, that an actual sale does not necessarily comprehend an offer to sell.
    
    An examination of the grounds of this provision can be of no importance, except for the purpose of ascertaining the correct construction of the statute. For had it provided that no shingles should be sold, except, &c., whether the law was a weak or a wise one, whether it was designed to correct a public grievance, or manifestly tended to introduce one, would be questions which might well be agitated before the legislature, but could * never be introduced, with propriety, before any court [ * 278 ] of law.
    As to the objection that the sale of the shingles in this case took place upon Connecticut river, and so not within any town, it is sufficient to answer, that every portion of the navigable rivers within this commonwealth is embraced by the jurisdictional limits of some town. But if it were not so, the report, as amended, expressly states that the sale was made at Northampton.
    
    If, then, the sale was prohibited, the only inquiry is, whether the Cou 4 will lend its aid to carry it into effect.
    
      The plaintiff’s counsel does not controvert the general rule of law, yet is evidently embarrassed by admitting it. Thus it is said, “ If this had been a contract for the future delivery of unsurveyed shingles, the reasoning adopted would have been forcible, and the numerous authorities cited in the defence would have been applicable.” But if a contract for the sale and future delivery of unsurveyed shingles would have been illegal and void, as the plaintiff would seem to allow, a past sale and delivery of unsurveyed shingles, constituting the consideration of the present contract, would be equally illegal; and if the rule be true, the contract must be void. In Belding vs. Pitkin 
      , Thompson, J., in delivering the opinion of the court, said, “ It is too salutary and well-settled a principle, to be in any measure infringed, that courts of justice ought not to assist an illegal transaction in any respect. It is a first principle, and not to be touched, that a contract, in order to be binding, must be lawful. Whenever the consideration, which is the ground of the promise, or the promise, which is the effect or consequence of the consideration, is unlawful, the whole contract is void.”
    Again, it is said by the plaintiff’s counsel, that “ where the contract is declared void by statute, or is to do a thing directly prohibited, under a penalty, or against the policy of the law gener- [ * 279 ] ally, the case is plain. So * where the consideration arises out of, or is indirectly connected with, the violation of some great principle of public policy, the contract is in many cases void. But when the consideration arises out of, or is remotely connected with, what is merely malum prohibitum, the contract is not necessarily void.” In other words, where the undertaking is either upon a consideration unlawful at common law, or to do an act unlawful either at common law or by statute, the contract is void; but if the undertaking itself be not prohibited, and the consideration for it is not unlawful at common law, the contract is good. The counsel for the plaintiff, thus understood, while he admits the consideration to be illegal, would nevertheless affirm the contract • thus, in opposition to all the cases, referring to the courts the determination, what illegal contracts shall be avoided, and what other illegal contracts enforced. But courts of justice, it is to be remembered, are but the ministers of the law, and constituted solely for the purpose of enforcing it. They uniformly refuse, therefore, to interfere in such cases, insisting that no man shall be heard who claims the fruits, or seeks the enforcement, of an illegal transaction; whether the illegality complained of results from a breach of the common or statute law, since both are binding, and, in their view, as ministers of the law, are to be equally respected.
    It has been urged that there is a great variety of statutes, as well in England as in this country, under which the same defence as that now attempted might be made, and yet no such defence was ever heard of; while in truth not a single case has been found, in which the principle we contend for has ever seemed to be questioned ; except where the prohibition recognizes the validity of the act, if performed by a qualified person, or in a certain manner.
    
    Thus the statutes of 13 and 15 Rich. II., and that of 1799, on the subject of weights and measures, although * they may prohibit any sale of certain articles, except [ * 280 ] in a particular manner, nevertheless would establish the sale itself, if the manner be right. The same remark may be made with reference to the cases of Hockin vs. Cooke, Johnson vs. Hudson, and Gremore vs. Le Clerc Bois Valon; although in the last case the rule was discharged, because it had not been proved that the plaintiff was not regularly licensed as a member of the college of surgeons, which he might be, although he was a French emigrant priest. In Comyns vs. Boyer, the court ruled that, although the holding of a fair on Sunday would be illegal under the Stat. 27 Hen. VI., the contract of sale would not be void. But in Drury vs. De Fontaine 
      , Mansfield, C. J., after stating the principle thus advanced in Comyns vs. Boyer, proceeds to remark—“ The law has since changed, and if any act is forbidden under a penalty, a contract to do it is now held void.” In Gere vs. Putnam, the grounds of the decision are not stated; but it was absolutely incumbent on the defendant, who would have avoided the note, to show that the making of it was a work neither of necessity nor charity.
    It is further said, that the defendant might have procured a survey, and if he chose to waive a right, which the legislature had provided for his security, he is not now to be protected against the consequences of his own folly. But we reply that, if his attention had been called to the statute, neither the folly, nor even the connivance of the buyer can be any justification of the illegal acts of the seller. The grounds upon which courts have proceeded, in cases where the defendant was particeps criminis, has been, not that he has superior claims, or is entitled to peculiar favor, but that the plaintiff is not entitled to enforce at law a contract which has been prohibited.
    
      Perhaps no case has occurred in which a contract made in violation of this statute has been adjudged void. But this circumstance, although it may suggest, as the plaintiff intimates, [ * 281 ] the necessity of caution, will ultimately have no * influence upon the decision of the Court. If the law is in force, it is alike binding upon suitors and courts, and the consequences of enforcing it are not to be regarded. For although, where the meaning of a statute is doubtful, some regard may be paid to consequences in ascertaining its construction, it is otherwise where the statute is plain ; for that would be assuming a legislative authority .
    In Buck vs. Buck, it was held that no action would lie to recover money, in relation to the transfer of shares in the British Ale Brewery, a company prohibited by Stat. 6 Geo. I., although no proceeding had been had upon that statute for eighty-seven years , and although ninety-nine hundredths of the British people were probably ignorant that such a statute existed.
    
      
      
        Sdwyn’s N. P. 69.—1 Fonb. c. 14, § 4, note 7.—1 Esp. Dig. 88
    
    
      
       1 Esp. Dig. 88, Webb vs. Bishop.
      
    
    
      
       8 D. & E. 89, Blachford vs. Preston.
      
    
    
      
       1 H. Black. 322, Parsons vs. Thompson.—See, also, 2 B. & P. 130, Shirley vs, Sankey.—1 H. Black. 327, Garforth vs. Fearon.—1 B. & P. 340, Crisp vs. Churchill —1 Camp. 348, Bowry vs. Bennet.—1 East, 96, Vandyck vs. Hewitt.
      
    
    
      
       4 D. & E. 466, Clugas vs. Penalum.—S D. & E. 466, Waymell vs. Reed.
    
    
      
       2 H. Black. 37, Mitchell vs. Cockburne.
      
    
    
      
      
        6 D. & E. 61, Steers vs. Lashley.
      
    
    
      
       1 B. & P. 264, Ribbans vs. Cricket.
      
    
    
      
       5 D. & E. 242, Gallini vs. Laborne.—6 D. & E. 286, King vs. Hardy,
      
    
    
      
       1 Campb. 547, Buck vs. Buck.
    
    
      
       11 East, 300, Law vs. Hodson.
      
    
    
      
       11 East, 502, Parkin vs. Dick.
      
    
    
      
       1 Mau. & Selw. 593, Langton vs. Haynes.
      
    
    
      
       2 Gall. 560, Fales vs. Mayberry.
      
    
    
      
       14 Mass. Rep. 322, Springfield, Bank vs. Merrick.
      
    
    
      
       5 Johns. 327, Hunt vs. Knicker backer.
      
    
    
      
       1 Bin. 110, Mitchell vs. Smith.
      
    
    
      
      
        Carth. 252.
    
    
      
      
        Cowp. 343.
    
    
      
      
        Doug. 468.
    
    
      
       3 B.fyP. 35.
    
    
      
       15 Mass. Rep. 39.
    
    
      
       12 East, 304.
    
    
      
      
        2 B. & P. 467, Tappenden vs. Randall.
      
    
    
      
       5 D. & E. 405, Cotton vs. Thurland.
      
    
    
      
      
        Doug. 468, Lowry vs. Bordieu
      
    
    
      
       8 D & E. 575, Howson vs. Hancock.
      
    
    
      
      
        Doug. 468.
    
    
      
       2 B. &. 471.—3 B. & P. 35.
    
    
      
      
        Slot. 1783, c. 54
    
    
      
      
        Cro. Eliz. 199.—3 Taunt. 226, Scott vs. Gilmore.
      
    
    
      
       4 D. fy D. 314.
    
    
      
       11 East, 180.
    
    
      
      
        Cro. Etiz. 485.
    
    
      
       2 Campb. 144.
    
    
      
       10 Mass. Rep. 312.
    
    
      
       2 D.&fE. 610.
    
    
      
       3 D.fyE. 700.
    
    
      
       4 Burr. 2009.
    
    
      
       Vide 9 East, 519, The King vs. Dodd.
      
    
    
      
       4 Mass. Rep. 370, Ayer vs. Hutchinson.
      
    
    
      
       6 Mod. 225, Fox vs. Tilly,—1 Caines, 450, Given vs. Driggs.—14 Johns. 378 Doty vs. Wilson.
      
    
    
      
       4 Yates, 86 '
    
    
      
       3 Huber. 539
    
    
      
       9 Caines, 149.
    
    
      
       1 Taunt. 139.
    
    
      
       10 Mod. 344, The Queen vs. Simpson.
      
    
    
      
       3 Mass. Rep. 539, Gore vs. Brazer.
      
    
    
      
       1 Campbell, 547. -See, also, 9 East, 525.
    
   The Chief Justice observed, that the cause had been so elaborately argued on both sides, and the points and authorities so thoroughly displayed, that it was quite unnecessary for the Court to go into a formal discussion of the case. They were all of opinion that the shingles, for the price of which the note in suit was given, having been sold in direct violation of the statute, the consideration of the promise was clearly illegal, and insufficient to support it. No principle of law, his honor added, is better settled than that no action will lie upon a contract made in violation of a statute, or of a principle of the common law. The authorities cited by the counsel for the defendant to this point, are irresistible. Indeed, the same thing has been frequently ruled by this Court, in cases which cannot be distinguished, in their principles, from that now before the Court ; particularly in the cases of The Springfield Bank vs. Merrick, and Russell vs. Be Grand.

The verdict must be set aside, and the plaintiff may be called.

Plaintiff nonsuit  